Cooper v. Wamsley et al

Filing 4

ORDER and REPORT AND RECOMMENDATION and DEFICIENCY NOTICE: The Court GRANTS Plaintiff's 3 Motion for Leave to Proceed in forma pauperis filed by John Anthony Cooper. The Court ORDERS 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. Each Defendant is ORDERED to answer or otherwise respond to the Complaint within 45 days after being served with a copy of the Complaint and summons. It is RECOMMENDED that the Court DISMISS Plaintiff's John and Jane Doe Defendants. Plaintiff may proceed on his claims against the named defendants. Objections to R&R due by 2/26/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/12/2018. (kpt)(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

JOHN ANTHONY COOPER,
Plaintiff,
v.

Civil Action 2:18-cv-34
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

BRENDA WAMSLEY, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION and DEFICIENCY NOTICE
Plaintiff, John Anthony Cooper, an Ohio inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983. Plaintiff alleges that three employees of the
Ohio Department of Rehabilitation and Correction deprived him of rights guaranteed to him by
the United States Constitution when they interfered with his access to the courts by refusing to
notarize documents that Plaintiff intended to file in state courts. Plaintiff alleges that the
Defendants’ actions deprived him of opportunities to seek appellate review of his conviction and
sentence and that, after Plaintiff successfully grieved their actions, Defendants retaliated against
him by again interfering with his access to the courts. Plaintiff also names “John/Jane Does” in
the caption of his Complaint but does not mention these defendants in the body of his Complaint.
(ECF No. 1.) Plaintiff seeks compensatory damages and declaratory and injunctive relief.
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 of the Complaint required by 28 U.S.C.
§§ 1915(e)(2) and 1915A, it is RECOMMENDED that the Court DISMISS Plaintiff’s John and
Jane Doe Defendants. Plaintiff may proceed on his claims against the named defendants.
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. 3.) 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 affidavit reveals that he currently possesses thirteen cents in his prison
account, which is insufficient to pay the full filing fee. His application indicates that his monthly
income is twenty dollars.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account
(Inmate ID: A725765) at the Pickaway Correctional Institution 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 six-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 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:

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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.
The Court ORDERS 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.
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
1

Formerly 28 U.S.C. § 1915(d).
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upon determination that the action fails to state a claim upon which relief may be granted. See
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)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). 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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550

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U.S. at 555). In addition, 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. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).
II.
It is RECOMMENDED that the Court DISMISS Plaintiff’s John and Jane Doe
Defendants from this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A for failure to
state a claim. Although Plaintiff names “JOHN/JANE DOES (unknown)” as defendants in his
caption, he fails to mention any of these defendants in the body of his Complaint.
As set forth above, Plaintiff may proceed on his claims against the three named
Defendants. The Court advises Plaintiff that he must assure that Defendants are served with
process within 90 days of the filing of the Complaint pursuant to Federal Rule of Civil Procedure
4(m).1 If Plaintiff intends for the United States Marshal to effect service, he must submit
completed summonses and Marshal service forms (form USM-285). As a courtesy, the Clerk
has sent these forms to Plaintiff. Upon Plaintiff’s submission of these documents, the Court
DIRECTS the United States Marshal to serve by certified mail upon Defendants a copy of the
Complaint and a copy of this Order. Plaintiff is cautioned that if Defendants are not served
within 90 days, the Court will dismiss this action without prejudice pursuant to Rule 4(m).
Each Defendant is ORDERED to answer or otherwise respond to the Complaint within
45 days after being served with a copy of the Complaint and summons.
1

Error! Main Document Only. Rule 4(m) provides in pertinent part:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
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The Court further DIRECTS the Clerk of Court to mail a copy of this Order to Plaintiff,
the prison cashier’s office, the Court’s financial office in Columbus, and the Ohio Attorney
General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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