Edge v. Erdos et al

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Le'Sean Edge. IT IS RECOMMENDED THAT: (1) The complaint 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 an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. Objections to R&R due by 9/21/2021. Signed by Magistrate Judge Stephanie K. Bowman on 9/7/2021. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Case: 1:21-cv-00532-MWM-SKB Doc #: 4 Filed: 09/07/21 Page: 1 of 5 PAGEID #: 33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION LE’SEAN EDGE, Plaintiff, vs RON ERDOS, et al., Defendants. Case No. 1:21-cv-532 McFarland, J. Bowman, M.J. REPORT AND RECOMMENDATION Plaintiff, an inmate incarcerated at the Southern Ohio Correctional Facility (SOCF), has filed a pro se civil rights action against SOCF employees Ron Erdos, Cynthia Davis, Linnea Mahlman, Investigator Miller, Unit Management Oppy, Larry Greene, Lt. Barney, and C.O. Josh Kinner, in their official capacities, for alleged violations of his rights arising out of prison disciplinary proceedings against him and the handling of his mail. For relief, he seeks monetary damages. By separate Order, plaintiff has been granted leave to proceed in forma pauperis. This matter is now 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 Case: 1:21-cv-00532-MWM-SKB Doc #: 4 Filed: 09/07/21 Page: 2 of 5 PAGEID #: 34 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- 2 Case: 1:21-cv-00532-MWM-SKB Doc #: 4 Filed: 09/07/21 Page: 3 of 5 PAGEID #: 35 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 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). Here, before considering the substance of plaintiff’s factual allegations, the Court notes that plaintiff states: “All of the defendants are employees at the [SOCF] and I’m suing all of them in their ‘official capacity.’” (Doc. 1-1, at PageID 15). In his request for relief, plaintiff seeks monetary damages. (Doc. 1-1, at PageID 16). Because plaintiff sues the defendants, who are SOCF employees, in their official capacities only, for monetary damages, the complaint is subject to dismissal under the Eleventh Amendment. Absent an express waiver, a state is immune from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144 (1993); Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of Ohio has not constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460-62 (6th Cir. 1982). The Eleventh Amendment bar extends to actions where the state is not a named party, but where the action is essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663. A suit against defendants in their 3 Case: 1:21-cv-00532-MWM-SKB Doc #: 4 Filed: 09/07/21 Page: 4 of 5 PAGEID #: 36 official capacities would, in reality, be a way of pleading the action against the entity of which defendants are agents. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Thus, actions against state officials in their official capacities are included in this bar. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). See also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009)). Plaintiff’s complaint against defendants should therefore be dismissed. Accordingly, in sum, the complaint should be dismissed pursuant to 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 complaint 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. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds, Jones v. Bock, 549 U.S. 199, 203 (2007). s/Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge 4 Case: 1:21-cv-00532-MWM-SKB Doc #: 4 Filed: 09/07/21 Page: 5 of 5 PAGEID #: 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION LE’SEAN EDGE, Plaintiff, Case No. 1:21-cv-532 McFarland, J. Bowman, M.J. vs WARDEN RON ERDOS, 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). 5

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