Thompson v. Bennett et al

Filing 9

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Gerald Thompson. It is RECOMMENDED that the Court DISMISS this Plaintiffs claims against Defendants for failure to assert any claim on which relief may be granted Objections to R&R due by 10/17/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on October 3, 2017. (jlk) (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 THOMPSON,
Plaintiff,

Civil Action 2:17-cv-461
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

C.O. BENNETT, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court for the initial screen of Plaintiff’s Amended 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). 1 On May 26, 2017, Plaintiff filed his initial
Complaint. (ECF No. 1.) After granting Plaintiff leave to proceed in forma pauperis, the Court
found Plaintiff’s Complaint violated Federal Rules of Civil Procedure 8(a) and 12(f) and ordered
Plaintiff to correct the deficiencies. (ECF No. 4.) On August 14, 2017, Plaintiff submitted his
revised complaint. (ECF No. 8.) Having performed the initial screen, for the reasons that
follow, it is RECOMMENDED that the Court DISMISS this Plaintiff’s claims against
Defendants for failure to assert any claim on which relief may be granted.

1

Plaintiff filed his initial Complaint while an inmate at Madison Correctional Institution. Upon
filing his Amended Complaint, Plaintiff advised the Court he is now incarcerated at the Franklin
County Jail in Columbus, Ohio.

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-*

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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. 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.

1

Formerly 28 U.S.C. § 1915(d).

A federal court has limited subject matter jurisdiction. “The basic statutory grants of
federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for
‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’
jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is
invoked when a plaintiff pleads a claim “arising under” the federal laws, the Constitution, or
treaties of the United States. Id. (citation omitted). For a federal court to have diversity
jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that
each plaintiff must be a citizen of a different state than each defendant, and the amount in
controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
II.
Like his original Complaint, Plaintiff’s Amended Complaint is difficult to decipher.
Plaintiff purports to bring claims under the Protection and Advocacy for Mentally Ill Individuals
Act.2 (ECF No. 8 at 7.) His Amended Complaint, however, alleges only one instance of
misconduct by either Defendant. To wit, Plaintiff claims that, on April 28, 2017, he was
“[a]ssaulted by Shawn Nook Inmate & C.O. Bennett.” (Id. at 4.)
A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same
token, however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill v. Lappin, 630

2

Plaintiff’s original Complaint purports to bring claims under the Eighth Amendment; 42 U.S.C.
§ 12132, the Americans with Disabilities Act (“ADA”); 29 U.S.C. § 794, the Rehabilitation Act;
and, the Protection and Advocacy for Mentally Ill Individuals Act.

F.3d 468, 470-471 (6th Cir. 2010) (“dismissal standard articulated in Iqbal and Twombly governs
dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The Court must accept all well-pleaded factual allegations as true, but
need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.
at 555. Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at
678. A pleading that offers labels and conclusions” or “a formulaic recitation of the elements of
a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint
must “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Erickson, 551 U.S. at 93 (citations omitted).
Although Plaintiff states a date for the alleged assault, he proffers no other facts about the
event in question. (ECF No. 8 at 4.) Plaintiff does not state where the alleged assault occurred,
what conduct he believes constitute the assault, or any other details of the alleged incident. Even
construed liberally, Plaintiff’s claim against Defendant Bennett amounts to a mere conclusory
allegation. Iqbal, 556 U.S. at 678. Furthermore, Plaintiff does not even mention Defendant
Hughes by name in his Complaint. Accordingly, the Undersigned finds that Plaintiff’s Amended
Complaint fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2).

III.
For the reasons explained above, the Undersigned RECOMMENDS that Plaintiff’s
claims be DISMISSED for failure to state a claim on which relief may be granted.
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PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, it
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 (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: October 3, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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