May-Dillard v. Ohio Department of Rehabilitation & Corrections

Filing 3

ORDER AND REPORT AND RECOMMENDATION re Complaint: The Magistrate Judge recommends that this case be dismissed. Objections to R&R due within fourteen days of the date of this report. Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/22/2014. (mas1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MAURICE A. MAY-DILLARD,
Plaintiff,

vs.

Civil Action 2:14-CV-1327
Judge George C. Smith
Magistrate Judge Elizabeth Preston Deavers

OHIO DEPARTMENT OF
REHABILITATION &
CORRECTIONS,
Defendant.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Maurice A. May-Dillard, a state inmate who is proceeding without the
assistance of counsel, brings this action against the Ohio Department of Rehabilitation and
Corrections, alleging that transfers by staff under administrative control violated the Ohio
Administrative Code. This matter is before the Court for consideration of Plaintiff’s Motion for
Leave to Proceed In Forma Pauperis. (ECF No. 1.) The Motion is GRANTED. Plaintiff’s
trust account statement reveals that he currently possesses the sum of $0.02 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 $14.00. Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust
account (Inmate Identification Number # A301181) at the Mansfield Correctional Institution 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

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the inmate trust account or the average monthly balance in the inmate trust account, for the sixmonths 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). 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.
This matter is also before the Court for the initial screen of Plaintiff’s Complaint under
28 U.S.C. § 1915(e)(2) 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). Having performed the initial screen, for the reasons that follow, it
is RECOMMENDED that the Court DISMISS this action for failure to state a claim.
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 “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.
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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, Section 1915(e) requires sua
sponte dismissal of an action upon a 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 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
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
1

Formerly 28 U.S.C. § 1915(d).

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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.

The Undersigned concludes that Plaintiff has failed to state a claim for which this Court
can grant relief. As best the Court can discern, Plaintiff asserts that, as a result of the Southern
Ohio Correctional Facility riot of 1993, much of the staff was placed on administrative leave.
According to Plaintiff, inmates were then transferred throughout Ohio in violation of Ohio
Administrative Code § 5120-9-53, which vests jurisdiction for transfer decisions in a
classification committee established at each institution. O.A.C. § 5120-9-53(a). Plaintiff
indicates that instead of such a committee, outside entities such as the Federal Bureau of
Investigations and the National Guard assisted in transfer decisions. Plaintiff points to Ohio
Administrative Code § 5120-9-23, which limits corrections facilities to only the Ohio state
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highway patrol and other local support agencies in the event of an escape. O.A.C. § 5120-923(c). Plaintiff seems to assert that this limits the ability of ODRC to bring in outside support
agencies in circumstances other than escape. Plaintiff further asserts that he is “wrongfully
incarcerated and illegally detained due to falsified documents of the ODRC.” (Compl. 6, ECF
No. 1-1.) Plaintiff seeks relief in the form of damages for every day he has been in ODRC
custody, immediate release, an appeal bond and/or a bond hearing.
As an initial matter, to the extent Plaintiff purports to challenge the fact or duration of his
confinement, his sole remedy in federal court is habeas corpus. See Skinner v. Switzer, 131 S.Ct.
1289, 1293 (2011) (“Habeas is the exclusive remedy . . . for the prisoner who seeks immediate or
speedier release from confinement.” (internal quotation marks and citation omitted)).
Plaintiff names ODRC as the only Defendant in this action. Plaintiff’s claim for money
damages against ODRC is barred by the Eleventh Amendment of the United States Constitution.
The Eleventh Amendment provides as follows:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any foreign state.
U.S. Const. amend. XI. It is well established that “Ohio has not waived its Eleventh Amendment
immunity from state-law claims for money damages against ODRC.” Carmicheal v. City of
Cleveland, ---F. App’x ----, 2014 WL 3056534, at *8 (6th Cir. July 7, 2014); see also Turker v.
Ohio Dept. of Rehab. & Corr., 157 F.3d 453, 456-57 (6th Cir. 1998) (“It is . . . well-established
that a federal court cannot entertain a lawsuit against state officials for violations of state law
unless the state has waived its immunity under the Eleventh Amendment. . . . Ohio has not
waived that immunity.”); Mobley v. State of Ohio Dept. of Rehab. & Corr., No. 2:13-cv-1130,
2014 WL 1369289, at *2 (“It is well established that ODRC is a division of the State of Ohio for

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purposes of sovereign immunity.”) Dismissal under the Eleventh Amendment, however, “should
be made without prejudice.” Carmichael, 2014 WL 3056534 at *8. Accordingly, the
Undersigned recommends that Plaintiff’s Complaint be dismissed without prejudice.
IV.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS
Plaintiff’s Complaint WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A. 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
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

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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 22, 2014

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

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