Hoffmeyer v. Perry

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SAMUEL HOFFMEYER,

Plaintiff,

Case No. 2:21-cv-1942

v. Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

MS. PERRY, et al.,

Defendants.

ORDER and

INITIAL SCREEN REPORT AND RECOMMENDATION

On April 8, 2021, Plaintiff Samuel Hoffmeyer, a state inmate incarcerated in the Ross

Correctional Institution, commenced this action by filing a motion for leave to proceed in forma

pauperis. (ECF No. 1.) By Order dated April 21, 2021, this action was transferred to this

Court from the Western Division at Cincinnati. On May 4, 2021, the Court, noting the

inaccuracy of Plaintiff’s statement that he had not begun any other lawsuits relating to his

imprisonment, directed Plaintiff to identify other lawsuits he had filed so that the Court properly

could evaluate his in forma pauperis application. (ECF No. 3.) Plaintiff responded to this Order

on May 12, 2021, confirming that he had filed several other cases relating to his imprisonment.

(ECF No. 5.) Upon review of Plaintiff’s supplemental filing,1 Plaintiff’s motion (ECF No. 1) is

1 Plaintiff confirmed that he had filed two cases in the Northern District of Ohio. (ECF No. 5, at

2.) Both of these cases were dismissed for failure to state a claim. Hoffmeyer v. Rose, No. 1:10

CV 2588, 2011 WL 34059 (N.D. Ohio Mar. 4, 2011) and Hoffmeyer v. Collins, No. 1:09 CV

2578, 2010 WL 1488023 (N.D. Ohio Apr. 12, 2010). Plaintiff also filed two cases in this

Court’s Western Division at Cincinnati that have been dismissed with prejudice under 28 U.S.C.

§ 1915(e)(2)(B) as duplicative of another case currently pending in that District. See Hoffmeyer

v. Ohio Department of Corrections, Case No. 1:20-cv-752 and Hoffmeyer v. Smith, No. 1:21-cv-

GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C.

§ 1915(b)(1).

Plaintiff’s account statement reveals that as of March 25, 2021, he possessed the sum of

$2.48 in his prison account, which is insufficient to pay the full filing fee. Plaintiff’s certified

trust fund statement also indicates that his average monthly balance as of that date was $2.47.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account (#A761637)

at the Ross 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

109; see also Hoffmeyer v. Chambers-Smith, No. 1:20-cv-637. Upon review of the cases filed

and dismissed in the Western Division pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court does not

construe these dismissals to count as strikes under the circumstances of the Plaintiff’s filings in

those cases. See generally Simons v. Washington, No. 20-1406, 2021 WL 1727619 (6th Cir.

May 3, 2021) (a court that dismisses a lawsuit filed by a prisoner litigating IFP cannot bind a

later court with a determination that the dismissal counts as a strike under the PLRA's three-

strikes rule). In No. 1:20-cv-752, the Court directed the complaint to be filed as an addendum to

the complaint in No. 1:20-cv-637. Further, in No. 1:21-cv-109, Plaintiff’s filing reasonably can

be viewed as a procedurally improper attempt to amend his complaint in No. 1:20-cv-637.

85 Marconi Boulevard

Columbus, OH 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 Plaintiff

and 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 under

28 U.S.C. §§ 1915(e)(2) 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). Having performed the initial screen, it is RECOMMENDED

that Plaintiff’s claims against LeCi employees Investigator Jon Tabor, PREA Coordinator Don

Hudson, and Inspector Devin Hoover be DISMISSED as duplicative of Plaintiff’s claims in

Case No. 1:20-cv-673. It is FURTHER RECOMMENDED that Plaintiff’s claims under the

PREA be DISMISSED with prejudice for failure to state a claim. Finally, it is

RECOMMENDED that Plaintiff be allowed to proceed on his Eighth Amendment deliberate

indifference/failure to protect claim against Defendants Perry, Scott, Wellinghoff, and Lions.

I.

“‘District courts are required to screen all civil cases brought by prisoners, regardless of

whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel, as

the statute does not differentiate between civil actions brought by prisoners.’ ” Espinoza

Vallecillo v. Michigan, No. 2:19-CV-13354, 2020 WL 85929, at *2 (E.D. Mich. Jan. 7, 2020)

(quoting In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (emphasis

added)).

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 so doing, 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)2 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

(iii) seeks monetary relief against a defendant who is immune from

such relief.

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 Rules 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

2 Formerly 28 U.S.C. § 1915(d).

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 complains.” 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. (quoting Twombley, 550 U.S. at 556). “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 has filed a pro se complaint, (ECF No. 1-1) and a motion to amend his complaint

(ECF No. 4) which is accompanied by a document captioned as an “Inmate Statement.” (ECF

No. 4-1). He alleges violations of his rights under the Prison Rape Elimination Act (“PREA”)

and 42 U.S.C. § 1983.

In his initial complaint, Plaintiff names as Defendants “Acting Intake Screening Nurse,

Defendant #1 Nurse Mr. Scott” and “(RCI) PREA Coordinator, Defendant #2 Ms. Perry.” (ECF

No. 1-1, at 5.) Plaintiff alleges that he was transferred to RCI on March 19, 2021, after being

sexually assaulted at Lebanon Correctional Institution (“LeCI”). (Id.) According to Plaintiff,

upon his arrival at RCI and his disclosure to Mr. Scott that he had been sexually assaulted at his

previous institution, Defendants failed to follow PREA protocol and Ms. Perry “failed to classify

Plaintiff as an at-risk inmate.” (Id. at 5, 7.) Plaintiff states that he was sexually assaulted the

next day. (Id. at 7.) Plaintiff further alleges that he contacted the security office but instead of

following PREA protocols, they placed him in “confinement punishment.” (Id.) Plaintiff seems

to suggest that in the following days he experienced further abuse by other inmates and was

“subject to further threats of physical harm and sexual assault.” (Id.) Plaintiff identifies his

claims as arising under the Eighth Amendment and the PREA. (Id. at 8.) For relief, Plaintiff

seeks “compensatory and punitive damages” in the amount of $250,000 from each defendant,

both of whom he has sued in their official and personal capacities. (Id. at 6.)

In his motion to amend, or “addendum brief,” Plaintiff states that he wishes to add

additional defendants, including “(RCI) Investigator Bryan Wellinghoff; (RCI) Sergeant Lions;

(LeCI) Investigator Jon Tabor; (LeCI) Prea Coordinator Don Hudson; and (LeCI) Inspector

Devin Hoover.” (ECF No. 4, at 1, 9.) This document contains similar and slightly more detailed

allegations of PREA protocol violations, including alleged violations committed by Sergeant

Lions, that Plaintiff endured upon, and in the days following, his arrival at RCI. This filing also

alleges additional sexual assaults and a confrontation with an alleged abuser in the dining hall

that resulted in Plaintiff’s receipt of a conduct report. (Id. at 7.) Plaintiff maintains his request

for monetary damages in the amount of $250,000 against each defendant in both their official

and personal capacities. Despite his detailed description of defendants’ alleged failure to uphold

PREA protocols, Plaintiff describes his claim in this filing as an Eighth Amendment violation.

The “Inmate Statement” accompanying Plaintiff’s motion to amend contains additional, if

repetitive, detail expounding upon these same allegations. Consistent with Plaintiff’s stated

intention to add certain LeCI personnel as defendants in this case, both Plaintiff’s proposed

amendment/addendum and the “Inmate Statement” contain allegations relating to events at LeCI.

(Id. at 2-3.) (ECF 4-1, at 1-2.)

III.

For purposes of the required screening under § 1915(e), the Court will consider all of the

above filings (ECF Nos. 1-1, 4 and 4-1) as comprising Plaintiff’s complaint in order to determine

whether any of Plaintiff’s allegations should be dismissed as frivolous or malicious, or for failure

to state a claim upon which relief may be granted. Taking all of the above into account, the

Court concludes as follows.

Initially, to the extent that Plaintiff seeks to proceed against any employees of LeCI in

this action, or on any claims arising out of alleged incidents while he was incarcerated in LeCI,

those claims are subject to dismissal. The allegations relating to events at LeCI stem from the

same incidents alleged in Hoffmeyer v. Chambers-Smith, Case No. 1:20-cv-637. That case

remains pending and both Don Hudson and Devin Hoover are named defendants in that case.

See also Hoffmeyer v. Ohio Dep’t of Corr., No. 1:20-CV-752, 2020 WL 6746383 (S.D. Ohio

Oct. 27, 2020), report and recommendation adopted, No. 1:20CV752, 2020 WL 6741427 (S.D.

Ohio Nov. 17, 2020) and Hoffmeyer v. Smith, No. 1:21-CV-109, 2021 WL 1056768 (S.D. Ohio

Mar. 19, 2021), report and recommendation adopted, No. 1:21CV109, 2021 WL 1253962 (S.D.

Ohio Apr. 5, 2021) (dismissing as duplicative Plaintiff’s subsequent complaints stemming from

the alleged incidents in Case No. 1:20-cv-637.) Accordingly, any claims against Don Hudson,

Devin Hoover, and Jon Tabor are subject to dismissal and the Court will consider Plaintiff’s

remaining allegations only as they relate to defendants Perry, Scott, Wellinghoff, and Lions.

As to these remaining Defendants, Plaintiff has failed to state plausible claims for

monetary damages against any of them in their official capacities. “[A] suit against a state

official in his or her official capacity is not a suit against the official but rather is a suit against

the official’s office,’ which is ‘no different from a suit against the State.’” McCoy v. Michigan,

369 F. App'x 646, 654 (6th Cir. 2010) (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58,

71 (1989)). 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)). Thus, dismissal pursuant to

§ 1915(e) of Plaintiff’s claims for damages against the Individual Defendants in their official

capacities is appropriate. See Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 598

(6th Cir. 2016) (stating that immunity applies to state officials sued in their official capacity for

money damages because “‘a suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office,’ i.e., against the state itself”)

(quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)); 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).

Further, to the extent it remains relevant here, the PREA does not create a private right of

action. See, e.g., Montgomery v. Harper, No. 5:14-CV-P38-R, 2014 WL 4104163, at *3 (W.D.

Ky. Aug. 19, 2014) (“[T]his Court concludes that the PREA creates no private right of action.”).

See also McCall v. Stegemoller, No. 2:18-CV-228, 2018 WL 2725433, at *2 (S.D. Ohio June 6,

2018) (“PREA does not grant inmates substantive rights and nothing in PREA indicates that it

created a private right of action.”), report and recommendation adopted, No. 2:18-CV-228, 2018

WL 3213284 (S.D. Ohio June 29, 2018); Peterson v. Burris, No. 14-CV-13000, 2016 WL 67528,

at *2 (E.D. Mich. Jan. 6, 2016) (“Numerous Courts that have addressed this issue have

determined that the PREA provides no private right of action to individual prisoners.”).

Accordingly, Plaintiff’s claims that Defendants violated the PREA are subject to dismissal.

At this juncture, however, the Court will permit Plaintiff to proceed with his Eighth

Amendment deliberate indifference/failure to protect claims against Defendants Perry, Scott,

Wellinghoff, and Lions. The Court, however, expresses no opinion as to the merits of those

claims.

Finally, it does not appear that Plaintiff has provided service copies of the three

documents construed as his complaint (ECF Nos. 1-1, 4, and 4-1), or all of the necessary

completed summons forms or completed United States Marshal forms, so that service may be

issued on the Defendants. Plaintiff is ORDERED to submit these documents, as applicable, for

Defendants Perry, Scott, Wellinghoff, and Lions within thirty (30) days of the date of this

Order.3 Plaintiff is SPECIFICALLY ADVISED that his failure to comply with this Order may

result in the dismissal of this action for want of prosecution.

IV.

For the reasons set forth above, it is RECOMMENDED that Plaintiff’s claims against

LeCi employees Investigator Jon Tabor, PREA Coordinator Don Hudson, and Inspector Devin

Hoover be DISMISSED as duplicative of Plaintiff’s claims in Case No. 1:20-cv-673. It is

FURTHER RECOMMENDED that Plaintiff’s claims under the PREA be DISMISSED with

prejudice for failure to state a claim. Finally, it is RECOMMENDED that Plaintiff be allowed

to proceed on his Eighth Amendment deliberate indifference/failure to protect claim against

Defendants Perry, Scott, Wellinghoff, and Lions. Again, the Court expresses no opinion as to

the merits of Plaintiff’s remaining claims.

Plaintiff is ORDERED to submit the necessary service documents for defendants Perry,

Scott, Wellinghoff, and Lions within thirty (30) days of the date of this Order. Plaintiff is

specifically advised that his failure to comply with this Order may result in the dismissal of this

action for want of prosecution.

The Clerk is DIRECTED to send a copy of this Order and Initial Screen Report and

Recommendation to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus,

Ohio 43215.

The Clerk is FURTHER DIRECTED to remove Plaintiff’s motion to amend complaint

(ECF No. 4) from the Court’s pending motions list.

3 It appears from the Court’s docket that Plaintiff provided service copies of his original

complaint (ECF No. 1-1) and completed summons and United States Marshal forms for

Defendants Perry and Scott upon filing his motion for leave to proceed in forma pauperis. (ECF

No. 1.)

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

the 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.

_s/ Elizabeth A. Preston Deavers________

DATED: May 24, 2021 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE