Marshall v. Ohio Department of Rehabilitation & Corrections et al

Filing 90

ORDER denying as moot 74 Motion for Preliminary Injunction and Motion for TRO; denying as moot 76 Motion for an extension of time; denying 79 Motion for Discovery; denying as moot 81 Motion for court order ; granting 83 Motion to suppl ement ; granting 85 Motion to Amend/Correct; denying as moot 86 Motion ; denying as moot 87 Motion for court order. Signed by Magistrate Judge Terence P. Kemp on 1/11/2016. (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.

In an order

dated October 9, 2015, the Court explained that, following a
number of filings by Mr. Marshall, the operative complaint in
this case is the second supplemental complaint (Doc. 8, Ex. 1).
The Court also denied a number of motions filed by Mr. Marshall
on grounds that they improperly sought to amend the second
supplemental complaint.

Finally, the Court granted Mr. Marshall

thirty days to submit a proper motion for leave to file an
amended complaint under Fed.R.Civ.P. 15(a).

The Court advised

Mr. Marshall that any proposed amended complaint must comply with
the minimal pleading standards in Fed.R.Civ.P. 8 or would be
subject to dismissal.
Since the Court’s order, Mr. Marshall has filed many
additional documents for this Court’s consideration.

For

purposes of this order, these documents include:
•

a motion for a preliminary injunction and temporary
restraining order (Doc. 74);

•

a motion for extension of time (Doc. 76);

•

duplicate copies of an amendment

(Docs. 77 and 78);

•

a motion for discovery or court order (Doc. 79);

•

duplicate copies of a motion/petition for a court order
(Docs. 81 and 87);

•

a motion to supplement (Doc. 83);

•

a motion/petition to amend as directed (Doc. 85); and

•

a motion/petition (Doc. 86).
Defendants have not responded to any of these motions and

the time for doing so has passed.

Their motions to dismiss

(Docs. 36 and 45) are pending, subject to consideration only in
the event Mr. Marshall’s current motion for leave to amend is
denied.
Documents 77, 78, and 85, taken together, appear to be Mr.
Marshall’s motion for leave to file an amended complaint in
compliance with the Court’s previous order.

Although they were

received and docketed by the Court on different days, and the
actual motion was filed out of sequence and more than 30 days
after the Court’s order, the certificates of service included
with each filing indicate Mr. Marshall’s intention to serve them
on October 21, 2015.

Consequently, the Court will consider the

motion to amend as having been timely filed as directed and will
turn to these filings first.
The Court explained to Mr. Marshall in its previous order
that his proposed amended complaint must meet the minimal
pleading standards of Fed.R.Civ.P. 8 or it is subject to
dismissal.

As the Court stated:

... Fed. R. Civ. P. 8(a) requires the party to
make a “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
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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.
See Order, Doc. 73 pp. 3-4.
According to the caption of the motion (Doc. 85), Mr.
Marshall intends to name as defendants “Medical Records Personnel
[former], Elice Payetner, Mrs. Jackie, Ohio Governor John Kasich,
ODRC, Mr. Gary Mohr, et al.,.”

Ms. Payetner and Mrs. Jackie were

not named as defendants in the second supplemental complaint
(Doc. 8-1).

The proposed amended complaint includes five

separate claims including: a claim for the denial of medical
records resulting in the denial of medical care; a claim
regarding an ODRC policy, custom or practice of denying inmates
narcotic medications for pain relief; a claim for the denial of
medical care for a spinal cord injury; a claim relating to the
denial of mental health medications; and an access to the courts
claim.

Some of these claims either are not included in the

second supplemental complaint or are not stated in the same way
in that filing.

The proposed amended complaint does not include

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the overcrowding claim contained in the second supplemental
complaint.
The body of the complaint also indicates Mr. Marshall’s
intention to name as defendants “HCA, Mrs. Missy Rousch,” (see
Sections I.A. and III.); Heather Hagan (see Section I.A.), Dr.
Hale (id.), Libby Dillinger (see Section I.A.1.D.), Dr. Eddy (see
Sections II.A.1.c., III.), Mr. John Gardner (id.), the Collegial
Review Board (see Section III.), John Does (see Section V. A. and
B.), Cashier, Mrs. Deborah Stewart (see Section V.C.), and Pat
Brown (id.).

Among these defendants, only Dr. Eddy was named as

a defendant in the second supplemental complaint.

Further, three

defendants named in the second supplemental complaint do not
appear to be named in the proposed amended complaint - Brian
Cook, Ms. Lawrence, and Mona Parks.

The Court will construe this

omission as Mr. Marshall’s intention to dismiss them as
defendants.
Taking all of the above into account, the Court finds that
Mr. Marshall has complied with its previous order in filing his
amended complaint.

Consequently, the Court will grant the motion

for leave to amend (Doc. 85).

This brings the Court to the issue

raised by one of Mr. Marshall’s other filings.

After filing his

amended complaint (but prior to filing the motion for leave), Mr.
Marshall filed a motion/petition to supplement. (Doc. 83).

In

this filing, he states that he inadvertently omitted a claim from
his amended complaint.

This claim, according to Mr. Marshall,

relates to the intentional withholding of his “psychotrophic
medication” by certain mental health personnel.

He identifies

those allegedly responsible as “Mental-Health Director; Dr.
Kennedy ?, Nurse Practioner; Mrs./Ms. Nicole McKraken ?; Nurse,
Josh, and Mrs./Ms. Kite/Kike?, of the mental-health department
....”

The Court notes that Section IV of the amended complaint

appears to relate to the denial of mental health medication but
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that this particular section does not identify the persons
allegedly responsible.

Consequently, the Court will allow this

additional amendment and therefore will consider the operative
complaint in this case to be comprised of Docs. 78 and 83.
Turning to Mr. Marshall’s remaining motions, his motion for
a preliminary injunction/temporary restraining order (Doc. 74)
suggests that he seeks an order directing that he receive
adequate pain medication, that the cashier’s office be enjoined
from failing to make filing fee payments, and that defendants be
directed to provide him with medical care in the form of an MRI
or CT-Scan.

Further, in his identical motions/petitions for a

court order (Docs. 81 and 87), Mr. Marshall requests an order
compelling the defendants to provide him with an “‘Independent
Examination’” by an “‘advanced level provider.’”

According to

the Court’s docket, however, Mr. Marshall was released from
prison some time before December 28, 2015.
of Address (Doc. 89).

See Notice of Change

A prisoner’s claims for injunctive relief

are moot once he is no longer incarcerated.

See Dellis v. Corr.

Corp. of America, 257 F.3d 508, 510 n.1 (6th Cir. 2001) (noting
claims for injunctive relief are moot when plaintiff no longer
incarcerated where wrongful events occurred); see also Wilson v.
Yaklich, 148 F.3d 596, 601 (6th Cir. 1998); Kensu v. Haigh, 87
F.3d 172, 175 (6th Cir. 1996).

In light of this, Mr. Marshall’s

motions seeking some form of injunctive relief (Docs. 74, 81, and
87) will be denied as moot.
Mr. Marshall also has filed a motion for relief from
judgment or order (Doc. 76) in which he seeks an extension of
time and requests that the Court provide him “with copies of the
motions that he submitted in regards to the Medical-Records
Personnel, and the Amendments, this court refers to, in its
order, Dated: (10/09/2015).”

Because Mr. Marshall filed his

amended complaint as directed, this motion will be denied as
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moot.
The Court does not construe Mr. Marshall’s motion/petition
(Doc. 86) as seeking any relief independent of the amended
complaint.

Rather, it essentially reiterates that Mr. Marshall

would like some type of relief for the defendants’ deliberate
indifference to the pain he suffers as a result of his spinal
cord injury.

Because the issue raised in this motion is

contained in the amended complaint which Mr. Marshall has been
granted leave to file, this motion (Doc. 86) will be denied as
moot.
Mr. Marshall’s motion for a court order or discovery
directing defendants to provide names of various decision makers
(Doc. 79) will be denied.

This motion, in essence a motion to

compel, is not accompanied by any indication that Mr. Marshall
has served proper discovery requests seeking this information.
Mr. Marshall’s pro se status does not allow him to ignore the
procedural rules for discovery.

See McNeil v. United States, 508

U.S. 106, 113 (1993) (pro se litigants are not exempt from
procedural rules).
Finally, the Court notes that, in the conclusion of his
amended complaint, Mr. Marshall includes a request for additional
summons and U.S. Marshal forms.

In his motion/petition to

supplement (Doc. 83) he notes that he previously requested ten
copies of each.

Mr. Marshall’s various filings make it less than

clear, however, about whether ten copies are sufficient to allow
for service on all newly-named defendants set forth in both
Documents 78 and 83.

In the interests of efficiency, the Court

will direct the Clerk to provide Mr. Marshall with seven
additional copies of each form.
Additionally, the Court notes that in the conclusion of his
amended complaint Mr. Marshall states “could this handwritten
copy be served upon the defendants counsel by CM/ECF, and due to
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his poverty, please.”

To the extent that Mr. Marshall is

requesting that service of the amended complaint be made by
CM/ECF or suggesting that he be excused from providing service
copies of his amended complaint (Docs. 78 and 83), any such
request will be denied.

The authorization to proceed in forma

pauperis does not excuse Mr. Marshall from providing service
copies of the complaint by granting him a right to free
photocopies at the Court’s expense.

See Hollum v. Kent, 262 F.2d

862, 863 (6th Cir. 1959); Hurst v. Warden, 2010 WL 1687675 (S.D.
Ohio April 22, 2010) (citing cases).

Further, as previously

noted, Mr. Marshall is no longer confined to prison, further
undermining his suggestion that the Court be responsible for
bearing the cost of service copies of his amended complaint.
Mr. Marshall must provide service copies of his amended complaint
(Docs. 78 and 83) if he wants the Marshal to serve it on the
newly-named defendants and he is specifically advised that his
failure to do so may result in any claims against unserved
defendants eventually being dismissed under Fed.R.Civ.P. 4(m).
For the reasons stated above, the motion to amend (Doc. 85)
and the motion to supplement (Doc. 83) are granted.

Any claims

against Brian Cook, Ms. Lawrence, and Mona Parks are dismissed.
The following motions are denied: motion for preliminary
injunction and restraining order (Doc. 74); motion for an
extension of time (Doc. 76); motion for discovery or court order
(Doc. 79); motion/petition for court order (Docs. 81 and 87); and
motion/petition (Doc. 86).

The operative complaint in this case

is comprised of Docs. 78 and 83.

The Clerk shall provide seven

additional summons and U.S. Marshal forms to Mr. Marshall.

The

United States Marshal shall serve by certified mail a copy of the
amended complaint (Docs. 78 and 83), summons, and a copy of this
order upon the newly-named defendants at the addresses provided
by Mr. Marshall.

Mr. Marshall shall provide service copies of
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the complaint for each newly-named defendant.

His failure to do

so may eventually result in the dismissal of any claims against
those defendants under Fed.R.Civ.P. 4(m).
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.
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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