Marshall v. Ohio Department of Rehabilitation & Corrections et al

Filing 73

ORDER denying 29 Motion for More Definite Statement; denying 37 Motion to Supplement ; denying 40 Motion to Supplement ; denying 42 Motion for Injunctive Relief ; denying 43 Motion to Clairfy; denying 59 Motion to Clarify ; denyi ng as moot 61 Motion for Status of Proceedings or Hearing for Scheduling Proceedings ; denying 62 Motion for Injunctive Relief ; denying 66 Motion for Appropriate Remedies with Respect to Prison Conditions ; denying 68 Motion for Judicial Notice. Signed by Magistrate Judge Terence P. Kemp on 10/9/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kenneth Marshall,
Plaintiff,
v.

:
: Case No.

2:14-cv-338

:

Ohio Department of Rehabilitation: JUDGE GREGORY L. FROST
& Corrections, et al.,
Magistrate Judge Kemp
Defendants.

:

ORDER
This case was initiated on April 11, 2014, when the Court
received a complaint and motion for leave to proceed in forma
pauperis from Kenneth Marshall, a state prisoner.

After Mr.

Marshall submitted additional financial information, the Court
granted him leave to proceed.

(Doc. 6).

In the same Order, the

Court noted that Mr. Marshall had moved twice for leave to amend
his complaint.

Because defendants had not been served, the Court

determined that they would not be prejudiced by the amendment.
Thus, the Court granted Mr. Marshall’s motions (Docs. 3 and 4)
and directed the Clerk to file the attachment to each motion as
the first supplemental and second supplemental complaint.
Consequently, there is an original complaint (Doc. 7), a first
supplemental complaint (Doc. 8), and a second supplemental
complaint (Doc. 8, Ex. 1) in this case.

The second supplemental

complaint is the operative complaint in this case, superseding
the original complaint and first supplemental complaint.

In

plain terms, the second supplemental complaint contains all of
Mr. Marshall’s claims against the defendants, and the prior
complaints have no legal impact on this case.

In the second

supplemental complaint, Mr. Marshall generally claims that he and

other prisoners housed at the Pickaway Correctional Institution
are suffering harm as the result of dangerous overcrowding and
inadequate medical care.
Since filing his second supplemental complaint, Mr. Marshall
has filed many documents for this Court’s consideration.

These

documents include:
•

a motion for a more definite statement (Doc. 29);

•

a motion to supplement (Doc. 37);

•

a second motion to supplement (Doc. 40);

•

a motion for injunctive relief (Doc. 42);

•

a motion to clarify (Doc. 43);

•

a second motion to clarify (Doc. 59)

•

a motion for injunctive relief (Doc. 62);

•

a motion for appropriate remedies with respect to prison
conditions (Doc. 66); and

•

a motion for judicial notice (Doc. 68).

In each of these documents, Mr. Marshall appears to be attempting
to amend his complaint in some way.

See, e.g., Doc. 29 at 2

(“the plaintiff would move the court to allow him to supplement
defendants to add:Nurse: Mindy Emilie?; Doctor:Stephens,
Nurse:Edward?; and to drop the Institutional inspector:Mrs.
Lawrence; Chief Inspector: Mrs. Mona Parks”); Doc. 37 at 1
(asserting violations of the Health Insurance Portability and
Accountability Act of 1996 (“HIPPA”)); Doc. 40 at 1 (“mov[ing]
this Honorable Court to Supplement this proceeding due to the
fact that none of the defendant(s) have filed any responsive
pleadings yet to address any of the merit’s herein of this
proceeding” [sic]); Doc. 42 at 3 (alleging an ongoing practice
“for almost (2) [years]” pursuant to which the institution’s
library personnel are censoring legal materials and delaying mail
related to lawsuits filed by inmates seeking redress for civil
rights violations); Doc. 43 at 1 (“If (‘HIPPA’) offers no2

protection to the plaintiff(s), even in a large group or the
defendant(s) acting in bad-faith, then the Plaintiff(s) would
move this Honorable Court to allow them to phrase these
Constitutional Violations, as such...”); Doc. 59 at 1-2 (moving
for default as to Missy Rousch, Elice Payneter, Dr. Hale, Mindy
Emile, and Dr. Stephenson, none of whom are named in the
complaints); Doc. 62 at 2 (alleging that “defendant’s are acting
in concert with other defendants to retaliate against the
plaintiff for redressing Civil Rights on His and other inmates”
[sic]); Doc. 66 at 2 (alleging retaliation); Doc. 68 at 1
(alleging that Dr. Kennedy, Nurse Practitioner Nicole McCrackin,
and Nurse Josh, none of whom are named in the complaints, caused
him to suffer cruel and unusual punishment in violation of the
Eighth Amendment).

Mr. Marshall has also filed numerous letters

to the Court and judicial notice pleadings, which have not been
captioned as motions.
Rule 15(a)(1) of the Federal Rules of Civil Procedure allows
a party to amend a pleading once as a matter of course if
amendment takes place within a certain time period.
has already availed himself of that right.

Mr. Marshall

Once a party has

amended the complaint as a matter of right under Fed. R. Civ. P.
15(a)(1), if that party seeks to amend the complaint again, the
must seek leave of Court in order to do so under Fed. R. Civ. P.
15(a)(2).

Because Mr. Marshall’s motions do not seek leave to

amend the complaint under Rule 15(a)(2), they will be denied.
Mr. Marshall is not permitted to amend his complaint on a
continuing, or rolling, basis.

For example, if Mr. Marshall

seeks to add or remove defendants, modify his current claims, add
claims based on alleged violations of HIPPA or alleged
retaliation, or seek injunctive relief, he must do so by filing a
motion under Fed. R. Civ. P. 15(a)(2) and in compliance with Fed.
R. Civ. P. 8.

Fed. R. Civ. P. 8(a) requires the party to make a
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“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Pro se complaints, while construed

liberally, are required to provide each defendant with fair
notice of the basis for the claims against that defendant.

See

Brown v. Matauszak, 415 Fed. Appx. 608, 613 (6th Cir. 2011);
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

A pro se

complaint which merely names a person as a defendant without
alleging how the named defendant was involved in any alleged
constitutional violation will be subject to dismissal.

See

Gilmore Corrections Corp. of America, 92 Fed. Appx. 188, 190 (6th
Cir. 2004)(“Merely listing names in the caption of the complaint
and alleging constitutional violations in the body of the
complaint is not enough to sustain recovery under §1983.”);
Frazier v. Michigan, 41 Fed. Appx. 762, 764 (6th Cir. 2002)
(dismissing plaintiff’s claims where complaint did not allege
with any degree of specificity which of the named defendants were
personally involved in or responsible for each alleged violation
of rights); see also Potter v. Clark, 497 F.2d 1206, 1207 (7th
Cir. 1974) (“Where a complaint ... is silent as to the defendant
except for his name appearing in the caption, the complaint is
properly dismissed, even under the liberal construction to be
given to pro se complaints”).

In other words, if Mr. Marshall

properly seeks leave to file an amended complaint, the proposed
amended complaint should allege conduct which connects each
defendant to his claims in order to satisfy the minimal pleading
standards of Fed. R. Civ. P. 8.

In addition, Mr. Marshall may

only bring this lawsuit on his own behalf.

It is well

established that pro se prisoners cannot bring class action
lawsuits concerning prison conditions.

See Dodson v. Wilkinson,

304 Fed. Appx. 434, 438 (6th Cir. 2008).
Based upon the foregoing, the following motions are denied
on the ground that they improperly seek to amend the second
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supplemental complaint:

the motion for a more definite statement

(Doc. 29); the motion to supplement (Doc. 37); the second motion
to supplement (Doc. 40); the motion for injunctive relief (Doc.
42); the motion to clarify (Doc. 43); the second motion to
clarify (Doc. 59); the motion for injunctive relief (Doc. 62);
the motion for appropriate remedies with respect to prison
conditions (Doc. 66); and the motion for judicial notice (Doc.
68).

Mr. Marshall is granted thirty days from the issuance of

this Order to submit a proper motion for leave to file an amended
complaint under Fed. R. Civ. P. 15(a), if he chooses to do so.
Any proposed amended complaint must be in compliance with the
minimal pleading standards in Fed. R. Civ. P. 8 or is otherwise
subject to dismissal.

The motions to dismiss (Doc. 36 and Doc.

45) shall remain pending, subject to consideration if Mr.
Marshall chooses not to file a motion for leave to amend his
complaint or if the motion for leave is denied.

Finally, Mr.

Marshall’s motion for status of proceedings or hearing for
scheduling proceedings (Doc. 61) is denied as moot.
Procedure on Objections
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.

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This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/Terence P. Kemp
United States Magistrate Judge

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