Boston v. Mohr et al

Filing 3

ORDER AND REPORT AND RECOMMENDATIONS - The Magistrate Judge RECOMMENDS that the Court DISMISS 2 Complaint and TRANSFER this action to the United States District Court for the Northern District of Ohio Eastern Division at Youngstown. ( Objections t o R&R due by 8/17/2015) Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/30/2015. (agm)(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

LAMAR BOSTON
Plaintiff,
Civil Action 2:15-cv-2660
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

GARY MOHR, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Lamar Boston, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against a number of Defendants, alleging a
variety of conditions of confinement claims. (ECF No. 1-1.) This matter is before the Court for
the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A 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); see
also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial
screen, for the reasons set forth below, it is RECOMMENDED that the Court DISMISS
Plaintiff’s claims against Defendants Mohr and Legal Services and TRANSFER this action to
the United States District Court for the Northern District of Ohio Eastern Division at
Youngstown.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s
motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee.
28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he currently
possesses the sum of sixty-nine cents 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 $4.52. Pursuant to 28 U.S.C. §
1915(b)(1), the custodian of Plaintiff’s inmate trust account at Ohio State Penitentiary (“OSP”) 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
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). See 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. It is ORDERED
that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that
judicial officers who render services in this action shall do so as if the costs had been prepaid.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
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cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus.
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, 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)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, § 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.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

Formerly 28 U.S.C. § 1915(d).

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12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 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). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
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)). 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), “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. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,
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)).

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II.
Plaintiff is an inmate at Ohio State Penitentiary (“OSP”), a prison in Mahoning County,
Ohio. In his Complaint, Plaintiff identifies a variety of prison conditions and actions taken by
OSP prison employees that he alleges violate his constitutional rights. In addition to naming a
number of Defendants residing in Mahoaning County, Plaintiff names Gary Mohr, the Director
of the Ohio Department of Rehabilitation and Correction, and “Legal Services,” who Plaintiff
describes as an entity responsible for overseeing disciplinary proceedings. (Compl. 2, ECF No.
1-1.) Plaintiff’s sole allegation mentioning Defendants Mohr and Legal Services provides as
follows:
Forshey, Gardner and Durmmond, Mohr and Legal Services did violate Boston’s
[r]ights by [i]mposing unjust dispositions of local control placement and denial of
due process claiming Mr. Boston was unable to adjust to “General population” at
O.S.P.
(Id. at 8.) In terms of relief, Plaintiff seeks compensatory and punitive damages as well as
declaratory and injunctive relief. (Id. at 10.)
Plaintiff has failed to state plausible claims for relief against Defendants Mohr and Legal
Services. In order to plead a cause of action under § 1983, a plaintiff must plead two elements:
“(1) deprivation of a right secured by the Constitution or laws of the United States (2) caused by
a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463 (6th
Cir. 2006)). To sufficiently plead the second element, a plaintiff must allege “personal
involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). This is
because “§ 1983 liability cannot be imposed under a theory of respondeat superior.” Id.
(citation omitted). Thus, to hold a supervisor liable under § 1983, a plaintiff “must show that the
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official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct . . . .” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). Here, Plaintiff’s Complaint
provides insufficient factual content or context from which the Court could reasonably infer that
Defendant Mohr was personally involved in any violation of Plaintiff’s rights. In addition, the
Court is unable to discern what actions were taken by Defendant Legal Services or its
representatives that could suffice to form the basis of a plausible claim under § 1983.
Moreover, to the extent Plaintiff seeks to assert a claim for monetary damages against
Defendant Legal Services (which, to the extent such an entity exists, appears to be a state entity)
or Defendant Mohr in his official capacity, his claims also fail. The Eleventh Amendment of the
United States Constitution operates as a bar to federal-court jurisdiction when a private citizen
sues a state or its instrumentalities unless the state has given express consent. Pennhurst St. Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th
Cir. 2000). “It is well established that § 1983 does not abrogate the Eleventh Amendment.”
Harrison v. Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir. July 10, 2013) (citing
Quern v. Jordan, 440 U.S. 332, 341 (1979)). Because Ohio has not waived its sovereign
immunity in federal court, it is entitled to Eleventh Amendment immunity from suit for monetary
damages. Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Accordingly, to the extent
Plaintiff seeks to assert claims for compensatory damages against Defendant Legal Services or
Defendant Mohr in his official capacity, the Court must dismiss those claims as barred by the
Eleventh Amendment.
Plaintiff’s remaining claims are against Defendants who do not reside in this district and
concern the conditions of his confinement and the propriety of certain incidents that he alleges
occurred at OSP, which is in Mahoning County, Ohio. Venue in this Court is, therefore, not
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proper. See 28 U.S.C. § 1391 (venue is proper in the judicial district where any defendants
reside or in which the claims arose). Thus, it is RECOMMENDED that this action be
TRANSFERRED pursuant to 28 U.S.C. § 1406 or 1404(a) to the United States District Court
for the Northern District of Ohio Eastern Division at Youngstown, which serves Mahoning
County pursuant to Northern District of Ohio Local Rule 3.8(a).
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s claims against
Defendants Legal Services and Mohr be DISMISSED WITH PREJUDICE pursuant to 28
U.S.C. §§ 1915(e) and 1915A. It is further RECOMMENDED that this action be
TRANSFERRED pursuant to 28 U.S.C. § 1406 or 1404(a) to the United States District Court
for the Northern District of Ohio Eastern Division at Youngstown.
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

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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 (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: July 30, 2015

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

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