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Falls-Bey v. Cook

United States District Court, S.D. Ohio, Eastern Division

February 28, 2018

ROY FALLS-BEY, Plaintiff,
v.
WARDEN BRIAN COOK, et al., Defendants.

          George C. Smith, Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Roy Falls-Bey, a pro se prisoner, brings this action against Warden Brian Cook, the State of Ohio, Deputy Warden Robert England, Investigator Keith Holstein, Iman Sunni Ali Islam, and Officer Andrew Salt. (See Doc. 7). In its January 5, 2018 Report and Recommendation and Order, the Court granted Plaintiff's Motion for Leave to Proceed in forma pauperis, but was unable to conduct an initial screen of the complaint pursuant to 28 U.S.C. § 1915A(a), because Plaintiff's original complaint inappropriately attempted to bring this case as a class action. (Doc. 3). Pursuant to the Court's Orders (Docs. 3, 5, 6), Plaintiff filed a Second Amended Complaint on February 15, 2018. (Doc. 7). Having performed an initial screen of the Second Amended Complaint, and for the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff's claims against the State of Ohio. Moreover, it is RECOMMENDED that Plaintiff be permitted to proceed with his claims against the remaining Defendants.

         I. LEGAL STANDARD

         Because Plaintiff is proceeding in forma pauperis (see Docs. 1, 3), the Court must dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” In reviewing a complaint, the Court must construe it in Plaintiff's favor, accept all well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

         II. DISCUSSION

         Plaintiff has brought suit against the State of Ohio (See Doc. 7 at 1). However, the State of Ohio may be sued in federal court only if it has “consented to such a suit or its immunity has been properly abrogated by Congress.” Latham v. Office of Atty. Gen. of State of Ohio, 395 F.3d 261, 270 (6th Cir. 2005) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). Absent such circumstances, the Eleventh Amendment provides jurisdictional immunity to the State of Ohio, which is “an absolute bar to the imposition of liability upon States and State agencies.” Ganaway v. Ohio, No. 3:12-cv-1448, 2012 U.S. Dist. LEXIS 156064, at *2, 2012 WL 5378730 (S.D. Ohio Oct. 31, 2012) (citing Latham, 395 F.3d at 270). The State of Ohio has not consented to this lawsuit and thus has jurisdictional immunity. Accordingly, it is recommended that the State of Ohio be dismissed from this action.

         As to Plaintiff's claims against the remaining Defendants, the Court concludes that, at this juncture, that the action may proceed.

         III. CONCLUSION

         For the reasons stated, it is RECOMMENDED that Defendant State of Ohio be DISMISSED from this lawsuit. It is further RECOMMENDED that Plaintiff be permitted to proceed on his claims against the remaining Defendants. The Clerk is directed to send a Copy of this Order to the Ohio Attorney General's Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.

         Procedure on Objections

         If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

         The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the District Judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See ...


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