Brown v. Venable et al

Filing 4

ORDER and REPORT AND RECOMMENDATION: Plaintiff's 1 Motion for Leave to Proceed in forma pauperis is GRANTED. It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that jud icial officers who render services in this action shall do so as if the costs had been prepaid. Plaintiff's 3 Motion to Appoint Counsel is DENIED WITHOUT PREJUDICE to re-filing at a later stage of this case. It is RECOMMENDED that Plaintiff be permitted to proceed on his excessive force claim against Defendant Venable and that to the extent he intends to assert claims against the other five named individuals, that those claims be DISMISSED. Objections to R&R due by 6/25/2018. Signed by Magistrate Judge Chelsey M. Vascura on 6/11/2018. (kpt)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

IZELL BROWN, JR.,
Plaintiff,
Civil Action 2:18-cv-569
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.
FRANCIS T. VENABLE, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Izell Brown, Jr., a state inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against Captain Francis T.
Venable (“Defendant Venable”), alleging that Captain Venable subjected him to excessive force
in violation of the Eighth Amendment. Although Plaintiff names other individuals in the caption
of his Complaint, he writes “witness” next to these individuals’ names. 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 (1)
permit Plaintiff to proceed on his excessive for claim against Defendant Venable, and (2) to the
extent Plaintiff intends to name other individuals as defendants rather than witnesses, DISMISS

any claims against those individuals 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
$108.87 in his prison account as of April 26, 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 A730164) at Madison Correctional Institution (“MCI”) 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.
2

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.
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) 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

3

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
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than
4

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.
According to the Complaint, on April 9, 2018, Defendant Venable noticed that Plaintiff
required medical intervention and escorted him to an exam room. While escorting him,
Defendant Venable “began to provoke” Plaintiff, which caused him to fear for his safety.
(Compl. 5, ECF No. 1-1.) Upon arrival in the examination room, Plaintiff refused to obey
Defendant Venable’s command to sit down. In response, Defendant Venable punched Plaintiff
on his face, causing severe swelling to Plaintiff’s right eye. The undersigned RECOMMENDS
that Plaintiff be permitted to proceed on his excessive for claims against Defendant Venable.
It appears that Plaintiff does not intend to assert claims against the other five individuals
he lists in the caption of his Complaint. Next to each of these remaining defendants’ names,
Plaintiff wrote “witness.” Moreover, the allegations in Plaintiff’s Complaint fail to show how
any of these individuals’ actions violated the Constitution or any federal statute. Plaintiff’s
allegations relating to each of the five other individual defendants are summarized below:


Defendant Dr. Neufeld: Plaintiff alleges that Dr. Neufeld examined him after the
incident and concluded that his facial injury was consistent with a punch.



Defendant A. Camara: Plaintiff alleges that Defendant A. Camara was the officer
assigned to his mental health watch at the prison.



Defendant C. Hahn: Plaintiff alleges that Defendant corrections officer Hahn told him
after the incident that others knew what Defendant Venable did, but that they did not
want to get involved.



Defendant Nurse Trentmen: Plaintiff alleges that after the incident, Defendant Nurse
Trentmen took photographs of his injury.
5



Defendant Nurse Carter: Plaintiff alleges that Defendant Nurse Carter told him the day
after the incident that she knows incidents like what happened to Plaintiff happen and that
these incidents were going to continue to occur if Plaintiff put himself in those situations.
To the extent Plaintiff intended to name these five individuals as Defendants, he fails to

state plausible claims for relief against them. In order to plead a cause of action under § 1983, a
plaintiff must plead two elements: “(1) deprivation of a right secured by the Constitution or laws
of the United States (2) caused by a person acting under color of state law.” Hunt v. Sycamore
Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher
Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006)). To sufficiently plead the second element, a
plaintiff must allege “personal involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir.
2008) (citation omitted). This is because Ҥ 1983 liability cannot be imposed under a theory of
respondeat superior.” Id. (citation omitted). Thus, to hold a supervisor liable under § 1983, a
plaintiff “must show that the official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct . . . .” Everson v. Leis, 556 F.3d 484, 495 (6th Cir.
2009). Here, Plaintiff’s Complaint provides insufficient factual content or context from which
the Court could reasonably infer that Defendants Neufeld, Camara, Hahn, Trentman, or Carter
were personally involved in any violation of Plaintiff’s rights. In addition, the Court is unable to
discern what actions these defendants took that could suffice to form the basis of a plausible
claim under § 1983. For these reasons, to the extent Plaintiff intends to assert claims against
Defendants Neufeld, Camara, Hahn, Trentman, or Carter, it is RECOMMENDED that the
Court DISMISS those claims pursuant to § 1915(e)(2).
Finally, Plaintiff’s Motion for Appointment of Counsel (ECF No. 1-5) is DENIED
WITHOUT PREJUDICE to re-filing at a later stage of this case. Although this Court has the
statutory authority under 28 U.S.C. § 1915(e) to appoint counsel in a civil case, appointment of
6

counsel is not a constitutional right. Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993)
(citation omitted). Rather, “[i]t is a privilege that is justified only by exceptional circumstances.”
Id. at 606. The Court has evaluated the factors used to assess whether such circumstances exist
in this case and has determined that appointment of counsel is not warranted at this juncture.
III.
For the reasons set forth above, Plaintiff motion for leave to proceed in forma pauperis
under 28 U.S.C. § 1915(a)(1) and (2) (ECF No. 1) is GRANTED, and his Motion for
Appointment of Counsel (ECF No. 1-5) is DENIED WITHOUT PREJUDICE to re-filing at a
later stage of this case. In addition, it is RECOMMENDED that Plaintiff be permitted to
proceed on his excessive force claim against Defendant Venable and that to the extent he intends
to assert claims against the other five named individuals, that those claims be DISMISSED for
failure to state a claim pursuant to pursuant to § 1915(e)(2).
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
7

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).
IT IS SO ORDERED.

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

8