United States District Court, S.D. Ohio, Western Division
JOHNNIE D. COOK, Plaintiff,
WARDEN RON ERDOS, et al., Defendants.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility (SOCF)
in Lucasville, Ohio, brings this civil rights action under 42
U.S.C. § 1983 against defendants Warden Ron Erdos and
David McCroskey. (See Doc. 1, Complaint at PageID
14). 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
may be dismissed as frivolous when the plaintiff cannot make
any claim with a rational or arguable basis in fact or law.
Neitzke, 490 U.S. at 328-29; 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).
who is proceeding pro se, brings this § 1983
action against SOCF prison officials Warden Erdos and C/O
McCroskey. (Doc. 1-1, Complaint at PageID 14). In the
complaint, plaintiff brings two claims for violations of his
Eighth Amendment rights.
first claim, plaintiff alleges that his Eighth Amendment
rights were violated by Warden Erdos for implementing an
exercise restriction at SOCF. (Id. at PageID 15).
Plaintiff states that Warden Erdos permits “prison
officials to place prisoners on exercise restriction for
periods of time such as 30, 60, 90, and 180 days.”
(Id.). Plaintiff alleges the exercise restriction
deprives him “of the right to exercise outside of [his]
cell which is a human basic need.” Id
second claim for relief, plaintiff alleges his Eighth
Amendment rights were violated on April 23, 2018 by C/O
McCroskey for placing him on a “exercise restriction
for a period of ninety (90) days.” (Id.).
Plaintiff states the exercise restriction was imposed after
“[C/O] McCroskey found [him] guilty of violating
institutional rules.” (Id.).
relief, plaintiff seeks declaratory and injunctive relief, as
well as monetary damages. (Id. at PageID 16).
complaint is subject to dismissal at the screening stage for
failure to state a claim upon which relief may be granted by
initial matter, the complaint should be dismissed as to
defendants in their official capacities to the extent that
plaintiff seeks monetary damages. (See Doc. 1,
Complaint at PageID 16). Absent an express waiver, a state is
immune from damage suits under the Eleventh Amendment.
P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, 506 U.S. 139 (1993); Edelman v. Jordan,
415 U.S. 651 (1974). The State of Ohio has not
constitutionally nor statutorily waived its Eleventh
Amendment immunity in the federal courts. See Johns v.
Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985);
State of Ohio v. Madeline Marie Nursing Homes, 694
F.2d 449 (6th Cir. 1982). The Eleventh Amendment bar extends
to actions where the state is not a named party, but where
the action is essentially one for the recovery of money from
the state. Edelman, 415 U.S. at 663; Ford Motor
Company v. Dept. of Treasury, 323 U.S. 459, 464 (1945).
A suit against defendants in their official capacities would,
in reality, be a way of pleading the action against the
entity of which defendants are agents. Monell, 436
U.S. at 690. Thus, actions against state officials in their
official capacities are included in this bar. Will v.
Michigan Dept. of State Police, 491 U.S. 58, 70-71
(1989); Scheuer v. Rhodes, 416 U.S. 232 (1974).
See also Colvin v. Caruso, 605 F.3d 282, 289 (6th
Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334,
344 (6th Cir. 2009) (“[A]n official-capacity suit
against a state official is deemed to be a suit against the
state and is thus barred by the Eleventh Amendment, absent a
waiver.” (citation and ellipsis omitted)). Therefore,
all of the named defendants are immune from suit in their
official capacities to the extent that plaintiff seeks
event, in order to state a viable § 1983 claim,
plaintiff must allege facts showing that he was deprived of
“a right secured by the United States Constitution or a
federal statute by a person who was acting under color of
state law.” Spadafore v. Gardner, 330 F.3d
849, 852 (6th Cir. 2003). In this case, although plaintiff
claims that his rights under the Eighth Amendment were
violated by virtue of the 90-day exercise restriction, his
factual allegations do not give rise to a viable claim of
federal constitutional dimension.
Eighth Amendment prohibits prison conditions that deprive
inmates of “the minimal civilized measure of life's
necessities, ” Rhodes v. Chapman, 452 U.S.
337, 347 (1981), but “does not bar every unpleasant
experience a prisoner might endure while incarcerated.”
Brown v. Kelly, No. 4:12cv1356, 2012 WL 5877424, at
*2 (N.D. Ohio Nov. 20, 2012) (citing Ivey v. Wilson,
832 F.2d 950, 954 (6th Cir. 1987)). Although a “total
or near-total deprivation of exercise or recreational
opportunity, without penological justification,
violates Eighth Amendment guarantees, ” Patterson
v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983) (emphasis
added), the “[o]ccasional deprivation of recreation for
a limited time is insufficient to suggest the type of extreme
deprivations necessary for an Eighth Amendment conditions of
confinement claim.” Brown, supra, 2012 WL
5877424, at *3 (citing Wilson v. Seiter, 501 U.S.
294, 298 (1991)). The Sixth Circuit has “never set a
minimum amount of time a prisoner must have access to outdoor
recreation.” See Argue v. Hofmeyer, 80
Fed.Appx. 427, 430 (6th Cir. 2003) (citing Rodgers v.
Jabe, 43 F.3d 1082, 1086-87 (6th Cir. 1995)). Moreover,
numerous courts, including this Court, have held in analogous
cases that recreation restrictions imposed for a limited time
as part of a disciplinary sanction do not violate the Eighth
Amendment. See, e.g., Cammon v. Bell, No. 1:08cv479,
2008 WL 3980469, at *1-2 (S.D. Ohio Aug. 21, 2008) (Dlott,
J.) (and cases cited therein) (dismissing at screening stage
the SOCF inmate's complaint challenging an 84-day
recreation restriction, wherein the inmate allegedly
“was in segregation during the entire period of his