Shank v. State Of Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

PATRICK J. SHANK, : Case No. 2:24-cv-3978

:

Plaintiff, :

: District Judge Sarah D. Morrison

vs. :

Magistrate Judge Karen L. Litkovitz

:

STATE OF OHIO, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Belmont Correctional Institution, has filed a pro se civil rights

complaint under 42 U.S.C. § 1983. As discussed below, plaintiff names forty-four defendants in

their official capacities and seeks monetary damages. By separate Order, plaintiff has been

granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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).

A. LEGAL STANDARD

In enacting the original in forma pauperis statute, 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.” Denton v.

Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To

prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma

pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28

U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when

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.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at

1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in

reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)

(quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,

however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71

(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a

claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-

pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a

factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. ALLEGATIONS

Plaintiff has filed a forty-one page complaint seeking to hold forty-four defendants liable

in their official capacities. (See Doc. 1-1, Complaint at PageID 3-17). The complaint includes

factual allegations spanning from 2015 until present, concerning numerous alleged

incidents/constitutional violations at three different institutions. At the Richland Correctional

Institution (RICI), where plaintiff was located from 2015 until October of 2018, plaintiff claims

he was denied medical care, targeted and subjected to retaliation, had his property stolen, and

was subjected to the use of excessive force. (Id. at PageID 24-26). At the Lake Erie

Correctional Institution (LAECI), where plaintiff was located from October to December of

2018, plaintiff claims that he had his musical equipment taken from him, was attacked by

inmates at the direction of prison staff, held in unconstitutional conditions of confinement, and

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subjected to excessive force and harassment. (Id. at PageID 26-28). The complaint also

includes allegations regarding his conditions at the Belmont Correctional Institution (BECI),

where plaintiff is currently located. According to plaintiff, he was again attacked by inmates at

the direction of staff, was targeted and retaliated against, had his property given away, deprived

of due process in a Rules Infraction Board hearing, subjected to excessive force on multiple

occasions, given false conduct reports, and was denied medical care. (Id. at PageID 28-33).

As relief, plaintiff seeks monetary damages. (Id. at PageID 36).

C. ANALYSIS

As pled, plaintiff’s complaint is subject to dismissal for failure to state a claim upon

which relief may be granted.

As an initial matter, it is clear from the face of the complaint that many of plaintiff’s

claims are time-barred. Plaintiff’s civil rights complaint is governed by Ohio’s two-year statute

of limitations applicable to personal injury claims. See, e.g., Browning v. Pendleton, 869 F.2d

989, 992 (6th Cir. 1989) (holding that the “appropriate statute of limitations for 42 U.S.C. § 1983

civil rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10, which requires that

actions for bodily injury be filed within two years after their accrual”); see also Wallace v. Kato,

549 U.S. 384, 387 (2007) (and Supreme Court cases cited therein) (holding that the statute of

limitations governing § 1983 actions “is that which the State provides for personal-injury torts”);

Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012) (“the settled practice . . . to adopt a local

time limitation as federal law if it is not inconsistent with federal law or policy to do so” is

applicable “to § 1983 actions and to Bivens actions because neither the Federal Constitution nor

the § 1983 statute provides timeliness rules governing implied damages”) (internal citation and

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quotation marks omitted).

Although the statute of limitations is an affirmative defense, when it appears clear on

initial screening of the complaint that the action is time-barred, the complaint may be dismissed

for failure to state a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199,

215 (2007). Cf. Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL 789385, at *1-2 (6th Cir.

Oct. 30, 1998) (holding that the district court “properly dismissed” the pro se plaintiff’s § 1983

civil rights claims under 28 U.S.C. § 1915(e)(2)(B) because the complaint was filed years after

Ohio’s two-year statute of limitations had expired); Anson v. Corr. Corp. Of America, No.

4:12cv357, 2012 WL 2862882, at *2-3 (N.D. Ohio July 11, 2012) (in sua sponte dismissing

complaint under 28 U.S.C. § 1915(e), the court reasoned in part that the plaintiff’s Bivens claims

asserted “six years after the events upon which they are based occurred” were time-barred under

Ohio’s two-year statute of limitations for bodily injury), aff’d, 529 F. App’x 558 (6th Cir. 2013).

Here, it is clear from the face of the complaint that plaintiff’s claims stemming from

incidents at RICI and LAECI—which plaintiff alleges occurred from 2015-2018—as well as his

claims stemming from factual allegations at BECI prior to 2022 (see id. at PageID 28-30), are

time-barred. Plaintiff did not file the instant case until September 25, 2024, long after the

limitations period expired with respect to these claims.

In any event, as noted above, plaintiff has named defendants in their official capacities

and only seeks monetary damages. (Id. at PageID 5-17, 36). Absent an express waiver, a state

is immune from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, 506 U.S. 139 (1993); Edelman v. Jordan, 415 U.S. 651 (1974). The State of

Ohio has not constitutionally nor statutorily waived its Eleventh Amendment immunity in the

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federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio

v. Madeline Marie Nursing Homes, 694 F.2d 449 (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 Company

v. Dept. of Treasury, 323 U.S. 459, 464 (1945). A suit against defendants in their official

capacities would, in reality, be a way of pleading the action against the entity of which

defendants are agents. Monell, 436 U.S. at 690. Thus, actions against state officials in their

official capacities are included in this bar. Will v. Michigan Dept. of State Police, 491 U.S. 58,

70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). See also 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)).

Therefore, all of the named defendants are immune from suit in their official capacities for

monetary damages.1

Therefore, as pled, the complaint should be DISMISSED for failure to state a claim upon

1 Plaintiff has named the Ohio Department of Rehabilitation and Corrections (ODRC), Richland Correctional

Institution, Lake Erie Correctional Institution, Belmont Correctional Institution, Inmate Health Services, and the State

Highway Patrol as defendants to this action. 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 . . . .” The defendant

correctional facilities, medical department, and the state highway patrol are not persons subject to suit under 42 U.S.C.

§ 1983. See 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.); Hix v. Tenn. Dep’t. of Corr., 196 F. App’x 350, 355–56 (6th Cir. Apr. 13, 2011) (finding

that prison medical departments are not persons under § 1983); Moore v. Morgan, Case No. 1:16-cv-655, 2016 WL

5080268, at *3 (S.D. Ohio June 27, 2016) (Litkovitz, M.J.) (Report and Recommendation) (recommending dismissal

of the Ohio State Highway Patrol because it was not a person or legal entity that may be sued under § 1983), adopted,

2016 WL 5080351 (S.D Ohio Sept. 16, 2016).

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which relief may be granted. However, it is RECOMMENDED that plaintiff be granted leave

to amend his complaint to rectify the above deficiencies.2

D. CONCLUSION

For the above reasons, it is RECOMMENDED that the Court DISMISS the complaint

for failure to state a claim upon which relief may be granted, but GRANT plaintiff leave to file,

within thirty (30) days of any Court Order adopting this Report and Recommendation, an

amended complaint rectifying the above deficiencies. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).

PROCEDURE ON OBJECTIONS

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. §

2 Should plaintiff elect to file an amended complaint, he is ADVISED that Federal Rule of Civil Procedure 20(a)

limits the joinder of parties in a single lawsuit. Under Rule 20(a)(2), “[p]ersons . . . may be joined in one action as

defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or

arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B) any question of law or

fact common to all defendants will arise in the action.” Therefore, “a civil plaintiff may not name more than one

defendant in his original or amended complaint unless one claim against each additional defendant is transactionally

related to the claim against the first defendant and involves a common question of law and fact.” Proctor v.

Applegate, 661 F. Supp. 2d 743, 778 (E.D. Mich. 2009). Permitting a prisoner to assert unrelated claims against

different defendants in the same action would undermine the PLRA’s purpose of curbing frivolous prisoner filings

and dilute the impact of the statute’s fee payment and three-strikes provisions. See Gresham v. Washington, No.

1:15-cv-1067, 2016 WL 81696, at *7 (W.D. Mich. Jan. 6, 2016) (collecting cases).

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636(b)(1). 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, 152-53 (1985).

November 18, 2024

KA VITZ

United States Magistrate Judge