United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson Judge
ORDER AND REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
JUDGE
Plaintiff,
Curtis Al'Shahid, a state inmate who is proceeding
without the assistance of counsel, brings this action under
42 U.S.C. § 1983 against Defendants Stuart Hudson, the
Director of the Ohio Department of Rehabilitation and
Corrections (“ODRC”), and Trayce Thalheimer, the
Chairperson of the Ohio Board Authority. This matter is
before the Court upon consideration of Defendants' Motion
to Dismiss (ECF No. 16), Plaintiff's Response in
Opposition (ECF No. 21), Defendants' Reply in Support
(ECF No. 22), and Plaintiff's Motion to Strike
Defendants' Reply (ECF No. 23). For the following
reasons, it is RECOMMENDED that
Defendants' Motion to Dismiss (ECF No. 16) be
GRANTED IN PART and DENIED IN
PART. Furthermore, Plaintiff's Motion to Strike
Defendants' Reply (ECF No. 23) is
DENIED.
PROCEDURAL
HISTORY
At the
outset of this action, Plaintiff requested leave to proceed
in forma pauperis. (ECF No. 1.) The Court granted
Plaintiff's Motion for Leave to Proceed in forma
pauperis on April 4, 2018. (ECF No. 5.) On the same
date, the Undersigned performed an initial screen and
recommended that the Court dismiss Plaintiff's claims
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed an
Amended Complaint on April 5, 2018 (ECF No. 7) and an
Objection to the Report and Recommendation on April 16, 2018
(ECF No. 8). On November 20, 2018, upon review of the Amended
Complaint and Plaintiff's Objection, the Undersigned
withdrew the Report and Recommendation and permitted
Plaintiff to proceed with his claims against Defendants
regarding alleged procedural deficiencies in his parole
proceedings. (ECF No. 10.)
On
December 26, 2018, Defendants filed a Motion to Dismiss. (ECF
No. 16.) On January 10, 2019, Plaintiff filed a Response in
Opposition to Defendants' Motion. (ECF No. 21.)
Defendants filed a Reply in support of their Motion on
January 17, 2019. (ECF No. 22.) On January 24, 2019,
Plaintiff filed a Motion to Strike Defendants' Reply.
(ECF No. 23.) As an initial matter, the Undersigned takes up
the Motion to Strike.
MOTION
TO STRIKE
Federal
Rule of Civil Procedure 12(f) permits a court to strike from
a pleading “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
Fed.R.Civ.P. 12(f). Notably, “[t]he striking of a
portion of a pleading is a drastic remedy which is seldom
granted absent a showing of real prejudice to the moving
party.” Hughes v. Lavender, No. 2:10-CV-674,
2011 WL 2945843, at *2 (S.D. Ohio July 20, 2011) (citing
Armstrong v. Snyder, 103 F.R.D. 96, 100 (E.D. Wis.
1984)).
Plaintiff
moves to strike Defendants' Reply on the grounds that
“[t]he allegations are unrelated to Plaintiff's
‘Legal Claims' that [were] raised in his Amended
Complaint.” (ECF No. 23, at pg. 1.) Specifically,
Plaintiff asserts that “[t]he ‘Due Process'
claim raised by Defendants by and through counsel for the
first time is not only inaccurate [and] misleading but
contrary to [Plaintiff's] due process claim raised [in an
earlier filing].” (Id.) Plaintiff fails in his
Motion to demonstrate why the drastic remedy of striking
Defendants' Reply is warranted. Plaintiff first argues
that “the due process claim has already been raised by
the Plaintiff, presented, reviewed and ruled on by this
court.” (Id. at pg. 3.)
Plaintiff
cites to his Objection to the Report and Recommendation
recommending that the Court dismiss Plaintiff's claims
upon an initial screen pursuant to 28 U.S.C. §
1915(e)(2) (ECF No. 8), and the Court's Order withdrawing
the Report and Recommendation and permitting Plaintiff's
claims to proceed (ECF No. 10). Although the Court withdrew
the Report and Recommendation and permitted Plaintiff to
proceed, it did not analyze or otherwise rule on the merits
of Plaintiff's due process claims, as Plaintiff appears
to assert. Rather, the Court's Order withdrawing the
Report and Recommendation permitted Plaintiff to proceed with
his claims against Defendants regarding alleged procedural
deficiencies in his parole hearings. (Id.) The
Court's Order does not prohibit Defendants from making
arguments regarding Plaintiff's due process claims. Nor
does it prohibit Defendants from making Eleventh Amendment
arguments, as Plaintiff also appears to suggest. Accordingly,
Plaintiff's Motion to Strike (ECF No. 23) is
DENIED.
MOTION
TO DISMISS STANDARD OF REVIEW
Defendants
bring their motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, alleging that Plaintiff has failed
to state a claim upon which relief can be granted. To survive
a motion to dismiss for failure to state a claim under Rule
12(b)(6), a plaintiff must satisfy the basic federal pleading
requirements set forth in Federal Rule of Civil Procedure
8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Thus, Rule 8(a) “imposes legal and
factual demands on the authors of complaints.”
16630 Southfield Ltd., P'ship v. Flagstar
Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013)
(emphasis in original).
Although
this pleading standard does not require
“‘detailed factual allegations,' . . . [a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action, '” is insufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
complaint will not “suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Instead, to survive a
motion to dismiss for failure to state a claim under Rule
12(b)(6), “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is
plausible on its face.'” Id. (quoting
Twombly, 550 U.S. at 570). Facial plausibility is
established “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “The plausibility of an inference depends
on a host of considerations, including common sense and the
strength of competing explanations for the defendant's
conduct.” Flagstar Bank, 727 F.3d at 504
(citations omitted).
In
considering whether a complaint fails to state a claim upon
which relief can be granted, the Court must “construe
the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable
inferences in favor of the plaintiff.” Ohio Police
& Fire Pension Fund v. Standard & Poor's Fin.
Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.
2007)). However, “the tenet that a court must accept a
complaint's allegations as true is inapplicable to
threadbare recitals of a cause of action's elements,
supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to
afford plaintiff every inference, the pleading must still
contain facts sufficient to “provide a plausible basis
for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct”
will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of
Mich., Inc., 491 Fed.Appx. 628, 632 (6th Cir. 2012);
Iqbal, 556 U.S. at 679.
In
addition, the Court holds pro se complaints
“‘to less stringent standards than formal
pleadings drafted by lawyers.'” Garrett v.
Belmont Cnty. Sheriff's Dep't., No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). This
lenient treatment, however, has limits; “‘courts
should not have to guess at the nature of the claim
asserted.'” Frengler v. Gen. Motors, 482
Fed.Appx. 975, 976-77 (6th Cir. 2012) (quoting Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
MOTION
TO ...