United States District Court, S.D. Ohio, Eastern Division
ANDRE' S. MYERS, Plaintiff,
MS. LEASURE, et al., Defendants.
C. Smith Judge.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
a state inmate proceeding without the assistance of counsel,
brings this action under 42 U.S.C. § 1983, alleging that
Defendants, Ms. Leasure, Mr. Bond, and Mr. Cobb, violated his
First Amendment rights by retaliating against him for using
the prison grievance process. (See Plt's Compl.,
ECF No. 1.) Plaintiff claims that he was found guilty of two
false conduct reports and was transferred to a different
prison unit. (Id.) This matter is before the Court
for an initial screen of Plaintiff's Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b). The screening procedures established by § 1915
apply to complaints filed by prisoners against governmental
entities, officials, or employees regardless of whether the
plaintiff has paid the filing fee, as Plaintiff has done so
in this case, or is proceeding in forma pauperis.
See 28 U.S.C. § 1915A(a); Hyland v.
Clinton, 3 Fed.Appx. 478, 479 (6th Cir. 2011); Bell
v. Rowe, No. 97-4417, 1999 WL 196531, at *1 (6th Cir.
1999) (citing McGore v. Wrigglesworth, 114 F.3d 601,
608-09 (6th Cir. 1997)); Suber v. Maus, No.
1:18-cv-143, 2018 WL 1473400, at *1 (S.D. Ohio March 26,
2018). For the following reasons, it is
RECOMMENDED that Plaintiff's Complaint
be DISMISSED in its entirety.
enacted 28 U.S.C. §§ 1915(e) and 1915A, the federal
in forma pauperis statute, seeking to “lower
judicial access barriers to the indigent.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992). In doing so,
however, “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.'” Id. at 31 (quoting Neitzke
v. Williams, 490 U.S. 319, 324 (1989)). To address this
concern, Congress included subsection (e) as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that--
(B) the action or appeal--
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii);
Denton, 504 U.S. at 31; see also 28 U.S.C.
§ 1915A (requiring the Court to screen a prisoner's
complaint “as soon as practicable” and dismiss
any portion of the complaint if it is frivolous, malicious,
or fails to state a claim). Thus, §§ 1915(e) and
1915A require sua sponte dismissal of an action upon
the Court's determination that the action is frivolous or
malicious, or upon determination that the action fails to
state a claim upon which relief may be granted.
properly state a claim upon which relief may be granted, a
plaintiff must satisfy the basic federal pleading
requirements set forth in Rule 8(a) of the Federal Rules of
Civil Procedure. See Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (applying Federal Rule of Civil
Procedure 12(b)(6) standards to review under 28 U.S.C. §
1915(e)(2)(B)(ii)). 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)).
Furthermore, 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) of the Federal Rules of Civil Procedure,
“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.
considering whether this facial plausibility standard is met,
a Court must construe the complaint in the light most
favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor
of the non-moving party. Total Benefits Planning Agency,
Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d
430, 434 (6th Cir. 2008) (citations omitted). Additionally,
the Court must construe pro se complaints liberally.
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362
(6th Cir. 2010). The Court is not required, however, to
accept as true mere legal conclusions unsupported by factual
allegations. Iqbal, 556 U.S. at 677.
alleges that the Unit Manager's “engineering”
of a false conduct report in retaliation for filing prison
grievances violated his First Amendment rights and Defendants
collectively conspired to infringe upon his First Amendment
right of petition for redress of grievances. (Plt's