Distasio v. Mohr et al
ORDER and REPORT AND RECOMMENDATION: The Court GRANTS Plaintiff's 1 Motion for Leave to Proceed in forma pauperis, filed by Phillip James Distasio. It is RECOMMENDED that the Court DISMISS Plaintiff's 2 Comp laint in its entirety. 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
PHILLIP JAMES DISTASIO,
Civil Action 2:18-cv-103
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
GARY C. MOHR, et al.,
ORDER and REPORT AND RECOMMENDATION
Plaintiff, Phillip Distasio, a state inmate who is proceeding without the assistance of
counsel, brings this action against Gary C. Mohr, the Director of the Ohio Department of
Rehabilitation and Correction (“ODRC”), alleging that the ODRC’s refusal to provide inmates
who are serving a life sentence with physician-assisted suicide is unconstitutional. 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, for the reasons that follow, the undersigned RECOMMENDS that
the Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which
relief may be granted.
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. 1.) 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 certified trust fund statement reveals that he had the sum of
twelve cents in his prison account as of January 22, 2018. That amount is insufficient to pay the
full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account
(Inmate Number A-513817) at Toledo 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:
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.
It is ORDERED 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. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff
and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order
to the Court’s financial office in Columbus.
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—
(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. 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)).
Formerly 28 U.S.C. § 1915(d).
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
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
According to the Complaint, Plaintiff is currently serving a life sentence with no
opportunity for parole. Plaintiff alleges that he is mentally competent, citing the fact that he was
adjudicated mentally competent to stand trial. He further alleges that his requests for “suicide
pills” have been denied. (Compl. 5, ECF No. 1-2.) Plaintiff asks for a Court order compelling
ODRC to acknowledge the right of an inmate who is serving a life sentence to physician-assisted
suicide and also compelling ODRC to change its policies to permit physician-assisted suicide for
inmates serving life sentences.
To sustain a § 1983 claim, Plaintiff must establish that he was deprived of a right secured
by the Constitution or laws of the United States and that this deprivation was caused by a person
acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Ellison v.
Garbarino, 48 F.3d 192, 194 (6th Cir. 1995).
Plaintiff’s Complaint fails to state a claim because there is no constitutional right to
euthanasia or physician-assisted suicide. See Washington v. Glucksberg, 521 U.S. 702, 705, 72034 (1997) (holding that state law prohibiting causing or aiding a suicide does not offend the
Fourteenth Amendment of the United States Constitution); Kerry v. Din, 135 S.Ct. 2128, 2135
(2015) (“Glucksberg rejected a claimed liberty interest in ‘self-sovereignty’ and ‘personal
autonomy’ that extended to assisted suicide when there was a longstanding tradition of outlawing
the practice of suicide.” (quoting Glucksberg, 521 U.S. at 723-24)); see also Vacco v. Quill, 521
U.S. 793, 808–09 (1997) (noting that state interests in “prohibiting intentional killing and
preserving life; preventing suicide; . . . protecting vulnerable people from indifference, prejudice,
and psychological and financial pressure to end their lives; and avoiding a possible slide towards
euthanasia . . . easily satisfy the constitutional requirement . . . .”); Whipple v. Piper, No. 17-CV5137, 2017 WL 6756600, at *1 (D. Minn. Dec. 7, 2017) (dismissing inmate’s lawsuit
challenging the prison’s refusal of his request to be euthanized pursuant to § 1915(e)(2)(B)(ii)).
Because Plaintiff cannot maintain his due-process claim of a right to physician-assisted
suicide, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety
pursuant to § 1915(e)(2).
For the reasons set forth above, Plaintiff White’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) In addition, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus. Finally, 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. §
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
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.
/s/ Chelsey M. Vascura __________
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?