Fishbein v. Ohio Department of Rehabilitation & Corrections et al

Filing 11

REPORT AND RECOMMENDATIONS re 2 Complaint: The Magistrate Judge RECOMMENDS that Plaintiff's claims against ODRC be DISMISSED WITH PREJUDICE. It is FURTHER RECOMMENDED that this action be TRANSFERRED to the United States District Court for the Northern District of Ohio, Western Division at Toledo. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/7/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT J. FISHBEIN,
Plaintiff,
Civil Action 2:13-cv-650
Judge Gregory L. Frost
Magistrate Judge Elizabeth P. Deavers

v.

SCOTT BELLINGER, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Robert J. Fishbein, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that Defendants, Ohio Department
of Rehabilitation and Corrections (“ODRC”), Management Training Corporation (“MTC”), and
corrections officer Matthew King, violated his First, Eighth, and Fourteenth Amendment rights.
This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§
1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s
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. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.
1997). Having performed the initial screen, for the reasons set forth below, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims against ODRC and TRANSFER
this action to the United States District Court for the Northern District of Ohio Western Division
at Toledo.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

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Formerly 28 U.S.C. § 1915(d).
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set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ .
. . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than
formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).
II.
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Plaintiff is an inmate at North Central Correctional Complex (“NCCC”), a prison in
Marion County operated by Defendant MTC. Plaintiff advances a multiple claims under 42
U.S.C. § 1983 against MTC and Defendant King based upon the conditions of confinement and
the propriety of a variety of incidents that allegedly occurred at NCCC. He brings two claims
against ODRC, seeking monetary damages for both.
Plaintiff has failed to state plausible claims for relief against ODRC. The Eleventh
Amendment of the United States Constitution operates as a bar to federal-court jurisdiction when
a private citizen sues a state or its instrumentalities unless the state has given express consent.
Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211
F.3d 331, 334 (6th Cir. 2000). “It is well established that § 1983 does not abrogate the Eleventh
Amendment.” Harrison v. Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10,
2013) (citing Quern v. Jordan, 440 U.S. 332, 341 (1979)). ODRC is an instrumentality of the
state of Ohio. Lowe v. Ohio Dep’t of Rehab., No. 97-3971, 1998 WL 791817, at *2 (6th Cir.
Nov. 4, 2008). Because Ohio has not waived its sovereign immunity in federal court, it is
entitled to Eleventh Amendment immunity from suit for monetary damages. Mixon v. State of
Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Further, ODRC is not a “person” who can be held
liable under § 1983. Diaz v. Dep’t of Corr., 703 F.3d 956, 962 (6th Cir. 2013). Thus, dismissal
pursuant to § 1915(e) of Plaintiff’s claims against ODRC is appropriate. See Wingo v. Tenn.
Dept. of Corrs., 499 F. App’x 453, 454 (6th Cir. 2012) (affirming trial court’s dismissal of
inmate’s claims against state agency under § 1915(e), explaining that the department and the
prison were entitled to Eleventh Amendment immunity); Harrison v. Michigan, 2013 WL
3455488 at *3 (same).
Plaintiff’s remaining claims are against Defendants who do not reside in this district and
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concern the conditions of his confinement and the propriety of certain incidents that he alleges
occurred at NCCC. Venue in this Court is, therefore, not proper. See 28 U.S.C. § 1391 (venue is
proper in the judicial district where any defendants reside or in which the claims arose). Thus, it
is RECOMMENDED that this action be TRANSFERRED pursuant to 28 U.S.C. § 1406 or
1404(a) to the United States District Court for the Northern District of Ohio Western Division at
Toledo, which serves Marion County.
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s claims against
ODRC be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e) and 1915A. It
is further RECOMMENDED that this action be TRANSFERRED pursuant to 28 U.S.C. §
1406 or 1404(a) to the United States District Court for the Northern District of Ohio Western
Division at Toledo.
The Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s
Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the failure to object to the Report and

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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. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: August 7, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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