# Castellon v. Hinkle

> District Court, S.D. Ohio · August 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10380623

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10380623

## How later opinions describe it (automated extraction)

- describing this right as a “carefully bounded right” and not a “generalized ‘right to litigate’”
- applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380623. Public record. Not legal advice.