McDougald v. Clagg et al

Filing 7

ORDER AND REPORT AND RECOMMENDATIONS: IT IS RECOMMENDED THAT: 1. Plaintiffs claims against defendant Mahlman be dismissed pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1). 2. Case numbers 1:18-cv-93 and 1:18-cv-135 be consolidated. As is the practice of this Court, it is recommended that case number 1:18-cv-135 be consolidated into case number 1:18-cv-93 since case number 1:18-cv-93 was the first filed case. IT IS ORDERED THAT: 1. The United States Marshal shall serve a copy of t he complaint, summons, and this order upon defendants Clagg and Conley 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, up on defendants attorney(s), 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 corr ect copy of any document was mailed to defendants 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. ( Objections to R&R due by 4/30/2018). Signed by Magistrate Judge Stephanie K. Bowman on 04/16/2018. (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
JERONE MCDOUGALD,
Plaintiff,
vs
ROSEANNA CLAGG, et al.,
Defendants.

Case No. 1:18-cv-93
Black, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility, has filed a prisoner civil
rights complaint pursuant to 42 U.S.C. § 1983 against defendants Roseanna Clagg, David
Conley, and Linnea Mahlman. By separate Order, 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 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).
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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded 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

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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).
In the complaint, plaintiff alleges that he was seriously injured on September 28, 2017, due
to an attack by several Southern Ohio Correctional Facility officers. 1 (Doc. 1, Complaint at
PageID 5). According to plaintiff, he sustained an “orbital facial fracture, extremely swollen left
occipital, jaw visibly deformed, discoloration and swelling to left shoulder, soft tissue swelling in
the dorsum of the hand and wrist, fractured, wrist, [and] chipped teeth.” (Id.). Plaintiff alleges
that defendants Clagg and Conley have denied him medical treatment following the incident.
With respect to defendant Mahlman, plaintiff claims that he brought the September 28, 2017 attack
and the subsequent denial of medical care to Mahlman’s attention, but that she failed to conduct an
investigation into his complaints. At this stage in the proceedings, without the benefit of briefing
by the parties to this action, the undersigned concludes that plaintiff’s claims against defendants
Clagg and Conley are deserving of further development and may proceed at this juncture. See 28
U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
However, the complaint should be dismissed as to defendant Mahlman. As noted above,
plaintiff seeks to hold this defendant liable for failing to conduct an investigation. “There is no
1

As noted below, plaintiff has filed a separate action also concerning the September 28, 2018 attack, in which he
names as defendants the officers alleged to have attacked him and a nurse who he claims denied him medical
treatment.

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statutory or common law right, much less a constitutional right, to an investigation.” Mitchell v.
McNeil, 487 F.3d 374, 378 (6th Cir. 2007); see also Daniels v. Lisath, No. 2:10-cv-968, 2011 WL
2710786, at *2 (S.D. Ohio July 13, 2011). Furthermore, to the extent that plaintiff claims that the
grievance procedure failed to produce the correct outcome, this cannot give rise to a § 1983 claim
because “[p]rison inmates do not have a constitutionally protected right to a grievance procedure.”
Miller v. Haines, No. 97–3416, 1998 WL 476247, at *1 (6th Cir. Aug.03, 1998) (citations
omitted). Prison officials whose only roles “involve their denial of administrative grievances and
their failure to remedy the alleged [unconstitutional] behavior’” cannot be liable under § 1983.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 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). Accordingly, the complaint should
be dismissed as to defendant Mahlman.
Finally, plaintiff has filed a separate complaint in McDougald v. Eaches, 1:18-cv-135 (S.D.
Ohio Feb. 23, 2018) (Barrett, J.; Bowman M.J.), which also concerns the September 28, 2017
attack and alleged denial of medical treatment. Because case numbers 1:18-cv-93 and
1:18-cv-135 involve common questions of law and fact, the undersigned RECOMMENDS that
the cases be consolidated. Fed. R. Civ. P. 42(a).
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s claims against defendant Mahlman be dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1).
2. Case numbers 1:18-cv-93 and 1:18-cv-135 be consolidated. As is the practice of this

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Court, it is recommended that case number 1:18-cv-135 be consolidated into case number
1:18-cv-93 since case number 1:18-cv-93 was the first filed case.
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, and this
order upon defendants Clagg and Conley 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(s), 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
defendants 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.
IT IS SO ORDERED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERONE MCDOUGALD,
Plaintiff,

Case No. 1:18-cv-93
Black, J.
Bowman, M.J.

vs
ROSEANNA CLAGG, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations.

This period may be extended further by the Court on timely

motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. 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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