United States District Court, S.D. Ohio, Western Division
LAWRENCE R. BURFITT, II, Plaintiff,
C/O M. ERVING, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
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). 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.
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).
Screening of Complaint
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).
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)).
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
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).
Allegations in Complaint
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."
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
further contends that "since [his] placement at SOCF on
Nov. 14, 2014; [he] was beat off camera on March 27th and May
7th, 2015." (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).
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" ...