Lonardo v. Nichols et al

Filing 4

Memorandum of Opinion and Order For the reasons set forth herein, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The dismissal is without prejudice to any valid state law claim Plaintiff may have under the facts alleged. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 10/31/2014. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DOMENICO LONARDO,
Plaintiff,
v.
DR. NICHOLS, et al.,
Defendants.

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CASE NO. 4:14CV0753

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER

Pro se Plaintiff Domenico Lonardo, formerly a federal inmate at the privately-owned
Northeast Ohio Correctional Center (“NEOCC”), filed the above captioned in forma pauperis
civil rights action against NEOCC physician Dr. Nichols and NEOCC Warden Michael Pugh.
Plaintiff alleges in the Complaint (ECF No. 1) that during his incarceration at NEOCC he was:
1) dissuaded from seeking relief through the grievance system because another inmate suffered
retaliation for using the system; 2) deprived of sufficient hygiene items, including toilet paper;
3) deprived of proper treatment for numerous medical problems; 4) forced to choose between
receiving meals and having recreation activity; and, 5) housed in a cell with two other inmates
with one sink and a toilet that would flush only twice every half hour. He asserts these
conditions subjected him to cruel and unusual punishment. Plaintiff seeks five million seven
hundred thousand dollars in damages. For the reasons stated below, this action is dismissed
pursuant to 28 U.S.C. § 1915(e).

(4:14CV0753)

I. Standard for Dismissal
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), the district court is required to dismiss an in forma pauperis action
under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted or if it lacks
an arguable basis in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630
F.3d 468, 470-71 (6th Cir. 2010).
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in th[e] complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P.
8(a)(2)). The factual allegations in the pleading must be sufficient to raise the right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.
Twombly, 550 U.S. at 555. Plaintiff is not required to include detailed factual allegations, but
must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the
elements of a cause of action will not meet this pleading standard. Id.

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A claim may be dismissed sua sponte, without prior notice to the plaintiff and
without service of process on the defendant, if the court explicitly states that it is invoking
section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the
reasons set forth in the statute. Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910,
915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261 (6th Cir. 1990); Harris
v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
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(4:14CV0753)

II. Law and Analysis
Only deliberate indifference to serious medical needs or extreme deprivations regarding
the conditions of confinement will implicate Eighth Amendment protections. Hudson v.
McMillian, 503 U.S. 1, 9 (1992). Plaintiff must also establish a subjective element showing the
prison officials acted with a sufficiently culpable state of mind. Id. Deliberate indifference is
characterized by obduracy or wantonness, not inadvertence or good faith error. Whitley v. Albers,
475 U.S. 312, 319 (1986). Liability cannot be predicated solely on negligence. Id. A prison
official violates the Eighth Amendment only when both the objective and subjective
requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The few generalized
allegations set forth in the Complaint (ECF No. 1) do not reasonably suggest a factual basis
indicating Defendants might have demonstrated such indifference.
Even had Plaintiff set forth sufficient allegations to sustain a constitutional claim based
on deliberate indifference, that claim would not be cognizable under Minneci v. Pollard, ___U.S.
___,132 S.Ct. 617 (2012). In Minneci, the Supreme Court held a federal prisoner could not
assert a Bivens2 claim for deliberate indifference to serious medical needs under the Eighth
Amendment because California state tort law provided an alternative, existing process capable of
protecting the constitutional interests at stake. In so holding, the Court noted it had “found
specific authority indicating that state law imposes general tort duties of reasonable care
(including medical care) on prison employees in every one of the eight States where privately
managed secure federal facilities are currently located,” including Ohio. Id. at 624-25. The
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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971)
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(4:14CV0753)
Court also stated that “where, as here, a federal prisoner seeks damages from privately employed
personnel working at a privately operated federal prison, where the conduct allegedly amounts to
a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls
within the scope of traditional state tort law (such as the conduct involving improper medical
care at issue here), the prisoner must seek a remedy under state tort law.” Id. at 626.
Thus, even construing the Complaint (ECF No. 1) liberally in a light most favorable to
Plaintiff, Brand v. Motley, 526 F.3d 921, 924 (6th Cir. 2008), it does not contain allegations
reasonably suggesting he might have a valid federal claim. See Lillard v. Shelby County Bd. of
Educ., 76 F.3d 716, 724 (6th Cir. 1996) (court not required to accept summary allegations or
unwarranted legal conclusions in determining whether complaint states a claim for relief).

III. Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The dismissal is
without prejudice to any valid state law claim Plaintiff may have under the facts alleged. The
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.

IT IS SO ORDERED.

October 31, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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