Heidenescher v. Mohr et al

Filing 4

ORDER AND REPORT AND RECOMMENDATIONS re 1 Complaint. It is RECOMMENDED that Paintiff's claims against Defendants Kasich and Mohr be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§ 1915(e) and 1915A. It is further RECOMMENDED th at 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. Plaintiff's Motion for Leave to Proceed In Forma Pauperis (doc. 3 ) is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/9/2014. (pes1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

EDWARD D. HEIDENESCHER,
Plaintiff,
Civil Action 2:14-cv-344
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

GARY MOHR, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Edward D. Heidenescher, a state inmate who is proceeding without the
assistance of counsel, brings this action under 42 U.S.C. § 1983 against a number of Defendants,
alleging a variety of conditions of confinement claims. (ECF No. 1.) 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 Defendants Mohr and Kasich and TRANSFER this action to the
United States District Court for the Northern District of Ohio Western Division at Toledo.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 3.) Plaintiff’s

motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee.
28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he currently
possesses the sum of fifty cents in his prison account, which is insufficient to pay the full filing
fee. His application indicates that his average monthly deposits for the six-month period prior to
filing his application to proceed in forma pauperis were $205.00. Pursuant to 28 U.S.C. §
1915(b)(1), the custodian of Plaintiff’s inmate trust account (Inmate No. A639029) at North
Central Correctional Institution (“NCCI”) is DIRECTED to submit to the Clerk of the United
States District Court for the Southern District of Ohio as an initial partial payment, 20% of the
greater of either the average monthly deposits to the inmate trust account or the average monthly
balance in the inmate trust account, for the six-months immediately preceding the filing of the
Complaint. After full payment of the initial, partial filing fee, the custodian shall submit 20% of
the inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks
should be made payable to: Clerk, United States District Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check. It is ORDERED
that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that
judicial officers who render services in this action shall do so as if the costs had been prepaid.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
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financial office in Columbus.
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-*

*

*

(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.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
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)). Under Rule

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Formerly 28 U.S.C. § 1915(d).
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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). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
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)). 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), “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted).
Further, 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)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

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II.
Plaintiff is an inmate at NCCI, a prison in Marion County, Ohio. In his Complaint,
Plaintiff identifies a variety of prison conditions that he alleges violate his constitutional rights.
He also complains of an incident in which he was robbed of goods he had purchased from the
prison commissary. In addition to naming a number of Defendants residing in Marion County,
Plaintiff names John Kasich, the Governor of Ohio, and Gary Mohr, the Director of the Ohio
Department of Rehabilitation and Correction. Plaintiff’s sole allegation mentioning Defendant
Kasich provides as follows: “Defendant John [Kasich is] in full & individual capacit[ies]
responsible. This was cruel & unusual punishment.” (Compl. 7, ECF No. 1.) He advances no
allegations mentioning Defendant Mohr. In terms of relief, Plaintiff seeks $10 million. (Id. at ¶
8.)
Plaintiff has failed to state plausible claims for relief against Defendants Kasich and
Mohr. In order to plead a cause of action under § 1983, a plaintiff must plead two elements: “(1)
deprivation of a right secured by the Constitution or laws of the United States (2) caused by a
person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th
Cir. 2006)). To sufficiently plead the second element, a plaintiff must allege “personal
involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). This is
because “§ 1983 liability cannot be imposed under a theory of respondeat superior.” Id.
(citation omitted). Thus, to hold a supervisor liable under § 1983, a plaintiff “must show that the
official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct . . . .” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). Here, Plaintiff’s Complaint
provides insufficient factual content or context from which the Court could reasonably infer that
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Defendants Kasich or Mohr were personally involved in any violation of Plaintiff’s rights.
To the extent Plaintiff seeks to assert a claim for damages against Defendants Kasich or
Mohr in their official capacities, his claims also fail. A claim asserted against a state actor in his
or her official capacity is really a claim against the state. Rothhaupt v. Maiden, 144 F. App’x
465, 471 (6th Cir. 2005) (“Official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent. An official-capacity claim is
not a claim against the official personally, for the real party in interest is the entity.” (internal
quotation marks and citations omitted)). 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)). 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). Accordingly, to the extent Plaintiff
seeks to assert claims for compensatory damages against Defendants Kasich and Mohr in their
official capacities, the Court must dismiss those claims as barred by the Eleventh Amendment.
Plaintiff’s remaining claims are against Defendants who do not reside in this district and
concern the conditions of his confinement and the propriety of certain incidents that he alleges
occurred at NCCI, which is in Marion County, Ohio. 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
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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
Defendants Kasich and Mohr 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
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

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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: May 9, 2014

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

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