Hall v. Scioto County Jail

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

TOBY HALL : Case No. 1:23-cv-524

:

Plaintiff, :

:

Judge Susan J. Dlott

vs. :

Magistrate Judge Kimberly A. Jolson

:

SCIOTO COUNTY JAIL, et al., :

:

Defendants. :

:

ORDER ON PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS

AND REPORT AND RECOMMENDATION ON INITIAL REVIEW

Plaintiff Toby Hall, a prisoner at the Warren Correctional Institution (“WCI”) proceeding

without counsel, filed an action alleging violations of his civil rights. (ECF No. 1-1). The matter

is currently before the undersigned Magistrate Judge on Plaintiff’s motion to proceed in forma

pauperis (ECF No. 1), and to conduct the initial screen required by law. 28 U.S.C. § 1915A(a).

For the reasons stated below, the Court ORDERS that the motion to proceed in forma

pauperis be GRANTED. The Court RECOMMENDS that the following claims be DISMISSED

with prejudice: (1) all claims against the Scioto County Jail, and (2) all claims against defendant

John Aeh in his official capacity. The Court further RECOMMENDS that all claims against

defendant Aeh in his individual capacity be DISMISSED without prejudice.

I. MOTION TO PROCEED IN FORMA PAUPERIS

Plaintiff filed a motion to proceed in forma pauperis and without the prepayment of fees

and attached the required affidavit and institutional trust account statements. (“IFP Motion,” ECF

No. 1). The Court has reviewed and GRANTS Plaintiff’s IFP Motion. It is ORDERED that

Plaintiff be allowed to prosecute this action without prepayment of fees or costs and that judicial

officers who render services in this action shall do so as if the required costs had been prepaid.

Plaintiff is still required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C.

§ 1915(b)(1); 28 U.S.C. § 1914. Because he is permitted to proceed in forma pauperis, Plaintiff

is not required to pay the Court’s $52 administrative fee. See Judicial Conference Schedule of

Fees, No. 14 (issued in accordance with 28 U.S.C. § 1914), available at https://www.uscourts.

gov/services-forms/fees/district-court-miscellaneous-fee-schedule (accessed Oct. 25, 2022).

Plaintiff has established that he does not have sufficient funds to pay the entire filing fee at

this time. Therefore, in accordance with Section 804(a)(3) of the Prison Litigation Reform Act of

1995, Plaintiff must pay an initial partial filing fee of 20 percent of the greater of the average

monthly deposits to his prison account or the average monthly balance in his account for the six-

month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). After

payment of the initial partial filing fee, Plaintiff is further required to make monthly payments of

20 percent of the preceding month’s income credited to his prison account until he pays the full

amount of the filing fee. 28 U.S.C. § 1915(b)(2).

The custodian of Plaintiff’s inmate trust account at the institution of his residence is

therefore DIRECTED to submit to the Clerk of the United States District Court for the Southern

District of Ohio as an initial partial payment, 20% of the greater of:

(a) the average monthly deposits to the inmate trust account; or

(b) the average monthly balance in the inmate trust account, for the six months immediately

preceding the filing of the Complaint. 28 U.S.C. § 1915(b)(1).

The custodian is ORDERED to complete and to submit to the Clerk of Court in Cincinnati,

Ohio the attached form showing his calculation of the initial partial filing fee. The custodian is

further ORDERED to forward from Plaintiff’s prison account to the Clerk of Court located in

Cincinnati, Ohio the initial partial filing fee, as funds become available in Plaintiff’s account until

the initial filing fee is paid. Even if the account is under ten dollars ($10.00), the custodian must

still forward payments to the Clerk of Court to pay the initial filing fee.

Once the initial partial filing fee is paid, the custodian shall forward to the Clerk of Court

located in Cincinnati, Ohio monthly payments of 20% of the inmate’s preceding monthly income

credited to the account if, during that month, the balance of that account exceeds $10, until the full

fee of $350 has been paid. 28 U.S.C. § 1915(b)(2); see McGore v. Wrigglesworth, 114 F.3d 601

(6th Cir. 1997). If Plaintiff is transferred to another institution, the current custodian should

forward this Order to that institution so that the new custodian of Plaintiff’s account can collect

and remit the monthly partial payment. Checks are to be made payable to “Clerk, U.S. District

Court” and sent to:

Prisoner Accounts Receivable

103 Potter Stewart United States Courthouse

100 East 5th Street

Cincinnati, Ohio 45202

The prisoner’s name and this case number must be included on each remittance.

The Clerk of Court is DIRECTED to mail copies of this Order to Plaintiff and to the prison

cashier’s office.

II. INITIAL REVIEW

A. Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or

employee of a governmental entity,” and is also incarcerated, the Court is required to conduct an

initial screen of his Complaint. 28 U.S.C. § 1915A(a). The Court must dismiss the Complaint,

or any portion of it, that is frivolous, 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.

§ 1915A(b).

A complaint is frivolous if the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328–29 (1989); see also Lawler v. Marshall,

898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are

delusional or rise to the level of the irrational or ‘wholly incredible.’” citing Denton v. Hernandez,

504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. The Court need not accept as true factual

allegations that are “fantastic or delusional,” Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010), or

“clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F. App’x 427, 429–30 (6th Cir.

2009) (citing Denton, 504 U.S. at 33).

To state a claim for relief, a complaint must set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must

construe the complaint 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). “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). A complaint that consists of mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly,

550 U.S. at 555).

In the interest of justice, this Court is required to construe a pro se complaint liberally and

to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing

Fed. R. Civ. P. 8(f)). Even with such a liberal construction, however, a pro se complaint must still

adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting

all the material elements’ to recover under some viable legal theory.’” Barhite v. Caruso, 377 F.

App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

B. Background

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, naming the Scioto County Jail and John

Aeh as defendants. ECF No. 1-1 at PageID 14. The totality of Plaintiff’s single claim as set forth

in his Complaint is as follows:

The County jail allowed me to come in contact with John Aeh while he was already

under investigation for messing around with the females which lead me into being

entrapped by the County jail cause they already knew he was a dirty office and

allowed him to be around the inmates which lead him into bring me tobacco and

drugs. Which got me more[ ] charges.

Id. at PageID 18 (spelling and grammar corrected). Plaintiff requests the following relief:

compensation for the additional time he has been charged with and payment of Court costs and

fines if he has to go to trial. Id. at PageID 19.

C. Recommendation on Initial Review of Plaintiff’s Complaint

Plaintiff names two defendants in his Complaint: the Scioto County Jail and officer John

Aeh. ECF No. 1-1 at PageID 14. For the reasons set forth below this Court RECOMMENDS

that all claims against defendants Scioto County Jail and John Aeh in his official capacity be

DISMISSED with prejudice and that all claims against John Aeh in his individual capacity be

DISMISSED without prejudice.

1. Defendant Scioto County Jail

Plaintiff names the Scioto County Jail as a defendant, however, this is not an entity subject

to suit under § 1983. Marbry v. Corr. Med. Serv., No. 99-6706, 2000 WL 1720959, at *2 (6th Cir.

Nov. 6, 2000) (holding that “the Shelby County Jail is not an entity subject to suit under § 1983”).

Likewise, as the Scioto County Jail staff does not have a corporate or political existence, it is not

a “person” subject to liability under § 1983. Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355

(6th Cir. 2006) (holding that “medical departments are not ‘persons’ under § 1983” because they

have no “corporate or political existence”) (citation omitted); Payne v. Hamilton Cty. Jail Sheriff’s

Staff, 2016 WL 6585579, at *2 (E.D. Tenn. Nov. 7, 2016) (finding that jail staff and medical staff

“are legal not entities that are subject to being sued under 42 U.S.C. § 1983). And Plaintiff has

not alleged that Scioto County caused any violation of his constitutional rights such that the Court

could liberally construe the complaint to state a claim upon which relief may be granted under §

1983 against this municipality. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978).

As such, the Court RECOMMENDS that all claims against the Scioto County Jail be

DISMISSED with prejudice.

2. Defendant John Aeh

Plaintiff sues officer Aeh, bringing what the Court construes as a single claim of

entrapment. ECF No. 1-1 at PageID 18. While Plaintiff’s Complaint is short on details, it appears

Plaintiff alleges that Officer Aeh brought Plaintiff tobacco and drugs while he was incarcerated in

the Scioto County Jail, resulting in Plaintiff being charged with new charges. Id. Plaintiff provides

no additional detail on the nature of his charges or further factual support for his claim. See

generally ECF No. 1-1. Plaintiff’s claim against Officer Aeh in his individual capacity is subject

to dismissal for multiple reasons.

As an initial matter, Plaintiff does not state whether he seeks to sue Aeh in his individual

capacity, official capacity, or both. See ECF No. 1-1 at PAGEID 14 (simply naming “John Aeh”

as a defendant). For purposes of this initial review, the Court will consider Plaintiff’s claims

against Aeh under both an official and individual capacity.

“While ‘[p]ersonal-capacity suits seek to impose personal liability upon a government

official for actions he takes under color of state law,’ individuals sued in their official capacities

stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)

(quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). It follows that, “[a] suit against an

individual in his official capacity is the equivalent of a suit against the governmental entity” and

is therefore no different from a suit against the state itself. Matthews v. Jones, 35 F.3d 1046, 1049

(6th Cir. 1994) (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 68 (1989)). As both

defendants are employed at NCI, they are employed by the state of Ohio.1 Therefore, any claims

against defendants in their official capacity would be construed as claims against the State of Ohio.

Where “state officials are being sued for money damages in their official capacity, the

Eleventh Amendment is squarely in play as a bar to suit in federal court, at least to the extent that

[p]laintiffs are bringing claims under 42 U.S.C. § 1983.” Lee Testing & Eng’g, Inc. v. Ohio Dep’t

of Transp., 855 F. Supp. 2d 722, 725 (S.D. Ohio 2012).

It is well settled that 42 U.S.C. § 1983 does not abrogate Eleventh Amendment

immunity. See generally Quern v. Jordan, 440 U.S. 332 (1979). And the State of

Ohio has not waived its immunity from suits for money damages, except to the

extent that such claims are allowed to be brought in the Court of Claims of Ohio.

1 NCI is part of the Ohio Department of Rehabilitation and Correction’s network of facilities. See Ohio Department

of Rehabilitation and Correction, Facilities, available at: https://drc.ohio.gov/about/facilities/noble-

correctional/noble-correctional (last accessed Apr. 27, 2023).

See R.C. 2743.03. Ohio has not waived its Eleventh Amendment immunity from

suits for money damages in federal court. See Turker v. Ohio Dept. of Rehab. and

Corrections, 157 F.3d 453, 457 (6th Cir.1998).

Id. at 725–26.

Accordingly, as Plaintiff seeks only monetary damages (compensation for “time” and court

fees and costs), to the extent Plaintiff intended to sue Aeh in his official capacity, this Court

RECOMMENDS all claims against Aeh in his official capacity be DISMISSED with prejudice

for want of federal jurisdiction.

Even considering defendant Aeh in his individual capacity, Plaintiff’s sole allegation of

“entrapment” also cannot proceed. This is so as “entrapment” is not a civil cause of action, but

rather a criminal defense that cannot be asserted here. See Schieb v. Humane Soc. of Huron Valley,

582 F. Supp. 717, 725 (E.D. Mich. 1984) (stating “there is no federal constitutional right to be free

from entrapment[ ]” and “a claim of entrapment does not state a cause of action under 42 U.S.C.

§ 1983.”).

Because entrapment is the only claim alleged against Aeh, the Court RECOMMENDS

that all claims against defendant Aeh in his individual capacity be DISMISSED without

prejudice.

III. CONCLUSION

Based on the foregoing, IT IS THEREFORE ORDERED THAT: Plaintiff is granted

leave to proceed in forma pauperis, ECF No. 1.

Based on the foregoing, IT IS THEREFORE RECOMMENDED THAT:

1. All claims against defendant Scioto County Jail and all claims against defendant

John Aeh in his official capacity be DISMISSED with prejudice; and

2. All claims against defendant John Aeh in his individual capacity be DISMISSED

without prejudice.

The Court further RECOMMENDS that the District Court certify pursuant to 28 U.S.C.

§ 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report and

Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal

in forma pauperis should be denied.

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).

IT IS SO ORDERED AND RECOMMENDED.

Date: September 6, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

CALCULATION OF INITIAL PARTIAL FILING FEE

Prisoner’s name: _____________________________________________

Case number: ___________________________________

Average Monthly Balance $________________________

(for six-month period preceding filing of complaint or notice of appeal)

Average Monthly Deposits $_______________________

(for six-month period preceding filing of complaint or notice of appeal)

Initial Partial Filing Fee $_________________________

(the greater of the average monthly deposits or the average monthly balance x .20)

__________________________ _____________________________________

Date Signature