McCall v. Stegemoller

Filing 10

REPORT AND RECOMMENDATION: GRANTING 5 Plaintiff's Revised Motion for Leave to Proceed in forma pauperis. DENYING AS MOOT 3 Plaintiffs initial Motion for Leave to Proceed in forma pauperis. RECOMMENDING 1 Plaintiff&# 039;s claims in their entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A. Objections to R&R due by 6/20/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on June 6, 2018. (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
MIKELL MCCALL,
Plaintiff,
Civil Action 2:18-cv-228
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

MARK STEGEMOLLER,
Defendant.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Mikell McCall, a state inmate who is proceeding without the assistance of
counsel, brings this action against Mark Stegemoller. (ECF No. 1.) This matter is before the
Court for consideration of Plaintiff’s Motions for Leave to Proceed in forma pauperis. (ECF
Nos. 3, 5.) In compliance with the Court’s prior Orders and deficiency notices (ECF Nos. 2, 4,
6), Plaintiff has now submitted a revised motion for leave to proceed in forma pauperis (ECF
No. 5) and a certified copy of his prison trust fund account (ECF No. 9).1 Accordingly, his
revised Motion for Leave to Proceed in forma pauperis (ECF No. 5) is GRANTED. All judicial
officers who render services in this action shall do so as if the costs had been prepaid. 28 U.S.C.
§ 1915(a). Plaintiff’s initial Motion for Leave to Proceed in forma pauperis (ECF No. 3) is
therefore DENIED AS MOOT.
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
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Plaintiff has also updated his address with the Court. (ECF No. 8.)
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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.
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
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Formerly 28 U.S.C. § 1915(d).

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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
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

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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)).
II.
Plaintiff alleges, in part, as follows:
In March 2017, when I was in Ross Correctional I made a false statement
to Prea2 indicating I wanted to sexually harm another person, because I thought if
I made that statement it would get me to Mansfield Prison. The reason I wanted
to transfer to Mansfield is because Mansfield is closer to my home. Mansfild
[sic] also have [sic] the Sore [sic] program for sex offenders.
I was honestly trying to manipulate Prea by making that false statement,
but in return Prea never helped me instead Prea just made my life worse by
tagging me a preditor [sic].
(ECF No. 1 at PAGEID # 5.) Plaintiff goes on to allege that he never sexually assaulted anyone
and that he wants the predator designation removed because it has foreclosed employment and
education opportunities and caused him additional mental health problems. (Id. at PAGEID ##
5–6.) The last sentence of the Complaint alleges that Defendant “Mark Stegemoller never
offered me help, he only tagged me as a preditor [sic][.]” (Id.) The Complaint contains no other
allegations against Defendant.
As a preliminary matter, Plaintiff does not identify whether he is suing Defendant in his
official or personal capacity. (See generally Complaint, ECF No. 1.) Construing liberally, see
Haines, 404 U.S. at 520, the Court assumes he sues Defendant in both his personal and official
capacities. However, to the extent that Plaintiff brings claims under 42 U.S.C. § 1983 against
Defendant in his official capacity, these claims are not cognizable. See Gean v. Hattaway, 330

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The Court notes that the website for the Ohio Department of Rehabilitation and Correction
addresses the Prison Rape Elimination Act (“PREA”) and provides information and links
regarding sexual violence and misconduct, including reporting sexual misconduct. Ohio
Department of Rehabilitation & Correction, http://drc.ohio.gov/prea (last visited June 5, 2018).
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F.3d 758, 766 (6th Cir. 2003) (holding that § 1983 claims against agents of the state in their
official capacity are not cognizable).
Next, Plaintiff’s allegation that Defendant “never offered” help, but simply labeled him a
predator, is vague and conclusory. Plaintiff provides no factual allegations to support this claim.
(See generally ECF No. 1.) Plaintiff’s conclusory allegation is therefore insufficient to state a
claim. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 565–66.
Finally, to the extent Plaintiff intends to invoke PREA, that claim is likewise unavailing.
PREA does not grant inmates substantive rights and nothing in PREA indicates that it created a
private right of action. See Wiggins v. Sisco, No. 17-cv-3080, 2018 WL 1035161, at *3 (D. Kan.
Feb. 23, 2018) (“[T]he PREA does not create substantive rights for prisoners. In other words,
Plaintiff has no enforceable right to have the procedures required by the PREA followed and no
right to enforce those procedures here.”); Fair v. Stirling, No. 6:14-cv-4882, 2015 WL
11122001, at *1 (D. S.C. Feb. 4, 2015) (“However, PREA does not grant prisoners specific
rights and cannot be the basis of a Section 1983 claim.” (citing De’lonta v. Clarke, No. 7:1 l-cv00483, 2013 WL 209489 at *3 (W.D. Va. Jan. 14, 2013)).
III.
Plaintiff’s Revised Motion for Leave to Proceed in forma pauperis (ECF No. 5) is
GRANTED. Plaintiff’s initial Motion for Leave to Proceed in forma pauperis (ECF No. 3) is
DENIED AS MOOT. For the reasons set forth above, it is RECOMMENDED that Plaintiff’s
claims in their entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A.
The Clerk is DIRECTED to send a copy of this Order and Initial Screen Report and
Recommendation to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus,
Ohio 43215.

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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 [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)).
IT IS SO ORDERED.

Date: June 6, 2018

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

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