Sims v. Erdos et al

Filing 11

ORDER adopting Report and Recommendation re 7 Report and Recommendation overruling objections and dismissing for failure to state a claim for relief. Signed by Judge Michael R. Barrett on 6/21/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Adrian Marquese Sims,
Plaintiff,

Case No. 1:17cv00310

v.

Judge Michael R. Barrett

Erdos, et al.,
Defendants.
ORDER
This matter is before the Court upon the Magistrate Judge’s June 14, 2017 Report
and Recommendation (“R&R”). (Doc. 7). The parties were given proper notice pursuant
to Federal Rule of Civil Procedure 72(b), including notice that failure to make objections
to the R&R in a timely manner would result in a forfeiture of their rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-950 (6th Cir. 1981). Plaintiff filed objections
to the R&R. (Doc. 8).
When objections to a magistrate judge’s report and recommendation are received
on a dispositive matter, the assigned district judge “must determine de novo any part of
the magistrate judge's disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Plaintiff is an inmate at the Southern Ohio Correctional Facility (“SOCF”). He
brings this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se.
On June 14, 2017, the Magistrate Judge sua sponte reviewed Plaintiff’s Complaint

pursuant the Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); §
805, 28 U.S.C. § 1915A(b). (Doc. 7). The Magistrate Judge recommends that Plaintiff’s
Complaint be dismissed with prejudice. Plaintiff filed an objection. (Doc. 8).
The Court turns to the Magistrate Judge’s R&R. (Doc. 7). The Magistrate Judge
explains that Plaintiff has failed to state a claim upon which relief can be granted pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). The Magistrate Judge further explains
that Plaintiff cannot hold individuals in supervisory and administrative roles at SOCF liable
because “the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute
liability onto supervisory personnel.” (Doc. 7 at PageID 35). Last, the Magistrate Judge
explains that SOCF and ODRC cannot be named as defendants because under § 1983
only “‘a person’ acting under the color of state law is subject to suit or liability.” (Doc. 7,
PageID at 36) (quoting Parker v. Michigan Dept. of Corrections, 65 F. App’x. 922, 923
(6th Cir. 2003)).
In his objections to the Magistrate Judge’s R&R, Plaintiff states that “[i]t is policy
that there is no more long term seg[regation and] no long term solitary confinment [sic].”
(Doc. 8 at PageID 40). Plaintiff explains that “instead of following policy, [prison officials]
chose to cover up for each other and deprive me and oppress me.” (Doc. 8 at PageID
40).

Plaintiff states that “they knew I was deprived of my rights because I wrote

complaints on these situation[s] and was denied by the Defendants.” Id. However, as
the Magistrate Judge explained, the mere fact Defendants have administrative roles at
SOCF is not enough to impose liability under § 1983.
Prison officials cannot be held liable under § 1983 “unless the plaintiff’s complaint
affirmatively pleads the personal involvement of a defendant in the allegedly

2

unconstitutional action about which the plaintiff is complaining.” Carter v. Wilkinson, No.
2:05-cv-0380, 2009 WL 81217, at *3 (S.D. Ohio Jan. 8, 2009). This holds true “even if
the supervisor has actual knowledge of the constitutional violation” as long as the
supervisor was not participating in or encouraging the constitutional violation. Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). At a minimum, Plaintiff must show the
supervisor

“implicitly

authorized,

approved,

or

knowingly

acquiesced

in

the

unconstitutional misconduct of the offending subordinate.” Turner v. City of Taylor, 412
F.3d 629, 643 (6th Cir. 2005).
Here, Plaintiff has not alleged any facts suggesting that Defendants authorized,
approved, or participated in the alleged violations of Plaintiff’s constitutional rights.
Therefore, there is no error in the Magistrate Judge’s conclusion that Plaintiff’s Complaint
should be dismissed for failure to state a claim upon which relief can be granted pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). As a result, Plaintiff’s objections to the
Magistrate Judge’s R&R are OVERRULED. Accordingly, the Magistrate Judge’s June
14, 2017 R&R (Doc. 7) is ADOPTED.

It is hereby ORDERED that this action be

DISMISSED with PREJUDICE for failure to state a claim for relief. Pursuant to 28 U.S.C.
§ 1915(a)(3) an appeal of this Order would not be taken in good faith; and therefore,
Plaintiff is denied leave to appeal in forma pauperis.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

3