Pointer v. McGuarthor, et al

Filing 30

Opinion and Order signed by Judge James S. Gwin on 3/18/15 setting forth the grounds for granting of defendants' motion to dismiss. Further, the Court denies plaintiff's objection to removal as well as the motions to amend complaint, for an immediate injunction, to strike and motion for leave to file supplement motion for injunction. (Related Docs. 3 , 7 , 8 , 10 , 12 and 19 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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DENNIS POINTER,
:
:
Plaintiff,
:
:
vs.
:
:
VICTOR McARTHUR, et al.,
:
:
Defendants.
:
:
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CASE NO. 1:14-cv-2012

OPINION & ORDER
[Resolving Docs. 3, 7, 8, 10, 12, 19]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se prisoner Dennis Pointer brings two 42 U.S.C. § 1983 claims against Victor McArthur,
Associate Warden of the Cuyahoga County Jail, and an unknown jail employee captioned as John
Doe.1/ Defendants move to dismiss Pointer’s complaint in full.2/ For the following reasons, the Court
GRANTS Defendants’ motion to dismiss.
Pointer has filed several frivolous motions objecting to removal of the case,3/ requesting an
injunction against individuals that are not parties to the case,4/ and seeking to strike portions of
Defendants’ filings.5/ These motions are DENIED.
I. Background
From January 15, 2014, to August 1, 2014, Dennis Pointer was housed in the Cuyahoga
County Jail while undergoing a sexual predator classification hearing. He alleges that the

1/

Doc. 1.

2/

Doc. 7.

3/

Doc. 3, Doc. 8.

4/

Doc. 10, Doc. 19.

5/

Doc. 12.

Case No. 1:14-cv-2012
Gwin, J.
Defendants prevented him from working on several lawsuits and denied him adequate recreation
during his time at the jail.6/
Specifically, Pointer alleges that he was denied access to a computer and thus could not work
on three cases. The first was Pointer v. Ohio State, et al., filed in the Franklin County Common
Pleas Court.7/ The case had been dismissed without prejudice in September 2013, four months before
Pointer was transferred to the Cuyahoga County Jail.8/ Pointer alleges that he could not work on an
appeal of this dismissal.9/
The second case was Pointer v. Russo, in which Pointer sought a writ of habeas corpus.10/ The
Eighth District Court of Appeals dismissed the petition as procedurally deficient, further noting that
“even if these procedural requirements could be waived, the petition is still fatally defective and is
without merit.”11/ Pointer alleges that he was unable to work on an appeal of the dismissal. The
dismissal was entered on July 23, 2014, shortly before Pointer left the Cuyahoga County Jail.
Third, Pointer alleges that he was unable to respond to a motion for summary judgment in
another case captioned Pointer v. Russo, in which Pointer sought a writ of procedendo ordering a
trial judge to rule on certain motions that Pointer had filed.12/ On August 23, 2014, the Eighth District
Court of Appeals dismissed the case as moot, as docket entries showed that the trial court had

6/

Doc. 1 at 2.

7/

See Doc. 7-1.

8/

Doc. 1 at 2.

9/

Id.

10/

No. 101548, 2014 WL 3700605, at *1 (Ohio Ct. App. July 23, 2014).

11/

Id.

12/

No. 101550, 2014 WL 4160227, at *1 (Ohio Ct. App. Aug. 19, 2014).

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Case No. 1:14-cv-2012
Gwin, J.
already ruled on the motions in question.13/
Further, Pointer alleges that he was entitled to one hour of recreation five times per week,
whereas he only received recreation once a week.14/ Pointer seeks seventy five thousand dollars in
damages.
II. Standards
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’”15/ The plausibility requirement is not
“akin to a probability requirement,” but requires “more than a sheer possibility that the defendant
has acted unlawfully.”16/
Federal Rule of Civil Procedure 8 provides the general standard of pleading and only requires
that a complaint “contain . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.”17/ “Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.”18/ In deciding a motion to dismiss under Rule 12(b)(6),
“a court should assume the[] veracity” of “well-pleaded factual allegations.”19/
III. Analysis
While Pointer’s complaint does not cite a statutory theory for recovery, he appears to make
a claim under 42 U.S.C. § 1983 for violation of his constitutional rights under color of state law. His

13/

Id.

14/

Doc 1; Doc 3-1.

15/

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

16/

Id.

17/

Fed. R. Civ. P. 8(a)(2).
Iqbal, 556 U.S. at 678-79 (citations omitted).

18/
19/

Id.

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Case No. 1:14-cv-2012
Gwin, J.
first allegation is denial of access to courts. His second allegation appears to be a claim under the
Eight Amendment based on the conditions of his incarceration.
A. Denial of Access to Courts
“To state a claim for denial of meaningful access to the courts, however, plaintiffs must plead
and prove prejudice stemming from the asserted violation. Plaintiffs must demonstrate, for example,
that the inadequacy of the prison law library or the available legal assistance caused such actual
injury as the late filing of a court document or the dismissal of an otherwise meritorious claim.”20/
“In other words, [a plaintiff] must demonstrate actual injury by showing that his underlying claim
was non-frivolous. . . . A plaintiff need not demonstrate that the underlying claim would have been
successful; instead, deprivation of an arguable (though not yet established) claim is sufficient.”21/
The first case Pointer mentions, Pointer v. Ohio State, et al., was dismissed four months
before Pointer arrived at the Cuyahoga County Jail. Pointer alleges that he could not work on an
appeal of this case. But pursuant to the Ohio Rules of Appellate Procedure, Pointer had thirty days
from the entry of final judgment to appeal the dismissal.22/ His deadline to appeal was October 17,
2013, well before he arrived at the Cuyahoga County Jail.23/ Pointer thus cannot show that his
inability to work on this appeal worked to his actual prejudice.
In the second case, Pointer sought a writ of habeas corpus to challenge the state’s authority
to force him to undergo a sexual predator classification hearing. The Court of Appeals dismissed the

20/

Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Lewis v. Casey, 518 U.S. 343 (1996)).

21/

Brown v. Matauszak, 415 F. App’x 608, 612 (6th Cir. 2011) (citing Lewis, 518 U.S. at 351, 353 n.3 (1996))
(internal quotation marks omitted).
22/

Ohio R. App. Proc. 4(A)(1).

23/

See Doc. 7-1. During Pointer’s stay at the Cuyahoga County Jail, he filed numerous motions in the case
despite the fact that it had already been dismissed.

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Case No. 1:14-cv-2012
Gwin, J.
petition as procedurally deficient, and also concluded that the underlying claim was without merit.24/
Pointer’s time to appeal this dismissal had not yet run when he left the Cuyahoga County Jail. More
importantly, Pointer’s underlying claim was not arguably meritorious and had no chance of success.
Pointer thus cannot show actual prejudice based on his inability to work on the claim.
The final case Pointer mentions suffers from the same defects. Pointer alleges he was unable
to respond to a motion for summary judgment in a case in which Pointer sought a writ of
procedendo. The case was dismissed as moot after Pointer left Cuyahoga County Jail because the
trial judge ruled on the motions in question.25/ Pointer received the relief which he sought, and thus
cannot show actual injury because of his inability to respond to summary judgment.
Thus, Pointer cannot demonstrate that he suffered an actual injury due to his alleged inability
to work on these underlying claims. Therefore, the Court GRANTS Defendants’ motion to dismiss
Pointer’s claim for denial of access to courts.
B. Denial of Recreation
Pointer’s second claim is that he did not receive adequate recreation during his time at the
Cuyahoga County Jail. The claim appears to be made under the Eighth Amendment. The standard
for such a claim is particularly high: “After incarceration, only the unnecessary and wanton infliction
of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”26/ Only
“a total or near-total deprivation of exercise or recreational opportunity, without penological

24/

Pointer v. Russo, No. 101548, 2014 WL 3700605, at *1 (Ohio Ct. App. July 23, 2014) (“[H]abeas corpus
relief is not available where there are other adequate legal remedies available. In this case, an appeal will afford Pointer
an adequate remedy at law to challenge the authority of the trial court to conduct a sexual classification hearing.”)
25/
Pointer v. Russo, No. 101550, 2014 WL 4160227, at *1 (Ohio Ct. App. Aug. 19, 2014).
26/

Whitley v. Albers, 475 U.S. 312, 319 (1986).

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Case No. 1:14-cv-2012
Gwin, J.
justification, violates Eighth Amendment guarantees.”27/ For example, the Sixth Circuit has held that
a total denial of out of cell exercise for forty-six days, without penological justification, created a
genuine issue of material fact as to whether an Eight Amendment violation had occurred.28/
Pointer’s allegations, even if accepted as true, do not state a plausible claim for relief. Pointer
has been convicted of murder and was kept in a high security unit of the Cuyahoga County Jail.29/
Pointer concedes that he had weekly out of cell recreation: he argues that he was entitled to such
recreation five times a week, rather than just once. Recreation offered once a week does not
constitute total or near-total deprivation of exercise. Therefore, the Court GRANTS Defendants’
motion to dismiss Pointer’s claim for inadequate recreation.
C. Other Motions
Pointer has filed a series of other motions in this case. Two motions pertain to removal of
the matter from state court,27/ and another motion seeks to strike Defendants’ briefing regarding
removal.28/ Removal of the case was proper, as this Court has jurisdiction over cases under 42 U.S.C.
§ 1983. Pointer’s arguments against removal are nonsensical and frivolous.
Further, Pointer moves for an injunction seeking orthopedic footwear and other relief from
the Ross Correctional Facility in Chillicothe, Ohio, where Pointer is currently incarcerated.29/ The
Ross Correctional Facility is not a party to this case, as no representative of the facility has been
served by Pointer. Pointer’s complaint names representatives of the Cuyahoga County Jail: the Court

27/

Patterson v. Mintzes, 717 F.2d 284, 289 (6th Cir. 1983).

28/

Id.

29/

Doc. 7 at 16.

27/

Doc. 3, Doc. 8.
Doc. 12.

28/
29/

Doc. 10, Doc. 19.

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Case No. 1:14-cv-2012
Gwin, J.
cannot issue an injunction to a non-party located outside the Northern District of Ohio. Thus, all of
Pointer’s outstanding motions the case are DENIED.
IV. Conclusion
The Court GRANTS Defendants’ motion to dismiss Pointer’s complaint full. Pointer’s other
motions in this case are DENIED.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: March 18, 2015

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