United States District Court, S.D. Ohio, Western Division
TYRONE R. JOHNSON, Plaintiff,
MICHAEL HUMPHREY, et al., Defendants.
ORDER AND SUPPLEMENTAL REPORT AND
Stephanie K. Bowman United States Magistrate Judge
an inmate at the Southern Ohio Correctional Facility (SOCF),
in Lucasville, Ohio, filed a pro se civil rights
complaint under 42 U.S.C. § 1983 against various
corrections officials. On March 30, 2018, the undersigned
issued an Order and Report and Recommendation (Doc. 18),
recommending that plaintiff's new claim set forth in his
supplemental, “amended complaint” (Doc. 13) be
dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B). On April 9, 2018, plaintiff filed
“Objections to Report and Recommendation” (Doc.
20), setting forth new arguments not contained in his
complaint, as amended. This matter has been recommitted to
the undersigned for consideration of the new arguments
contained in plaintiff's Objections. (See Doc.
21). Also before the Court, is plaintiff's second motion
for a temporary restraining order and preliminary injunction.
March 5, 2018, the undersigned issued a Report and
Recommendation (Doc. 7), which was adopted in a Decision and
Entry issued on March 29, 2018 (Doc. 17), to dismiss
plaintiff's complaint, with the exception of
plaintiff's Eighth Amendment individual-capacity
conditions-of-confinement claim asserted against defendant
Lt. Eaches and Eighth Amendment individual-capacity
excessive-force claim asserted against defendants D.
McCroskey, Harold Bell, and Lt. Rodgers. (See Doc.
7, at PageID 101). Plaintiff then filed a motion seeking to
have the United States Marshal Service serve defendants
Eaches, McCroskey, Bell, and Rodgers, which the undersigned
granted on March 26, 2018. (Doc. 14).
meantime, on March 23, 2018, plaintiff filed a motion to
amend his complaint (Doc. 13), which this Court interpreted
as a motion to add a claim to his original complaint
(see Doc. 6), and granted.
accordance with the Prison Litigation Reform Act of 1995
(PLRA) § 804, 28 U.S.C. § 1915(e)(2)(B); §
805, 28 U.S.C. § 1915A(b), the undersigned then sua
sponte reviewed the complaint, as amended, to determine
whether the complaint or any portion of it, should be
dismissed because it is frivolous, malicious, fails to state
a claim upon which relief may be granted or seeks monetary
relief from a defendant who is immune from such relief.
sole, additional claim, read in its entirety as follows:
This officer [Rodney Osbourne] is responsible for assault and
writing a false conduct report October 27, 2017 for resisting
rules infraction 20, 21. A Use of Force and conduct report
was not made known until November 29, 2017 after spending
more then [sic] 30 days in segregation. This officer was
responsible for assault when after Plaintiff, Tyrone Johnson
was attacked, this officer knowingly caused harm and falsely
presented a conduct report in regards to the incident that
resulted assault, false segregation [sic].
(Doc. 13, at PageID 218).
undersigned recommended dismissing the new claim. The
undersigned found that plaintiff's allegation that
defendant Osbourne “is responsible for assault”
was utterly conclusory. (Doc. 18, at PageID 238).
Additionally, the undersigned found that plaintiff had not
stated a constitutional claim to the extent he alleged that
defendant Osbourne wrote a false conduct report.
(Id., at PageID 238-39).
Plaintiff's New Arguments
Objections (Doc. 20), plaintiff does not contend that the
undersigned erred in the above analysis. Instead, plaintiff
adds the following new allegations, which the undersigned
will allow under Fed.R.Civ.P. 15(a) as a further amendment to
[O]n 10/27/17, plaintiff was attacked in the institution
library, when correction officer had applied excessive force,
after plaintiff submitted to handcuff restraint. After the
handcuffs were applied, Officer Rodney Osbourne inflicted
painful and injurious restraint by twisting ...