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Harris v. State

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

June 13, 2019

LEONDRE HARRIS, Plaintiff,
v.
STATE OF OHIO, et al., Defendants.

          Black, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge.

         Plaintiff, an inmate formerly at the Warren Correctional Institution (WCI) in Lebanon, Ohio, [1] 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).

         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 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)).

         "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).

         Plaintiffs complaint with exhibits totals 140 pages and includes numerous claims against twenty-six defendants at WCI.[2] 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." (Id.).

         The 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 ignored.

         Plaintiff 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.

         The 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. (Id.).

         On 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).

         Plaintiff next claims that while he was getting x-rays, C/O Bollinger[3] 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.

         Plaintiff 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).

         Next, 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 318).

         For relief, plaintiff seeks monetary damages. (Id ...


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