Conant v. Noble Correctional Inst.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT JAMES CONANT, : Case No. 2:23-cv-1148

:

Plaintiff, : District Judge Edmund A. Sargus, Jr.

: Magistrate Judge Caroline H. Gentry

vs. :

:

NOBLE CORRECTIONAL :

ORDER AND REPORT

INSTITUTION, et al., :

AND RECOMMENDATION

:

Defendants. :

______________________________________________________________________

Plaintiff, a prisoner at the Chillicothe Correctional Institution, filed this pro se civil rights

complaint pursuant to 42 U.S.C. § 1983 against the Noble Correctional Institution, Officer David

Freeman, and Officer Shayna Bishop. (Doc. 1). By separate Order plaintiff has been granted

leave to proceed in forma pauperis. This matter is before the Court for a sua sponte review of

the complaint to determine whether the complaint, or any portion of it, should be dismissed

because it 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. See Prison Litigation Reform

Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

Screening of Plaintiff’s Complaint

A. Legal Standard

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

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

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). 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 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

1 Formerly 28 U.S.C. § 1915(d).

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)).

B. Allegations in the Complaint

Plaintiff alleges that on March 31, 2021, defendants Freeman and Bishop subjected him to

excessive force. Plaintiff claims that on that date he was walking to the restroom when Freeman

confronted and threatened him before slamming plaintiff’s head and face into a wall. According

to plaintiff, he was slammed to the ground and knocked unconscious. Plaintiff alleges that while

he was unconscious, defendant Bishop sprayed him in the face with mace. (Doc. 1 at PageID 5).

As relief, plaintiff seeks monetary damages. (Id. at PageID 6).

C. Analysis

At this stage in the proceedings, without the benefit of briefing by the parties to this action,

the undersigned concludes that plaintiff’s excessive force claims against defendants Freeman and

Bishop are deserving of further development and may proceed at this juncture.

However, the complaint should be dismissed against the remaining defendant, the Noble

Correctional Institution. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Title 42 U.S.C. § 1983

provides that “[e]very person who, under the color of any statute . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” 42

U.S.C. § 1983. A correctional facility is not a “person” subject to suit under 42 U.S.C. § 1983.

See Parker v. Michigan Dept. of Corrections, 65 F. App’x. 922, 923 (6th Cir. 2003) (Department

of Corrections not a “person” under § 1983). See also, e.g., McGlone v. Warren Corr. Inst., No.

1:13cv126, 2013 WL 1563265, at *3 (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report &

Recommendation) (and numerous cases cited therein) (holding that claims against a state prison

and the ODRC should be dismissed at the screening stage because “neither the state prison facility

nor the state corrections department is an entity capable of being sued under § 1983”), adopted,

2013 WL 2352743 (S.D. Ohio May 29, 2013) (Dlott, J.); see also Hix v. Tennessee Dep’t of Corr.,

196 F. App’x 350, 355-56 (6th Cir. 2006) (and cases cited therein); Rodgers v. Michigan Dep’t of

Corr., 29 F. App’x 259, 260 (6th Cir. 2002). Accordingly, the Noble Correctional Institution

should be dismissed as a defendant to this action.

In sum, the undersigned recommends that plaintiff may proceed with his Eighth

Amendment excessive force claims against defendants Freeman and Bishop. However, plaintiff

has failed to provide summons and U.S. Marshal forms for service on these defendants. It is

therefore ORDERED that plaintiff, within thirty (30) days of the date of this Order, submit

completed summons and U.S. Marshal forms for defendants Freeman and Bishop. Once the Court

receives the requested forms, the Court will order service of process by the U.S. Marshal.

Because plaintiff has failed to state a claim upon which relief may be granted against the

Noble Correctional Institution, all claims against this defendant should be dismissed.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff’s claims in the complaint be DISMISSED with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B), with the exception of plaintiff’s Eighth Amendment excessive force

claims against defendants Freeman and Bishop.

2. 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).

IT IS THEREFORE ORDERED THAT:

1. Plaintiff shall, within thirty (30) days of the date of this Order, submit completed

summons and U.S. Marshal forms for service on defendants Freeman and Bishop. Once the Court

receives the requested summons and U.S. Marshal forms, the Court will order service of process

by the U.S. Marshal.

2. The Clerk of Court is DIRECTED to send plaintiff summons and U.S. Marshal

forms for this purpose.

3. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,

upon defendants’ attorney(s), a copy of every further pleading or other document submitted for

consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk

of Court a certificate stating the date a true and correct copy of any document was mailed to

defendants or defendants’ counsel. Any paper received by a district judge or magistrate judge

which has not been filed with the Clerk or which fails to include a certificate of service will be

disregarded by the Court.

4. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit.

Date: May 17, 2023 /s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,

and shall be accompanied by a memorandum of law in support of the objections. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).