United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
an inmate formerly at the Warren Correctional Institution
(WCI) in Lebanon, Ohio,  brings this action under 42 U.S.C.
§ 1983. By separate Order issued this date, 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 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 maybe
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 with exhibits totals 140 pages and includes
numerous claims against twenty-six defendants at
Plaintiff first claims that on February 7, 2019, a week after
being placed in segregation, he complained to defendant
assistant warden Gary Craft about a prior altercation
plaintiff was involved in. (Doc. 1 -2, Complaint at PageID
311). According to plaintiff, Craft told him that he was
aware of plaintiff and the incident, but directed plaintiff
to plead his case to the Rules Infraction Board (RIB).
However, plaintiff claims that on February 14, 2009, Craft
"changed the rule violation to assault" in an
attempt to get his security status raised to a level four.
(Id. at PageID 313). Plaintiff claims that defendant
RIB chairman Garrison informed Craft that the rules violation
ticket stated that plaintiff was the one assaulted in the
incident. According to plaintiff, Craft told plaintiff
"take this sanction and be thankful for the gift."
(Id.). Plaintiff claims that he received "28
days RH and 90 days LPH." He appealed the decision, but
claims that Craft denied all his appeals. He also claims that
during an argument about Craft "being a racist and a
piece of feces for his retaliatory acts" against
plaintiff, Craft told him he would "kick my ass."
complaint also includes various allegations regarding the
conditions of plaintiff s confinement. Plaintiff claims the
foundation in his cell was leaking water from rain and snow,
the "ventilation wasn't functioning," and bugs
were in his cell. (Id. at PageID 311). Plaintiff
alleges that he began to write informal complaints about the
cell and that shortly afterwards he began to regularly
receive cold food, which he also submitted informal
complaints about. Plaintiff further claims that he spoke to
defendant captain Mitchell Turner, informing him that food is
supposed to be served at 140 degrees, per policy. However, he
claims that Turner told him that they do not follow policy.
(Id. at PageID 312). According to plaintiff, he
continued to write up issues he was having, but they were
next claims that defendants institutional inspector David
Agee and sergeant J. Gault placed him on grievance
restriction as a means of intimidating him. Agee informed
plaintiff that if he wished to submit additional informal
complaints plaintiff was required to write Agee a kite and
that he or the warden would approve or disapprove it.
Plaintiff also claims that Gault and defendant Garrison
became angry with him because he feared for his safety and
refused to return to general population. (See Id. at
PageID 313-14). Without further elaboration, plaintiff claims
Gault retaliated against him by denying him phone calls to
his attorney and family. Plaintiff further alleges that Agee
denied him books and newspapers that were from approved
vendors and that Garrison placed recreation sanctions on him.
(Id. at PageID 314). According to plaintiff,
defendant J.D. Johnson "refuse[d] to hold Garrison and
Gault accountable for these acts of retaliation."
(Id.). Plaintiff also claims that he wrote defendant
D. Luneke to explain his frustrations.
complaint lists other issues which plaintiff apparently
complained about through kites, including shower water
temperature, hair care services, cold food, and cell
conditions. Plaintiff claims he wrote defendants warden
Jackson, Aramark, M. Vance, and R. Welch, but they did not
take any corrective action. Later in the complaint plaintiff
also complains that defendant Evalis L.O.R. failed to respond
to any of his kites and defendant head of food services Lt.
Jones never returned his kites or otherwise corrected the
food temperatures. (Id. at PageID 318). Plaintiff
also alleges that defendant head of maintenance Skip Miller
took no responsibility for the prison conditions.
April 19, 2019, plaintiff claims that he slipped in the
shower and injured his thumb. Plaintiff claims that he
received an x-ray that day and was charged $3.00, but he was
not provided with any pain medication. (Id. at
PageID 315). Plaintiff claims that his thumb was twice the
size of his other thumb and resulted in excruciating pain.
According to plaintiff, he wrote a kite to the head of
medical, defendant Jean Smith, but she did not get back to
him for a week and still refused to give him anything for his
pain. Plaintiff further claims that defendant nurse Bah also
refused to give him ibuprofen. (Id. at PageID 316).
He claims he still experiences pain every day and has not
been permitted to see a doctor to get his thumb fixed.
(Id. at PageID 315).
next claims that while he was getting x-rays, C/O
Bollinger gave his lunch tray to plaintiff s
cellmate. (Id. at PageID 316). Plaintiff claims he
wrote a complaint regarding the incident. According to
plaintiff, defendant lieutenant Kendrick was supposed to call
for his lunch tray but did not.
complains that the librarian defendant Harry Burchell denied
him access to the courts. (Id.). Specifically,
plaintiff claims that Burchell told him the computers were
broken for two weeks and then that the printer was broken the
following week. According to plaintiff, Burchell subsequently
denied him access to legal books. Plaintiff also claims that
Craft denied him access to the courts by restricting outgoing
mail. (Id. at PageID 317).
plaintiff alleges that defendant C/O Johnson made derogatory
comments about Muslims and refused to tell him the time so he
could perform obligatory prayer. Plaintiff further claims
that Johnson turned off the light while he was reading the
Quran and asked him to "show me your ass & I will
give you some chewing tobacco." (Id.).
According to plaintiff, defendant chaplain Kehr refused to
provide him books out of the Islamic book cabinet while
providing Christian materials weekly. (Id. at PageID
relief, plaintiff seeks monetary damages. (Id ...