Anderson v. Mohr et al

Filing 7

ORDER GRANTING 1 MOTION for Leave to Proceed in forma pauperis. REPORT AND RECOMMENDATIONS re 6 Complaint. It is RECOMMENDED that the claims asserted against defendant Mohr be dismissed. It is FURTHER RECOMMENDED that, if the claims against defendant Mohr are dismissed, this action be transferred to the United States District Court for the Northern District of Ohio, Western Division. Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Norah McCann King on 9/9/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HERBERT ANDERSON,
Plaintiff,
vs.

Civil Action 2:15-CV-2798
Judge Watson
Magistrate Judge King

GARY MOHR, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, a state inmate currently incarcerated in the Allen
Oakwood Correctional Institution, filed this civil action pursuant to
42 U.S.C. § 1983, without prepayment of fees, alleging that defendants
have violated his constitutional rights.

This matter is now before

the Court on plaintiff’s Motion for Leave to Proceed in Forma
Pauperis, ECF 1, and for the initial screen of the Complaint required
by 28 U.S.C. §§ 1915(e), 1915A.
Motion for Leave to Proceed in Forma Pauperis
Plaintiff's motion for leave to proceed in forma pauperis under
28 U.S.C. §1915(a) is GRANTED.

Plaintiff is assessed the full amount

of the Court's $350.00 filing fee.

28 U.S.C. §1915(b)(1).

Plaintiff's affidavit reveals that he currently possesses an
amount insufficient to pay the full filing fee.

The custodian of the

plaintiff's inmate trust account at the institution of his residence
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
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trust account or the average monthly balance in the inmate trust
account, for the six (6) months 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 fees of $350.00 have 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).
The Clerk of Court is DIRECTED to mail a courtesy copy of the
Complaint and a copy of this Order and Report and Recommendation to
the Attorney General of Ohio, Criminal Justice Section, 150 E. Gay
Street, 16th Floor, Columbus, Ohio 43215.
The Clerk of Court is DIRECTED to mail a copy of this Order and
Report and Recommendation to the plaintiff and the prison cashier's
office.

The Clerk is FURTHER DIRECTED to forward a copy of this Order

and Report and Recommendation to the Court's financial office in
Columbus.
Initial Screen of the Complaint
The Complaint, ECF 1-1, refers to a number of events that
allegedly occurred at the Allen Oakwood Correctional Institution
(“AOCI”), which is located in Allen County, Ohio, and which falls
within the territorial jurisdiction of the United States District
Court for the Northern District of Ohio, Western Division.

28 U.S.C.

§ 115(a)(2). All defendants except defendant Gary Mohr, the Director
of the Ohio Department of Rehabilitation and Correction (“ODRC”),
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appear to be staff employed at AOCI. As it relates to defendant Mohr,
the Complaint alleges the following:
Defendants Gary Mohr, Edward T. Shelton, Denise Carder and
M. Giddens, the plaintiff allege they intentionally,
willfully and wrongly interfered, retaliated deprived due
process and access to the courts with intent to cause
unnecessary delay to file meaningful effective legal
documents to the courts under color of state law in
violation of plaintiff’s First and Sixth Amendments rights
in violation of 42 USC Section 1983.
Complaint, ¶ 52.

See also id. at Relief Requested, pp. 23-25 (seeking

declaratory judgment and monetary damages against defendant Mohr).
The Complaint, which does not allege any facts supporting this
conclusory allegation, fails to state a claim for relief against
defendant Mohr.

To the extent that plaintiff intends to base his

claims against defendant Mohr on the latter’s role as Director of the
ODRC, the Complaint fails nevertheless. A supervisory official may not
be held liable under 42 U.S.C. § 1983 for the alleged misconduct of
subordinates unless “the plaintiff demonstrates that ‘the supervisor
encouraged the specific incident of misconduct or in some other way
directly participated in it.’”

Combs v. Wilkinson, 315 F.3d 548, 554

(6th Cir. 2002) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th
Cir. 1984)). “‘At a minimum a plaintiff must show that the official at
least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.’”

Id. (quoting

Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)).
Liability on the part of a supervisor must be based on “active
unconstitutional behavior.”
1041, 1048 (6th Cir. 1999)).

Id. (citing Bass v. Robinson, 167 F.3d
The Complaint simply fails to allege

such conduct on the part of the Director of the ODRC.
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It is therefore RECOMMENDED that the claims asserted against
defendant Mohr be dismissed for failure to state a claim upon which
relief can be granted.
It is FURTHER RECOMMENDED that, if the claims against defendant
Mohr are dismissed, this action be transferred to the United States
District Court for the Northern District of Ohio, Western Division,
where those claims would be properly venued. See 28 U.S.C. §
1391(b)(1), (b)(2).
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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that 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 of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

September 9, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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