Byerly v. Ross Correctional Inst. et al

Filing 11

ORDER REPORT AND RECOMMENDATION It is recommended that defendant Ross Correctional Institution be dismissed from this action re 6 Complaint.Objections to R&R due by 5/20/2013. Signed by Magistrate Judge Norah McCann King on 5/01/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STEPHEN W. BYERLY,
Plaintiff,
vs.

Civil Action 2:13-cv-411
Judge Sargus
Magistrate Judge King

ROSS CORRECTIONAL INST., et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION

Plaintiff, a state prisoner, brings this civil action under 42
U.S.C. § 1983 alleging that he has been denied his right of access to
the courts.

This matter is before the Court for the initial screen of

the complaint required by 28 U.S.C. §§ 1915€, 1915A.
Plaintiff names as defendants the Ross Correctional Institution
(“RCI”), it deputy warden of operations and a unit manager.

RCI is a

state agency and is therefore absolutely immune from suit in this
Court by virtue of the Eleventh Amendment to the United States
Constitution.

See Beil v. Lake Erie Correction Records Dept., 282

Fed. Appx. 363, 2008 WL 2434738 (6th Cir. June 13, 2008). See also
Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997)(Eleventh
Amendment sovereign immunity applies not only to the states themselves
but also to “state agents and instrumentalities”).

Moreover, a state

agency is not a “person” subject to suit under 42 U.S.C. §1983.
v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989).

Will

As it

relates to defendant RCI, then, the action cannot proceed.
It is therefore RECOMMENDED that defendant Ross Correctional
Institution be DISMISSED from this action.
As it relates to the two individual defendants, the Court

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concludes that, at this juncture, the action may proceed.
The Court construes plaintiff’s Motion for Permanent Injunction,
attached to Doc. No. 1, as plaintiff’s Complaint, and the Clerk is
DIRECTED to docket that document as the Complaint.
If plaintiff submits a copy of the Complaint, a summons and a
Marshal service form for each defendant, the United States Marshal
shall serve by certified mail upon defendants a copy of the Complaint
and a copy of this Order.
Plaintiff is ADVISED that he must assure that each defendant is
served with process within 120 days of the filing of the Complaint.
All claims against any party not served within 120 days may be
dismissed.

See F.R. Civ. P. 4(m).

Plaintiff has asked that he not be required to provide copies of
his filings.

Request for Reduction of Copies, attached to Doc. No. 1.

The fact that plaintiff was granted leave to proceed in forma pauperis
does not entitle him to free copies of his filings.

28 U.S.C. §1915.

rd

Cir. 2007)(citing

See Anderson v. Gillis, 236 Fed. Appx. 738, 739 (3
Douglas v. Green, 327 F.2d 661 (6

th

Cir. 1964)); Thomas v. Croft, 2010

WL 1629628, *3 (S.D. Ohio April 21, 2010).
There is no requirement that plaintiff provide photocopies of the
document;

he may copy, by hand, his written Complaint. The fact that

the Complaint is voluminous is a consequence of plaintiff’s own
litigation decision.

A complaint, to be valid, must merely contain “a

short and plain statement of the grounds for the court’s jurisdiction
. . . and a short and plain statement of the claim showing that the
pleader is entitled to relief,” as well as a demand for the relief
sought.

Fed. R. Civ. P. 8(a).

Neither the Federal Rules of Civil

Procedure nor this Court require a pleading of the length submitted by
plaintiff.1

If any party seeks review by the District Judge of this Report
1

If plaintiff wishes to amend his Complaint in order to shorten the
pleading, he is, at this point, free to do so. See Fed. R. Civ. P. 15.

2

and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

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 Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

DATE: May 1, 2013

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