Pierce v. Mohr

Filing 5

INITIAL SCREENING AND REPORT AND RECOMMENDATIONS re 4 Complaint filed by Ricky H. Pierce. It is ORDERED that plaintiff file an amended complaint within twenty-eight (28) days of the date of this Report and Recommendation stating as to each defen dant what action he or she took to deny him needed medical care and the date(s) each defendant denied him needed medical care. If plaintiff fails to do so, it is RECOMMENDED that this lawsuit be DISMISSED for failure to state a claim for relief against the individual defendants - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 07/18/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Ricky H. Pierce,

:
Plaintiff

Gary Mohr, Director, Ohio Department
of Rehabilitation and Correction, et al.,

Civil Action 2:14-cv-0889

:

v.

:

Judge Graham

:

Magistrate Judge Abel

:
Defendants
:

Initial Screening Report and Recommendation
Plaintiff Ricky H. Pierce, a prisoner at the Chillicothe Correctional Institution,
brings this civil rights action under 42 U.S.C. §1983 alleging that defendants have
denied him needed medical care.
This matter is before the Magistrate Judge for screening of the complaint under
28 U.S.C. §1915(e)(2) to identify cognizable claims, and to recommend dismissal of the
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. See, McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). For the
reasons set out below, the Magistrate Judge finds that the complaint fails to give each
individual defendant fair notice of the claim against him or her and, therefore, orders
that plaintiff file an amended complaint within 28 days of the date of this Report and
Recommendation stating as to each defendant what action he or she took to deny him
needed medical care and the date(s) each defendant denied him needed medical care.

The complaint alleges that defendants denied plaintiff Ricky H. Pierce needed
medical care for hemochromotosis, diabetes Type II, and elevated triglycerides.
However, the complaint does not allege what each individual defendant did to deny
plaintiff needed medical care.
When considering whether a complaint fails to state a claim under Rule 12(b)(6),
Federal Rules of Civil Procedure, a court must construe it in the light most favorable to
the plaintiff and accept all well-pleaded material allegations in the complaint as true.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705
F.2d 134, 155 (6th Cir. 1983). Rule 8(a), Federal Rules of Civil Procedure provides for
notice pleading. Conley v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme
Court held in Erickson v. Pardus, 551 U.S. 89, 93 (2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127
S.Ct. 1955 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson, 551 U.S. at 94; Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Nonetheless, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Twombly,
550 U.S. at 570." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Analysis. There are no allegations about what each individual defendant did to
deny plaintiff needed medical care. Consequently, the complaint fails to give them fair

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notice of the claim(s) against them.
Accordingly, it is ORDERED that plaintiff file an amended complaint within 28
days of the date of this Report and Recommendation stating as to each defendant what
action he or she took to deny him needed medical care and the date(s) each defendant
denied him needed medical care. If plaintiff fails to do so, it is RECOMMENDED that
this lawsuit be DISMISSED for failure to state a claim for relief against the individual
defendants.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk of Court is DIRECTED to mail a copy of the complaint and this Report
and Recommendation to each defendant.

s/Mark R. Abel
United States Magistrate Judge
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