Stubbs v. Ohio Department of Rehabilitation & Corrections et al

Filing 5

REPORT AND RECOMMENDATIONS-IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiffs complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 2. The Court certify pursuant to 28 U.S.C. § 1915(a)( 3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Stephanie K. Bowman on 01/26/2018. (bjc)(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
JASON L. STUBBS,
Plaintiff,

Case No. 1:17-cv-813
Dlott, J.
Bowman, M.J.

vs
OHIO DEPARTMENT OF
REHABILITATION &
CORRECTIONS, et al.,
Defendants.

REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Warren Correctional Institution, brings this civil rights action
under 42 U.S.C. § 1983 against defendants Ohio Department of Rehabilitation and Corrections
(ORDC) and Chae Harris, Warden. (See Doc. 1).
By separate order, plaintiff has been granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. This matter is now before the Court for a sua sponte review of plaintiff’s
complaint to determine whether the complaint, or any portion of it, should be dismissed because
it 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. See Prison Litigation Reform
Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
Screening of Plaintiff’s Complaint
A.

Legal Standard
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

also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). 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, 504 U.S. at
32; 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 also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”

2

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “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)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (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. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
B.

Allegations in the Complaint
Plaintiff alleges that, on August 28, 2017, he “was deliberately denied [his] civil rights to

a Sec Code of 95120.914) by [his] Warden Mr. Chae Harris.” (Doc. 1, at PageID 5). Plaintiff
further asserts that he wrote Harris a letter and, on October 23, 2017, at 10:30 a.m. Correctional
Officer Rook “escorted [plaintiff] to a little small office of confinement for a one on two meeting
with . . . Harris and Sarwars . . . in regards to [plaintiff’s] denied (PC) [protective custody].” 1
(Doc. 5, at PageID 5). According to plaintiff, after he explained to Harris and Sarwars that
plaintiff’s life was in danger from inmate Ivan Scarville, who had broken plaintiff’s jaw in four
places in 2012, Harris told plaintiff to “get [his] punk butt out of [Harris’s] office.” (Doc. 1, at
PageID 5).
Plaintiff also claims that he is being denied pain medication by dental, mental health, and
medical staff because the “staff is leavin[g] everything up to Mr. Chae Harris, to be the
1

Neither Correctional Officer Rook nor Mr. Sarwars are named as defendants in this action.

3

provider.” (Doc. 1, at PageID 6). Plaintiff asserts that he “need[s] medicine, or a[n] outside trip
to the hospital.” (Doc. 1, at PageID 6). Plaintiff claims that he is “experiencing, a lot of off
balance, with [his] jaw when [he] eat[s] [his] food, and a lot of numbness, and sharpness of
pains.” (Doc. 6, at PageID 6). Further, he claims that he is afraid to leave his cell on account of
inmate Scarville “being anywhere.” (Doc. 1, at PageID 6).
For relief, plaintiff seeks monetary damages and “to have a fair opportunity to be with my
relatives in society in this lifetime.” (Doc. 1, at PageID 7).
C.

Analysis of the Complaint
Under relevant screening standards, plaintiff’s complaint should be dismissed with

prejudice in its entirety. First, the ORDC is not a “person” within the meaning of 42 U.S.C.
§ 1983. The ORDC is a state entity entitled to sovereign immunity under the Eleventh
Amendment to the Constitution of the United States. Will v. Michigan Dep’t of State Police, 491
U.S. 58, 65-66 (1989); Foulks v. Ohio Dep’t of Rehab. & Corr., 713 F.2d 1229, 1232 (6th Cir.
1983).
Plaintiff’s claims against Harris in his official capacity must be dismissed to the extent
that plaintiff seeks monetary damages. An action against a state official in his or her official
capacity is the equivalent of an action against the State he or she represents. Hafer v. Milo, 502
U.S. 21, 25 (1991); Will, 491 U.S. at 70-71. Therefore, Harris in his official capacity is immune
from suit to the extent that plaintiff seeks monetary damages.
Plaintiff’s claims should also be dismissed against Harris to the extent plaintiff seeks to
sue Harris under a respondeat superior theory. It is well-settled that the doctrine of respondeat
superior does not apply in § 1983 lawsuits to impute liability onto supervisory personnel. See,
e.g., Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (citing Polk Cty.
4

v. Dodson, 454 U.S. 312, 325 (1981)). “In order to find supervisory personnel liable, a plaintiff
must allege that the supervisors were somehow personally involved in the unconstitutional
activity of a subordinate, . . . or at least acquiesced in the alleged unconstitutional activity of a
subordinate.” Id. (citing Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); see also Colvin v. Caruso, 605 F.3d 282, 292 (6th
Cir. 2010) (quoting Cardinal v. Metrish, 564 F.3d 794, 803 (6th Cir. 2009)) (to succeed on claim
against supervisory state prison officials, the plaintiff must show the officials “at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending
officers”). Therefore, plaintiff’s claims should be dismissed against Harris to the extent plaintiff
seeks to hold Harris liable under a respondeat superior theory.
Further, although plaintiff does not identify any specific constitutional right or
amendment, his claims against Harris appear to invoke the Eighth Amendment as a basis for
relief. To state an Eighth Amendment claim against a prison official based on the official’s
failure to protect him from an attack, plaintiff must allege facts showing that the individuals’
conduct amounted to “deliberate indifference” to a known risk of harm to plaintiff. Farmer v.
Brennan, 511 U.S. 825, 828 (1994). A prison official may be held liable for his failure to protect
inmates from attacks only if he knows that an inmate faces “a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. Plaintiff’s
complaint fails to allege any facts showing that Harris was aware of a threat to plaintiff’s safety,
yet failed to take reasonable actions to prevent the assault. Plaintiff alleges an instance in 2012
of being attacked by inmate Ivan Scarville, 2 but his allegations do not show that a future attack is

2

The undersigned notes that plaintiff has filed another complaint in this Court arising out of Scarville’s
alleged attack against plaintiff. See Stubbs v. Bryant, et al., No. 17-721 (S.D. Ohio). In that case, the undersigned

5

likely. Plaintiff has not alleged any facts to suggest that he has or is likely to come into contact
with Scarville following the 2012 incident. Plaintiff’s statements that he is fearful to run into
Scarville “anywhere” and that inmate Scarville “is wanting to put [him] in the hospital again” are
made without any elaboration and are insufficient to show a future attack is likely. See Iqbal,
556 U.S. at 678; Twombly, 550 U.S. at 555, 557. See also Baze v. Rees, 553 U.S. 35, 49-50
(2008) (“To establish that such exposure violates the Eighth Amendment, however, the
conditions presenting the risk must be ‘sure or very likely to cause serious illness and needless
suffering,’ and give rise to ‘sufficiently imminent dangers.’”) (quoting Helling v. McKinney, 509
U.S. 25, 33, 34-35 (1993) (emphasis in original)). As such, plaintiff has failed to state an Eighth
Amendment failure-to-protect claim against Harris.
Plaintiff also appears to assert a claim against Harris for failure to provide him with
adequate dental, mental health, and medical care. To state a claim for deliberate indifference to
medical needs under the Eighth Amendment, a prisoner must show that he has a serious medical
condition and that the defendant displayed a deliberate indifference to his health. Farmer, 511
U.S. at 839; Estelle v. Gamble, 429 U.S. 97, 104 (1976). To be liable under the Eighth
Amendment, the official must know of and disregard an excessive risk to inmate health or safety,
must be aware of facts from which he could conclude that a substantial risk exists, and must
actually draw that conclusion. Farmer, 511 U.S. at 844. A complaint that a prison doctor or
official has been negligent with respect to medical diagnosis or treatment does not state a valid
claim under the Eighth Amendment. Estelle, 429 U.S. at 106; Brooks v. Celeste, 39 F.3d 125,
has recommended that this Court permit plaintiff’s failure-to-protect claim against the correctional official alleged to
have been involved immediately before the attack to go forward at this juncture. See Stubbs, No. 17-721 (Doc. 10).
In Case No.17-721, plaintiff spells Scarville’s first name “Ivon.” In this case, No. 17-813, plaintiff spells it “Ivan.”
(See Doc. 1, at PageID 5). Aside from the inconsistency in the spelling of Scarville’s first name, both cases seem to
refer to the same incident wherein Scarville allegedly broke plaintiff’s jaw.

6

127 (6th Cir. 1994). The allegations in the complaint fail to show that Harris acted with
deliberate indifference to any serious medical need of plaintiff’s. In fact, plaintiff has failed to
allege facts showing that Harris had any involvement in plaintiff’s dental, mental health, or
medical care. As such, plaintiff has failed to state an Eighth Amendment deliberate-indifference
claim against Harris.
To the extent that plaintiff may be attempting to allege an Eighth Amendment claim
against Harris for using derogatory language in allegedly telling plaintiff to “get [his] punk butt
out of [Harris’s] office” (Doc. 1, at PageID 5), “derogatory language” and “insult[s]” are
insufficient to support an Eighth Amendment claim. Ivy v. Wilson, 832 F.2d 950, 955 (6th Cir.
1987).
Finally, to the extent that plaintiff requests “to have a fair opportunity to be with [his]
relatives in society in this lifetime,” (Doc. 1, at PageID 7), a request for an inmate’s immediate
release is ordinarily inappropriate in an action challenging conditions of confinement under 42
U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (a prisoner who seeks
immediate release must pursue a writ of habeas corpus).
Accordingly, in sum, the complaint should be dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) because plaintiff has failed to state a claim upon which relief
may be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The plaintiff’s complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
2.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing

7

reasons an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JASON L. STUBBS,
Plaintiff,

Case No. 1:17-cv-813
Dlott, J.
Bowman, M.J.

vs
OHIO DEPARTMENT OF
REHABILITATION &
CORRECTIONS, 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).

9