United States District Court, S.D. Ohio, Western Division
DERRICK L. WARREN, Plaintiff,
ODRC, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
an inmate at the Lebanon Correctional Institution (LCI), in
Lebanon, Ohio, brings this civil rights action under 42
U.S.C. § 1983 against defendants ODRC (Ohio Department
of Rehabilitation and Correction) and LCI officials Mrs. Nail
and Mr. Saxon. (See Doc. 1-2).
separate order, plaintiff has been granted leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is now before the Court for a sua sponte
review of plaintiff's 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).
of Plaintiff's 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).
Allegations in the Complaint
alleges that shortly after arriving at LCI he got into a
fight with his cellmate, who plaintiff asserts is a head
member of the “Blood Gang.” (Doc. 1-2, at PageID
19). Plaintiff states that he then requested defendant Mrs.
Nail, an LCI Unit Manager, to move plaintiff. (Doc. 1-2, at
PageID 19). Plaintiff alleges that Mrs. Nail said “yes,
at first, ” but then plaintiff's cellmate stuck his
head in the door and threatened plaintiff. (Doc. 1-2, at
PageID 19). Plaintiff alleges that Mrs. Nail overheard the
threat and placed plaintiff's cellmate in the
“hole.” (Doc. 1-2, at PageID 19). According to
plaintiff, this incident placed him in danger
“[b]ecause now it looked like [plaintiff] snitched and
got [the cellmate] put in the hole, while [plaintiff] the new
guy stayed free.” (Doc. 1-2, at PageID 19).
alleges that his cellmate put a “hit” on
plaintiff and that a few days later an unidentified inmate
jumped plaintiff and attempted to rape him. (Doc. 1-2, at
PageID 19). Plaintiff further asserts that he told defendants
Mrs. Nail and Mr. Saxton that plaintiff wanted to file a
Prison Rape Elimination Act (PREA) complaint and get
protective custody but they said “no” because
they did not believe him. (Doc. 1-2, at PageID 19).
relief, plaintiff seeks monetary damages. (Doc. 1-2, at