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McDougald v. Eaches

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

May 16, 2018

JERONE MCDOUGALD, Plaintiff,
v.
JEREMY EACHES, et al., Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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).

         This 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.

         In 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).

         Congress 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)).

         “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. Allain, 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).

         In the 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).

         However, 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.

         Finally, 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. Fed.R.Civ.P. 42(a).

         IT 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 case.

         IT IS THEREFORE ORDERED THAT:

         1. The 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 ...


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