Bushner v. Ohio Department of Rehabilitation & Corrections

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAYMOND D. BUSHNER, )

) CASE NO. 1:22-cv-2060

Plaintiff, )

)

v. ) JUDGE BRIDGET MEEHAN BRENNAN

)

OHIO DEPARTMENT OF )

REHABILITATION AND ) MEMORANDUM OPINION

CORRECTION, et al., ) AND ORDER

)

Defendants. )

Pro se plaintiff Raymond D. Bushner, an Ohio inmate currently incarcerated in the Ross

Correctional Institution (“RCI”), has filed a prisoner civil rights complaint in this case pursuant

to 42 U.S.C. § 1983 against the Ohio Department of Rehabilitation and Correction (“ODRC”)

and the Mansfield Correctional Institution (“MCI”). (Doc. No. 1.) He also filed a motion to

proceed in forma pauperis. (Doc. No. 2.)

I. Facts

Plaintiff’s Complaint pertained to an incident that allegedly occurred while he was

incarcerated in MCI. He alleged his rights were violated when, pursuant to an unconstitutional

policy, he was stripped and forced to walk naked in front of other inmates and ODCR staff.

(Doc. No. 1-1 at 1.) His Complaint stated that the relief he sought was “declaratory, injunctive

in the form of [his] immediate release from the custody/confinement of the [ODRC]” and $50

million in damages from each defendant. (Doc. No. 1 at 5, ¶ V.)

II. Law and Analysis

A. Standard of Review

Because plaintiff is suing governmental entities, his complaint is now subject to

screening under 28 U.S.C. § 1915A. That statute requires district courts to screen any complaint

filed in federal court in which a prisoner seeks redress from governmental defendants, and to

dismiss before service any such complaint that the court determines is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant

immune from such relief. See id.; Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010).

B. Motion to Amend

On January 24, 2023, Plaintiff filed a “Motion to Amend/Complaint For Temporary

Restraining Order.” (Doc. No. 3.) He did not file a new, proposed complaint with this motion,

nor did he demonstrate a basis for a temporary restraining order. But in his motion, he asked that

the Court “strike” his request for monetary damages in the case and “amend his complaint” to

seek solely “prospective injunctive relief.” (Doc. No. 2.) The Court will so construe his

complaint and GRANTS those forms of relief.

C. Section 1983 Claim

Upon review, the Court finds that Plaintiff’s complaint must be dismissed. Even

construed as Plaintiff requests in his motion to amend, the Complaint failed to state a plausible

claim upon which he may be granted relief under Section 1983.

In order to state a claim under Section 1983, a plaintiff must allege that he suffered a

deprivation of a right secured by the Constitution or laws of the United States “committed by a

person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The only

defendants Plaintiff has named in this case are the ODRC and MCI, i.e., a state agency and a

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prison facility under the control of the ODRC. Neither of these entities is a person amenable to a

Section 1983 suit. See Peeples v. Ohio Dep’t of Rehab. & Corr., 61 F.3d 904 (Table), 1995 WL

445714, at *1 (6th Cir. 1995) (holding that the ODRC is not a ‘person’ subject to suit for

damages under § 1983 and that the ODRC did not waive its Eleventh Amendment immunity);

White v. Mansfield Correctional Institution, No. 1:19-cv-2451, 2020 WL 789245, at *2 (N.D.

Ohio Feb. 18, 2020) (holding that neither MCI nor ODRC were amenable to Section 1983

lawsuit); Brown v. Imboden, No. 1:11-CV-529, 2011 WL 3704952, at *2 (N.D. Ohio Aug. 23,

2011) (“As an initial matter, MANCI and the ODRC are not proper parties to this civil rights

action. MANCI is a prison facility under the control of the ODRC. It is not its own legal entity,

and is not capable of being sued or bringing suit. In other words, it is not sui juris.”).

In addition, plaintiff’s complaint, construed as he requests, fails to state a cognizable

claim for the additional reason that any claim he asserts is now moot. Plaintiff’s filings, and the

public records of the ODRC, all indicate that he is no longer incarcerated in MCI where he

contends the unconstitutional conduct he alleges took place. Rather, plaintiff is now incarcerated

in RCI. Therefore, any request for prospective injunctive relief regarding the unconstitutional

conduct that he alleges took place at MCI has been rendered moot by his transfer. See Kensu v.

Haugh, 87 F.3d 172, 175 (6th Cir. 1996) (holding prisoner’s claim for declaratory and injunctive

relief rendered moot when he was no longer housed at the facility giving rise to lawsuit).

Finally, a complaint is properly dismissed as frivolous if it is duplicative of an earlier

action. Peoples v. Reno, No. 00-1086, 2000 WL 1477502, at *1 (6th Cir. Sept. 26, 2000); see

also Cummings v. Mason, No. 1:11-cv-649, 2011 WL 2745937, at *1 (W.D. Mich. July 13,

2011) (holding that a “complaint that merely repeats pending or previously litigated claims may

be dismissed under 28 U.S.C. § 1915(e)(2)(i) as frivolous or malicious”). A duplicative suit is

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one in which the issues “have such an identity that a determination in one action leaves little or

nothing to be determined in the other.” Heard v. Strange, No. 2:21-cv-10237, 2021 WL 695052,

at *1 (E.D. Mich. Feb. 23, 2021) (quoting Smith v. S.E.C., 129 F. 3d 356, 361 (6th Cir. 1997)).

District courts have “broad discretion in determining whether to dismiss litigation or abstain in

order to avoid duplicative proceedings.” In re Camall Co., 16 F. App’x 403, 408 (6th Cir. 2001)

(citing In Re White Motor Credit, 761 F.2d 270, 274–75 (6th Cir. 1985)).

As plaintiff acknowledges, he has already filed a civil rights action arising from the same

conduct he alleges in this case, and that prior action is now proceeding in this Court against the

relevant individual defendants. See Bushner v. Tim McConahay, et al., No. 1:22-cv-484 (N.D.

Ohio) (pending). “As a general rule, when duplicative lawsuits are pending . . . , the entire

action should be decided by the court in which an action was first filed.’” See Heard, 2021 WL

695052, at *1 (quoting Smith). Accordingly, to the extent Plaintiff seeks to raise claims that are

duplicative or arise from the same incident addressed in his first-filed case, he should seek to

raise such claims in that pending case.

III. Conclusion

For the foregoing reasons, this action is dismissed in accordance with 28 U.S.C. § 1915A.

In light of this dismissal under § 1915A, his motion to proceed in forma pauperis is denied as

moot. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be good faith.

IT IS SO ORDERED.

____________________________________

BRIDGET MEEHAN BRENNAN

Date: June 14, 2023 UNITED STATES DISTRICT JUDGE

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