Lee v. Meyers

Filing 13

INITIAL SCREENING REPORT AND RECOMMENDATION it is recommended that re 7 complaint be dismissed. Objections to R&R due by 8/8/2013. Signed by Magistrate Judge Mark R. Abel on 7/22/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Antione S. Lee,

:
Plaintiff

Defendant

Judge Marbley

:

Sergeant Joe Meyers,

Civil Action 2:13-cv-00090

:

v.

:

Magistrate Judge Abel

:

INITIAL SCREENING
REPORT AND RECOMMENDATION
Plaintiff Antione S. Lee, an inmate at Chillicothe Correctional Institution, brings
this prisoner civil rights action under 42 U.S.C. §1983. 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

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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-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or

cognizable claims, 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 that plaintiff was subject to discrimination and cruel
treatment by defendant Meyers. The complaint alleges that on September 27, 2012
defendant Meyers placed plaintiff's locker box on a dolly and removed it from his bed
and placed it near the unit door. On October 5, 2012, plaintiff was told by correctional
officers to take his locker box to an empty bed. Defendant Meyers required plaintiff to
provide a urine sample based on inmate reports that plaintiff was drunk. When
defendant Meyers put his locker box in front of the unit door, other inmates laughed at
him and made derogatory comments. Defendant Meyers lied when he said that the
locker box slid out of his hands. The complaint further alleges that Meyers lied when he
stated that he viewed plaintiff dancing naked and putting on his underwear.

(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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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, 93 (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
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127
S.Ct. 1955 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson, 551 U.S. at 94; Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Nonetheless, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Twombly,
550 U.S. at 570." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
The allegations that plaintiff was forced to give a urine sample and that Meyers
lied about seeing plaintiff dancing are not actionable. There is no allegation that Lee
was, in fact, disciplined. Even if he were, the conduct fails to state a claim for relief
because disciplinary, or punitive, segregation is generally defined as the confining of an
inmate, after the holding of a hearing, as punishment for the commission of an
infraction. The affected inmate will not be found to have suffered the loss of a
Fourteenth Amendment liberty interest unless placement in disciplinary confinement is
accompanied by a withdrawal of good-time credits or is for a significant period of time
that presents an unusual hardship on the inmate. See, e.g., Sandin v. Conner. 515 U.S. 472,
485-86 (1995). Plaintiff also alleges that other inmates laughed at him and made

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derogatory comments as a result of defendant's conduct. Verbal abuse or harassment is
not actionable. Ivey v. Wilson, 832 F.2d (6th Cir. 1987).
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. Defendant is 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.
The Clerk of Court is DIRECTED to remove my January 31, 2013 Initial Screening
Report and Recommendation from the pending motions list (doc. 5) because it does not
concern the allegations against defendant Meyers.
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.
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
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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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