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Burfitt v. Erving

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

May 3, 2018

LAWRENCE R. BURFITT, II, Plaintiff,
v.
C/O M. ERVING, et al., Defendants.

          Barrett, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), in Lucasville, Ohio, has filed a pro se civil rights complaint against the following corrections officials at SOCF: "C/O M. Erving, " "Lt. M. Esaum, " "Lt. R. Buroughton, " "C/O Charlie Ruckel, " "C/O T. Parish, " "UM Brian Sparks, " "Major David Warren, " "MHA Ms. Salyers, " "UM Brian Nolan, " "Chief Inspector Roger Wilson, " "UMA Cinthia Davis, " Warden Ron Erdos, and "Inspector Linnea Mahlman." (Doc. 1-1, at Page ID 47, 52).[1] Plaintiff has also filed a supplemental complaint (Doc. 1-6) and two motions for preliminary injunction (Docs. 1-3 & 1-4). By separate Order, plaintiff has been granted leave to proceed in forma pauper is.

         This matter is before the Court for a sua sponte review of the complaint (Doc. 1-1), as supplemented (Doc. 1 -6), 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. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Also before the Court are plaintiffs motions for preliminary injunction. (Docs. 1-3 & 1-4).

         I. Screening of Complaint

         A. Legal Standard

         In enacting the original in for ma pauper is statute, Congress recognized that a "litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint maybe dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are "fantastic or delusional" in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

         Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief maybe granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A complaint filed by a pro se plaintiff must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face, " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim" under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

         "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." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Main, 478 U.S. 265, 286 (1986)). Although a complaint need not contain "detailed factual allegations, " it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted).

         B. Allegations in Complaint

         In his complaint, as supplemented, plaintiff alleges that, on September 19, 2017, defendant C/O M. Erving called plaintiff derogatory names as Erving was walking plaintiff to the shower. (Doc. 1-1, at PageID 53). Plaintiff asserts that when he "refused to move" and attempted "to make [Erving] apologize, " Erving "sprayed" plaintiff and issued a false conduct report. (Id.). According to plaintiff, unnamed officers then "cuff[ed]" plaintiff, using knee strikes, and brought him to medical. (Id.). As plaintiff was taken to medical, defendant C/O Ruckel allegedly "twisted [plaintiffs] arms as to break them." (Id.).

         Plaintiff claims that, when he arrived at medical, defendant Ruckel "hurled" him to the ground and beat him "off camera." (Id.). According to plaintiff, defendants Parish, Esaum, Buroughton, Sparks, and Warren also beat him. (See id.; see also Doc. 1-6, at PageID 90). Plaintiff claims that, as a result of the alleged beating, he required surgery on his jaw and eye socket. (Doc. 1-1, at PageID 53). Plaintiff claims that defendant Nolan and several unnamed nurses observed the beating but failed to intervene. (Id.).

         Plaintiff further contends that "since [his] placement at SOCF on Nov. 14, 2014; [he] was beat off camera on March 27th and May 7th, 2015."[2] (Doc. 1 -6, at PageID 89). Additionally, he contends that, at an unspecified time, defendant Erving was placed on leave for an incident involving another inmate. (Id.). Plaintiff attaches to his complaint declarations from three inmates claiming, respectively, to have seen plaintiffs injuries following the alleged September 19, 2017 incident (Doc. 1-6, at PageID 104), to have been at the hospital when plaintiff arrived and to have overheard an unidentified SOCF officer state "[t]hats what happens when you mouth off to a CO. at Lucasville" (id., at PageID 105), and to have heard plaintiff being beaten in medical (id., at PageID 106).

         Plaintiff claims that defendants Mahlman, Wilson, Davis, Salyers, and various unnamed mental health administrators were aware of plaintiff s complaints but "refuse[d] to allow [him] to address a problem that affects [his] life in prison." (Doc. 1-1, at PageID 53-54). Plaintiff claims that defendant Warden Erdos "continues to allow" ...


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