Whethers

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSHUA WHETHERS,

Plaintiff,

v. Civil Action 2:25-cv-1522

Chief Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

OFFICER McCOY, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Joshua Whethers, an Ohio inmate who is proceeding without the assistance of

counsel, sues several correctional officers of Ross Correctional Institution under 42 U.S.C.

§ 1983 for excessive force in violation of his Eighth Amendment rights. This matter is before the

Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to

identify cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion

of it, which 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.

§§ 1915(e)(2), 1915A(b)(1)–(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.

1997). Having performed the initial screen, Plaintiff MAY PROCEED on his individual-

capacity claims for damages against Defendants McCoy and Reynoso, but it is

RECOMMENDED that the Court DISMISS Plaintiff’s remaining claims for failure to state a

claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF

No. 7.) Plaintiff must pay the full amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1).

Plaintiff’s certified trust fund statement reveals that he has $27.55 in his prison account, which is

insufficient to pay the filing fee.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts

(Inmate ID Number A791882) at the Ross Correctional Institution is 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 either the average monthly deposits to the inmate trust account or

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

preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

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

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and

the prison cashier’s office.

I. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In

doing so, 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. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e):

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted. . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. See

also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion

of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).

Further, to state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “detailed factual allegations, a pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, to state a claim upon which relief may be granted, “a complaint must contain sufficient

factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up). Facial

plausibility is established “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted). Further, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff alleges that in April 2025, Plaintiff was walking to his dorm following the

evening meal. Defendant Officer Lindsey “asked [Plaintiff] to get on the wall . . . without

provocation” and “frisked and harassed [Plaintiff] without provocation.” (Compl. 5, ECF No. 1.)

Defendant Officer Reynoso then cuffed Plaintiff, stating that Plaintiff was being uncooperative

and resisting, even after Plaintiff was handcuffed from behind. Reynoso then “slammed

[Plaintiff] to the ground.” (Id.) Defendant Officer McCoy arrived and told Plaintiff to stand up,

but Plaintiff was unable to do so due to being handcuffed. McCoy then sprayed mace in

Plaintiff’s face. (Id.) Plaintiff alleges that these actions constituted excessive force and assault

and seeks damages of $1 million. Service forms submitted by Plaintiff indicate that Plaintiff sues

each Defendant in both their official and individual capacities. (ECF No. 5.)

The undersigned construes Plaintiff’s Complaint to advance official- and individual-

capacity claims for damages against each of the three Defendants for excessive force in violation

of the Eighth Amendment.1 Having performed the initial screen of Plaintiff’s Complaint,

Plaintiff may proceed on his individual-capacity claims for damages against Defendants Reynoso

and McCoy for excessive force. Plaintiff’s remaining claims, however, must be dismissed.

First, Plaintiff’s official-capacity claims are barred by the doctrine of sovereign

immunity. A suit against a state official in his or her official capacity is “not a suit against the

1 Plaintiff also makes a passing reference to the Fourteenth Amendment; however, excessive

force claims brought by convicted persons are governed by the Eighth Amendment, not the

Fourteenth. See Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013). Nor can the undersigned

discern any property or liberty interest implicated by Plaintiff’s allegations as would be

necessary to advance a due process claim under the Fourteenth Amendment. See Wilkinson v.

Austin, 545 U.S. 209, 221 (2005).

official but rather is a suit against the official’s office,” and is therefore “no different from a suit

against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As

Defendants are employees of the Ohio Department of Rehabilitation and Corrections, Plaintiff’s

official-capacity claims are in essence claims against the state of Ohio. The Eleventh

Amendment operates as a bar to federal-court jurisdiction when a private citizen sues a state or

its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cty., 211 F.3d 331, 334 (6th Cir. 2000).

“There are three exceptions to sovereign immunity: (1) when the state has waived immunity by

consenting to the suit, (2) when Congress has expressly abrogated the states’ sovereign

immunity, and (3) when the doctrine set forth in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52

L.Ed. 714 (1908), applies.” Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017) (citation omitted).

None of these exceptions apply to Plaintiff’s Complaint. First, “Ohio has not waived sovereign

immunity in federal court.” Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Second,

“Section 1983 does not abrogate Eleventh Amendment immunity.” Boler, 865 F.3d at 410 (citing

Will, 491 U.S. at 66). Third, the Ex Parte Young doctrine applies only when a plaintiff brings

“claims for prospective relief against state officials sued in their official capacity to prevent

future federal constitutional or statutory violations.” Boler, 865 F.3d at 412. Plaintiff’s claims for

damages fall outside the scope of Ex Parte Young. Accordingly, any claims against Defendants

in their official capacities must be dismissed.

As to Plaintiff’s individual capacity claims, the Eighth Amendment prohibits the

unnecessary and wanton infliction of pain against prisoners. Williams v. Curtin, 631 F.3d 380,

383 (6th Cir. 2011) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). To make out a claim

under the Eighth Amendment, the prisoner must satisfy both an objective and a subjective

component. Id. (citing Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir.1993)).

The objective component requires the pain inflicted to be “sufficiently serious.” Wilson v.

Seiter, 501 U.S. 294, 298 (1991). Yet the seriousness of the injuries is not by itself dispositive.

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). “When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency always are violated . . .

[w]hether or not significant injury is evident.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).

“Otherwise, the Eighth Amendment would permit any physical punishment, no matter how

diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id.

The subjective component focuses on the state of mind of the prison officials. Williams,

631 F.3d at 383. The “core judicial inquiry” is “whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 449

U.S. at 37 (quoting Hudson, 503 U.S. at 7).

The undersigned finds that Plaintiff has sufficiently alleged an excessive force claim

against Defendants Reynoso and McCoy. Plaintiff has not, however, alleged any actions by

Defendant Lindsey that could satisfy the objective component of an excessive force claim.

Plaintiff’s allegations regarding Lindsey are limited to Lindsey’s order for Plaintiff to get on the

wall, and that Lindsey “frisked” and “harassed” Plaintiff. In the absence of any allegations that

the frisking or harassment caused pain, lasting injury, or was inflicted in a manner “repugnant to

the conscience of mankind,” this type of de minimis use of physical force is “necessarily

exclude[d] from constitutional recognition.” Hudson, 503 U.S. at 9–10 (quoting Whitley, 475

U.S. at 327). Accordingly, Plaintiff’s claim against Defendant Lindsey must be dismissed.

III. DISPOSITION

Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 7) is GRANTED.

Plaintiff MAY PROCEED on his individual-capacity damages claims for excessive force in

violation of the Eighth Amendment against Defendants McCoy and Reynoso, but it is

RECOMMENDED that the Court DISMISS Plaintiff’s remaining claims for failure to state a

claim on which relief may be granted.

In light of Plaintiff’s in forma pauperis status, Plaintiff is entitled to have the United

States Marshal effect service of process over Defendants Reynoso and McCoy. Plaintiff has

already submitted a summons form (Form AO-440) for each Defendant and a service of process

by U.S. Marshal form (Form USM-285) for each Defendant (ECF No. 5). However, the

summons form submitted for Reynoso is not properly completed as it does not contain

Reynoso’s name and address in the required section of the form. (See ECF No. 5, PAGEID #16.)

If Plaintiff wishes to have the United States Marshal effect service, Plaintiff is DIRECTED to

file a completed summons form (Form AO-440) for Defendant Reynoso and to submit two

service copies of the Complaint to the Clerk of Court. If Plaintiff does so, the Clerk is

DIRECTED to issue the summonses and the United States Marshal is DIRECTED to serve by

certified mail upon Defendants Reynoso and McCoy the issued summons, a copy of the

Complaint, and a copy of this Order and Report and Recommendation.

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 District 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 District 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.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE