Lay v. Ohio Department of Corrections Rehabilitations (O.D.R.C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CLARENCE H. LAY,

Plaintiff,

Case No. 2:20-cv-5461

Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Elizabeth P. Deavers

OHIO DEPARTMENT OF CORRECTIONS

REHABILITATIONS (O.D.R.C.),

Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff Clarence H. Lay’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 September 29, 2020, account statement reveals that he currently possesses the

sum of $0.03 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 (A567594) at the London

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.

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

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).

1 Formerly 28 U.S.C. § 1915(d).

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 ain 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 alleges that when he arrived at the London Correctional Institution on January

24, 2008, he was put on chronic care for Hepatitis C, and on December 2, 2008 he was diagnosed

with “no abnormalities.” (ECF No. 1-1 at PAGEID # 16.) Plaintiff alleges that following that

diagnosis, he was told he would not receive treatment for his Hepatitis C. (Id.) Plaintiff alleges

that “[y]ears later,” he was offered treatment for Hepatitis C due to high liver enzymes and

started the treatment but then had it taken away when his liver enzyme levels lowered. (Id.)

Plaintiff also alleges that, on October 25, 2018, he was diagnosed with Stage 3 liver cirrhosis.

(Id.) At that point, Plaintiff alleges he was prescribed medication for Hepatitis C for a twelve-

week period, and the medication cured his Hepatitis C. (Id.) Plaintiff alleges he was taken off

chronic care on August 6, 2020, but has not been evaluated to see if the liver cirrhosis has

advanced since the initial diagnosis in 2018. (Id.)

Plaintiff seeks $250,000 in damages and claims the Ohio Department of Rehabilitation

and Correction (“ODRC”) should provide up-to-date medication and cover Plaintiff’s medical

expenses for the rest of his life. (Id. at PAGEID # 17.) Plaintiff claims ODRC “caused such

damage to [his] liver . . . [by] not treating [him] in a reasonable time,” and Plaintiff has “been

suffering with the symptoms of [Hepatitis C] for a ten year period and now [has] to continue . . .

with the symptoms of cirrhosis.” (Id.)

Plaintiff only names the “Ohio Department of Corrections Rehabilitations (O.D.R.C.)” as

a Defendant.1 (ECF No. 1-1.) Plaintiff has failed to state plausible 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 § 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)).

1 This Court is proceeding as if Plaintiff had properly named the ODRC as the Defendant.

The ODRC is an instrumentality of the state of Ohio. See Lowe v. Ohio Dep't of Rehab.,

No. 97-3971, 1998 WL 791817, at *2 (6th Cir. Nov. 4, 2008) (holding that a prisoner's claims

against both ODRC and a state prison are barred by the Eleventh Amendment); see also Francis

v. Ohio Dep't of Rehab. & Corr., No. 1:13 CV 986, 2013 WL 5406798, at *4 (N.D. Ohio Sept.

25, 2013) (finding that the medical department of a state prison is considered a subunit of a state

agency such that claims against it are construed against the State of Ohio and are immune from

suits for damages). 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).

For these reasons, it is RECOMMENDED that Plaintiff’s claims against Defendant

Ohio Department of Rehabilitation and Correction be DISMISSED in their entirety pursuant to

28 U.S.C. § 1915(e)(2) for failure to state a claim for which relief can be granted. Thus,

dismissal pursuant to § 1915(e) of Plaintiff’s claims against the ODRC is appropriate.

III.

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

DISMISSED in its entirety for failure to state a claim upon which relief can be granted. 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. 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).

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. Natl 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: October 19, 2020 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE