Cromartie v. Hale

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ALTON CROMARTIE, : Case No. 2:23-cv-1802

:

Plaintiff, : District Judge James L. Graham

: Magistrate Judge Caroline H. Gentry

vs. :

:

DR. ARTHUR HALE, et al., :

:

Defendants. :

:

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Pickaway Correctional Institution (PCI) in Orient, Ohio, has

filed a pro se civil rights complaint, pursuant to 42 U.S.C. § 1983,1 and an amended complaint

seeking to include an additional claim under Title II of the Americans with Disabilities Act, 42

U.S.C. § 12101, et seq. (ADA).2 (See Docs. 2, 4). Plaintiff’s motion to amend the complaint to

include the additional ADA claim (Doc. 4) is hereby GRANTED.3 The Court DIRECTS the

Clerk of Court to refile the amended complaint (Docs. 2, 4) together as one document and to

docket them as the First Amended Complaint. By separate Order, plaintiff has been granted

leave to proceed in forma pauperis.

1“Section 1983 provides a private cause of action for the deprivation, under color of state law, of ‘rights . . .

secured by the Constitution and laws.’” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 624 (1979) (Powell,

J., concurring).

2Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity,

or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

3Federal Rule of Civil Procedure 15(a)(1) allows a party to amend its pleading once as a matter of course

within 21 days of serving it or within “21 days after service of a motion under Rule 12(b).” Fed. R. Civ. P. 15

(a)(1)(A)-(B). All other amendments must be made with the consent of the opposing party or leave of court. Fed. R.

Civ. P. 15(a)(2). Here, the defendants have yet to be served in the case, allowing amendment of the complaint to be

made as a matter of course.

This matter is currently before the Court for a sua sponte review of the complaint, as

amended, 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). This matter is also before

the Court on “Plaintiff’s Motion to Access Defendant’s Law Library” (Doc. 11), which the

undersigned Magistrate Judge construes as a motion for preliminary injunction.

I. The Amended Complaint

A. Legal Standard

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

employee of a governmental entity” and is proceeding in forma pauperis, the Court is required to

conduct an initial screen of his complaint. 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2).

The Court must dismiss the complaint, or any portion of it, that 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. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

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 the complaint 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). However, a

complaint that consists of “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 also 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) [now (e)]). Even with such a liberal construction, 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. Allegations

In the amended complaint, plaintiff brings claims against the following defendants, each

sued solely in their official capacities: Dr. Arthur Hale (PCI Chief Medical Officer), Mary

Roush (PCI Medical Operations Manager), Ashley Orsbone (PCI Healthcare Administrator), and

Marilyn Rodriguez (PCI Diet Tech.). (Docs. 1, 4).

Plaintiff alleges that he has been diagnosed with Type II diabetes and Legg-Calve-Perthes

disease, a bone disease that affects blood supply to his hip and upper thigh. (Doc. 2, at PageID

8). Plaintiff alleges that he also suffers from severe, chronic gastroparesis, which is “an

incurable illness defined as paralysis of the stomach that prevents and slows such processes as

digestion, absorption of nutrients, breaking down and churning of foods subsequently to be

passed from the stomach into the bowels.” (Doc. 2, at PageID 9). Plaintiff alleges that

“[s]ymptoms associated with gastroparesis are nausea, vomiting, and stomach pains.” (Id.).

Plaintiff asserts that, as a result of his gastroparesis, he is unable to eat solid foods. (Id.).

Plaintiff was housed at the Franklin Medical Center in Columbus, Ohio from 2012 to

2021. (Doc. 2, at PageID 9; Doc. 4, at PageID 41). Plaintiff states that the Franklin Medical

Center is operated by the Ohio Department of Rehabilitation and Correction (ODRC) to house

“the most serious and infirm incarcerated individuals in the state of Ohio.” (Doc. 4, at PageID

41). Plaintiff was housed there to receive “total parenteral nutrition (TPN) which is administered

via an electronic intravenous pump twelve hours a day.” (Doc. 4, at PageID 42).

In May 2021, non-defendant4 medical staff at the Franklin Medical Center determined

that plaintiff’s condition had improved to the point that he could be transferred to PCI, which

contains the Frazier Health Center, “a medical step down from Franklin Medical Center.” (Doc.

4, at PageID 42). Plaintiff was transferred to PCI on May 19, 2021, and suffered “multiple bouts

with sepsis from May 19, 2021 to August 1, 2021.” (Doc. 4, at PageID 42). Plaintiff required

hospitalization at the Ohio State University Medical Center from August 14 to August 16, 2021,

where doctors discontinued plaintiff’s TPN and inserted a jejunal feeding tube.

Plaintiff alleges that the August 16, 2021 hospital discharge summary ordered that he

receive Kate Farms formula at a rate of 60 ml/hr via an electric feeding pump. Plaintiff alleges

that he received an alternative formula (“Two Cal”) at the prescribed rate from August 17, 2021

to December 20, 2022. (Doc. 4, at PageID 43). However, on December 20, 2022, defendant

Roush allegedly informed plaintiff that defendant Orsbone saw plaintiff making several trips to

4To the extent that plaintiff asserts claims against non-defendants, those claims are subject to dismissal. See

Wilkins v. S. Ohio Corr. Facility, No. 1:22-CV-18, 2022 WL 2072907, at *2 n.2 (S.D. Ohio June 9, 2022), report and

recommendation adopted, No. 1:22CV18, 2022 WL 3021817 (S.D. Ohio July 29, 2022).

the microwave and that defendant Hale had discontinued his tube-feed order. (Doc. 2, at PageID

10; Doc. 4, at PageID 43).

Plaintiff alleges that although his tube-feed order was discontinued, neither defendant

Hale nor defendant Rodriguez entered a diet order for him, which resulted in him receiving no

nutrition for sixteen days—from December 22, 2022 to January 5, 2023. (Doc. 2, at PageID 10-

11). Plaintiff alleges that he submitted a health services request on December 27, 2022,

informing medical staff that his weight had dropped over 15 pounds in six days, but his request

was ignored. (Doc. 2, at PageID 11; see also Doc. 2-3, at PageID 32).5

During this same time frame, defendant Hale placed plaintiff on commissary restriction.

The lack of access to food required plaintiff to rummage through the garbage at night in search

of “any liquid or soft food that appeared untouched.” (Doc. 2, at PageID 12). As a result,

Plaintiff suffered from “chronic headaches, dizziness, fatigue, loss of concentration, stomach

pains, backaches, muscle spasms, blurry vision, cognitive defects such as nightmares about food,

and exacerbating his mental illness[.]” (Doc. 2, at PageID 14). Plaintiff was also denied access

to recreational services due to weakness. (Doc. 4, at PageID 44). Plaintiff alleges that

defendants Hale, Orsbone, and Roush conspired to discontinue his tube feedings in order to

discriminate against him and “discharge [him] from long term care into general population[.]”

(Doc. 4, at PageID 48).

On January 4, 2023, plaintiff’s feeding tube began leaking bile. Four days later, he was

admitted to the Ohio State University Medical Center. (Doc. 4, at PageID 45). Plaintiff alleges

that at the time of his admission, “his glucose was abnormally low resulting in [him] receiving

intravenously glucose and other electrolytes twenty-four hours a day up and until [his] discharge

5Plaintiff also alleges that his daily weight was recorded in his electronic health record. (Doc. 2, at PageID

11).

on January 10, 2023 due to dehydration.” (Doc. 2, at PageID 17). Doctors replaced his jejunum

tube and resumed tube feedings. (Doc. 2, at PageID 17). Plaintiff’s discharge summary included

“an order and recommendation . . . for Defendants Arthur Hale, Mary Roush, and Marilyn

Rodriguez to resume Plaintiff’s tube feed at a rate of 45 ml/hr.” (Doc. 2, at PageID 17).

However, defendants Hale and Rodriguez allegedly discontinued the order to resume his

tube feedings on January 11, 2023, without consulting hospital physicians. (Doc. 2, at PageID

18). On January 13, 2023, defendant Hale allegedly prescribed a “clear diet” for plaintiff. (Doc.

2, at PageID 18). On the same date, defendant Rodriguez recommended that plaintiff receive the

“Two Cal” supplement twice a day by mouth. The next day, however, a non-defendant nurse

noted that plaintiff was unable to tolerate the “Two Cal” formula by mouth and had “nausea and

vomiting.” (Doc. 2, at PageID 18). On January 19, February 2, and March 3, 2023, defendant

Hale documented plaintiff’s complaints of nausea and vomiting in his electronic health record.

(Doc. 2, at PageID 18). On March 8, 2023, defendant Rodriguez noted that plaintiff “was

throwing [the “Two-Cal” formula] back up most of the time.” (Doc. 2, at PageID 19).

Plaintiff was again hospitalized from March 27 to April 6, 2023, after suffering a bowel

obstruction and losing 31 pounds. (Doc. 2, at PageID 19-20). When he was discharged, Ohio

State University Medical Center physicians mandated that his tube feedings be resumed.

Plaintiff alleges that were it not for this mandate, defendants “would have continued to deny

[him] this lifesaving medical treatment and services.” (Doc. 4, at PageID 50).

For relief, plaintiff seeks solely monetary damages. (Doc. 2, at PageID 23; Doc. 4, at

PageID 51).

C. Analysis

Liberally construing plaintiff’s complaint, as it is required to do, the Court understands

plaintiff to be asserting three claims: (1) deliberate indifference to plaintiff's serious medical

needs in violation of the Eighth Amendment to the United States Constitution against each of the

defendants in their official capacities; (2) failure to provide reasonable accommodations in

violation of the ADA against each of the defendants in their official capacities; and (3)

conspiracy to interfere with ADA rights in violation of 42 U.S.C. § 19856 against defendants

Hale, Roush, and Orsbone in their official capacities.

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

action, the Court concludes that plaintiff may proceed at this juncture against each of the

defendants,7 in their official capacities, for compensatory damages for allegedly failing to

provide reasonable accommodations to plaintiff in violation of the ADA. See, e.g., Larson v.

Eppinger, No. 2:20-CV-4997, 2021 WL 2659998, at *6 (S.D. Ohio June 29, 2021) (concluding

that prisoners “can maintain a ‘reasonable modification’ claim under Title II independent from a

claim of intentional discrimination”) (citations omitted); cf Miller v. Aranas, No. 317CV00068,

2021 WL 1397232, at *15 (D. Nev. Feb. 5, 2021), report and recommendation adopted, No.

6Although plaintiff does not indicate the statutory basis for his conspiracy claim, the Court understands it to

be brought under 42 U.S.C. § 1985(3), which “provides a remedy for a conspiracy to interfere with civil rights.”

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 139 (11th Cir. 2011).

7“The proper defendant under a Title II claim is the public entity or an official acting in his official

capacity.” Mitchell v. Horton, No. 2:18-CV-216, 2019 WL 1025562, at *5 (W.D. Mich. Mar. 4, 2019) (citing

Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002)). Title II of the ADA does not provide a private

right of action against a public employee acting in his or her individual capacity. Everson v. Leis, 556 F.3d 484, 501

n.7 (6th Cir. 2009). Further, “a private corporation is not a public entity merely because it contracts with a public

entity to provide some service.” Jones v. Centurion, No. 1:22-CV-00024, 2022 WL 9495987, at *7 (M.D. Tenn.

Oct. 14, 2022) (quoting Matthews v. Pennsylvania Dep’t of Corr., 613 F. App’x 163, 170 (3d Cir. 2015)). It is

unclear whether the defendants are employed by the ODRC or are contract medical care providers from a private

company. Accordingly, at this juncture, plaintiff may proceed for further development with his ADA claims against

each of the defendants in their official capacities.

317CV00068, 2021 WL 1041912 (D. Nev. Mar. 17, 2021) (noting that “some courts have

identified ADA violations ‘where the denial of medical care is so extreme as to suggest

discriminatory refusal to accommodate a disability-related need[.]’”) (citations omitted).

However, for the reasons set forth below, the undersigned Magistrate Judge recommends that

plaintiff’s remaining claims be dismissed for failure to state a claim upon which relief can be

granted. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

1. Punitive Damages

To the extent that plaintiff seeks punitive damages as to his ADA claims, such damages

are unavailable. See Barnes v. Gorman, 536 U.S. 181, 189 (2002) (“Because punitive damages

may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it

follows that they may not be awarded in suits brought under § 202 of the ADA[.]”).8 The

undersigned therefore recommends that any claims for punitive damages be dismissed with

prejudice.

2. Eighth Amendment Claim

Plaintiff has sued defendants solely in their official capacities and seeks monetary

damages as his sole form of relief. It is unclear whether defendants are employed by the ODRC

or a private company.9 Regardless, the undersigned recommends that plaintiff’s Eighth

Amendment claim for deliberate indifference to medical need be dismissed without prejudice.

8The Court expresses no opinion at this juncture as to the applicability of sovereign immunity to plaintiff’s

ADA claims to the extent that plaintiff seeks compensatory damages. See, e.g., Meeks v. Schofield, No. 3:12-MC-

00035, 2012 WL 1934416, at *3 (M.D. Tenn. May 29, 2012) (allowing ADA compensatory damages claims to proceed

at the screening stage).

9According to the ODRC’s website, medical care at its facilities is generally provided “by a combination of

civil service and contract medical care professionals.” (Viewed at: https://drc.ohio.gov/systems-and-services/4-

medical-services).

If defendants are employed by the ODRC, plaintiff’s Eighth Amendment claim is barred

by the Eleventh Amendment. Absent an express waiver, the Eleventh Amendment bars suits

against a state in federal court. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S.

139, 144 (1993); Edelman v. Jordan, 415 U.S. 651, 673 (1974); see also Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 66 (1989) (Congress did not intend to “disturb the States’ Eleventh

Amendment immunity” by passing § 1983). The State of Ohio has not constitutionally nor

statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v.

Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie

Nursing Homes, 694 F.2d 449, 460-62 (6th Cir. 1982). The Eleventh Amendment bar extends to

actions where the state is not a named party, but where the action is essentially one for the

recovery of money from the state. Edelman, 415 U.S. at 663; Ford Motor Co. v. Dep’t of

Treasury, 323 U.S. 459, 464 (1945), overruled on other grounds by Lapides v. Bd. of Regents of

Univ. Sys. of Ga., 535 U.S. 613 (2002).

Here, if defendants are employed by the State of Ohio, then a suit against them in their

official capacities would, in reality, be an action against the State of Ohio. Colvin v. Caruso, 605

F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009))

(“[A]n official-capacity suit against a state official is deemed to be a suit against the state and is

thus barred by the Eleventh Amendment, absent a waiver.” (citation and ellipsis omitted)).

Because plaintiff has sued defendants solely in their official capacities, any individual ODRC

defendants are immune from liability on plaintiff’s Eighth Amendment claim.

If defendants are employed by a private company and contracted to provide medical

services, plaintiff’s Eighth Amendment claim is likewise subject to dismissal. An official

capacity claim against a contract medical provider is effectively against the company. See Jones

v. Centurion, No. 1:22-CV-00024, 2022 WL 9495987, at *5 (M.D. Tenn. Oct. 14, 2022);

Kentucky v. Graham, 473 U.S. 159, 165 (1985) (“Official-capacity suits, in contrast, ‘generally

represent only another way of pleading an action against an entity of which an officer is an

agent.’”) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). A higher standard

applies to Section 1983 claims asserted against private entities:

For [a private company] to be liable under Section 1983, the plaintiff must allege

that there is a direct causal link between a policy or custom of [the company] and

the alleged constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978). In other words, [the company] may be liable under Section 1983

“if its official policies or customs resulted in injury to the plaintiff.” O’Brien v.

Mich. Dep’t of Corr., 592 F. App’x 338, 341 (6th Cir. 2014); see also Mason v.

Doe, No. 3:12CV-P794-H, 2013 WL 4500107, at *1 (W.D. Ky. Aug. 21, 2013)

(collecting cases) (“a private corporation may be liable under § 1983 when an

official policy or custom of the corporation causes the alleged deprivation of a

federal right”).

Here, plaintiff makes only a conclusory assertion that defendants “took an action

pursuant to an unconstitutional government policy or custom, or . . . possessed final authority

over the subject matter at issue and used that authority in an unconstitutional manner.” (Doc. 2,

at PageID 14-15). Plaintiff fails to allege specific facts “connecting the [alleged violation of his

civil rights] to specific policies or customs.” Rhinehart v. Scutt, No. 2:11-CV-11254-DT, 2014

WL 5361936, at *17 (E.D. Mich. June 20, 2014), report and recommendation adopted in part,

rejected in part on other grounds, No. 11-CV-11254, 2014 WL 5361939 (E.D. Mich. Oct. 21,

2014) (citing cases). Plaintiff has therefore failed to state an Eighth Amendment official-

capacity claim under Monell, 436 U.S. at 691.

For these reasons, the undersigned recommends that Plaintiff’s Eighth Amendment claim

against defendants be dismissed without prejudice.

3. ADA Conspiracy Claim

Plaintiff’s ADA conspiracy claim under Section 1985 should be dismissed with

prejudice. A “plaintiff cannot assert civil rights claims premised on alleged violations of Title II

of the ADA because the ADA has its own comprehensive remedial schemes for such violations.”

Serris v. Chastaine, No. 222CV0434, 2022 WL 2133900, at *6 (E.D. Cal. June 14, 2022)

(dismissing a plaintiff’s § 1985 claim for conspiracy to violate the ADA) (citing Vinson v.

Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)); Sauter v. State of Nevada, No. 97-15795, 1998

WL 196630, at *1 (9th Cir. 1998) (holding that the plaintiff’s ADA conspiracy claim was “not

cognizable under § 1985 . . . because that section cannot serve as a vehicle to enforce statutory

rights when the statute in question has its own remedial structure”) (citing Great Am. Fed. Sav.

& Loan Assn. v. Novotny, 442 U.S. 366 (1979)). The undersigned therefore recommends that

Plaintiff’s ADA conspiracy claim be dismissed with prejudice.

In sum, plaintiff may proceed at this juncture against defendants for compensatory

damages in their official capacities for the alleged failure to provide reasonable accommodations

to plaintiff in violation of the ADA. However, for the above-stated reasons, the undersigned

recommends that plaintiff’s remaining claims be dismissed.

The Court notes that plaintiff has failed to provide summons or U.S. Marshal forms for

service of process on defendants. It is therefore ORDERED that plaintiff, within thirty (30)

days of the date of this Order, submit a completed summons and U.S. Marshal form for each of

the defendants, namely, Dr. Arthur Hale, Mary Roush, Ashley Orsbone, and Marilyn Rodriguez.

Plaintiff is advised that failure to comply with this Order may result in the dismissal of this

action for want of prosecution.

II. Motion To Access Defendant’s Law Library (Doc. No. 11)

As noted above, plaintiff also seeks preliminary injunctive relief in his Motion to Access

Defendant’s Law Library (Doc. No. 11). Specifically, Plaintiff asserts that he is being denied

access to the PCI law library in retaliation for bringing the instant lawsuit. (Id.)

When deciding whether to issue a preliminary injunction, this Court must balance four

factors: (1) whether the party seeking the injunction has shown a substantial likelihood of

success on the merits; (2) whether the party seeking the injunction will suffer irreparable harm

absent the injunction; (3) whether an injunction will cause others to suffer substantial harm; and

(4) whether the public interest would be served by a preliminary injunction. Liberty Coins, LLC

v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v. Lexington-Fayette Urban Cty.

Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.

2000)). See also Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008) (applying

the same four-factor analysis to a motion for temporary restraining order).

The four factors are not prerequisites but must be balanced as part of a decision to grant

or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). “[A]

district court is not required to make specific findings concerning each of the four factors used in

determining a motion for preliminary injunction if fewer factors are dispositive of the issue.”

Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003), abrogated on other gds. by Anderson

v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015). “The purpose of a preliminary injunction

is to preserve the status quo until a trial on the merits.” S. Glazer’s Distributors of Ohio, LLC v.

Great Lakes Brewing Co., 860 F.3d 844, 848-49 (6th Cir. 2017) (citing Univ. of Tex. v.

Camenisch, 451 U.S. 390, 395 (1981)). Accordingly, “a party moving for a preliminary

injunction must necessarily establish a relationship between the injury claimed and the party’s

motion.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam).

The issues raised in the Motion to Access Defendant’s Law Library are largely unrelated

to the merits of the claims presented in the amended complaint. Instead, they concern new

claims of retaliation based on alleged incidents that occurred at PCI after plaintiff commenced

this action. These new allegations are substantively different from the claims of medical

indifference and failure to accommodate his medical needs raised in his amended complaint.

A motion for preliminary injunctive relief is not the proper method “to use in an attempt

to address other issues unrelated to [an] original complaint.” Hendricks v. Hazzard, No. 2:11-cv-

399, 2013 WL 2635729, at *3 (S.D. Ohio June 12, 2013) (Report and Recommendation) (Kemp,

M.J.), adopted, 2013 WL 5944082, at *4 (S.D. Ohio Nov. 5, 2013). “Although these new

assertions might support additional claims against the same prison officials, they cannot provide

the basis for a preliminary injunction in this lawsuit.” Devose, 42 F.3d at 471.

Accordingly, it is RECOMMENDED that plaintiff's Motion to Access Defendant’s Law

Library (Doc. 11) be DENIED.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s motion to amend the complaint to include the additional ADA claim

(Doc. 4) is GRANTED. The Court DIRECTS the Clerk of Court to refile the amended

complaint (Docs. 2, 4) together as one document and to docket them as the First Amended

Complaint.

2. Within thirty (30) days of receipt of this Order, plaintiff is ORDERED to submit

to the Court completed summons and United States Marshal forms for each of the defendants.

3. The Clerk of Court is DIRECTED to send to plaintiff a summons form and a

United States Marshal form for this purpose. Upon receipt of the completed summons and

United States Marshal forms, the Court ORDERS service of process by the United States

Marshal in this case as directed by plaintiff.

4. Plaintiff shall inform the Court of any changes to his address during the pendency

of this lawsuit.

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b), with the exception of plaintiff’s claims against the defendants

in their official capacities for compensatory damages for the alleged failure to provide reasonable

accommodations to plaintiff in violation of the ADA.

2. Plaintiff’s Motion to Access Defendant’s Law Library (Doc. 11) be DENIED.

February 5, 2024 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE

Notice of Procedure on Objections

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

objections to the proposed findings and recommendations within FOURTEEN days after being

served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is

extended to SEVENTEEN days if this Report is being served by one of the methods of service

listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such objections shall specify the portions of the

Report objected to and shall be accompanied by a memorandum of law in support of the

objections. If the Report and Recommendation is based in whole or in part upon matters

occurring of record at an oral hearing, the objecting party shall promptly arrange for the

transcription of the record, or such portions of it as all parties may agree upon or the Magistrate

Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may

respond to another party’s objections within FOURTEEN days after being served with a copy

thereof.

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, 949-50 (6th

Cir. 1981).