Foster v. Ohio D.R.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

CHRISTOPHER FOSTER, : Case No. 2:22-cv-2153

:

Plaintiff, :

: Chief Judge Algenon L. Marbley

vs. :

Magistrate Judge Caroline H. Gentry

:

OHIO D.R.C., ET AL., :

:

Defendants. :

ORDER

This civil rights action, filed by state prisoner Christopher Foster, is before the Court for

an initial screening of the complaint.1 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). The initial

screening must be completed before Defendants are served and the case can proceed.

Several issues complicate the screening process here. An overriding complication is that

Plaintiff’s submissions to the Court are not entirely comprehensible. Most importantly, as

explained further below, it is not clear what claims Plaintiff is asserting in this action. Therefore,

the undersigned ORDERS Plaintiff to file a Second Amended Complaint that clearly identifies

each claim he is asserting in this lawsuit, and also identifies the Defendant(s) being sued for each

such claim. See Fed. R. Civ. P. 12(e) (allowing the Court to grant a defendant’s motion for more

definite statement and order plaintiff to submit an amended complaint if the existing complaint is

“so vague or ambiguous that the [defendant] cannot reasonably prepare a response”). The

undersigned will then screen that pleading as required by 28 U.S.C. §§ 1915A(a) and 1915(e)(2).

1 The District Court considered ECF No. 8 to be the operative Complaint. (Report and Recommendation, ECF No.

15, PageID 106.) For purposes of this opinion, however, the undersigned has considered ECF Nos. 6, 7, 8 and 12

together as constituting the complaint.

Plaintiff may be asserting a claim of intentional discrimination under Title II of the

Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). “Title II of the ADA

provides, in pertinent part, that no qualified individual with a disability shall, because of that

disability, ‘be denied the benefits of the services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.’” Mingus v. Butler, 591 F.3d 474, 481-82 (6th

Cir. 2010) (quoting 42 U.S.C. § 12132). “The ADA applies to both federal and state prisons.”

Id. (citing Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998)). In summary:

Title II of the ADA prohibits intentional disability discrimination by a public

entity or in the context of “services, programs, or activities of a public entity....”

42 U.S.C. § 12132 (2018). Similarly, Section 504 of the Rehabilitation Act

prohibits intentional disability discrimination under “any program or activity

receiving Federal financial assistance” or exclusion from participation in any such

program or activity “solely by reason of” a disability. 29 U.S.C. § 794(a) (2018).

A claim of intentional discrimination under Title II requires proof that the plaintiff

1) had a qualifying disability, 2) was otherwise qualified to participate in the

public program, service, or activity at issue, and 3) was excluded from

participation in the public program or was discriminated against by the public

entity because of his or her disability. Fritz v. Michigan, 747 F. App’x 402, 404

(6th Cir. 2018). A claim under Section 504 of the Rehabilitation Act requires the

same showing except that the plaintiff must prove the discrimination was “solely”

because of the disability. Id. Sole causation is not a requirement for a Title II

claim. Anderson v. City of Blue Ash, 798 F.3d 338, 357 n.1 (6th Cir. 2015).

Shaffer v. City of Columbus, 444 F. Supp. 3d 872, 879 (S.D. Ohio 2020).

Plaintiff also may be asserting a claim for a reasonable modification or accommodation

under Title II. See Larson v. Eppinger, No. 2:20-cv-4997, 2021 WL 2659998, at *5 (S.D. Ohio

June 29, 2021) (citing Anderson v. City of Blue Ash, 798 F.3d 338, 353-56 (6th Cir. 2015)) (“the

Sixth Circuit implicitly acknowledged that Title II recognizes distinct claims for ‘reasonable

modifications’ and intentional discrimination.”).

Plaintiff also may be asserting a claim under 42 U.S.C. § 1983 and the Eighth

Amendment to the U.S. Constitution for deliberate indifference to a serious medical need:

The government has an “obligation to provide medical care for those whom it is

punishing by incarceration.” Estelle [v. Gamble, 429 U.S. 97, 103 (1976)]. But

mere failure to provide adequate medical care to a prisoner will not violate the

Eighth Amendment. In those circumstances, a constitutional violation arises only

when the doctor exhibits “deliberate indifference to a prisoner’s serious illness or

injury,” id. at 105, 97 S.Ct. 285 (emphasis added), that can be characterized as

“obduracy and wantonness” rather than “inadvertence or error in good faith,”

Wilson [v. Seiter, 501 U.S. 294, 299 (1991)] (quoting Whitley v. Albers, 475 U.S.

312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). To establish a prison official’s

deliberate indifference to a serious medical need, an inmate must show two

components, one objective and the other subjective. Farmer v. Brennan, 511 U.S.

825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The plaintiff must show both

that the alleged wrongdoing was objectively harmful enough to establish a

constitutional violation and that the official acted with a culpable enough state of

mind, rising above gross negligence. Id. at 834-35, 114 S.Ct. 1970.

Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018).

There are several reasons why it is necessary for Plaintiff to clearly identify the claims he

is asserting in this lawsuit. First, the Court must know what claims are being pled before it can

conduct the required screening. Similarly, Defendants who are required to answer the Complaint

must know what claims are being pled before they are required to file a responsive pleading. See

Fed. R. Civ. P. 12(e) (allowing defendant to file a motion for more definite statement).

Second, the Court must know what claims are being pled to determine whether this

lawsuit is properly venued in the United States District Court for the Southern District of Ohio.

See 28 U.S.C. § 1391(b) (generally requiring a case to be brought where a defendant resides or

where the events giving rise to the claims occurred). For example, claims about disability

discrimination, medical care or retaliation may be properly venued in the United States District

Court for the Northern District of Ohio, where the Toledo Correctional Institution is located.

Third, Plaintiff has repeatedly suggested that he has not presented his actual claim to the

Court yet. (E.g., ECF No. 6, PageID 37 (I cannot continue or complete this Complaint until I first

attain a preliminary injunction to get court access in the first place…”); ECF No. 8, PageID 57

(“I reserve this Completion of Complaint matter until I can attain a preliminary injunction…”);

ECF No. 8, PageID 59 (“I shall resume this Complaint process once I get access to Court by

injunction . . . I reserve the filing process here until the Court brings the Defendant(s) into

compliance on an administrative basis that gives me Court access to participate in this case.”)).

Plaintiff has also hinted at a variety of potential claims.2 It is unclear whether these claims

(seemingly against many parties) could appropriately be asserted in a single lawsuit under the

Federal Rules of Civil Procedure. See Fed. R. Civ. P. 18 (joinder of claims); Fed. R. Civ. P. 20

(joinder of parties); and Fed. R. Civ. P. 21 (misjoinder and nonjoinder of parties).

Fourth, the Court must know what claims are being pled to determine whether there is a

nexus between the “imminent danger” identified by Plaintiff—which is a required allegation to

overcome the bar on allowing a prisoner with “three strikes” to proceed in forma pauperis—and

the claims asserted in this lawsuit. See Sweatt v. Hininger, No. 22-5635 (6th Cir. Jan. 27, 2023)

(citing Lapine v. Waino, No. 17-1636, 2018 WL 6264565, at *2 (6th Cir. Oct. 11, 2018) and

Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009)) (denying motion to proceed in forma

pauperis because “Sweatt did not show a nexus between the imminent danger and the claims in

his complaint.”); Jenkins v. Sherry, No. 2:21-cv-239, 2022 WL 263211, at *4 (W.D. Mich. Jan.

28, 2022) (discussing the nexus requirement in several circuits).3 In other words, a plaintiff

2 See generally ECF No. 12 (discussing disability discrimination, retaliation, federal funding, and the Department of

Justice’s complaint process; his criminal defense attorney’s investigation in 2011 about a Fourth Amendment

seizure; a police internal affairs issue; that he had a right to resist and was innocent of a crime; an ADA notice he

should have received from appointed counsel in 2012; the dismissal of a federal case in 2015; an attack by the

Warden and staff in 2016; an attack in 2017; staff denying or infecting his food in 2018; former President Trump’s

policy of insurrection in 2020; the prison’s discontinuation of his route to the dining hall and medications for

chronic care in 2020; a “Trade / Service Mark”; a legal mail issue; lost wages; an issue about a bullet he removed

from his chest; failure to provide medical care after that event and for pre-existing issues; and retaliation for filing

this lawsuit).

3 Jenkins cites the following:

cannot obtain or maintain in forma pauperis status if he pleads “imminent danger” with respect

to one issue and yet asserts claims that arise from totally separate issues. See Pettus, 554 F.3d at

297 (rejecting argument that “an indigent prisoner with a history of filing frivolous complaints

could, by merely alleging an imminent danger, file an unlimited number of lawsuits, paying no

filing fee, for anything from breach of a consumer warranty to antitrust conspiracy.”).

Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (seminal case, holding that there [must] be

some nexus between the imminent danger alleged by the prisoner and the legal claims asserted in

his complaint); Andrews v. Cervantes, 493 F.3d 1047, 1053-54 (9th Cir. 2007); Ciarpaglini v. Saini,

352 F.3d 328, 330 (7th Cir. 2003); Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999) (holding

that a prisoner does not meet the imminent-danger exception when he is no longer facing risk from

the defendants he sues, because he has since been transferred to a different prison); see also Pinson

v. U.S. Dep’t of Justice, 964 F.3d 65, 71 (D.C. Cir. 2020) (holding that a nexus between the alleged

imminent danger and the claims raised is required to avoid the conclusion that, at the same time it

established the three-strikes rule, Congress intended to “ ‘engraft[ ] an open-ended exception that

would eviscerate the rule’ ” (quoting Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (2d Cir. 2001)));

Meyers v. Comm’r of Soc. Sec. Admin., 801 F. App’x 90, 94-95 (4th Cir. 2020) (citing Pettus, inter

alia, and holding that “the better reading of the Imminent Danger Provision is that it requires a

relationship between the imminent danger alleged in the IFP application and the facts alleged and

relief sought in the underlying claim”); Ball v. Hummel, 577 F. App’x 96, 96 n.1 (3d Cir. 2014)

(citing Pettus).

Although the Sixth Circuit has not yet specifically addressed whether the imminent-danger

exception requires a nexus between the danger and the allegations of the complaint, see Vandiver,

727 F.3d at 588 (declining to reach issue), this Court concurs with the uniform opinion of all seven

circuits that have addressed the issue: some nexus between the imminent danger and the claims

raised is required in order to protect the meaning of the entire provision. This nexus requirement

does not add a judicially created element to the statute. Instead, as the Pettus court recognized, a

reading of the statute that incorporates a nexus rule flows from the fundamental rule of statutory

construction requiring that a statute be read as a whole. 554 F.3d at 297.

. . .

As applied to § 1915(g), the imminent-danger exception must be read in light of the strong general

thrust of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996),

which was “aimed at the skyrocketing numbers of claims filed by prisoners—many of which are

meritless—and the corresponding burden those filings have placed on the federal courts.” Hampton,

106 F.3d at 1286. In addition, § 1915(g) itself states that “[i]n no event shall a prisoner bring a civil

action or appeal...” if he has three strikes, unless his complaint alleges facts that fall within the

narrow exception in issue. 28 U.S.C. § 1915(g) (emphasis added); Pettus, 554 U.S. at 297.

Interpreting the statute without some link between the imminent danger alleged and the redress

sought would cause the exception to swallow the rule, permitting a prisoner to file as many lawsuits

as he wishes on any subject—as long as he can state that he is in imminent danger from something,

even if that something is unrelated to his claims and unrelated to the named defendants. See Pettus,

554 F.3d at 297; Pinson, 964 F.3d at 71. Such a reading of the statute would be inconsistent with

the general rule of statutory construction, which requires that exceptions to a rule be read narrowly,

so as not to undermine the general rule.

Jenkins, 2022 WL 263211, at *4-5 (emphasis added).

Here, the Court found that Plaintiff sufficiently pled imminent danger in only one respect:

his “allegations that prison medical staff have refused him treatment for his chronic pain

conditions.” (Opinion & Order, ECF No. 23, PageID 183). That issue appears to have a sufficient

nexus to a claim under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in

violation of the Eighth Amendment. However, Plaintiff has indicated in several filings that he

is not asserting a claim under Section 1983. (ECF No. 24, PageID 187 (“not only is this an

ADA suit based on post-2010 amendment, this is not such a civil rights suit…”); ECF No. 24,

PageID 191 (“it is not a typical, or 1983, filing”); ECF No. 24, PageID 192 (“the 42USC1983

stigma [should be] removed too, because that is the statute associated with the same race, status,

etc., limit of typical consideration that has nothing to do with the crisis faced in this Judicial

inquiry about attaining emergency justice. This is not (ECF No. 22) a race, or 1983, etc., suit . .

.”); ECF No. 26, PageID 209 (“this is not a 1983 claim”); ECF No. 27, PageID 223 (“neither

case is 1983 based”—referring to this case and a separately pending habeas corpus matter); but

see ECF No. 12, PageID 68 (citing § 1983 with respect to his “imminent danger issue”)).

Therefore, to facilitate the required initial screening in this case, Plaintiff is ORDERED

to submit to the Court a single document that is titled Second Amended Complaint and clearly

identifies Plaintiff’s claims, the Defendants, the nature of the case, and the relevant facts with

respect to each claim against each Defendant. Plaintiff shall clearly label and number each claim

and state which Defendant(s) it is asserted against. If Plaintiff’s claims arise under Section 1983,

the ADA/RA, or both, he should so state. The Second Amended Complaint will supersede (or

replace) Plaintiff’s previous pleadings. See Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014).

Plaintiff is expressly cautioned that he cannot wait to assert his claims until a later stage in

the litigation, and instead must plead them now or risk waiving them.

To assist Plaintiff, the Clerk of Court is DIRECTED to provide him with a blank copy of

pro se complaint form and the prisoner complaint form for his use. Plaintiff is ORDERED to

submit a Second Amended Complaint within thirty days of the date of this Order. If Plaintiff

fails to submit a Second Amended Complaint or seek an extension before that deadline, then the

undersigned may recommend that this matter be dismissed for failure to prosecute.

Finally, the undersigned notes that this case will not proceed until the Court has screened

the Second Amended Complaint, determined what claims may go forward, and ordered that all

properly-named Defendants be served. Nevertheless, Plaintiff has filed numerous motions: (1)

Motion for Miscellaneous Relief (ECF No. 24); (2) Motion for Expedited Relief (ECF No. 29);

(3) Renewed Motion to Proceed While Black (ECF No. 31); (4) Motion to Preserve Claims (ECF

No. 33); (5) Motion to Present Proof of Contract (ECF No. 34); (6) Motion to Reserve a Sanction

Filing (ECF No. 38); and (7) Motion to Enforce the Marbley Rule (ECF No. 39). Because no

Defendants have been served, they have not had the opportunity to oppose these Motions.

Therefore, the Court DENIES all of Plaintiff’s pending Motions (ECF Nos. 24, 29, 31,

33, 34, 38, and 39) as PREMATURE. Plaintiff may refile these Motions, if he chooses to do so,

after all Defendants have been served and responded to the operative Complaint. Other than the

Second Amended Complaint, Plaintiff is DIRECTED not to file any documents in this case

until the Court has completed the required initial screening, absent extraordinary cause.

The Clerk of Court is DIRECTED to hold service of the operative Complaint until

further order of this Court.

IT IS SO ORDERED.

June 16, 2023 /s/ Caroline H. Gentry

CAROLINE H. GENTRY

UNITED STATES MAGISTRATE JUDGE