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Johnson v. Humphrey

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

April 18, 2018

TYRONE R. JOHNSON, Plaintiff,
v.
MICHAEL HUMPHREY, et al., Defendants.

          Black, J.

          ORDER AND SUPPLEMENTAL REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff, 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. (Doc. 19).

         A. Background

         On 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).

         In the 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.

         In 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.

         Plaintiff's 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).

         The 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).

         B. Plaintiff's New Arguments

         In his 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)[1] as a further amendment to his complaint.

[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 ...

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