United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility (SOCF),
brings this civil rights action against defendants David
McCroskey, Ronald Erdos, Bill Cool, Cynthia Davis, Larry
Greene, Anita Trammel, Linnea Mahlman, Terry Tibbal, C/O
Harper, and Lt. Borough. 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).
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
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 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 April 18, 2011, he was
involved in a group fight while at the Mansfield Correctional
Institution (ManCI). (Doc. 1, Complaint at PageID 14).
Plaintiff alleges that the incident resulted in a Rules
Infraction Board (RIB) conviction and an increase in his
security level to level 4B status. Plaintiff claims that he
was assured by defendant Warden Terry Tibbal that a
separation was in place for his safety from inmate Cannon,
who was involved in the fight. According to plaintiff, Cannon
was moved to another prison as a result of the incident.
claims that approximately three years later, on April 16,
2014, he was transferred to the Ohio State Penitentiary (OSP)
and placed in a cell directly next to inmate Cannon.
According to plaintiff, level 4B inmates are not allowed
physical contact with each other, which prevented inmate
Cannon from assaulting him. Nevertheless, plaintiff claims he
repeatedly requested that the OSP Warden, defendant Anita
Trammel, place a separation between him and Cannon.
(Id. at PageID 16). Plaintiff claims that Trammel
told him that a separation was not warranted because physical
contact was not permitted between them on account of their
security status. In response to plaintiffs claim that the
separation was necessary to prevent contact at future
institutions, Trammel allegedly stated that "what
happens in other institutions was not her problem."
than two years later, on September 26, 2016, plaintiff claims
that he was again housed with Cannon at the SOCF.
(Id. at PageID 17). On the same date, plaintiff
claims Cannon attacked him and he was forced to protect
himself. Plaintiff claims the incident resulted in his being
found guilty of fighting by the RIB, despite defendant Sgt.
McCroskey stating on the record that plaintiff fought in
self-defense. According to plaintiff, McCroskey also stated
that he would place a separation between plaintiff and
Cannon, but the separation was never instituted.
December 1, 2016, plaintiff claims that Case Manager Sidney
Harris, denied his security level decrease solely based on
the September 26, 2016 incident with Cannon. (Id. at
PageID 17-18). Plaintiff claims he "wrote it up" to
defendant Institutional Inspector Linnea Mahlman, and
unsuccessfully appealed the ruling to defendants Deputy
Warden Larry Greene and Warden Erdos. (Id. at PageID
18). According to plaintiff, McCroskey's actions were not
corrected. Plaintiff further alleges that on February 17,
2017, he was again placed in the same housing unit as Cannon.
Plaintiff claims that he complained to a second shift
officer, who told him there was nothing he could do and that
plaintiff should "just get your get-back" and
assault Cannon. (Id. at PageID 19). Plaintiff claims
that he limited his recreation and library time to avoid
Cannon and when Cannon noticed this he assaulted one of his
close friends. Plaintiff indicates Cannon was transferred to
an enhanced restrictive housing unit following the attack.
on February 9, 2018, plaintiff alleges that defendant Lt.
Borough sprayed him with the entire contents of a 24 ounce
can of pepper spray after plaintiff refused to
"cuff." (Id.). He claims the spray was
deployed on his face and entire body. According to plaintiff,
he collapsed and was unable to breathe or see. Plaintiff
further claims that he was denied medical attention following
the incident and was instead escorted to a restrictive
housing unit, where he claims he remained covered in mace for
over three days. (Id. at PageID 20). Plaintiff
claims he wrote an informal complaint resolution to Mahlman
and the warden's office. As a result of the incident,
plaintiff claims he has mental health issues and skin
irritation/burns. (Id. at PageID 20-21). Plaintiff
also complains about conditions of his confinement.
Specifically, plaintiff claims he was left in a limited
privilege housing unit for three days starting on August 18,
2016. (Id. at PageID 21). During this time,
plaintiff claims he was forced to sleep on a bare mattress
with no blanket. According to plaintiff, he complained to the
third shift commander that he was freezing, but no one
provided him with a blanket or otherwise responded to his
complaints. Plaintiff further alleges that his family spoke
with Case Manager Harris, but he did not get his property
until August 21, 2016. Plaintiff claims that he filed an ICR
to Institutional Inspector Mahlman, who responded by saying
she does not handle property issues.
claims that on November 5, 2017 he was moved to the J3
housing unit. He again alleges that he did not receive
bedding for four days and was subjected to temperatures as
low as forty degrees at night. (Id. at PageID 22).
Plaintiff claims that he complained to Sgt. Messer that he
was cold and had not been able to sleep due to shivering.
Messer allegedly told him that he would call and check on
plaintiffs property. Plaintiff claims that he was
subsequently moved to another housing unit, where there was
no running water for nine days. According to plaintiff, he
complained to shift correctional officers about the problem,
but they were unable to get the water turned on. Plaintiff
further alleges that he wrote an ICR to Mahlman, but that she
replied that she does not respond to ICRs per prison policy
and directed plaintiff to Sgt. Chinn to address his property
issues. Plaintiff claims that Chirm subsequently sent him
back to Mahlman. (Id. at PageID 23).
next raises claims of excessive isolation and a campaign of
harassment. The complaint lists various instances in which
plaintiff claims that he was placed in restrictive housing
without a ticket or for longer than imposed by the RIB.
(See Id. at PageID 23-26). Plaintiff also complains
about being placed in housing units with inmates of a higher
security status. (Id. at PageID 24).
plaintiff alleges that defendant officer Harper retaliated
against him. On January 27, 2018, plaintiff claims Harper
stopped him and told him to "hit the wall."
(Id. at PageID 26). Plaintiff indicates that he
subsequently punched the wall, as he claims he was
instructed. (Id. at PageID 27). According to
plaintiff, Harper ordered him to remove his shoes and
"once C/O Harper was satisfied he then warned me about
writing up C/Os for harassment and told me this is what will