United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
an inmate at the Southern Ohio Correctional Facility, has
filed a prisoner civil rights complaint pursuant to 42 U.S.C.
§ 1983 against defendants Ron Erdos, Jason Joseph, Nurse
L. Hart, Jeremy Eaches, William Bauer, William Cool, and John
Doe. By separate Order, plaintiff has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This matter is before the Court for a sua sponte
review of the complaint 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).
matter is also before the Court on plaintiff's motion to
waive required number of service copies. (Doc. 4). Because it
appears plaintiff has provided the required service copies,
his motion is DENIED as moot.
enacting the original in forma pauperis 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
may be 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 may
be 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. Allain, 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).
complaint, plaintiff alleges that on September 28, 2017,
defendants Lt. Joseph, Lt. Eaches, Lt. Bauer, and a John Doe
officer attacked him, resulting in a facial fracture, as well
as injuries to his jaw, shoulder, wrist, hand, and teeth.
(Doc. 1-1, Complaint at PageID 11). Plaintiff claims he was
denied decontamination for the OC spray used during the
attack and other medical attention by defendant Nurse Hart.
(Id. at PageID 12). At this stage in the
proceedings, without the benefit of briefing by the parties
to this action, the undersigned concludes that plaintiff may
proceed at this juncture with his claims against defendants
Joseph, Eaches, Bauer, John Doe, and Nurse Hart based on
these allegations. See 28 U.S.C. §§
1915(e)(2)(B) & 1915A(b).
plaintiffs remaining claims against defendants Deputy Warden
of Operations William Cool and Warden Ron Erdos should be
dismissed. Plaintiff seeks to hold these defendants liable
for their improper investigation of the incident and for
failure to remedy the wrongs of which plaintiff complains.
(See Doc. 1-1, Complaint at PageID 12). However,
“[t]here is no statutory or common law right, much less
a constitutional right, to an investigation.”
Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir.
2007); see also Daniels v. Lisath, No. 2:10-cv-968,
2011 WL 2710786, at *2 (S.D. Ohio July 13, 2011). Prison
officials whose only roles “involve their denial of
administrative grievances and their failure to remedy the
alleged [unconstitutional] behavior'” cannot be
liable under § 1983. Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999). Nor does a prison
official's alleged failure to adequately investigate
claims of misconduct rise to the level of
“encouragement” that would make the official
liable for such misconduct. Knop v. Johnson, 977
F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley,
729 F.2d 416, 421 (6th Cir. 1984). Accordingly, the complaint
should be dismissed against defendants Cool and Erdos.
plaintiff has filed a separate action in this Court also
concerning the September 28, 2017 attack and alleged denial
of medical treatment. See McDougald v. Clagg, Case
No. 1:18-cv-93 (S.D. Ohio Feb. 9, 2018) (Black, J.; Bowman,
M.J.). Because case numbers 1:18-cv-93 and 1:18-cv-135
involve common questions of law and fact, the undersigned
RECOMMENDS that the cases be consolidated.
IS THEREFORE RECOMMENDED THAT:
1. Plaintiff's claims against defendants Erdos and Cool
be DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1).
2. Case numbers 1:18-cv-93 and 1:18-cv-135 be consolidated.
As is the practice of this Court, it is recommended that case
number 1:18-cv-135 be consolidated into case number
1:18-cv-93 since case number 1:18-cv-93 was the first filed
IS THEREFORE ORDERED THAT:
United States Marshal shall serve a copy of the complaint,
summons, and this order upon defendants Joseph, Eaches,
Bauer, and Nurse Hart as directed by plaintiff. All costs of
service shall be advanced by the United States. Before
service may be issued upon any remaining John Doe defendants,
plaintiff must file a motion to issue service setting forth
the identities of the unidentified defendants. Plaintiff is
therefore ORDERED to file a motion to issue
service, including United States Marshal and summons forms,
if and when plaintiff discovers the identity of the ...