Sebestyen v. Gardner et al

Filing 8

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that Plaintiffs claims against the ODRC, Defendants Charlotte Jenkins, C.O. Long, J. Noble, and Mr. Ferrell, and the claims for money damages against the remaining Individual Defendants in their official capacities be DISMISSED for failure to state a claim. It is RECOMMENDED that Plaintiff be permitted to proceed with his remaining claims re 4 Complaint filed by Tibor Sebestyen. Objections to R&R due by 12/6/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on November 22, 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

TIBOR SEBESTYEN,
Plaintiff,
Case No. 2:17-cv-550
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

DR. JOHN GARDNER, et al.,
Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Tibor Sebestyen, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against the Ohio Department of Rehabilitation
and Corrections (“ODRC”) and employees at Chillicothe Correctional Institution (“CCI”) and
London Correctional Institution (“LoCI”) (collectively, “the Individual Defendants”). (ECF No.
4.) 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), 1915A(b); see also McGore v. Wrigglesworth, 114
F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it
is RECOMMENDED that the Court DISMISS Plaintiff’s claims against the ODRC, the claims
against Defendants Charlotte Jenkins, C.O. Long, J. Noble, and Mr. Ferrell, and the claims for

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money damages against the remaining Individual Defendants in their official capacities and that
Plaintiff be permitted to proceed with his remaining claims.
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.
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
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
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Formerly 28 U.S.C. § 1915(d).

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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, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se ain 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)). This lenient
treatment, however, has limits; “‘courts should not have to guess at the nature of the claim
asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

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II.
According to the Complaint and the attached exhibits, on or around December 19, 2016,
Plaintiff was transferred from CCI to LoCI, which is where he is presently incarcerated. (ECF
No. 4.) Construing the Complaint liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
the Court presumes that Plaintiff advances claims under 42 U.S.C § 1983 based upon his alleged
lack of proper notice of his annual security review, his transfer to LoCI, and certain alleged
events regarding his contact lenses. (ECF No. 4.) Although Plaintiff does not specify whether
he sues the Individual Defendants in their personal and official capacities, the Court will assume
that Plaintiff intends to sue these Defendants in both capacities. Cf. id. Plaintiff seeks monetary
damages and non-monetary relief. (ECF No. 4 at PAGEID # 102.)
Plaintiff has failed to state plausible claims for relief against ODRC and against the
Individual Defendants in their official capacities for damages. 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, 722 F.3d 768, 771 (6th Cir. 2013) (citing Quern v. Jordan, 440 U.S. 332,
341 (1979)). ODRC is an instrumentality of the state of Ohio. Lowe v. Ohio Dep’t of Rehab.,
No. 97-3971, 1998 WL 791817, at *2 (6th Cir. Nov. 4, 2008). 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). Further,
ODRC is not a “person” who can be held liable under § 1983. Diaz v. Dep’t of Corr., 703 F.3d
956, 962 (6th Cir. 2013). Thus, dismissal pursuant to § 1915(e) of Plaintiff’s claims against

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ODRC and of his claims for damages against the Individual Defendants in their official
capacities is appropriate. See Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 598
(6th Cir. 2016) (stating that immunity applies to state officials sued in their official capacity for
money damages because “‘a suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office,’ i.e., against the state itself”)
(quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)); Wingo v. Tenn. Dept. of
Corrs., 499 F. App’x 453, 454 (6th Cir. 2012) (affirming trial court’s dismissal of inmate’s
claims against state agency under § 1915(e), explaining that the department and the prison were
entitled to Eleventh Amendment immunity); Harrison, 722 F.3d at 771 (same).
In addition, to the extent that Plaintiff also alleges that Defendants Charlotte Jenkins,
C.O. Long, J. Noble, and Mr. Ferrell may be held liable in this cause of action, Plaintiff’s
allegations are insufficient to state an actionable claim under § 1983. Plaintiff names these
individuals in the caption and in the list of Defendants (Compl., at PAGEID ## 97, 100), but the
Complaint contains no factual allegations against any of them. Accordingly, Plaintiff has alleged
no set of facts that would constitute a cause of action against Defendants Jenkins, Long, Noble,
and Ferrell.
III.
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s claims against
the ODRC, the claims against Defendants Charlotte Jenkins, C.O. Long, J. Noble, and Mr.
Ferrell, and the claims for money damages against the remaining Individual Defendants in their
official capacities be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim for relief on which relief can be granted. It is further RECOMMENDED that Plaintiff be
permitted to proceed with his remaining claims. The Court expresses no opinion as to the merits

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of Plaintiff’s remaining claims. The Clerk is DIRECTED to send a copy of this Report and
Recommendation to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus,
Ohio 43215.
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 of 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 [th 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)).

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IT IS SO ORDERED.

Date: November 22, 2017

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

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