Opinion
Case No. 1:19-cv-1009
01-28-2020
JERMEAL WHITE, Plaintiff, v. WARDEN R. ERDOS, et. al, Defendants.
Barrett, J.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against defendants Warden R. Erdos, Unit Manager Chief Cynthia Davis, and Correction Officer D. Stringer. By separate Order, plaintiff has been granted leave to proceed in forma pauperis. This matter is 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).
In 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).
Congress 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)).
"A 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 unadorned, the-defendant-unlawfully-harmed-me 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).
In the complaint, plaintiff claims that on August 9, 2019 defendant D. Stringer subjected him to excessive force. Specifically, plaintiff claim that after placing him in handcuffs, Stringer punched plaintiff in the back, smashed him up against the wall, and bent his left wrist so hard that he can not move it. (Doc. 1, Complaint at PageID 28). Plaintiff further alleges that he has reported Stringer to the administration of the prison and filed a prior lawsuit against him in this Court. On this basis plaintiff claims that defendants Warden Erdos and Unit Manager Chief Cynthia Davis "knew full well that it was not safe [or] responsible for Defendant Stringer to be around Plaintiff." (Id. at PageID 29).
Plaintiff seeks injunctive relief and monetary damages. (Id. at PageID 31).
At this stage in the proceedings, without the benefit of briefing by the parties to this action, the undersigned concludes that plaintiff may proceed with his Eighth Amendment claim against defendant Stringer in his individual capacity. However, plaintiff's remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
First, the complaint should be dismissed as to all defendants in their official capacities to the extent that plaintiff seeks monetary damages. Absent an express waiver, a state is immune from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139 (1993); Edelman v. Jordan, 415 U.S. 651 (1974). The State of Ohio has not constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982). The Eleventh Amendment bar extends to actions where the state is not a named party, but where the action is essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663; Ford Motor Company v. Dept. of Treasury, 323 U.S. 459, 464 (1945). A suit against defendants in their official capacities would, in reality, be a way of pleading the action against the entity of which defendants are agents. Monell, 436 U.S. at 690. Thus, actions against state officials in their official capacities are included in this bar. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). See also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009) ("[A]n official-capacity suit against a state official is deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent a waiver." (citation and ellipsis omitted)). Therefore, all of the named defendants are immune from suit in their official capacities to the extent that plaintiff seeks monetary damages.
The complaint should also be dismissed against defendants Erdos and Davis. Plaintiff claims that Warden Erdos is legally responsible for the operation of SOCF and the welfare of all inmates. (See Doc. 1 at PageID 26). However, to the extent that plaintiff seeks to hold defendant Erdos or Unit Manager Chief Davis liable based on their supervisory positions, his claims rest on a theory of respondeat superior, which does not apply to § 1983 claims and may not serve as a basis for liability. See Iqbal, 556 U.S. at 676; Monell v. Dep't of Social Servs., 436 U.S. 658 (1978); Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992). "[Section] 1983 liability of supervisory personnel must be based on more than the right to control employees." Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Section 1983 liability is premised on active unconstitutional behavior and not a mere failure to act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The mere fact that defendants Erdos and Davis are the Warden and Unit Manager Chief at SOCF is not enough to impose liability under section 1983.
The complaint otherwise fails to state a claim upon which relief may be granted against these defendants. Although plaintiff generally claims that he has reported Stringer to the administration of the prison, the complaint fails to allege facts to suggest that defendants Erdos or Davis were deliberately indifferent to a substantial risk of harm. To state an Eighth Amendment claim against prison officials based on their failure to protect him from an attack, plaintiff must allege facts showing that defendants' conduct amounted to "deliberate indifference" to a known risk of harm to plaintiff. Farmer v. Brennan, 511 U.S. 825, 828 (1994); see also Vaughn v. Ricketts, 859 F.2d 736, 741 (9th Cir. 1988) (finding that prison administrator's indifference to brutal behavior of guards towards inmates is sufficient to state an Eight Amendment claim), overruled on other grounds by Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995). A prison official may be held liable for his failure to protect inmates from attacks only if he knows that an inmate faces "a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. at 847. In this case, plaintiff claims that he reported that Stringer tampered with his food and that Stringer was named as a defendant in a prior lawsuit. (See Doc. 1 at PageID 29). However, plaintiff's allegations do not plausibly suggest that Erdos or Davis were aware that Stringer posed a known risk of harm to plaintiff, much less that they were deliberately indifferent to that risk. Accordingly, Erdos and Davis should be dismissed as defendants to this action.
Plaintiff's prior lawsuit included allegations that Stringer tampered with his food, shook down his cell, and destroyed his personal items. See White v. Erdos, No. 1:19-cv-563 (S.D. Ohio July 10, 2019) (Black, J.; Litkovitz, M.J) (Doc. 10). Consistent with the Report and Recommendation issued in that case, the undersigned finds that these allegations do not amount to a substantial risk of serious harm to plaintiff. Accordingly, plaintiff has failed to allege facts to suggest that defendants Erdos or Davis knew of and disregarded an excessive risk to plaintiff's safety.
Accordingly, in sum, plaintiff may proceed in this action with his Eighth Amendment claim against defendant Stringer in his individual capacity. Plaintiff's remaining claims should be dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
IT IS THEREFORE RECOMMENDED THAT:
The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff's Eighth Amendment claim against defendant Stringer in his individual capacity.
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, the Order granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon defendant Stringer as directed by plaintiff, with costs of service to be advanced by the United States.
2. Plaintiff shall serve upon defendant or, if appearance has been entered by counsel, upon defendant's attorney, a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date a true and correct copy of any document was mailed to defendant or defendant's counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit. Date: 1/28/2020
/s/_________
Karen L. Litkovitz
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).