Castellon v. Hinkle

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ESTEPHEN CASTELLON,

Plaintiff,

Civil Action 2:20-cv-06420

Chief Judge Algenon L. Marbley

v. Magistrate Judge Elizabeth P. Deavers

GREG HINKLE, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

Plaintiff, a pro se prison inmate, initiated this action on December 15, 2020, by seeking

leave to proceed in forma pauperis. (ECF No. 1.) Defendant Greg Hinkle has filed a motion to

dismiss and Interested Party State of Ohio has filed a motion for judgment on the pleadings.

(ECF Nos. 28, 29.) These motions have been fully briefed.

In light of the issues raised by the dispositive briefing, the Undersigned finds it prudent to

undertake a further sua sponte review of Plaintiff’s Complaint. Although this action survived the

initial screen pursuant to 42 U.S.C. § 1915(e) and § 1915A, “the Court has ‘inherent power to

reconsider interlocutory orders and reopen any part of a case before entry of a final judgment.’”

Bloodworth v. Timmerman-Cooper, No. 2:10-CV-1122, 2012 WL 604236, at *2 (S.D. Ohio Feb.

23, 2012), report and recommendation adopted, No. 2:10-CV-1122, 2012 WL 3727656 (S.D.

Ohio Aug. 28, 2012) (quoting Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)).

Moreover, Section § 1915(e) grants courts authority to dismiss a case at any time if it is frivolous

or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Norman v.

Granson, No. 18-4232, 2020 WL 3240900, at *2 (6th Cir. Mar. 25, 2020) (emphasis added); see

also Yoder v. Stevenson, No. CV 20-12992, 2021 WL 6973839, at *7 (E.D. Mich. Dec. 20,

2021), report and recommendation adopted, No. 20-12992, 2022 WL 493284 (E.D. Mich. Feb.

16, 2022) (sua sponte dismissing claims not addressed by dispositive motion). Accordingly, for

the following reasons, the Undersigned reconsiders the initial review and RECOMMENDS that

the Complaint be DISMISSED pursuant to 28 U.S.C. 1915(e) and 1915A and that the pending

dispositive motions (ECF Nos. 28 and 29) be DENIED as moot.

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; . . . .

1Formerly 28 U.S.C. § 1915(d).

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)).

II.

The gist of Plaintiff’s claim is that the mail system at Noble Correctional Institution

(“NCI”) has interfered with his right to access the courts in connection with appealing his

conviction. Although not particularly well-articulated, his Complaint, construed liberally,

suggests a broad challenge to NCI’s mail policies. Plaintiff does not, however, identify any

specific policy at issue. Rather, he alleges two instances of delayed mail processing resulting in

untimely filings and adverse dispositive rulings. Further, he alleges one instance of the loss of

his habeas corpus petition requiring him to re-file it. Although Plaintiff does not cite 42 U.S.C. §

1983 as the basis for his claim, the Court construes his claim as arising under that statute. He

names as Defendants Lieutenant Greg Hinkle and three John or Jane Does but fails to specify

whether these Defendants are being sued in their individual or official capacities. Further,

Plaintiff seeks both monetary and injunctive relief.

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right

secured by the federal Constitution or laws and must show that the deprivation was committed

by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v.

Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). It has long been recognized that inmates

have a constitutional right, grounded in the First Amendment, to access the courts. See Bounds

v. Smith, 430 U.S. 817, 821 (1977) (“It is now established beyond doubt that prisoners have a

constitutional right of access to the courts”). That right is not, however, unlimited nor parallel to

the right of access to the courts enjoyed by non-incarcerated citizens. Rather, prisoners have a

constitutional right to access the courts only to present legal claims relating either to their

convictions and sentences or to the conditions of their confinement. “Thus, a prisoner’s right to

access the courts extends to direct appeals, habeas corpus applications, and civil rights claims

only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (describing this right as a

“carefully bounded right” and not a “generalized ‘right to litigate’”) (quoting Lewis v. Casey, 518

U.S. 343, 355 (1996)).

Because the right in question does not confer on prisoners an unfettered right to pursue

all types of legal claims, in order for the right to be infringed, there must be a relationship

between the actions which any particular inmate claims to be unconstitutional and that particular

inmate’s ability to file or pursue either a direct appeal, a collateral attack on a conviction or

sentence, or a civil rights action dealing with conditions of confinement. In Lewis v. Casey, the

Supreme Court conceived of this limitation as an issue of standing, holding that any inmate

pursuing a claim under Bounds v. Smith “must show actual injury.” 18 U.S. at 349. The Sixth

Circuit has explained that a prisoner “can only achieve standing if he alleges a personal injury

fairly traceable to a redressable wrong committed against him.” Thadeus-X, 175 F.3d at 392.

Consequently, it is not enough for a plaintiff simply to claim that he was denied access to

the courts, or allege that he did not have access to an adequate law library or some alternate form

of legal assistance. To state a claim upon which relief may be granted, a plaintiff must allege

facts sufficient to infer that a defendant’s conduct had an actual impact on the plaintiff’s ability

to pursue either an attack on his conviction or sentence, or on a civil rights action dealing with

allegedly unconstitutional conditions of confinement. Because this issue is one of standing,

which is a threshold issue to be addressed in any case brought in federal court, it is a plaintiff’s

burden to allege, in the complaint, facts from which his or her standing might reasonably be

inferred. As the Supreme Court has observed, “[l]ike any other element of an access claim, the

underlying cause of action and its lost remedy must be addressed by allegations in the complaint

sufficient to give fair notice to a defendant.” Christopher v. Harbury, 536 U.S. 403, 416 (2002).

Further, the underlying claim must be non-frivolous. Hadix v. Johnson, 182 F.3d 400, 405-06

(6th Cir. 1999). The Supreme Court has held that “the underlying cause of action. . . is an

element that must be described in the complaint, just as much as allegations must describe the

official acts frustrating the litigation.” Harbury, 536 U.S. at 415 (citing Lewis, 518 U.S. at 353

n.3).

III.

A. Eleventh Amendment Immunity

As noted, Plaintiff does not identify whether he is suing Defendant Hinkle in his official

or individual capacities. Construing the Complaint liberally, see Haines, 404 U.S. at 520, the

undersigned will assume for present purposes that Plaintiff has named Defendant Hinkle in both

capacities. Section 1983 imposes liability only upon a “person” who, under color of law,

subjects another person to a deprivation of federal rights. 42 U.S.C. § 1983. In suits for

damages, state officials acting in their official capacity are not “persons” under § 1983. Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). That is, a suit against a state official in

his official capacity is not a suit against the official but rather a suit against the official’s office

and as such is no different than a suit against the state itself. Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Eleventh Amendment bars all

suits, whether for injunctive or monetary relief, against a state and its departments. Cox v.

Kentucky Dept. of Transp., 53 F.3d 146, 152 n. 2 (6th Cir.1995), citing Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100–01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Further,

Eleventh Amendment immunity extends to state officials sued in their official capacity.

McCormick v. Miami Univ., No. 1:10-cv-345, 2011 WL 1740018, at *18 (S.D. Ohio May 5,

2011). The Eleventh Amendment, therefore, bars suits for monetary damages against

individuals in their official capacities. Smith v. DeWine, 476 F. Supp. 3d 635, 650–51 (S.D.

Ohio 2020). Accordingly, any claim for money damages against Defendant Hinkle in his official

capacity cannot succeed.

The Eleventh Amendment, however, does not bar suits seeking prospective injunctive or

declaratory relief against state officials for constitutional violations. Smith v. DeWine, 476 F.

Supp. 3d at 651 (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 15–60

(1908)). “‘The state official sued, however, must have, by virtue of the office, some connection

with the alleged unconstitutional act or conduct of which the plaintiff complains.’” Aaron v.

O’Connor, No. 1:18-cv-00599, 2020 WL 832097, at *2 (S.D. Ohio Feb. 20, 2020) (quoting

Floyd v. Cty. of Kent, 454 F. App’x 493, 499 (6th Cir. 2012)); see also Austin v. Kasich, No.

2:12-CV-983, 2013 WL 1324354, at *3 (S.D. Ohio Mar. 29, 2013) (“the Ex parte Young fiction

does not apply unless the officer sued has ‘some connection with the enforcement of the act.’”)

(citing Ex parte Young, 209 U.S. at 157).

To the extent that Plaintiff seeks injunctive relief directing that his mail be shipped within

24 hours of submission, he fails to allege any facts from which the Court could conclude that

Defendant Hinkle has any responsibility relating to either NCI’s mail processing or, more

broadly, its mail policies. See Austin, 2013 WL 1324354, at *5 (denying claim for injunctive

relief against Governor where, inter alia, plaintiff had failed to allege any responsibility for the

enforcement of the challenged law or policy). Stated another way, Plaintiff fails to articulate

what specific act by Defendant Hinkle he seeks to enjoin as unconstitutional. See Aaron, 2020

WL 832097, at *2 (noting plaintiff’s failure to identify what act by defendant plaintiff sought to

enjoin in dismissing claim for injunctive relief). Accordingly, Plaintiff has failed to satisfy the

pleading standards and any claim for injunctive relief against Defendant Hinkle would be barred

by the Eleventh Amendment.

Similarly, to the extent Plaintiff’s Complaint can be read as seeking injunctive relief

against NCI, any such claim also would be subject to dismissal. First, Plaintiff has not named

NCI as a defendant in this case. Further, NCI “is not a legal entity capable of being sued under §

1983.” Magruder v. Grafton Corr. Inst., No. 1:19CV1980, 2020 WL 2814352, at *4 (N.D. Ohio

Apr. 1, 2020), report and recommendation adopted, No. 1:19 CV 1980, 2020 WL 2812847

(N.D. Ohio May 29, 2020) (finding that GCI is not a legal entity capable of being sued under §

1983; see also Moon v. Richland Corr. Inst., Case No. 1:19 CV 1250, 2019 WL 2359196, at *1

(N.D. Ohio June 4, 2019) (citing Miles v. Richland Corr. Inst., Case No. 1:14-CV-01648, 2015

WL 366898, at *3 (N.D. Ohio Jan. 27, 2015) (citing Brown v. Imboden, Case No. 1:11 CV 529,

2011 WL 3704952, at *2 (N.D. Ohio Aug. 23, 2011) (“finding that Mansfield Correctional

Institution is not sui juris and, therefore, not capable of being sued under § 1983.”))). Therefore,

the claims against NCI “‘are more properly construed against’ the Ohio Department of

Rehabilitation and Correction (“ODRC”).’” Id. (quoting Brown, 2011 WL 3704952, at *2).

ODRC is not a “person” under § 1983. Id. (citing Price v. Ohio Dept. of Rehab. and Corr., Case

No. 2:19-cv-3442, 2019 WL 3891868, at *2 (S.D. Ohio Aug. 16, 2019) (citing Diaz v. Dep’t of

Corr., 703 F.3d 956, 962 (6th Cir. 2013)); see also Parker v. Mich. Dept. of Corr., 65 F. App’x

922, 923 (6th Cir. 2003) (“We note, nonetheless, that the court properly found that the MDOC is

not a ‘person’ within the meaning of 42 U.S.C. § 1983.”). Additionally, ODRC is an agency of

the State of Ohio, and therefore, as explained above, is immune from suit under the Eleventh

Amendment regardless of the nature of the relief sought. Magruder, 2020 WL 2814352, at *4

(dismissing suit brought against Grafton Correctional Institution pursuant to § 1983 for

injunctive and monetary relief and citing Moon, 2019 WL 2359196, at *1 (dismissing suit

brought against Richland Correctional Institute pursuant to § 1983 for injunctive and monetary

relief); Garcia v. Lorain Cty. Court of Common Pleas, Case No. 1:18-cv-00944, 2019 WL

1755649, at 2-4 (N.D. Ohio Apr. 19, 2019 (finding ORDC and Pickaway Correctional Institution

immune from suit for declaratory relief and damages)). Accordingly, any claim for injunctive

relief directed to NCI would be barred by the Eleventh Amendment.

B. Failure to State a Claim

Turning to Plaintiff’s allegations directed to Lieutenant Hinkle in his individual capacity,

Plaintiff asserts the following with respect to this Defendant:

On 5/1/19 Lieutenant Greg Hinkle respoded (sic) to the complaint by stating in part

that the issues regarding outgoing legal mail were being researched as the parcels

are transferred to three different offices as part of the process, but that Castellon

should manage his time better and not wait for the last minute to send legal work.

(ECF No. 4 at 6.)

Castellon brought his grievances to NCI in all the admin options available to him.…

-He initiated an informal complaint on 4/27/19, that was answered by Lieutenant

Greg Hinkle. Stating in part, that the process requires the package room, cashiers

office and the mailroom. Also no mail is processed over the weekend. If this has

caused you an issue, then I suggest you manage your time better and file your legal

work in a timely manner and not until the last minute to send it.

(ECF No. 4 at 8.)

These allegations are insufficient to state a claim against Defendant Hinkle for any

alleged denial of Plaintiff’s right of access to the courts. First, responding to a grievance or

otherwise participating in the grievance procedure is insufficient to trigger liability under 42

U.S.C. § 1983. Garrison v. Pinkney, No. 1:17 CV 1880, 2018 WL 970472, at *2 (N.D. Ohio

Feb. 20, 2018) (citing Shehee v. Luttrell, 199 F.3d. 295, 300 (6th Cir. 1999)). Beyond this,

Plaintiff’s claim fails because he does not set forth any facts from which the Court plausibly can

infer that Defendant Hinkle was personally involved in any violation of Plaintiff’s constitutional

rights. Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (providing that “a complaint

must allege that the defendants were personally involved in the alleged deprivation of federal

rights” to state a claim upon which relief may be granted under § 1983). “Indeed, ‘[e]ven a pro

se prisoner must link his allegations to material facts . . . and indicate what each defendant did to

violate his rights . . . ’” Nelson v. Ward, No. CV 7:21-024-DCR, 2021 WL 1701397, at *2 (E.D.

Ky. Apr. 29, 2021) (quoting Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir. 2019) (citing Hill v.

Lappin, 630 F.3d 468, 471 (6th Cir. 2010); Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir.

2008)). Here, even construing the Complaint liberally, Plaintiff simply does not allege any facts

suggesting that Defendant Hinkle had any involvement with the delayed processing of Plaintiff’s

mail or any responsibility relating to NCI’s mail processing policies at all.

Plaintiff’s claim also fails to the extent he may be attempting to assert a claim against

Defendant Hinkle in any supervisory capacity. Respondeat superior cannot be the basis of a §

1983 claim. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.2008). Rather, proof of personal

involvement in unconstitutional activity is required for a supervisor to acquire personal liability.

Id. A § 1983 plaintiff must at least show that a supervisory official implicitly authorized,

approved or knowingly acquiesced in the unconstitutional conduct of his subordinate. Id.

Again, Plaintiff fails to allege Lieutenant Hinkle’s direct involvement in any constitutional

violations.

For these reasons, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims

against Defendant Hinkle in his individual capacity for failure to state a claim.

C. John/Jane Doe Defendants1

In his caption, Plaintiff names three John/Jane Doe Defendants. However, Plaintiff has

made no specific allegations regarding these defendants in his Complaint, and they are not

referred to anywhere in the body of that pleading. “The Sixth Circuit ‘has consistently held that

damage claims against government officials arising from alleged violations of constitutional

rights must allege, with particularity, facts that demonstrate what each defendant did to violate

the asserted constitutional right.’” Eden v. Keinath, No. 2:22-CV-11515, 2022 WL 2812515, at

*3 (E.D. Mich. July 18, 2022) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)

1 The Undersigned notes that Plaintiff previously filed a Declaration to which he attached

“Summonses naming new Defendants” and “Complaint naming new Defendants.” The

purported new Defendants included Annette Chambers-Smith, Tim Buchanan, and Craig

Aufdekampe. See ECF No. 13. The Undersigned construed this filing as Plaintiff’s request for

leave to amend his Complaint. See ECF No. 16. Upon undertaking the screening required by

28 U.S.C § 1915, the Undersigned recommended denial of the proposed amendment explaining

that “[t]he Amended Complaint as tendered … fails to set forth any facts from which the Court

plausibly can infer that any of the proposed new Defendants were personally involved in any

violation of Plaintiff’s constitutional rights.” Id. at 5. However, the Undersigned further

recommended that this denial be without prejudice to Plaintiff’s ability to seek additional leave

to amend within 30 days of the date of any order ruling on this Report and Recommendation if

he wished to pursue claims against these proposed Defendants. Plaintiff did not wait for a ruling

on the Report and Recommendation but proceeded to file a motion seeking leave to amend. See

ECF No. 21. In this motion, Plaintiff explained that he was attempting to name ODRC by

naming Annette Chambers Smith, Tim Buchanan, and Craig Aufdekampe. Id. This cursory

motion did not contain any additional factual allegations related to these proposed Defendants

nor was it accompanied by a proposed amended complaint. Id. Accordingly, in adopting the

Report and Recommendation, the Court noted Plaintiff’s continued failure to plead any specific

facts to establish personal involvement by the proposed new Defendants and denied the motion

for leave to amend. See ECF No. 23 at 5. As Plaintiff had been advised, this left his original

complaint as the operative complaint in this case. See ECF No. 16 at 6.

(citing Terrance v. Northville Reg’l Psych. Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). “Where a

person is named as a defendant without an allegation of specific conduct, the complaint is subject

to dismissal, even under the liberal construction afforded to pro se complaints.” Id.

Accordingly, Plaintiff’s claims against the John/Jane Doe Defendants in their individual

capacities must be dismissed because Plaintiff fails to allege their personal involvement in the

processing of Plaintiff’s mail giving rise to the Complaint. Additionally, as explained above,

Plaintiff cannot bring claims for monetary damages against the John/Jane Doe Defendants in

their official capacities. Also, as noted, he has failed to identify a connection between such

Defendants and any alleged unconstitutional act for purposes of any injunctive relief. For these

reasons, it is RECOMMENDED that the Court DISMISS all claims against the John/Jane Doe

Defendants in their individual and official capacities.

IV.

The Undersigned further RECOMMENDS that leave to amend under 28 U.S.C. §§

1915(e)(2) and 1915A(b) be DENIED. The Sixth Circuit has held that a district court may allow

a prisoner to amend his complaint to avoid a sua sponte dismissal under the Prison Litigation

Reform Act, 28 U.S.C. §§ 1915, et seq. (the “PLRA”). Lucas v. Chalk, 785 F. App’x 288, 291

(6th Cir. 2019) (citing LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013) (“[W]e hold, like

every other circuit to have reached the issue, that under Rule 15(a) a district court can allow a

plaintiff to amend his complaint even when the complaint is subject to dismissal under the

PLRA”)). The Sixth Circuit also has stated that “[i]f it is at all possible that the party . . . can . . .

state a claim for relief, the court should dismiss with leave to amend.” Id. (quoting Brown v.

Matauszak, 415 F. App’x 608, 614 (6th Cir. 2011)). With this guidance in mind, the Court

already has permitted Plaintiff the opportunity to amend his complaint. Moreover, this

opportunity was granted after Plaintiff’s unsuccessful attempt to amend on his own. Despite

these attempted amendments, Plaintiff has failed to state a claim for relief against Defendant

Hinkle or any John/Jane Doe Defendants. Accordingly, the Court finds that further amendment

would be futile. See Reed v. Aramark Food Serv., No. 221CV02197JTFATC, 2021 WL

3924075, at *2–3 (W.D. Tenn. Sept. 1, 2021) (citing Gonzalez-Gonzalez v. United States, 257

F.3d 31, 37 (1st Cir. 2001) (“If it is crystal clear that . . . amending the complaint would be

futile, then a sua sponte dismissal may stand.”); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir.

2001)). For these reasons, the Undersigned RECOMMENDS that the Court should not allow

Plaintiff to amend his claims yet another time.

V.

Plaintiff filed a document captioned as a Motion for Discovery Requesting Production of

Documents. (ECF No. 34.) This appears to be Plaintiff’s first set of discovery requests directed

to Defendants and not a motion. Discovery requests are not to be filed with the Court “until they

are used in the proceeding or the court orders filing.” Fed. R. Civ. P. 5(d)(1). The Court has not

ordered Plaintiff to file these requests. Moreover, Plaintiff has not utilized these requests in a

court proceeding. The Court therefore STRIKES the discovery requests (ECF No. 34) and

DIRECTS Plaintiff to cease filing such requests until they are used in a proceeding or the Court

orders otherwise. Cf. Fed. R. Civ. P. 5(d)(1).

VI.

For the reasons stated above, it is RECOMMENDED that the Court DISMISS

Plaintiff’s individual capacity claims against Defendant Hinkle and the John/Jane Doe

Defendants for failure to state claim and DISMISS WITHOUTH PREJUDICE Plaintiff’s

official capacity claims pursuant to the Eleventh Amendment. It is FURTHER

RECOMMENDED that ECF Nos. 28 and 29 be DENIED as moot. Finally, the Court

STRIKES Plaintiff’s discovery requests (ECF No. 34) and DIRECTS Plaintiff to cease filing

such requests until they are used in a proceeding or the Court orders otherwise.

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 forfeiture of the right to de novo review of by the District Judge

and forfeiture of the right to appeal the judgment of the District Court. Even when timely

objections are filed, appellate review of issues not raised in those objections is forfeited. 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 5, 2022 /s/ Elizabeth A. Preston Deavers .

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE