English v. Neil et al, No. 1:2020cv00884 - Document 13 (S.D. Ohio 2020)
Court Description: ORDER AND REPORT AND RECOMMENDATIONS - 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), except for plaintiffs claims against L.T. Ms. Reed. 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 L.T. Ms. Reed 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 defendants attorney, a copy of every further pleading or other document submitted for consideration by the Court. (Objections to R&R due by 12/31/2020). 3. Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit. Signed by Magistrate Judge Karen L. Litkovitz on 12/17/2020. (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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English v. Neil et al Doc. 13 Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 1 of 6 PAGEID #: 170 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION KAHLIA J. ENGLISH, Plaintiff, vs. JIM NEIL, et. al, Defendants. Case No. 1:20-cv-884 Black, J. Litkovitz, M.J. ORDER AND REPORT AND RECOMMENDATION Plaintiff, a prisoner at the Hamilton County Justice Center, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against defendants Sheriff Jim Neil, the Hamilton County Justice Center (HCJC), and L.T. Ms. Reed. 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 Dockets.Justia.com Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 2 of 6 PAGEID #: 171 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 wellpleaded 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 2 Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 3 of 6 PAGEID #: 172 “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 defendants failed to protect him from being attacked. (Doc. 1-1 at PageID 11). Plaintiff alleges that on October 6, 2020, his cellmate told officers and plaintiff that if he was not provided with his own cell that he would kill plaintiff. According to plaintiff, he informed HCJC officers of the threat to his safety but defendant L.T. Reed instructed another officer to leave plaintiff in the cell. (Id. at PageID 14, 15, 17). Plaintiff claims that he was subsequently attacked by his cellmate with a razor after he fell asleep. (Id. at PageID 11, 15). Plaintiff further alleges that he was placed back in the cell a week later and was attacked again. (Id.). As relief, plaintiff seek monetary damages. (Id. at PageID 12). 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, failure to protect claim against defendant L.T. Ms. Reed. However, plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). The complaint should be dismissed against the HCJC. Title 42 U.S.C. § 1983 provides that “[e]very person who, under the color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. 3 Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 4 of 6 PAGEID #: 173 A correctional facility is not a “person” subject to suit under 42 U.S.C. § 1983. See Parker v. Michigan Dept. of Corrections, 65 F. App’x. 922, 923 (6th Cir. 2003) (Department of Corrections not a “person” under § 1983). See, e.g., Aladimi v. Hamilton Cnty. Justice Center, No. 1:09-cv-398, 2012 WL 292587, at *7 (S.D. Ohio Feb. 1, 2012) (finding that the Hamilton County Justice Center was not a person subject to suit), adopted, 2020 WL 529585 (S.D. Ohio Feb. 17, 2012). Even if the Court were to liberally construe the complaint as against Hamilton County itself, plaintiff has also failed to allege that his constitutional rights were violated pursuant to a county policy. See Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Therefore, the complaint against the HCJC should be dismissed. The complaint should also be dismissed against defendant Sheriff Jim Neil. Plaintiff does not include any factual allegations against defendant Neil in the complaint and apparently seeks to hold this defendant liable upon a theory of respondeat superior. However, the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability onto supervisory personnel. Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)). To state a claim against a supervisor, the plaintiff must allege that the supervisor was “somehow personally involved in the unconstitutional activity of a subordinate, . . . or at least acquiesced in the alleged unconstitutional activity of a subordinate.” Id. (citing Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). Plaintiff has made no such allegation. Accordingly, defendant Neil should be dismissed as a defendant to this action. Accordingly, in sum, plaintiff may proceed in this action against defendant L.T. Ms. Reed. 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). 4 Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 5 of 6 PAGEID #: 174 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), except for plaintiff’s claims against L.T. Ms. Reed. 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 L.T. Ms. Reed 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: 12/17/2020 Karen L. Litkovitz United States Magistrate Judge 5 Case: 1:20-cv-00884-TSB-KLL Doc #: 13 Filed: 12/17/20 Page: 6 of 6 PAGEID #: 175 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION KAHLIA J. ENGLISH, Plaintiff, Case No. 1:20-cv-884 Black, J. Litkovitz, M.J. vs. JIM NEIL, et. al, Defendants. 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). 6
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