Kimmie v. Croft et al

Filing 4

ORDER and REPORT AND RECOMMENDATION: The Court GRANTS Plaintiff's request to proceed in forma pauperis. The Magistrate Judge RECOMMENDS that Plaintiff's claims against Judge Boyko be dismissed. Plaintiff is ORDERED to submit an amended complaint to correct deficiencies outlined in the Order by 5/23/2018. Objections to R&R due by 5/7/2018. Signed by Magistrate Judge Chelsey M. Vascura on 4/23/2018. (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

EDWARD KIMMIE,
Plaintiff,
Civil Action 2:18-cv-334
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.

JUDGE CHRISTOPHER BOYKO, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, a prisoner proceeding without the assistance of counsel, has submitted a request
to file a civil action in forma pauperis. (ECF No. 3.) The Court GRANTS Plaintiff’s request to
proceed in forma pauperis. 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).
This matter is also before the undersigned 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). The undersigned has reviewed Plaintiff’s filing and has determined
that the Court must dismiss Plaintiff’s claim against one defendant and that Plaintiff’s
submission as to the other named Defendants violates Federal Rule of Civil Procedure 8(a).
Accordingly, it is RECOMMENDED that the Court dismiss Plaintiff’s claim against Defendant

Judge Christopher Boyko. Plaintiff is ORDERED to correct the deficiencies as to his claim
against the other Defendants ON OR BEFORE May 23, 2018.
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, which
provides in pertinent part as follows:
(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 complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 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.

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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’s claim against United States District Judge Christopher Boyko is based upon
the judge’s alleged failure to enter an appropriate judgment under Rule 54(b) of the Federal
Rules of Civil Procedure when he dismissed an action Plaintiff had filed in the United States
District Court for the Northern District of Ohio. Plaintiff alleges that Judge Boyko’s action
violated rights guaranteed by the United States Constitution’s Due Process Clause. Plaintiff asks
for monetary damages in the amount of three million dollars.
No matter how liberally the Court construes Plaintiff’s Complaint, his claims against
Defendant Judge Boyko are barred by the doctrine of judicial immunity. “It is well-established
that judges enjoy judicial immunity from suits arising out of the performance of their judicial
functions.” Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004) (citing Pierson v. Ray, 386
U.S. 547, 553- 54 (1967)). Judicial immunity is overcome only if the actions taken are not
within the judge’s judicial capacity or if the actions, “though judicial in nature, [are] taken in the
complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted).
A review of Plaintiff’s Complaint reveals that those exceptions do not apply here. Thus, because
Judge Boyko is entitled to absolute judicial immunity, it is RECOMMENDED that Plaintiff’s
claims against Judge Boyko be dismissed.
III.
Plaintiff’s claim against the other Defendants in this action appears to relate to an alleged
failure by officials and/or employees of the Ohio Department of Rehabilitation and Correction to

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provide Plaintiff necessary medical care for bone spurs in his neck. Plaintiff names the
following people, all apparently associated with the Ohio Department of Rehabilitation and
Correction, as Defendants: Gary Croft, J. Moore, Annette Chambers, Ms. Champney, Dr. Kline,
Lt. Jamison, and Mrs. Mahlam. In the allegations in support of his claim, however, he identifies
actions by only the following three people: Dr. Lesniact, Dr. Peppers, and the institutional
inspector of p.c.i.
It is well established that “[t]he Eighth Amendment forbids prison officials from
unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference
toward [his] serious medical needs.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010)
(internal quotations omitted). To state a claim for a violation of that right under 42 U.S.C.
§ 1983, a prisoner must allege the violation and “show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The prisoner must allege that the defendant has violated the Constitution through his or her “own
individual actions.” Iqbal, 556 U.S. at 676. In addition, a prisoner may not base a claim against
a defendant upon the actions of that person’s subordinates or employees. Id. In other words, a
prisoner states a claim under § 1983 only by alleging facts showing specifically how the actions
of a specific state official or employee violated the Constitution.
Plaintiff’s Eighth Amendment claim violates Rule 8(a) of the Federal Rules of Civil
Procedure, which provides as follows:
(a)

Claim for Relief. A pleading that states a claim for relief must contain:

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(1)

a short and plain statement of the grounds for the court’s
jurisdiction, unless the court already has jurisdiction and the claim
needs no new jurisdictional support;

(2)

a short and plain statement of the claim showing that the pleader is
entitled to relief; and

(3)

a demand for the relief sought, which may include relief in the
alternative or different types of relief.

Plaintiff’s current submission is deficient because he has not alleged any action by any of the
named Defendants. The undersigned cannot, therefore, discern the factual basis for his Eighth
Amendment claim as it pertains to any of the people he has named. Unless Plaintiff supplements
the allegations in his Complaint by identifying the specific events that gave rise to his claim and
the specific involvement of each Defendant in those events, the undersigned will recommend the
dismissal of his claim against Defendants Croft, Moore, Chambers, Champney, Kline, Jamison,
and Mahlam.
Plaintiff is ORDERED to correct the foregoing deficiencies ON OR BEFORE May 23,
2018. To comply with this order, Plaintiff must submit an amended complaint that complies
with Rule 8(a)’s requirements, as set forth above. The undersigned cautions Plaintiff that failure
to timely comply with this Order will result in a recommendation of dismissal.
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

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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
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).
Plaintiff is further specifically advised that the portion of this document that constitutes
the Report and Recommendation is just that part that recommends the dismissal of his claim
against Judge Boyko. Accordingly, only his objections to that portion of this document are due
within fourteen days of the date of this Order and Report and Recommendation.

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

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