The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PEYTON HOPSON,
Plaintiff,
Case No. 2:21-cv-2784
Chief Judge Algenon L. Marbley
v.
Magistrate Judge Kimberly A. Jolson
HON. SARAH LIOI,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Peyton Hopson, an inmate at Belmont Correctional Institution (“BCI”) who is
proceeding pro se, filed his Complaint (Doc. 1-1), along with a Motion for Leave to Proceed in
forma pauperis (Doc. 1), in the United States District Court for the Southern District of Ohio,
Eastern Division. Having preformed the initial screen of the Complaint, pursuant to 28 U.S.C.
§ 1915A, the Undersigned RECOMMENDS that the Motion to proceed in forma pauperis be
DENIED and that the Complaint be DISMISSED.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1)–(2) (Doc. 1), the Undersigned RECOMMENDS that the Motion be
DENIED. Plaintiff’s Motion reveals that he has an insufficient amount to pay the full filing fee.
However, under the Prison Litigation Reform Act of 1996 (“PLRA”), an incarcerated plaintiff may
not proceed in forma pauperis when, on three or more prior occasions, a complaint “was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). This is commonly known as the “three-strikes rule.” Simons v. Washington, 996 F.3d
350, 351 (6th Cir. 2021). Hopson previously filed two cases in the Northern District of Ohio,
Hopson v. Stark Cnty. Sheriff’s Office, No. 5:15-cv-992, and Hopson v. Stark Cnty., No. 5-16-cv-
621, which were dismissed under 28 U.S.C. § 1915A for failure to state a claim and on res judicata
grounds, respectively (No. 5:15-cv-992, Doc. 8; No. 5:16-cv-621, Doc. 5). Plaintiff has also
previously filed a case in this Court, Hopson v. Hunt, which was dismissed on the grounds of
quasi-judicial immunity and expiration of the statute of limitations (No. 2:20-cv-4751, Doc. 5).
As there is nothing in the instant Complaint suggesting that Plaintiff is “under imminent danger of
serious physical injury[,]” 28 U.S.C. § 1915(g), he cannot meet the exception to the rule.
Consequently, it is RECOMMENDED that Plaintiff be required to pay the full $402 filing
and administrative fee within thirty days of the adoption of this Report or other Order from this
Court. Plaintiff should be notified his failure to pay the full fee within the requisite thirty-day
period will result in the dismissal of his action. In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
II. BACKGROUND
Although not a model of clarity, the Undersigned derives the following allegations from
Plaintiff’s Complaint. Petitioner filed a petition for writ of habeas corpus against the BCI Warden
in this Court in the related case of Hopson v. Gray, No. 2:21-cv-1380, on March 29, 2021. The
undersigned transferred the case under 28 U.S.C. § 1404(a) to the Northern District, Eastern
Division, at Akron on March 30, 2021 (Order, No. 2:21-cv-1380, Doc. 1, PageID 1). In his
petition, Hopson raised a single Eighth Amendment claim arising from the Warden’s alleged
refusal to provide “standard curative treatment of Petitioner’s Hepatitis C viral infection.” (Doc.
1-1, at PageID 18). The Warden failed to respond to Hopson’s petition by the supposed deadline
of April 22, 2021, and Defendant Sara Lioi, District Judge for the Northern District of Ohio, to
whom the petition was assigned upon transfer, undertook no action to compel a response. Id. at
PageID 19.
As his sole Ground for Relief in the instant Complaint, Plaintiff has raised an Eighth
Amendment deliberate indifference claim against Judge Lioi for the Warden’s failure to provide
medical care (Doc. 1-1, at PageID 19). He claims that by not ordering the Warden to respond to
his previous petition, Judge Lioi has effectively deprived him of adequate medical care. (Id. at
PageID 19-20). Plaintiff argues that because Judge Lioi failed to act, judicial immunity does not
apply. (Id. at PageID 22 (citing State, for Use of Little v. United States Fidelity & Guaranty Corp.,
64 So.2d 697, 703 (Miss. 1953)). He seeks monetary damages from Judge Lioi. (Id. at PageID
23).
III. LEGAL STANDARD
“District courts are required to screen all civil cases brought by prisoners, regardless of
whether the inmate paid the full filing fee . . . as the statute does not differentiate between civil
actions brought by prisoners.” In re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997).
Accordingly, the Court must dismiss the complaint, or any portion of it, that “is frivolous or
malicious; fails to state a claim upon which relief can be granted; or seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). “A claim is frivolous if
it lacks ‘an arguable basis either in law or in fact.’” Flores v. U.S. Att’y Gen., No. 2:14-cv-84,
2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)). This occurs when “‘indisputably meritless’” legal theories underlie the complaint, or
when a complaint “relies on ‘fantastic or delusional’ allegations.” Id. (quoting Neitzke, 490 U.S.
at 327–28).
In reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all well-
pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Still,
a court is not required to accept factual allegations set forth in a complaint as true when such
factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x
427, 429-30 (6th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at
556). Although pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam), “basic pleading essentials” are still required. Wells v. Brown, 891 F. 2d
591, 594 (6th Cir. 1989).
IV. DISCUSSION
A. Failure to State a Claim
As Judge Lioi is a federal employee, Plaintiff’s claim arises under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than 42 U.S.C. § 1983.
“Generally, the standards of liability in Bivens actions are similar to the standards under § 1983.
Both the Supreme Court and this Court have noted that actions brought under § 1983 raise identical
concerns as those raised in Bivens actions.” Hammons v. Norfolk S. Corp., 156 F.3d 701, 707 (6th
Cir. 1998), abrogated on other grounds by Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001),
citing Butz v. Economou, 438 U.S. 478, 500 (1978).
Given § 1983’s roots in the common law of torts, the Supreme Court has instructed
us to “look first” to longstanding tort principles when defining the contours of a
§ 1983 claim. Two traditional tort principles show that a § 1983 plaintiff generally
must prove both that a defendant was personally at fault and that the defendant’s
culpable conduct (not somebody else’s) caused the injury.
Pineda v. Hamilton Cnty., Ohio, 977 F.3d 483, 490 (6th Cir. 2020) (emphasis in original) (citing
Manuel v. City of Joliet, ___ U.S. ____ 137 S.Ct. 911, 920 (2017); Filarsky v. Delia, 566 U.S. 377,
380 (2012)). Here, the cause of the alleged harm is not anything done by Judge Lioi, but by the
Warden’s failure to respond to his petition; this failure cannot be imputed to Judge Lioi. Further,
the Southern District is not the proper Court in which to seek redress. The proper action to obtain
expedited consideration of Plaintiff’s habeas petition (see Doc. 1-1, at PageID 18), would be for
Plaintiff to file a motion to compel response or for default judgment against the Warden in the
Northern District, where the case is pending. Indeed, if Plaintiff had adequately stated a claim
against Judge Lioi, the Undersigned would have ordered the instant case transferred to the
Northern District under 28 U.S.C. § 1404(a).
B. Immunity
Even if Judge Lioi were a proper Defendant, Plaintiff’s Complaint would still be
unavailing, as Judge Lioi is immune from suit. Stump v. Sparkman, 435 U.S. 349 (1978); Pierson
v. Ray, 386 U.S. 547 (1967). As discussed above, Plaintiff argues that Judge Lioi’s failure to
compel response is a failure to act, which he claims is not entitled to judicial immunity (Doc. 1-1,
at PageID 22, quoting Little, 64 So.2d at 703). Little, however, involved a justice of the peace
acting where he lacked jurisdiction. Here, Plaintiff does not—and cannot reasonably—allege that
Judge Lioi lacks jurisdiction. Further, Judge Lioi not yet ordering the Warden to respond to the
Petition is most appropriately categorized as docket management, and it is well-established that
management of a case docket is a judicial act entitled to immunity. Lowe v. Letsinger, 772 F.2d
308, 312 (6th Cir. 1985). Thus, Plaintiff has no viable cause of action against Judge Lioi.
V. CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Motion to Proceed in
forma pauperis be DENIED. Plaintiff should be required to pay the entire $402 fee within thirty
days of the filing of an Order adopting that portion of the Report and Recommendation. Having
preformed the initial screen pursuant to 28 U.S.C § 1915A, the Undersigned RECOMMENDS
that Plaintiff’s Complaint against Judge Lioi be DISMISSED for failure to state a claim upon
which relief can be granted.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence, or may
recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Date: June 30, 2021 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE