Lewis, Jr. v. Warden, Chillicothe Correctional Institution et al

Filing 2

INITIAL SCREENING REPORT AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Donald R. Lewis, Jr.; the Court RECOMMENDS this complaint be DISMISSED; further ORDERED that the US Marshal serve complaint upon each named defendant; Clerk to mail a copy of this order to the AG's office; Objections to R&R due by 7/16/2012. Signed by Magistrate Judge Mark R. Abel on 6/28/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Donald Ray Lewis, Jr.,

:

Plaintiff

Warden, Chillicothe Correctional
Institution, et al.,

Civil Action 2:12-cv-0573

:

v.

:

Judge Smith

:

Magistrate Judge Abel

:
Defendants
:
INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiff Donald Ray Lewis, Jr., an inmate at Chillicothe Correctional Institution,
brings this prisoner civil rights action under 42 U.S.C. §1983 alleging that defendants
have denied him proper treatment for his cancer. This matter is before the Magistrate
Judge for a Report and Recommendation on initial screening of the complaint pursuant
to 28 U.S.C. §1915A(a) and (b)1 and 42 U.S.C. §1997e(c) to identify cognizable claims,

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The full text of §1915A reads:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for Dismissal.--On review the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint--

and to dismiss the complaint, or any portion of it, which 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. The Magistrate Judge finds that the
complaint fails to state a claim upon which relief may be granted and therefore
RECOMMENDS dismissal of the complaint.
The complaint alleges, in full: "On several occasions as the Plaintiff will be able to
demonstrate, the medical staff here at the Chillicothe Correctional Institution has been
ineffective in proceeding with medical treatment for the cancer that Plaintiff has and
has shown deliberate indifference to Plaintiff’s medical needs."
Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley
v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.
Pardus, 551 U.S. 89, 93127 S.Ct. 2197 (2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who
is immune from such relief.
(c) Definition.--As used in this section, the term
"prisoner" means any person incarcerated or detained in any
facility who is accused of, convicted of, sentence for, or
adjudicated delinquent for, violations of criminal law or
terms and conditions of parole, probation, pretrial release, or
diversionary program.
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upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
, 127
S.Ct. 1955,
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. at
94; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).
Here the complaint fails to give any defendant notice of what he or she did to
subject plaintiff Lewis to cruel and unusual punishment. It does not allege the date(s)
they engaged in actionable conduct. Simply put, the complaint fails to give defendants
fair notice of the grounds upon which plaintiff’s claims rest.
Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED
for failure to state a claim under 42 U.S.C. §1983.
IT IS FURTHER ORDERED that the United States Marshal serve upon each
defendant named in part III, B and C of the form civil rights complaint a summons, a
copy of the complaint, and a copy of this Order. Defendants are not required to answer
the complaint unless later ordered to do so by the Court.
The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney
General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,
OH 43215.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

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Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

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