Fields v. Ohio Department of Rehabilitation and Correction

Filing 7

OPINION AND ORDER adopting 5 the Magistrate Judge's 06/03/15 Report and Recommendation and overruling 6 the Plaintiff's Objections to the Report and Recommendation. The Plaintiff's Complaint 3 is DISMISSED with prejudice. Signed by Chief Judge Edmund A. Sargus on 11/04/2015. (dh1)(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
GERALD D. FIELDS,
Plaintiff,
Case No. 2:15-cv-1271
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Terence P. Kemp

v.
OHIO DEPARTMENT OF
REHABILITATION AND
CORRECTION,
Defendant.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff Gerald D. Fields' (the
"Plaintiff') Objections to the Magistrate Judge' s June 3, 2015 Report and Recommendation. For
the reasons that follow, the Court OVERRULES the Plaintiffs Objections (Doc. No.6) and

ADOPTS the June 3, 2015 Report and Recommendation (Doc. No. 5). Accordingly, the
Plaintiffs Complaint (Doc. No.3) is DISMISSED with prejudice.

I.
On April 15, 2015, the Plaintiff filed a motion for leave to proceed in forma pauperis
(Doc. No. 1). On April17, 2015, the Magistrate Judge granted the Plaintiffleave to proceed in
forma pauperis (Doc. No. 2) and the Plaintiff filed his Complaint. He seeks relief under 42

U.S.C. § 1983. Specifically, the Plaintiff alleges that the Ohio Department of Rehabilitation and
Correction ("ODRC" or the "Defendant") violated his Fourteenth Amendment rights by failing
to follow established protocol and professional standards for providing and reporting medical
care. (Doc. No. 3, at PAGEID 45.) As the Court reads the complaint, the Plaintiff contends that
the ODRC's conduct impeded his access to documentation necessary to support a separate
negligence and deliberate indifference action against the ODRC in the Ohio Court of Claims. (!d.

at PAGEID 45.) The Plaintiff alleges that the ODRC' s conduct resulted in an insufficient
compensation award by the Court of Claims. (!d. at PAGEID 45-46.) The ODRC is the only
defendant listed in the Complaint. (!d. at PAGEID 38, 41.)
On May 27, 2015, the Plaintiff filed a motion for default judgment (Doc. No.4) against
the Defendant for failure to prosecute. On June 3, 2015, the Magistrate Judge denied the
Plaintiff's motion for default judgment due to the Plaintiffs failure to satisfy the statutory
requirements of Federal Rule of Civil Procedure 55. (Doc. No.5, at 1- 2.) Concurrently, the
Magistrate Judge conducted an initial screen of the Plaintiffs Complaint in accordance with 28
U.S.C. § 1915(e)(2) and recommended that the Plaintiffs claims be dismissed on grounds of
Eleventh Amendment immunity. (!d. at 3.)
The Plaintiff timely objects to the Magistrate Judge 's decision and moves for permission
to amend his pleadings to complete service of process on the ODRC. (Doc. No.6, at 1- 2.)
II.

If a party objects within the allotted time to a report and recommendation, 28 U.S.C. §
636(b )( 1)(C) provides that a district court "shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made."
See also United States v. Curtis, 237 F.3d 598, 602- 03 (6th Cir. 2001).

A pro se litigant's pleadings are to be construed liberally and have been held to less
stringent standards than formal pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519,
520-21 (1972). Even so, pro se plaintiffs must still comply with the procedural rules that govern
civil cases. McNeil v. United States, 508 U.S. I 06, 113 (1993) ("[W]e have never suggested that
procedural rules in ordinary civil litigation should be interpreted as to excuse mistakes by those
who proceed without counsel."); see also Wells v. Brown, 891 F.2d 591 , 594 (6th Cir. 1989)

2

("Neither [the Supreme Court] nor other courts, however, have been willing to abrogate basic
pleading essentials in prose suits.").

III.
Because the Plaintiff has objected to the Report and Recommendation in its entirety, this
Court will first review the Magistrate Judge's recommended denial of the Plaintiffs motion for
default judgment. Next, the Court will review the Magistrate Judge's recommendation that the
Plaintiffs Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A. Recommendation to Deny the Plaintiff's Motion for Default Judgment
After reviewing the record, the Court finds that the Magistrate Judge's recommendation
to deny the motion for default judgment was appropriate because the Plaintiff failed to satisfy the
procedural requirements of Federal Rule of Civil Procedure 55.
The Sixth Circuit does not favor default judgment, describing it as "a drastic step" that
should only be used "in the most extreme cases." United Coin Meter Co., Inc. v. Seaboard

Coastline R.R. 705 F.2d 839, 845 (6th Cir. 1983). On the "rare occasions" when default
judgment is appropriate, certain procedures must be followed. Long v. Finch, No. 14-13269,
2015 WL 1637517, at *3 (E.D. Mich. Apr. 13, 2015).
Under Rule 55, default entry and default judgment are distinct procedural steps. O.J.

Distrib., Inc. v. Hornell Brewing Co., Inc., 340 F.3d 345, 352-53 (6th Cir. 2003). A court cannot
enter default judgment against a defendant unless the clerk of court has already entered a default
against the defendant. Fed. R. Civ. P. 55; see, e.g., Heard v. Caruso, 35 1 F. App'x 1, 15- 16 (6th
Cir. 2009); O.J. Distrib., Inc. , 340 F.3d at 352. Thus, a plaintiff cannot properly move for
default judgment until he has successfully obtained a default entry against the defendant. Heard,
351 F. App' x at 16.

3

Rule 55 requires that a plaintiff take certain steps before the clerk can enter default
against a defendant. Sandoval v. Bluegrass Reg 'l Mental Health-Mental Retardation Bd., No.
99-5018, 2000 WL 1257040, at *5 (6th Cir. July 11 , 2000). A defendant cannot be in default
until service has been completed and the defendant subsequently "fail[s] to plead or otherwise
defend." Fed. R. Civ. P. 55; see also Sandoval, 2000 WL 1257040, at *5 ("[T]here must be
effective service of process on a defendant before an entry of default can be made.").
"Accordingly, courts reject motions for default judgment where the defendant[] w[as] not
served." Long, 2015 WL 1637517, at *4.
Here, the Plaintiff has not provided a completed summons to allow service on the ODRC.
(Doc. No. 5, at 1.) Consequently, the clerk has not, and could not, enter a default against the
Defendant. And without an entry of default by the clerk, this Court cannot award default
judgment. As such, the Plaintiffs motion for default judgment must be denied due to the
Plaintiffs failure to satisfy Rule 55's procedural requirements.
To remedy this procedural error, the Plaintiff now requests leave "to Amend his
Pleadings by submitting a completed Process Receipt and Return .. . and Summons." (Doc. No.
6, at 1- 2.) But such an amendment would be futile, as explained below, because Plaintiffs
claim is barred by state sovereign immunity. As such, the Plaintiffs request to amend his
Complaint is denied.

B. Recommendation to Dismiss
The Magistrate Judge's second recommendation is that the Plaintiffs Complaint be
dismissed pursuant to 28 U.S.C. § 1915(e)(2) on grounds ofEleventh Amendment immunity.
After careful review, this Court adopts the Magistrate Judge's recommendation of dismissal.

4

1.
Under 28 U.S.C. § 1915(e), a court may dismiss an in forma pauperis plaintiffs case at
any time if the court determines that the plaintiffs claim is frivolous or malicious.' 28 U.S.C. §
1915(e)(2)(B)(i); Denton v. Hernandez, 504 U.S. 25,31 (1992). A plaintiffs claim is frivolous
when it is without "a rational or arguable basis in law or in fact. " Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989). A plaintiffs
claim does not have an "arguable legal basis" if the claim is brought against a defendant who is
immune from suit. Collins v. Ohio Dep 't ofRehab. & Corr., No. 1:07-cv-557, 2007 WL
2769592, at *1 (S.D. Ohio Sept. 18, 2007) (citing Neitzke, 490 U.S. at 327). Section
1915(e)(2)(B)(iii) also explicitly authorizes a court to dismiss an informapauperis plaintiffs
complaint if it seeks "monetary relief from a defendant who is immune." Therefore, in order to
avoid dismissal, the Plaintiffs claim must be brought against a defendant who is susceptible to
suit under 42 U.S.C. § 1983.
The Eleventh Amendment to the United States Constitution precludes a private party
from bringing suit against a state or any of the state's agencies unless the state has expressly
consented to the suit or Congress has properly abrogated the state's sovereign immunity.

Seminole Tribe ofFla. v. Florida, 517 U.S. 44, 58 (1996); Alabama v. Pugh, 438 U.S. 781 , 782
(1978). "Ohio has not waived its sovereign immunity in federal court." Mixon v. Ohio, 193 F.
3d 389, 397 (6th Cir. 1999). And "Congress did not intend to override well-established
immunities or defenses under the common law" by enacting § 1983. Will v. Mich. Dept. of State

Police, 491 U.S. 58, 67 (1989). Accordingly, there are very limited exceptions to state and state
1

The Plaintiff contends that "28 U.S.C. 1915 and 1915A do not apply" because his " legal status is not
that of a state prisoner." (Doc. No. 6, at 2.) The Plaintiff contradicts this assertion though on the first
page of his Complaint where he states: "I am an inmate." (Doc. No. 3, at PAGEID 38.) Moreover,§
1915 applies to proceedings brought in forma pauperis; the Plaintiff is proceeding in forma pauperis here.
(Doc. No. 2, at 2.)

5

actor immunity here. Cady v. Arenac Cnty. , 574 F.3d 334, 344 (6th Cir. 2009). First, a plaintiff
may bring a claim against a state official acting in his or her official capacity if the plaintiff seeks
only "prospective injunctive or declaratory relief. " !d. (citing Papasan v. Allain, 478 U.S. 265,
276- 78 (1986)). Second, a plaintiff may bring a claim for monetary damages against a state
official in his or her individual capacity. See Kentucky v. Graham, 473 U.S. 159, 165- 68 (1985);
Turker v. Ohio Dep 't ofRehab. & Corr., 157 F.3d 453, 457 (6th Cir. 1998).

2.
The Plaintiff contends that the Magistrate Judge erred in finding his claim barred by the
Eleventh Amendment because he has named the ODRC as the defendant, not the state. (Doc.
No.6, at 2.) However, "a plaintiff may not circumvent the Eleventh Amendment by simply
naming a state agency or entity as a defendant." LeBlanc v. Michigan, No. 06-CV-13588-DT,
2007 WL 2225860, at *3 (E. D. Mich. Aug. 1, 2007) (citing Brotherton v. Cleveland, 173 F.3d
552, 559- 60 (6th Cir. 1999)). State agencies constituting "arms of the State" enjoy absolute
immunity from suits for damages. Will, 491 U.S. at 70- 71. The ODRC' s immunity from§ 1983
claims, due to its state agency status, is well established in the Sixth Circuit. See, e.g., Turker,
157 F.3d at 457-58; Collins, 2007 WL 2769592, at *2.
Here, the Plaintiffhas named only one defendant- the ODRC. (Doc. No. 3, at PAGEID
38, 41.) The Complaint does not allege that any individual ODRC employee violated the
Plaintiffs constitutional rights, but rather repeatedly states that the alleged perpetrator was the
ODRC as an entity. (!d. at PAGEID 43, 45--46.) Accordingly, the Court finds the Plaintiffs
first objection baseless, as the ODRC is absolutely immune from § 1983 suits for damages.
Moreover, § 1983 creates a cause of action against "persons" who have deprived a
plaintiff of his constitutional rights. Neither the state nor its agencies are " persons" within the
meaning of§ 1983. McGlone v. Ohio Dep 't ofRehab. & Corr., No. 2:13- cv- 0347, 2013 WL

6

3394676, at *2 (S.D. Ohio July 8, 2013); see also Will, 491 U.S. at 68, 7 I. Thus, the ODRC is
not a "person" susceptible to suit under § 1983.
The Plaintiff's second objection is that the Eleventh Amendment does not bar his claim
against the ODRC because the alleged conduct is not based in any public authority claimed by
the Defendant. (Doc. No. 6, at 2.) This objection also misses the mark. Under the Eleventh
Amendment, the ODRC, as a state agency, is absolutely immune from private party suits for
damages. See Turker, 157 F.3d at 457; Collins, 2007 WL 2769592, at *2. Further, the ODRC is
not a "person" susceptible to suit under§ 1983. McGlone, 2013 WL 3394676, at *2; see also
Will, 491 U.S. at 68, 71. Because the Complaint does not allege misconduct by any specific state
employee, the Court's inquiry may end there. See Cady, 574 F.3d at 344.
The Plaintiff further objects to the Magistrate Judge's decision to raise the ODRC's
immunity defense sua sponte, contending that "only the defendant, not the court, may raise a
defense of immunity." (Doc. No. 6, at 2.) This objection is also unsupported by law.

It is true that if an immune defendant does not waive or raise its immunity defense, a
court could "simply 'ignore' the issue." Cady, 574 F.3d at 344 (quoting Wis. Dep 't ofCorr. v.
Schacht, 524 U.S. 381 , 389 (1998)). However, the Sixth Circuit follows "the jurisdictional-bar"
approach to Eleventh Amendment immunity, holding that a federal court "'can raise the question
of sovereign immunity sua sponte because it implicates important questions of federal-court
jurisdiction and federal-state comity."· ld. at 344-45 (quoting S & M Brands, Inc. v. Cooper,
527 F.3d 500, 507 (6th Cir. 2008)); see also Nair v. Oakland Cnty. Cmty. Mental Health Auth.,
443 F.3d 469, 474 (6th Cir. 2006) ("Like subject-matter jurisdiction, a sovereign-immunity
defense ... may (and should) be raised by federal courts on their own initiative."). Because of
the "quasi-jurisdictional" nature of an Eleventh Amendment defense, the defense may be "raised

7

at any stage of the litigation." LeBlanc, 2007 WL 2225860, at *3 ; see also Mixon, 193 F.3d at
397. Therefore, the Magistrate Judge' s decision to raise and decide the question of sovereign
immunity sua sponte was appropriate.
Finally, the Plaintiff objects to the Magistrate Judge ' s recommendation to dismiss the
case before the ODRC has been served and given the opportunity to respond.
42 U.S.C. § 1915(e)(2) grants federal courts the power to dismiss an in forma pauperis
case "at any time" if the court determines it is "frivolous" or if the plaintiff "seeks monetary
relief against a defendant who is immune from such relief." (emphasis added). Courts often
dismiss deficient complaints prior to the issuance of process "to spare prospective defendants the
inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324. Such
dismissals do not deny prisoners "adequate, meaningful access to the courts . .. as a meritorious
claim will survive screening." Hawkins, 1999 WL 1023780, at *2. Given that the Plaintiff s
claim is barred by state sovereign immunity, the Magistrate Judge properly recommended that
the Court dismiss Plaintiffs Complaint prior to its service on the Defendant.
IV.
For the foregoing reasons, the Court OVERRULES the Plaintiffs Objections (Doc. No.
6), and ADOPTS the June 3, 2015 Report and Recommendation (Doc. No.5). Accordingly, the
Plaintiffs Complaint (Doc. No.3) is DISMISSED with prejudice.
IT IS SO ORDERED.

DATE

ED~ARGUS,

JR.

CHIEF UNITED STATES DISTRICT JUDGE

8