Crisp v. Neel-Wilson et al

Filing 3

ORDER AND REPORT AND RECOMMENDATION re 2 Complaint. Plaintiff's 1 request to proceed in forma pauperis is GRANTED. It is RECOMMENDED that Defendant Drake be DISMISSED from this action for Plaintiff's failure to state a claim. Objections to R&R due by 5/4/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/15/2015. (mas1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CALVIN CRISP,
Plaintiff,
Civil Action 2:15-cv-1265
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

TRISH NEEL-WILSON, DIRECTOR
CENTER FOR WELLNESS AND PREVENTION, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Calvin Crisp, who is proceeding without the assistance of counsel, has
submitted a request to file a civil action in forma pauperis. (ECF No. 1.) Plaintiff’s request to
proceed in forma pauperis is GRANTED. All judicial officers who render services in this action
shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This matter is also before the
Court for the initial screen of Plaintiff’s Complaint as required by 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 Defendant Michael V. Drake (“Defendant Drake”), President of The Ohio State
University, from this action. Plaintiff may proceed on his claims against Defendant Trish NeelWilson (“Defendant Neel-Wilson”), Director of the Center for Wellness and Prevention at The
Ohio State University Wexner Medical Center (“Wellness Center”), at this juncture.

I. BACKGROUND
Plaintiff brings this action under 42 U.S.C. § 1983 against Defendants,1 alleging that they
violated his constitutional rights by terminating his membership at the Wellness Center without
due process. Plaintiff sues Defendant Neel-Wilson in her official and individual capacity. He
brings his claims against Defendant Drake in his individual capacity only.
In his Complaint, Plaintiff asserts that he was entitled to notice and a hearing before
Defendants could lawfully terminate his membership at the Wellness Center. On January 20,
2015, Defendant Neel-Wilson hand delivered a letter to Plaintiff informing him that his
membership at the Wellness Center had been terminated as a result of him making statements of
sexual nature to the Wellness Center’s staff. (Exhibit 1, ECF No.1-1.) The letter also informed
Plaintiff that he was to not be on the premises of the Wellness Center at any time. Id. Plaintiff
responded to Defendant Neel-Wilson’s letter, asserting that he never made sexual comments to
staff. He further wrote that Defendant Neel-Wilson’s “mistaken or unjustified deprivation of use
of a public facility without enabling [him] to contest the basis upon which a State facility
deprived [him] of the use without notice or opportunity for a hearing before an impartial tribunal
is a clear violation of due process.” (Exhibit 2, ECF No. 1-1.) In response to Plaintiff’s letter,
Defendant Neel-Wilson wrote that the Wellness Center does not have an appeal process for
members to contest the termination of their membership. (Exhibit 3, ECF No. 1-1.) She
explained that the Wellness Center had received several reports of Plaintiff’s inappropriate
behavior and that management determined that it was no longer appropriate for Plaintiff to use

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Defendants Neel-Wilson and Drake are the only defendants named in Plaintiff’s
Complaint.
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the facilities. Id. Subsequently, on April 13, 2015, Plaintiff filed the instant lawsuit, alleging that
Defendants deprived him of his due process rights by terminating his membership without notice
or a hearing. He seeks declaratory, injunctive, and monetary relief.
II. STANDARD OF REVIEW
Congress enacted 28 U.S.C. §§ 1915(e) and 1915A, 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)2 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-*

*

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(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; see also 28 U.S.C. § 1915A
(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any
portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, §§ 1915(e)
and 1915A require sua sponte dismissal of an action upon the Court’s determination that the

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Formerly 28 U.S.C. § 1915(d).
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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 Rule 8(a) of the Federal Rules of Civil Procedure.
See 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. § 1915(e)(2)(B)(ii)). 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)). Furthermore, 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 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). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept

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as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.
III. ANALYSIS
The Undersigned concludes that Plaintiff has failed to state a claim upon which relief can
be granted against Defendant Drake.3 To bring a cause of action under Section 1983, a Plaintiff
must plead that a person acting under color of law has caused a deprivation of a right that is
secured by the Constitution or a law of the United States. Hunt v. Sycamore Cmty. School Dist.
Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). “Because vicarious liability is inapplicable to . .
. § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
Here, Plaintiff fails to allege personal involvement on the part of Defendant Drake
sufficient to render him liable under Section 1983. Plaintiff does not assert any facts that
demonstrate that Defendant Drake was involved in the decision to terminate his membership at
the Wellness Center without notice or a hearing. Plaintiff does not mention Defendant Drake in
his Complaint other than naming him as a Defendant. Further, the exhibits to the Complaint
make clear that only Defendant Neel-Wilson, not Defendant Drake, was involved in the incidents
leading up to this lawsuit. Plaintiff has therefore failed to plead factual content that would allow
this Court to conclude that Defendant Drake deprived Plaintiff of his due process rights. Thus,
the Undersigned RECOMMENDS that the Court DISMISS Defendant Drake from this action.
IV. CONCLUSION
For the above-stated reasons, the Undersigned RECOMMENDS that Defendant Drake

3

The Court notes that Plaintiff only names President Drake as a Defendant in his
individual capacity. (See Compl. 2, ECF No. 1-1.)
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be DISMISSED from this action for Plaintiff’s failure to state a claim. At this time, the Court
will permit Plaintiff to proceed on his claim against Defendant Neel-Wilson.
The United States Marshal is DIRECTED to serve by certified mail upon Defendant
Neel-Wilson a summons, a copy of the Complaint, and a copy of this Order. Defendant NeelWilson is ORDERED to answer or otherwise respond to the Complaint within FORTY-FIVE
(45) DAYS after being served with a copy of the Complaint and summons.
V. PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party 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).
The parties are 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
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

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(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)).
IT IS SO ORDERED.

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

Date: April 15, 2015

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