Golden v. Correctional Officer Hubner

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRAVIS GOLDEN, : Case No. 2:23-cv-00637

:

Plaintiff, : District Judge Michael H. Watson

: Magistrate Judge Caroline H. Gentry

vs. :

:

CORRECTIONAL OFFICER HUBNER,

:

Defendant. :

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff Travis Golden filed this civil rights lawsuit under 28 U.S.C. § 1983 to

challenge his treatment by correctional officers in a state prison. Plaintiff initially sued

only the Ohio Department of Rehabilitation and Correction, which is not an entity subject

to suit under Section 1983. (Complaint, Doc. No. 1.) Plaintiff then filed an amended

complaint and named Correctional Officer Hubner and several John Does as Defendants.

(Am. Complaint, Doc. No. 11, PageID 104 & 131.) Plaintiff is proceeding both in forma

pauperis (i.e., he is excused from paying certain costs at all, and is permitted to pay the

remaining costs over a period of time) and pro se (i.e., without the assistance of counsel).

This matter is before the undersigned United States Magistrate Judge to conduct

the required initial screen of Plaintiff’s Amended Complaint. For the reasons set forth

below, the undersigned ORDERS that Plaintiff be allowed to proceed with some of his

claims at this time and RECOMMENDS that his remaining claims be DISMISSED.

I. LEGAL STANDARDS

A. Requirement To Screen Plaintiff’s Complaint

Because Plaintiff is a prisoner who is seeking “redress from a governmental entity

or officer or employee of a governmental entity,” the Court must screen the Complaint to

determine whether it, 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. Prison Litigation Reform Act of

1995 (“PLRA”) § 805 (codified at 28 U.S.C. § 1915A(b)); McGore v. Wrigglesworth,

114 F.3d 601, 608 (6th Cir. 1997) (“A district court is required to screen all civil cases

brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper,

is pro se, or is represented by counsel as the statute does not differentiate between various

civil actions brought by prisoners”).

The Court is also required to screen the Complaint because Plaintiff is proceeding

in forma pauperis. Congress enacted 28 U.S.C. § 1915, the in forma pauperis statute, for

the purpose of “lower[ing] judicial access barriers to the indigent.” Denton v. Hernandez,

504 U.S. 5, 31 (1992). 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. (internal

quotations and citation omitted). Therefore, the Court must dismiss an in forma pauperis

complaint to the extent it “determines that the action … (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).

B. Determining That A Complaint Is Frivolous

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 the plaintiff claims a violation of a

legal interest that 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 being

irrational or ‘wholly incredible.’” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The

Court need not accept as true any 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).

C. Determining That A Complaint Fails To State A Claim Upon Which

Relief May Be Granted

The Court is also required to dismiss complaints that fail to state a claim upon

which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii) & 1915A(b)(1). To avoid

dismissal under this standard, the 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 determine whether the complaint contains “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 Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that

the “dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to

state a claim under §§ 1915A(b)(1) and 1915(e)(20(B)(ii)”). Thus, the complaint must

include factual allegations that are both well-pleaded and plausible.

Factual allegations are well-pleaded if they are specific and support the plaintiff’s

claims. Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (courts need not accept

“non-specific factual allegations and inferences”). “[A] legal conclusion couched as a

factual allegation” is not well-pleaded and need not be accepted as true. Twombly, 550

U.S. at 555; see 16630 Southfield Ltd. Partnership v. Flagstar Bank, F.S.B., 727 F.3d

502, 504 (6th Cir. 2013) (“[C]onclusory allegations … that the defendant violated the

law” do not state a claim on which relief can be granted); Frazier, 41 F. App’x at 764

(6th Cir. 2002) (courts need not accept “unwarranted legal conclusions”).

“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); see also 16630

Southfield Ltd. Partnership v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)

(internal quotations and citation omitted) (“[T]he sufficiency of a complaint turns on its

factual content, requiring the plaintiff to plead enough factual matter to raise a plausible

inference of wrongdoing.”). Whether an inference is plausible “depends on a host of

considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Iqbal, 556 U.S. at 678.

D. Liberal Construction Of Pro Se Complaints

This Court is required to liberally construe a pro se complaint and hold it “to less

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007). This standard may require “active interpretation in some cases [in

order] to construe a pro se petition to encompass any allegation stating federal relief.”

Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). Nevertheless, a pro se complaint must

adhere to the “basic pleading essentials” and the Court should not have to guess at the

nature of the claim asserted.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Instead,

the complaint must “give the defendant fair notice of what the … claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007).

E. Claims Brought Under Section 1983

Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. Section 1983

authorizes a cause of action “against any person who, under color of state law, ‘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.’” Nelson v. Campbell, 541

U.S. 637, 643 (2004). To state a cause of action under Section 1983, a plaintiff must

allege: “(1) a deprivation of a right secured by the Constitution or laws of the United

States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty.

Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008).

II. PARTIES, ALLEGATIONS AND CLAIMS

A. Parties

Plaintiff is a state prisoner who is serving a sentence imposed by a state court.

(Am. Complaint, Doc. No. 11, PageID 116.) When the alleged events described in the

Amended Complaint occurred, Golden was incarcerated at the Madison Correctional

Institution (“Madison CI”). (Doc. Nos. 11 and 11-1, PageID 118.) Plaintiff was later

transferred to a different correctional facility and no longer resides at Madison CI.1

Plaintiff appears to be suing Correctional Officer Hubner and several John Does.

In the caption of his Amended Complaint, Plaintiff identified the Defendant(s) as

“Defendant Doe ‘Correctional Officer Hubner’ et. al. Defendant(s) (Reserved right to

name unknown defendants later).” (Doc. No. 11, PageID 104.) On the first page of the

Amended Complaint, Plaintiff identified the Defendant as “Defendant Doe ‘C/O

Hubner.’” (Id.) Elsewhere in the Amended Complaint, Plaintiff referred to “Defendant

Doe ‘Correctional Officer Hubner (C/O Hubner)’ and several unknown, and yet to be

named as defendants in this live controversy [sic].” (Id. at PageID 117.)

In an abundance of caution, the undersigned Magistrate Judge will construe the

pro se Complaint liberally as asserting claims against a Madison CI Officer with the last

name of Hubner and approximately fifteen John Doe Defendants.2 The Clerk of Court is

1 See “Offender Details” on the ODRC’s website, available at

https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A410118 (last visited Nov. 6, 2024).

2 Designation of a John Doe defendant is disfavored but “permissible when the identity of the alleged

defendant is not known at the time the complaint is filed and plaintiff could identify defendant through

discovery.” Robinson v. Doe, No. 1:07-cv-729, 2009 WL 650383, at *2 (S.D. Ohio March 10, 2009)

(collecting cases).

DIRECTED to list Correctional Officer Hubner on the docket as the lead defendant,

remove his designation as a “Doe” Defendant, and add fifteen “John Doe” Defendants to

the docket.

In his Amended Complaint, Plaintiff did not expressly state whether he is suing

Defendants in their official capacities, individual capacities, or both capacities. In such a

situation, this Court must apply a “course of proceedings” test to determine the capacity

in which each defendant has been sued. Moore v. City of Harriman, 272 F.3d 769, 773

(6th Cir. 2001) (en banc). If the complaint is ambiguous, then the Court must assume that

it asserts only official-capacity claims “unless the ‘course of proceedings’ has clarified

that the plaintiff seeks to hold the defendants personally liable.” New Alb. Main St. Props.

v. Watco Cos., LLC, 75 F.4th 615, 632 (6th Cir. 2023).

The course of proceedings test requires the Court to examine the pleadings and

determine whether Defendants were placed on notice of Plaintiff’s intent to hold them

personally liable for damages. Moore, 272 F.3d at 773. Relevant factors include “the

nature of the plaintiff’s claims, requests for compensatory or punitive damages, and the

nature of any defenses raised in response . . . .” Id. at 772 n.1.

After applying the course of proceedings test, the undersigned concludes that the

Amended Complaint provides notice of Plaintiff’s intent to hold Defendants personally

liable for their alleged actions. Plaintiff seeks compensatory, nominal and punitive

damages in the amount of $330 million. (Doc. No. 11, PageID 117-18.) Plaintiff alleges

that Defendant Hubner is an intentional tortfeasor who assaulted him, acted in bad faith

and is not entitled to qualified immunity. (Id. at PageID 127-30.) Plaintiff asserts similar

allegations against the John Doe Defendants, with the exception that some of them are

deemed to be negligent tortfeasors. (Id. at PageID 130-40.)

Accordingly, the undersigned will construe Plaintiff’s Amended Complaint as

asserting claims against Defendant Hubner and the remaining John Doe Defendants in

their individual capacities only.3 The Clerk of Court is DIRECTED to note on the docket

sheet of this case that Defendant Hubner and the John Doe Defendants are being sued in

their individual capacities.

B. Plaintiff’s Allegations

The following factual allegations are taken from the Amended Complaint and are

considered to be true for purposes of this initial screen only.

1. February 16, 2021 Incident (attack by officers)

On February 16, 2021, Madison CI Correctional Officer Hubner initiated a verbal

altercation with Plaintiff. (Doc. No. 11, PageID 118.) The dispute “escalated to the point

where [Hubner] decided to lock [Plaintiff] into his cell.” (Id.) At some point, Plaintiff

“took advantage of [an] opportunity to run out of his cell and surrender in a peaceful

manner.” (Id.) Plaintiff apparently then knelt or lay down on the ground. (Id.)

Seeing Plaintiff outside of his cell, Officer Hubner called for backup, “got down

on top of” Plaintiff, ordered him not to move, and had him “completely subdued.” (Doc.

3 If Plaintiff had sued Defendants in their official capacities, then the undersigned would recommend that

all official capacity claims be dismissed. See Anderson v. Ohio Dep’t of Rehab. & Correction, No. 2:16-

cv-1009, 2016 WL 6778396, at *2 (S.D. Ohio Nov. 16, 2016), report and recommendation adopted, 2017

WL 2493146 (S.D. Ohio June 8, 2017) (“claims for damages asserted against state employees in their

official capacities cannot proceed in a federal court because such claims are deemed to be claims against

the State” and the State is immune from suit and not properly sued under Section 1983).

No. 11, PageID 118.) However, Hubner did not handcuff Plaintiff. (Id.) Instead, Hubner

saw that the other officers were not taking any action against Plaintiff and announced that

“[Golden] is not getting out of here, without getting his ass beat.” (Id.) Someone else then

sprayed Plaintiff, who had been subdued, in the face with mace or pepper spray. (Id.)

Plaintiff emphasizes that Officer Hubner refused to close the handcuffs around his

wrists immediately after subduing him. (Doc. No. 11, PageID 119, 121-22 & 127-28.)

Although the significance of this allegation is not explained, one interpretation is that

Plaintiff believes that Hubner thought that he could legitimately continue to use force

against him until Plaintiff was handcuffed. Hubner’s alleged delay in handcuffing

Plaintiff appears to be the main basis of Plaintiff’s claims against Hubner.

Hubner remained seated on Plaintiff’s back for at “least one full minute” while

refusing to secure the handcuffs. (Doc. No. 11, PageID 119-20.) Plaintiff alleges that

Hubner refused to handcuff him until other officers caused additional injuries. (Id.) One

or more individuals punched Plaintiff in the left temple and deployed a full canister of

mace in his face. (Id. at PageID 120.) But Hubner “just [sat] there waiting for more.” (Id.)

Believing that “Hubner was not going to be happy” until the other officers killed

him, Plaintiff yelled out his mother’s telephone number and pleaded for “anybody in the

vicinity to call her and tell her to call the Ohio State Highway Patrol and tell them that the

prison guards were trying to kill [him].” (Doc. No. 11, PageID 121.) At that point, an

unnamed “Superior Officer” who had been watching the incident finally ordered Hubner

to clasp the handcuffs around Plaintiff’s wrists. (Id.)

Plaintiff was escorted to the prison’s infirmary. (Doc. No. 11, PageID 122.) On the

way, an unknown officer punched Plaintiff in the jaw for no reason. (Id.) When he

arrived, someone punched him in the right eye. (Id.) Someone also threatened him,

saying that they had better not hear about Plaintiff writing any more informal complaints,

because he would not be so lucky next time. Then, someone knocked Plaintiff out (i.e.,

rendered him unconscious). (Id. at PageID 123.) Plaintiff claims that approximately

fifteen John Doe Defendants, in addition to Defendant Hubner, are liable for their

conduct during the February 16, 2021 incident. (Id. at PageID 131.)

2. February 17, 2021 Incident (humiliating treatment)

The next day, an unidentified correctional officer chained Plaintiff to a table in the

dayroom that was directly in front of a camera. (Doc. No. 11, PageID 123-24.) Plaintiff

alleges that he was placed there so that the officers who assaulted him could see his

injuries, including his right eye being swollen shut, and laugh at him. (Id.) Plaintiff also

alleges that he was placed there so that other inmates could laugh at him. (Id.)

3. February 24, 2021 Incident (attack by inmate)

A few days later, Plaintiff was moved to another cell for the purpose of allowing

him to be attacked by another inmate. (Doc. No. 11, PageID 124.) Although the cell was

empty when Plaintiff arrived, “several moments later some muscle-bound inmate” was

brought into the cell and uncuffed. (Id.) The other inmate knocked Plaintiff onto the

ground and stomped on him several times. (Id.) Plaintiff yelled for help and saw two

correctional officers standing outside of his cell, laughing. (Id.) The officers did not break

up the fight and instead appeared to be amused. (Id. at PageID 124-25.) Plaintiff alleges

that the officers bribed the inmate to attack Plaintiff with the promise of cigarettes. (Id.)

One of the officers also mocked Plaintiff’s calls for help by uttering “his own mock

version of a plead for help.” (Id.) Ultimately, the officers opened the cell door, sprayed

Plaintiff with mace, and escorted him and the other inmate to the infirmary. (Id.)

4. May 2021 Parole Board Hearing

A few months later, during Plaintiff’s Parole Board hearing in May 2021, he was

asked: “You are still showing signs of aggression, so why should we consider letting you

go?” (Doc. No. 11, PageID 125-26.) Plaintiff responded: “How can you call me showing

signs of aggression, from an incident – where the police beat me?” (Id. at PageID 126.)

On June 14, 2021, the Parole Board denied Plaintiff’s request for parole and extended his

eligibility for ten years. (Id.)

5. June 23, 2021 Incident (False Statement About Release)

On June 23, 2021, Plaintiff (who did not yet know about the Parole Board’s

decision) was summoned to the Identification Department. (Doc. No. 11, PageID 126.)

An unnamed official told Plaintiff that an employee of the Adult Parole Authority, Ms.

Shrine, had stated that Plaintiff needed to have a “Release I.D.” (Id.) Believing that he

was about to be released, Plaintiff was overjoyed. (Id.) The next day, however, he was

summoned to the Mental Health Department and was informed that Ms. Shrine had called

to say that Plaintiff’s request for parole was denied. (Id.) Plaintiff received the official

decision by mail a few days later, and realized that he had been tricked. (Id.)

C. Plaintiff’s Claims

Plaintiff describes his claims as follows:

Police Brutality; Excessive Force; and Unnecessary and the Wanton

Infliction of Pain, in Violation of the Plaintiff’s Substantial Right to be Free

of “Cruel and Unusual Punishment,” Guaranteed by the 8th Amendment of

the United States Constitution; 42 U.S.C. § 2000dd; and, The Constitutional

Rights of Prisoners § 1-3.1; and §§ 1-11.6.4.

(Doc. No. 11, PageID 117 (as in original).) He also refers to his claims as psychological

torture, a misuse of state power, and deliberate indifference. (Id. at PageID 105.)

D. Misjoinder of Unrelated Defendants

The undersigned notes that Plaintiff is attempting to sue numerous Defendants (all

but one of whom are John Doe Defendants) in one lawsuit for conduct that occurred in

separate incidents. As explained below, the Federal Rules of Civil Procedure do not

permit Plaintiff to sue unrelated Defendants in one lawsuit. Therefore, the undersigned

RECOMMENDS that the District Judge drop from this lawsuit all John Doe Defendants

who were not involved in the February 16, 2021 incident. Plaintiff may, if he wishes, file

one or more additional lawsuits to address those incidents and Defendants.

Federal Rule of Civil Procedure 18(a) allows a plaintiff to “join, as independent or

alternative claims, as many claims . . . as the party has against an opposing party.” Fed.

R. Civ. P. 18(a). Therefore, Plaintiff is permitted to assert multiple claims, even claims

that are based upon different and unrelated facts, against a single defendant.

But if Plaintiff seeks to sue multiple defendants, then he must comply with Federal

Rule of Civil Procedure 20(a). Rule 20(a)(2) allows multiple defendants to be sued in one

action “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

transactions or occurrences; and (B) any question of law or fact common to all defendants

will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A) & (B) (emphasis added). The Sixth

Circuit has explained that “[i]f the same issues of fact would determine both claims, they

arise out of the same transaction or occurrence, but if the proof of one claim would have

no connection with the proof of the other, the claims do not arise out of the same

transaction or occurrence.” LASA Per L’Industria Del Marmo Societa Per Azioni of Lasa

v. Alexander, 414 F.2d 143, 151 (6th Cir. 1969) (internal quotations and citation omitted).

Here, Plaintiff’s allegations show that he is suing an unknown number of

Defendants based upon different “transaction[s], occurrence[s], or series of transactions

or occurrences.” Fed. R. Civ. P. 20(a)(2)(A). Although there may be common theme—for

example, the alleged targeting of Plaintiff by officials of Madison CI—Plaintiff’s causes

of action involve different facts, different Defendants, and different proof. The existence

of a common theme does not satisfy the requirements of Rule 20(a)(2).

Accordingly, because Plaintiff’s causes of action are not based upon the “same

transaction, occurrence, or series of transactions or occurrences,” Rule 20(a)(2) does not

permit Plaintiff to sue all of these Defendants in one lawsuit. Perry v. Erdos, No. 1:22-

CV-178, 2023 WL 2781585, at *2 (S.D. Ohio Apr. 5, 2023), report and recommendation

adopted, No. 1:22-CV-178, 2023 WL 6370421 (S.D. Ohio Sept. 30, 2023) (explaining

that under Rule 20(a)(2) a plaintiff cannot “combine into one lawsuit unrelated claims

against different defendants” (internal quotations and citation omitted)).

Furthermore, when cases are filed by prison inmates, the Prison Litigation Reform

Act (“PLRA”) requires them to pay the required filing fees (albeit over time) and imposes

a three-strike rule to deter frivolous lawsuits. Courts therefore require prison inmates to

bring separate lawsuits when asserting unrelated claims against different defendants, so

that they cannot sidestep these requirements of the PLRA. See, e.g., George v. Smith, 507

F.3d 605, 607 (7th Cir. 2007); Brown v. Blaine, 185 F. App'x 166, 168-69 (3d Cir. 2006).

For all of these reasons, the Court concludes that Defendants are misjoined under

the Federal Rules of Civil Procedure. The remedy for misjoinder is set forth in Federal

Rule of Civil Procedure 21, which permits the Court “on its own . . . at any time, on just

terms, [to] add or drop a party. The court may also sever any claim against a party.” Fed.

R. Civ. P. 21. Here, because Plaintiff’s primary claim appears to involve the February 16,

2021 incident, the undersigned RECOMMENDS that the District Judge drop from this

lawsuit all John Doe Defendants who were not involved in the February 16, 2021

incident. Because it does not appear that Defendant Hubner was involved in any of the

other incidents, it is unnecessary to sever any other claims asserted against him.

III. LAW AND ANALYSIS

A. Claims That May Proceed at this Time

The Court construes prisoner claims that are based on the alleged use of excessive

force and the unnecessary and wanton infliction of pain as arising under the Cruel and

Unusual Punishments Clause of the Eighth Amendment to the U.S. Constitution. See

Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (describing the evolving boundaries of the

Eighth Amendment); Murray v. Stockton, No. 3:04-cv-501, 2007 WL 172521, at *4 (E.D.

Tenn. Jan. 18, 2007) (noting that “police brutality” is “not [a] legitimate, recognized

cause[] of action”). The undersigned therefore construes the Amended Complaint as

asserting Eighth Amendment claims against Officer Hubner and the John Doe

Defendants involved in the February 16, 2021 incident. Plaintiff has properly asserted

these Eighth Amendment claims under 42 U.S.C. § 1983 (“Section 1983”).

At this time, without the benefit of an answer or other briefing, the undersigned

ORDERS that Plaintiff be permitted to PROCEED with his Eighth Amendment claims

under Section 1983 against Defendant Hubner and the John Doe Defendants involved in

the February 16, 2021 incident in their individual capacities. The precise theories of

Plaintiff’s Eighth Amendment claims against these Defendants (e.g., excessive force,

failure to protect or intervene, deliberate indifference to the need for medical care) can be

determined at a later time. The undersigned expresses no opinion on the merits of

Plaintiff’s Eighth Amendment claims or whether he will ultimately obtain any relief.

B. Claims Recommended For Dismissal

Golden also asserts claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000dd, and “The

Constitutional Rights of Prisoners.” (Doc. No. 11, PageID 109-110.) Because none of

these asserted claims are viable, the undersigned recommends that they be dismissed.

1. Claims asserted under 42 U.S.C. § 1981

Section 1981 provides, in relevant part:

All persons within the jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). Section 1981 “prohibits intentional race discrimination in the

making and enforcing of contracts involving both public and private actors.” Amini v.

Oberlin Coll., 440 F.3d 350, 358 (6th Cir. 2006). To plead and prove a claim under

Section 1981, Plaintiff must establish that (1) he possesses a contractual right that

defendant blocked or impaired, and (2) the defendant’s act was motivated by racial

discrimination. Williams v. Richland Cnty. Children Servs., 489 F. App’x 848, 851 (6th

Cir. 2012).

Plaintiff’s Amended Complaint does not contain sufficient factual allegations to

satisfy the required elements of a Section 1981 claim. Specifically, he has not identified

any contractual rights, and he did not allege that racial discrimination caused Defendants

to interfere with those contractual rights. Plaintiff therefore fails to state a claim under

Section 1981 and all such claims should be dismissed.

2. Claims asserted under 42 U.S.C. § 2000dd

Section 2000dd provides that:

No individual in the custody or under the physical control of the United

States Government, regardless of nationality or physical location, shall be

subject to cruel, inhuman, or degrading treatment or punishment.

42 U.S.C. § 2000dd. This statute does not apply to Plaintiff because the allegations in the

Amended Complaint make it clear that he was in the custody of the State of Ohio, not the

United States Government. (E.g., Doc. No. 11, PageID 111 (asserting that Plaintiff filed a

grievance and appeal with the Ohio Department of Rehabilitation & Correction) and

PageID 116 (describing Plaintiff’s state convictions and sentences); see also Doc. No. 4

at PageID 64 (indicating that Plaintiff was incarcerated at Ross Correctional Institution,

an Ohio prison).) Plaintiff therefore fails to state a claim under Section 2000dd and all

such claims should be dismissed.

3. Claims based on “The Constitutional Rights of Prisoners”

Finally, Plaintiff refers to sections of “The Constitutional Rights of Prisoners,”

which is apparently a textbook or treatise. (Doc. No. 11, PageID 117 (citing § 1-3.1 §§ 1-

11.6.4 of that source).) Although this source may provide an explanation of the federal

rights that are available to prisoners, it does not itself provide a basis for asserting those

rights. Plaintiff must base his claims under the U.S. Constitution and Section 1983, not

under any secondary source.

Accordingly, the undersigned RECOMMENDS that Plaintiff’s claims under 42

U.S.C. § 1981, 42 U.S.C. § 2000dd, and “The Constitutional Rights of Prisoners” be

DISMISSED.

4. Claims based on alleged judicial misconduct

In his Amended Complaint, Plaintiff describes other cases that he has filed. (Doc.

No. 11, PageID 105-106, 111-116.) Plaintiff’s intent appears to be to demonstrate that he

has not accrued three “strikes” under the so-called “three strikes” provision of the PLRA.

28 U.S.C. 1915(g).

One case that Plaintiff describes is Travis Golden v. Ohio Department of Rehab.

and Corr., et al., S.D. Ohio Case No 2:22-cv-2125. (Doc. No. 11, PageID 112.) Plaintiff

asserts that the judicial officers committed misconduct in that case and should have been

reported to “Disciplinary Counsel.” (Id. at PageID 113-114.) Plaintiff requests that the

judicial officers in this case submit such a report. (Id. at PageID 114.)

To the extent that Plaintiff is attempting to assert a claim in this case that relates to

the handling of S.D. Ohio Case No. 2:22-cv-2125, the undersigned RECOMMENDS

that such a claim be DISMISSED. Matters pertaining to Case No. 2:22-cv-02125 should

be addressed in that case or raised on appeal. They will not be entertained in this case.

IV. SERVICE

Because Plaintiff is proceeding in forma pauperis (Doc. No. 8), the Court will

facilitate service of process on Defendant Hubner. 28 U.S.C. § 1915(d). However,

Plaintiff has failed to provide a summons and U.S. Marshal form for service. It is

therefore ORDERED that Plaintiff, within (30) days of the date of this Order, shall

submit a completed summons and U.S. Marshal form for service on Defendant Hubner.

Once the Court receives the summons and U.S. Marshal form, the Court will order

service of process by the United States Marshal.

V. CONCLUSION

IT IS THEREFORE ORDERED THAT:

1. Plaintiff shall be permitted to PROCEED with his Eighth Amendment

claims against Defendant Hubner and the John Doe Defendants involved in the February

16, 2021 incident in their individual capacities.

2. Plaintiff, within (30) days of the date of this Order, shall submit a

completed summons and U.S. Marshal form for service on Defendant Hubner. Once the

Court receives the summons and U.S. Marshal form, the Court will order service of

process by the United States Marshal.

IT IS THEREFORE RECOMMENDED THAT:

1. The Court DROP from this lawsuit all John Doe Defendants who were not

involved in the February 16, 2021 incident, due to misjoinder.

2. Plaintiff’s claims under 42 U.S.C. § 1981, 42 U.S.C. § 2000dd, and “The

Constitutional Rights of Prisoners” be DISMISSED.

3. Any claim in this case that relates to the handling of S.D. Ohio Case No.

2:22-cv-2125 be DISMISSED.

4. 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).

DIRECTIONS TO THE CLERK:

1. The Clerk of Court is directed to list Correctional Officer Hubner on the

docket as the lead defendant, remove his designation as a “Doe” Defendant, and add

fifteen “John Doe” Defendants to the docket.

2. The Clerk of Court is directed to note on the docket that Defendant Hubner

and the John Doe Defendants are being sued in their individual capacities.

3. The Clerk of Court is directed to send Plaintiff, along with a copy of this

Order and R&R: one blank summons form, one blank USM-285 form, a print-out of the

docket sheet of this case as corrected herein, and a copy of the Court’s Pro Se Handbook.

Plaintiff may file Objections to this Report and Recommendation in the manner

described below. He is ADVISED that he must keep this Court informed of his current

address while this case is pending and promptly file a Notice of New Address if he is

transferred or released.

IT IS SO ORDERED AND RECOMMENDED.

s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE

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).