Anderson v. Toledo Correctional Center Medical Dept. et al

Filing 7

ORDER adopting Report and Recommendations re 4 Report and Recommendations.. Signed by Judge James L Graham on 3/24/2015. (ds)(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
Bennie Anderson,
Plaintiff,
v.

Case No. 2:15-cv-728

Toledo Correctional Center
Medical Dept., et al.,
Defendants.
ORDER
Plaintiff, a state inmate, brings the instant action pursuant
to 42 U.S.C. §1983, alleging that he has been denied needed medical
care for a hip injury, and that he has been denied new eyeglasses
because of budget constraints and because of his race.

The named

defendants are the Toledo Correctional Center Medical Department
and the Ohio Department of Rehabilitation and Correction.

The

caption of the complaint also refers to “John and Jane doe’s [sic],
State officers and staff” but does not identify any particular
individual.

On March 4, 2015, the magistrate judge filed a report

and recommendation on the initial screen of plaintiff’s complaint
pursuant to 28 U.S.C. §1915A, which requires the court, “in a civil
action in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” to dismiss a
complaint that fails to state a claim upon which relief may be
granted.

28

U.S.C.

§1915A(a)-(b)(1).

The

magistrate

judge

concluded that plaintiff’s complaint fails to state a claim upon
which relief can be granted, and recommended that this action be
dismissed.
This

See Doc. 4, p. 2.
matter

is

before

the

court

for

consideration

of

plaintiff’s objections (Doc. 6) to the magistrate judge’s report
and recommendation. If a party objects within the allotted time to
a report and recommendation, the court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court
“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”

28 U.S.C.

§636(b)(1).
As

the

magistrate

judge

correctly

explained,

28

U.S.C.

§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.
(6th Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572

Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard.

See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.
12(b)(6)

standards

to

review

under

28

U.S.C.

§§1915A

and

1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements

2

necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
The magistrate judge correctly observed that the only named
defendants are state agencies which are absolutely immune from suit
in this court under the Eleventh Amendment of the United States
Constitution. See Regents of Univ. of Calif. v. Doe, 519 U.S. 425,
429 (1997)(Eleventh Amendment sovereign immunity applies not only
to the states but also to “state agents and instrumentalities”).
The magistrate judge also correctly noted that a state agency is
not a “person” subject to suit under §1983.

See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Plaintiff states
in his objections that it was not his intent to sue a state entity.
Rather, he alleges that he referred to “John and Jane doe’s [sic],
State officers and staff” and added the notation “et al.” with the
intent of encompassing within his complaint the large number of
defendants involved.

Doc. 6, pp. 1-2.

In the alternative,

plaintiff requests an extension of time to submit an amended
complaint.
The court agrees with the determination of the magistrate
judge that plaintiff’s claims cannot proceed against the named
state agency defendants, and that the reference to John and Jane
Doe

defendants

is

not

sufficient

to

identify

any

particular

defendant. The court denies plaintiff’s objections, and adopts the
report

and

recommendation

(Doc.

4).

Plaintiff’s

claims

are

dismissed for lack of subject matter and for failure to state a
claim upon which relief can be granted, and defendants Toledo
Correctional Center Medical Department and Ohio Department of
Rehabilitation and Correction are dismissed as parties.

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However,

the court will grant plaintiff’s request for leave to file an
amended complaint.

Plaintiff is granted until thirty (30) days

from the date of this order to file an amended complaint asserting
claims against individual defendants over whom this court can
exercise jurisdiction.

Date: March 24, 2015

s/James L. Graham
James L. Graham
United States District Judge

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