United States District Court, S.D. Ohio, Western Division
LAWRENCE R. BURFITT, Plaintiff,
BRION LAWLESS, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
a prisoner who is currently incarcerated at the Toledo
Correctional Institution (ToCI) in Toledo, Ohio, initiated
this pro se civil rights action, which the Court
construes as filed pursuant to 42 U.S.C. §
1983. Plaintiff alleges that defendant Southern
Ohio Correctional Facility (SOCF) employees “Brion
Lawless, ” “Linnea Mahlman, ” “Tyler
Parish, ” “Lieutenant Haywood, ” and
“Lieutenant Bowers” violated plaintiff's
rights while he was housed at SOCF. By separate Order,
plaintiff has been granted leave to proceed in forma
matter is now 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).
Screening of Complaint
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 may
be 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, plaintiff asserts claims for alleged violations of
the First, Eighth, and Fourteenth Amendments to the United
States Constitution. (See Doc. 1-2, at PageID 104).
first alleges that, after a confrontation with an officer at
SOCF in September 2017, he was placed in extended restrictive
housing. He asserts that when he obtained his personal
property in October or November 2017 his CD player and CDs
were missing. Plaintiff alleges that he filed grievances
regarding the missing property but that his grievances were
“spitefully” denied. Plaintiff asserts that
defendant Mahlman deliberately denied him property to which
he was entitled in restrictive housing. (Doc. 1-2, at PageID
next alleges that, in August 2018, he was placed in
segregation for an altercation with another inmate. Plaintiff
asserts that during the altercation excrement was thrown at
him and he used his blanket as a shield. Plaintiff alleges
that after the altercation he was placed in K2 block because
the “hole” was full and was denied a shower.
Plaintiff asserts that defendant Mahlman denied his complaint
against the pack-up officer, who is not named as a defendant,
putting the soiled blanket in with plaintiff's clean
property. (Doc. 1-2, at PageID 107).
plaintiff alleges that defendant Lawless became a “c/o
[corrections officer]” in 2017, and that plaintiff has
witnessed Lawless destroy the property of and write conduct
violations against other inmates. (Doc. 1-2, at PageID 107).
Plaintiff also alleges that he has written several complaints
against Lawless for tampering with plaintiff's legal
mail. (Doc. 1-2, at PageID 107). Plaintiff further alleges
that on an unspecified date defendants Lawless and Parish
interrupted him in his cell while he was trying a new style
of prayer. Plaintiff claims that Parish announced that he had
heard that plaintiff liked to assault corrections officers
and that Lawless then said that he had heard about that and
had also heard that plaintiff “got fucked up for it
too.” (Doc. 1-2, at PageID 107). Plaintiff ...