Ball v. State of Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID J. BALL,

Plaintiff,

Civil Action 2:20-cv-1759

Judge Michael H. Watson

v. Chief Magistrate Judge Elizabeth P. Deavers

STATE OF OHIO, et al.,

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, David J. Ball, a state inmate who is proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983 against the State of Ohio and the Ohio

Department of Rehabilitation and Correction. (ECF No. 1.) This matter is before the Court for

consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis, which is

GRANTED. (Id.) Plaintiff is required to pay the full amount of the Court’s $350.00 filing fee.

28 U.S.C. § 1915(b)(1).

Plaintiff’s April 3, 2020, account statement reveals that he currently possesses the sum of

$13.53 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 (#A765232) at North

Central Correctional Complex 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 the initial screen of Plaintiff’s Complaint (ECF

No. 1-1) under 28 U.S.C. §§ 1915(e)(2) and 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(b); see also McGore v.

Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the

reasons that follow, it is RECOMMENDED that Plaintiff’s claims against both Defendants be

DISMISSED WITHOUT PREJUDICE.

I.

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;

(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

1 Formerly 28 U.S.C. § 1915(d).

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)).

II.

Plaintiff is an inmate at the North Central Correctional Complex (“NCCC”) where he

works in food service. (ECF No. 1-1 at 5.) He alleges that he is in harm’s way of the novel

coronavirus because the inmates at the prison are not able to remain six feet apart from one

another. (Id.) Plaintiff further alleges that the prison is not testing the staff before entering the

prison. (Id.) Plaintiff has health problems and believes that “overpacked dorms,” “NCCC not

following the [six foot] rule,” and “not testing any staff” constitutes a “death sentence” for him.

(Id.) He requests this Court to order the testing of all staff and grant him monetary damages of

$250,000.00 for putting his life at risk. (Id. at 6.)

Plaintiff indicates in his Complaint that there is a prisoner grievance procedure in the

institution, but that he did not present these facts to the prison using it. (Id. at 3.) He notes that

he did notify prison authorities, including some staff members and the warden, but “was told

[they are] doing what is told to them by Ohio Department of Health.” (Id.)

Under 42 U.S.C. § 1997e(a), as amended by the PLRA, “a prisoner confined in any jail,

prison, or other correctional facility” may not bring an action challenging “prison conditions”

under 42 U.S.C. § 1983 “or any other Federal law . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 211 (2007)

(“There is no question that exhaustion is mandatory under the PLRA and that unexhausted

claims cannot be brought in court.” (citation omitted)). This mandatory exhaustion requirement

applies to all lawsuits relating to prison conditions, regardless of the nature of the wrong or the

relief sought. Porter v. Nussle, 534 U.S. 516, 524 (2002). “Exhaustion” under the PLRA means

“proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). To properly exhaust, prisoners

must “tak[e] advantage of each step the prison holds out for resolving the claim internally and . .

. follow the ‘critical procedural rules’ of the prison’s grievance process to permit prison officials

to review and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey

v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010); Jones, 549 U.S. at 217–18 (noting that proper

exhaustion requires “[c]ompliance with prison grievance procedures”). The purpose of the

exhaustion requirement “is to allow prison officials ‘a fair opportunity’ to address grievances on

the merits, to correct prison errors that can and should be corrected and to create an

administrative record for those disputes that eventually end up in court.” Mattox v. Edelman,

851 F.3d 583, 591 (6th Cir. 2017) (quoting Reed-Bey, 603 F.3d at 324–25).

Ohio has established a procedure for resolving inmate complaints. Ohio Admin. Code §

5120–9–31. To properly exhaust a claim seeking relief “regarding any aspect of institutional life

that directly and personally affects the [inmate],” an inmate at an ODRC facility must comply

with its three-step grievance system. Id. For the first step, the inmate must submit an informal

complaint to the staff member or to the direct supervisor of the staff member or to the

department most directly responsible over the subject matter with which the inmate is concerned.

Ohio Admin. Code § 5120–9–31(K)(1). If the inmate is not satisfied with the results at the first

step, he may take the second step by filing a formal grievance with the inspector of institutional

services at the prison where he is confined. Ohio Admin. Code § 5120–9–31(K)(2). That

inspector will investigate the matter and issue a written response to the inmate’s grievance within

fourteen calendar days of receipt. Id. If the inmate is still dissatisfied, he may pursue the third

step, which is an appeal to the office of the Chief Inspector of ODRC. Ohio Admin. Code §

5120–9–31(K)(3). An inmate does not exhaust his remedies under § 5120-9-31 until he has

received a decision in an appeal to the office of the Chief Inspector. Younker v. Ohio State Univ.

Med. Ctr., No. 2:11-cv-00749, 2013 WL 3222902, at *4 (S.D. Ohio June 25, 2013).

While this exhaustion requirement is an affirmative defense, “[a] complaint is subject to

dismissal for failure to state claim if the allegations, taken as true, . . . show that relief is barred

by an affirmative defense.” Mattox, 851 F.3d at 590 (quoting Jones, 549 U.S. at 215).

Applying the foregoing authority, the Undersigned concludes that Plaintiff failed to

properly exhaust his administrative remedies before seeking judicial relief. Plaintiff

acknowledges in his Complaint that NCCC has a grievance system but that he did not use it prior

to filing this lawsuit. (ECF No. 1-1 at 3.) In reaching this conclusion, the Undersigned does not

intend to diminish the risk of COVID-19 at NCCC. However, the exhaustion requirements of

the PLRA are mandatory and may not be altered for special circumstances. See Ross v. Blake,

136 S. Ct. 1850, 1856–57 (2016) (“[A] court may not excuse a failure to exhaust, even to take

[special] circumstances into account.”).

III.

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

DISMISSED WITHOUT PREJUDICE in its entirety for failure to comply with the PLRA’s

exhaustion requirements. 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: April 23, 2020 /s/ Elizabeth A. Preston Deavers_________

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE