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Cole v. McCroskey

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

June 18, 2018

TYRONE JEROD COLE, JR., Plaintiff,
v.
DAVID MCCROSKEY, et at., 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), 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).

         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 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 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 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.

         Plaintiff 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." (Id.).

         More 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.

         On 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.[1] (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.

         Next, 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.

         Plaintiff 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.[2] (Id. at PageID 23).

         Plaintiff 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).

         Finally, 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 ...


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