Ashraf v. Ohio Dept. of Rehabilitation & Correction

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WAQAR ASHRAF,

Plaintiff,

Civil Action 2:19-cv-03575

Judge James L. Graham

v. Chief Magistrate Judge Elizabeth P. Deavers

OHIO DEPT. OF REHABILITATION

& CORRECTION, et al.,

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff Ashraf Wager’s request for leave to proceed in forma pauperis under 28 U.S.C.

§ 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) Plaintiff is required to pay the full amount of

the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1).

Plaintiff’s June 27, 2019, account statement reveals that he currently possesses the sum of

$0.46 in his prison account, which is insufficient to pay the full filing fee. Pursuant to 28 U.S.C.

§ 1915(b)(1), the custodian of Plaintiff’s inmate trust account (#A715169) at Noble Correctional

Institution is DIRECTED to submit to the Clerk of the United States District Court for the

Southern District of Ohio as an initial partial payment, 20% of the greater of either the average

monthly deposits to the inmate trust account or the average monthly balance in the inmate trust

account, for the six-months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to the prison

cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s

financial office in Columbus.

This matter is also before the Court for an initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which 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. 28 U.S.C. §§ 1915(e)(2), 1915A. Having performed the initial screen of the

Complaint required by 28 U.S.C. §§ 1915(e), 1915A, for the reasons that follow, it is

RECOMMENDED that Plaintiff’s Complaint be DISMISSED in its entirety.

I.

Plaintiff, a state inmate who is proceeding without the assistance of counsel, brings this

action against the Ohio Department of Rehabilitation and Correction (“ODRC”) and Noble

Correctional Institution (“NCI”). (ECF No. 1.) Plaintiff brings his claims under 28 U.S.C. §

1983 and alleges that he suffered “serious complications with breathing and rheumatoid arthritis”

due to carbon monoxide exposure. (Id.) Plaintiff seeks relief of $150,000. (Id.) Plaintiff also

requests the assistance of counsel. Plaintiff’s request for counsel is DENIED WITHOUT

PREJUDICE. Although this Court has statutory authority under 28 U.S.C. § 1915(e) to appoint

counsel in a civil case, appointment of counsel is not a constitutional right. Lavado v. Keohane,

992 F.2d 601, 605 (6th Cir. 1993) (citation omitted). Rather, “[i]t is a privilege that is justified

only by exceptional circumstances.” Id. at 606. The Court has evaluated whether such

exceptional circumstances exist in this case and determines that the appointment of counsel is not

warranted at this juncture.

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

1Formerly 28 U.S.C. § 1915(d).

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

III.

For his statement of claims, in its entirety, Plaintiff alleges as follows:

On February 22, 2019, I became overwhelm [sic] by carbon monoxide exposure.

Due to the exposure, I suffered serious complications with breathing and

rheumatoid arthritis. After outside hospital treatment, my medication for

rheumatoid arthritis, Humira, had to be increased in dosages. I went from thrice a

month to once a week.

During administrative review of my complaints, thee [sic] Inst. Insp. claimed no

neglect or culpability based upon what fire codes demanded. However, the national

ambient air quality standards demand more. Thee [sic] Inst. Insp. has clearly

admitted that defendants don’t follow NAAQS and have failed to designate housing

areas in accordance with such. Therefore, I’m entitled to damages pursuant to Just

v. Chambers (1941), 312 U.S. 383.

(ECF No. 1, at PAGEID #17.)

Plaintiff has failed to state claims for relief against ODRC. The Eleventh Amendment of

the United States Constitution operates as a bar to federal-court jurisdiction when a private

citizen sues a state or its instrumentalities unless the state has given express consent. Pennhurst

St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331,

334 (6th Cir. 2000). “It is well established that [28 U.S.C.] § 1983 does not abrogate the

Eleventh Amendment.” Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (citing Quern

v. Jordan, 440 U.S. 332, 341 (1979)). ODRC is an instrumentality of the state of Ohio. Lowe v.

Ohio Dep’t of Rehab., No. 97-3971, 1998 WL 791817, at *2 (6th Cir. Nov. 4, 2008). Because

Ohio has not waived its sovereign immunity in federal court, it is entitled to Eleventh

Amendment immunity from suit for monetary damages. Mixon v. State of Ohio, 193 F.3d 389,

397 (6th Cir. 1999). Further, ODRC is not a “person” who can be held liable under § 1983.

Diaz v. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013). Thus, dismissal pursuant to § 1915(e)

of Plaintiff’s claims against ODRC is appropriate. See Wingo v. Tenn. Dept. of Corrs., 499 F.

App’x 453, 454 (6th Cir. 2012) (affirming trial court’s dismissal of inmate’s claims against state

agency under § 1915(e), explaining that the department and the prison were entitled to Eleventh

Amendment immunity); Harrison, 722 F.3d at 771 (same).

Similarly, because the Eleventh Amendment prohibits this Court from entertaining a

claim under 42 U.S.C. § 1983 against the State of Ohio or its agencies, Plaintiff’s claims against

NCI, also an arm of the state, must be dismissed for lack of subject matter jurisdiction. Regents

of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997); Alabama v. Pugh, 438 U.S. 781, 782 (1978);

Blackford v. Noble Corr. Inst., No. 2:09-cv-562, 2009 WL 2591662, at *1 (S.D. Ohio Aug. 20,

2009) (adopting Report and Recommendation holding “Plaintiff’s claim against the Noble

Correctional Institution must therefore be dismissed for lack of subject matter jurisdiction.”).

III.

For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Complaint be

DISMISSED in its entirety. It is FURTHER RECOMMENDED that the Court certify

pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order

adopting this Report and Recommendation would not be taken in good faith and therefore deny

Plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th

Cir. 1997).

The Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s

Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

IT IS SO ORDERED.

Date: August 20, 2019 /s/ Elizabeth A. Preston Deavers_________

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE