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Clark v. Chillicothe Correctional Institution

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

July 29, 2019

TERRY CLARK, Plaintiff,
v.
CHILLICOTHE CORRECTIONAL INSTITUTION, et al., Defendants.

          EDMUND A. SARGUS CHIEF JUDGE.

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Chillicothe Correctional Institution's Motion for Judgment on the Pleadings (Doc. 11) and Plaintiff's Motion for Default Judgment (Doc. 12). For the reasons that follow, it is RECOMMENDED that the Court GRANT Defendant Chillicothe Correctional Institution's Motion for Judgment on the Pleadings and DENY Plaintiff's Motion for Default Judgment. Further, counsel for Defendants is ORDERED to confer with Plaintiff to assist him in determining the proper address at which Defendant Tisdale can be served.

         I. BACKGROUND

         Plaintiff Terry Clark is a state prisoner currently incarcerated at Ross Correctional Institution. He was previously in the custody of Defendant Chillicothe Correctional Institution (“CCI”). (Doc. 4 at 3). Defendant Ernie Tisdale was a correctional officer at Defendant CCI. (Id.). Plaintiff alleges that on December 17, 2018, he was in the custody of Defendant CCI where he “was a victim of a vicious violent attack by Correctional Officer Ernie Tisdale.” (Id.).

He [Defendant Tisdale] was assisting another Correctional Officer. When Correctional Officer Ernie Tisdale came in contact with me he grabbed my arm bend it in a direction attempting to break my arm, Then he pressed on the back of my neck and choked me using the wall, The wall was lower then my chin. Last of his attack he pepper sprayed me he was so close to me it went directly in my eyes the was terrible. I had the pepper spray on my face so long I started seeing blue with my eyes closed. I was in fear of being blind. Tormented would be a light word to use of the situation. The reason I'm filing this lawsuit is because Correctional Officer Ernie Tisdale used excessive force then covered it up with lying in the reports.

(Id.).

         The Complaint (Doc. 4) was filed on March 26, 2019. On May 16, 2019, the summons for Defendant Tisdale was returned unexecuted. (See Doc. 7). On June 6, 2019, Defendant CCI filed a Motion for Leave to File Answer Instanter, Out of Time (Doc. 8), which the Court granted in its June 7, 2019 Order (Doc. 10). Defendant CCI subsequently filed its Motion for Judgment on the Pleadings (Doc. 11). The time to respond to the Motion has passed, and no response has been filed. Defendant CCI's Motion is therefore ripe for resolution. On July 24, 2019, Plaintiff filed a Motion for Default Judgment (Doc. 12), which is addressed below.

         II. DEFENDANT CCI'S MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 11)

         Defendant CCI argues that Plaintiff's claims against Defendant CCI should be dismissed because (1) they are barred by the Eleventh Amendment and (2) Defendant CCI is not a person subject to suit under § 1983.

         A. STANDARD OF REVIEW

         The Federal Rules of Civil Procedure provide that, “after the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish that no material issue of fact remains to be resolved and that they are entitled to judgment as a matter of law.” Williamson v. Recovery Ltd. P'ship, No. 2:06-CV-292, 2010 WL 3769136, at *2 (S.D. Ohio Sept. 24, 2010) (citations omitted).

         In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses the same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a claim. Mixon v. State of Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999). Accordingly, the Court “must construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts in support of those allegations that would entitle them to relief.” Bishop v. Lucent Tech., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). To survive a motion for judgment on the pleadings, the “complaint must contain either direct or inferential allegations respecting all material elements to sustain a recovery under some viable legal theory.” Bishop, 520 F.3d at 519 (internal quotation marks omitted). Consequently, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         B. ...


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