Falls-Bey et al v. Cook et al

Filing 8

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing Defendant State of Ohio and allowing Plaintiff to proceed on his claims against the remaining Defendants. Objections to R&R due by 3/14/2018. Signed by Magistrate Judge Kimberly A. Jolson on 2/28/2018. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROY FALLS-BEY,
Plaintiff,
v.

Civil Action 2:17-cv-1103
Judge George C. Smith
Magistrate Judge Jolson

WARDEN BRIAN COOK, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Roy Falls-Bey, a pro se prisoner, brings this action against Warden Brian Cook,
the State of Ohio, Deputy Warden Robert England, Investigator Keith Holstein, Iman Sunni Ali
Islam, and Officer Andrew Salt.

(See Doc. 7).

In its January 5, 2018 Report and

Recommendation and Order, the Court granted Plaintiff’s Motion for Leave to Proceed in forma
pauperis, but was unable to conduct an initial screen of the complaint pursuant to 28 U.S.C.
§ 1915A(a), because Plaintiff’s original complaint inappropriately attempted to bring this case as
a class action. (Doc. 3). Pursuant to the Court’s Orders (Docs. 3, 5, 6), Plaintiff filed a Second
Amended Complaint on February 15, 2018. (Doc. 7). Having performed an initial screen of the
Second Amended Complaint, and for the reasons that follow, it is RECOMMENDED that the
Court DISMISS Plaintiff’s claims against the State of Ohio.

Moreover, it is

RECOMMENDED that Plaintiff be permitted to proceed with his claims against the remaining
Defendants.

I.

LEGAL STANDARD
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Because Plaintiff is proceeding in forma pauperis (see Docs. 1, 3), the Court must
dismiss the Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to set forth “a short and plain statement of the claim showing that the pleader is
entitled to relief.” In reviewing a complaint, the Court must construe it in Plaintiff’s favor,
accept all well-pleaded factual allegations as true, and evaluate whether it contains “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the
other hand, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although
pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972),
“basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
II.

DISCUSSION
Plaintiff has brought suit against the State of Ohio (See Doc. 7 at 1). However, the State

of Ohio may be sued in federal court only if it has “consented to such a suit or its immunity has
been properly abrogated by Congress.” Latham v. Office of Atty. Gen. of State of Ohio, 395 F.3d
261, 270 (6th Cir. 2005) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)).
Absent such circumstances, the Eleventh Amendment provides jurisdictional immunity to the
State of Ohio, which is “an absolute bar to the imposition of liability upon States and State
agencies.” Ganaway v. Ohio, No. 3:12-cv-1448, 2012 U.S. Dist. LEXIS 156064, at *2, 2012

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WL 5378730 (S.D. Ohio Oct. 31, 2012) (citing Latham, 395 F.3d at 270). The State of Ohio has
not consented to this lawsuit and thus has jurisdictional immunity.

Accordingly, it is

recommended that the State of Ohio be dismissed from this action.
As to Plaintiff’s claims against the remaining Defendants, the Court concludes that, at
this juncture, that the action may proceed.
III.

CONCLUSION
For the reasons stated, it is RECOMMENDED that Defendant State of Ohio be

DISMISSED from this lawsuit. It is further RECOMMENDED that Plaintiff be permitted to
proceed on his claims against the remaining Defendants. 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 any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s).

A Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report

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and Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: February 28, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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