Dearing v. Mahalma et al

Filing 13

ORDER AND REPORT AND RECOMMENDATION by Judge Karen L. Litkovitz. It is therefore RECOMMENDED that (1) Plaintiff's claims against defendants SOCF Institutional Inspector Mahlman, SOCF Corrections Officer Fri, and SOCF Mail Room Supervisor Lt. Adkins be DISMISSED. It is therefore ORDERED: (1) The United States Marshal shall serve a copy of the complaint, summons, and this order upon defendants Clagg, Joiner, Penron, Durham, McLemore, and Nurse Practitioner Adkins, as directed by plaintiff. All costs of service shall be advanced by the United States.( Objections to R&R due by 6/17/2011).Signed by Magistrate Judge Karen L. Litkovitz on 5/27/11. (Attachments: # 1 Certified Mail Receipt) (lk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARVIN DEARING,
Plaintiff

Case No. 1:11-cv-204
Weber, J.

vs
NURSE HEALTH CARE
ADMINISTRATOR CLAGG, et al.,
Defendants

ORDER AND REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville,
Ohio, brings this civil rights action under 42 U.S.C. § 1983 against SOCF Nurse Health Care
Administrator Clagg, SOCF Institutional Inspector Mahlman, SOCF Nurses Joiner, Penron,
and Durham, SOCF Doctor William McLemore, SOCF Nurse Practitioner Adkins, SOCF
Corrections Officer Fri, and SOCF Mail Room Supervisor Lt. Adkins. By separate Order
issued this date, 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 thereof, should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
§§ 1915(e)(2)(B), 1915A(b).
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
28 U.S.C. §§ 1915(e)(2)(B)(i). 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 v. Hernandez, 504 U.S. 25, 32 (1992); 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 has also authorized the sua sponte dismissal of complaints which fail to state
a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). Plaintiff’s
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (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 court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550
U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not
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“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)). While a complaint need not contain
“detailed factual allegations,” it must provide “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (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.
Plaintiff, who is proceeding pro se, alleges that he suffers from chronic severe pain
from bullet fragments in his neck. Plaintiff alleges that SOCF personnel and staff have been
deliberately indifferent to his serious medical needs. He alleges that he has been either denied
medical treatment altogether or has experienced numerous delays in receiving medical
treatment from 2008 to the present while at SOCF. Plaintiff states that on numerous occasions,
he has given written requests for medical services to the defendant nurses who have failed to
submit the written requests to the appropriate authorities in order for plaintiff to be examined
by the doctor. Plaintiff alleges that he was examined by Nurse Practitioner Adkins in April
2010 and given an x-ray. He alleges Adkins promised to follow up with additional treatment to
address plaintiff’s pain, but failed to do so and to respond to plaintiff’s requests. Plaintiff also
states that Dr. McLemore advised plaintiff he would prescribe him stronger medication for his
pain, but failed to provide any medication or follow-up treatment. He further alleges that Nurse
Durham has harassed him for his numerous requests for medical care and allegedly told
plaintiff that she “hopes he dies.” Plaintiff states he filed numerous informal complaints with
Health Care Administrator Clagg who failed to take corrective action in response to his
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complaints. Plaintiff alleges that Inspector Mahlman failed to adequately investigate or
respond to his grievances. Plaintiff seeks monetary relief.
As an initial matter, to the extent plaintiff complains about alleged denial of medical
care occurring in 2008 and early 2009, such claims are barred by the statute of limitations and
should be dismissed. Plaintiff states he was denied medical care in 2008 and for several
months up through March 2009. Those claims are barred by the two year statute of limitations
applicable to civil rights actions. See Banks v. City of Whitehall, 344 F.3d 550, 553-54 (6th
Cir. 2003); Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989). See also Jones v. Bock,
549 U.S. 199, 215(2007) (stating that if the allegations in the complaint “show that relief is
barred by the applicable statute of limitations, the complaint is subject to dismissal for failure
to state a claim”) (citing Fed. Rule Civ. Proc. 8(c)); Watson v. Wayne County, 90 Fed. Appx.
814, 815 (6th Cir. 2004) ( “If a statute of limitations defense clearly appears on the face of a
pleading, the district court can raise the issue sua sponte.”). As to plaintiff’s pre-April 2009
claims, the statute of limitations expired, at the latest, in March 2011. Plaintiff’s complaint
was not filed until April 8, 2011, after the statute of limitations expired for these claims.
Therefore, plaintiff’s pre-April 2009 claims are barred by the statute of limitations and should
be dismissed.
As to plaintiff’s post-March 2009 Eighth Amendment claims of deliberate indifference
to serious medical needs against defendants Clagg, Nurses Joiner, Penron, and Durham, Dr.
McLemore, and Nurse Practitioner Adkins, these claims are deserving of further development
and may proceed at this juncture. See 28 U.S.C. § 1915(e)(2)(B).

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To the extent plaintiff complains defendant Mahlman failed to properly investigate and
respond to his grievances, plaintiff’s complaint fails to state a claim for relief for a denial of
due process because plaintiff has no constitutional right to an effective grievance procedure.
See Walker v. Michigan Dept. of Corrections, 128 Fed. Appx. 441, 445 (6th Cir. 2005)
(unpublished), 2005 WL 742743, *3; Argue v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th Cir.
2003)(unpublished), 2003 WL 22495834, **2-**3 (citing Hewitt v. Helms, 459 U.S. 460, 467
(1983)); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72,
75 (4th Cir. 1994). See also Overholt v. Unibase Data Entry, Inc., 221 F.3d 1335 (6th Cir.
2000) (unpublished), 2000 W.L. 799760, at *3 (no inherent constitutional right to an effective
prison grievance procedure). Nor does a prison official’s alleged failure to adequately
investigate claims of misconduct rise to the level of “encouragement” that would make the
official liable for such misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir. 1992);
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Therefore, the complaint against
defendant Mahlman should be dismissed.
Finally, the complaint fails to allege any facts or wrongdoing on the part of SOCF
Corrections Officer Fri or SOCF Mail Room Supervisor Lt. Adkins. Therefore, the complaint
against these defendants should be dismissed.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s claims against defendants SOCF Institutional Inspector Mahlman, SOCF
Corrections Officer Fri, and SOCF Mail Room Supervisor Lt. Adkins be DISMISSED.

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IT IS THEREFORE ORDERED:
1. The United States Marshal shall serve a copy of the complaint, summons, and this order
upon defendants Clagg, Joiner, Penron, Durham, McLemore, and Nurse Practitioner Adkins, as
directed by plaintiff. All costs of service shall be advanced by the United States.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon
defendants’ attorney, a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed with the
clerk of court a certificate stating the date a true and correct copy of any document was mailed
to defendant or counsel. Any paper received by a district judge or magistrate judge which has
not been filed with the clerk or which fails to include a certificate of service will be disregarded
by the court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may occur
during the pendency of this lawsuit.

Date: 5/27/2011

s/Karen L. Litkovitz
Karen L. Litkovitz, Magistrate Judge
United States District Court

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARVIN DEARING,
Plaintiff

Case No. 1:11-cv-204
Weber, J.

vs
NURSE HEALTH CARE
ADMINISTRATOR CLAGG, et al.,
Defendants
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

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