Barnes v. Ayers

Filing 4

ORDER and REPORT AND RECOMMENDATION re #3 Complaint filed by Lenel W Barnes. It is RECOMMENDED that the Court DISMISS this action pursuant to 1915(e)(2) for failure to state a claim on which relief may be granted. In addition, Plaintiff's motion to proceed in forma pauperis (ECF No. #1 ) is GRANTED. Objections to R&R due by 1/21/2021. Signed by Magistrate Judge Chelsey M. Vascura on 1/7/2021. (daf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LENEL W. BARNES,
Plaintiff,
Civil Action 2:21-cv-5
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

v.

DR. A. AYERS, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Lenel W. Barnes, an Ohio inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendant, Dr. Ayers,
alleging that Dr. Ayers’ refusal to test him for the COVID-19 virus has prevented him from
transferring to another institution. 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.

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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), which is GRANTED. (ECF
No. 1.) Plaintiff is required to pay the full amount of the Court’s $402 filing fee. 28 U.S.C. §
1915(b)(1). Plaintiff’s certified trust fund statement reveals that he cannot pay the filing fee
because he currently possesses only $152.84 in his prison account.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at
Correctional Reception Center (“CRC”) 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 $402.00 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
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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—
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*

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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. 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
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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
(1972).
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II.
According to his Complaint, Plaintiff was incarcerated at CRC on October 14, 2020.
Plaintiff alleges that he was last tested for the COVID-19 virus on November 20, 2020.
Notwithstanding his complaints, CRC physician Dr. Ayers has refused to order an updated test,
which Plaintiff asserts has prevented him from transferring to another corrections facility. In
terms of relief, Plaintiff seeks monetary damages from Dr. Ayers and an order suspending Dr.
Ayers’ medical license. The undersigned construes Plaintiff’s Complaint as seeking to advance
an Eighth Amendment medical indifference claim.
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). A claim for deliberate indifference “has both objective and
subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The
United States Court of Appeals for the Sixth Circuit has explained:
The objective component mandates a sufficiently serious medical need.
[Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004).] The
subjective component regards prison officials’ state of mind. Id. Deliberate
indifference “entails something more than mere negligence, but can be satisfied
by something less than acts or omissions for the very purpose of causing harm or
with knowledge that harm will result.” Id. at 895–96 (internal quotation marks
and citations omitted). The prison official must “be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 896 (internal quotation marks and citation
omitted).
Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011); see also Jones, 625 F.3d at 941
(“[T]he prison official must have acted with a state of mind similar to recklessness. Thus, to
prove the required level of culpability, a plaintiff must show that the official: (1) subjectively
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knew of a risk to the inmate’s health, (2) drew the inference that a substantial risk of harm to the
inmate existed, and (3) consciously disregarded that risk.” (citations omitted)).
The Sixth Circuit has also noted that in the context of deliberate indifference claims:
“[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
Cir. 1976). Where a prisoner alleges only that the medical care he received was
inadequate, “federal courts are generally reluctant to second guess medical
judgments.” Id. However, it is possible for medical treatment to be “so woefully
inadequate as to amount to no treatment at all.” Id.
Alspaugh, 643 F.3d at 169. See also Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (“If
the plaintiff’s claim, however, is based on the prison’s failure to treat a condition adequately . . .
the plaintiff must place verifying medical evidence in the record to establish the detrimental
effect of the delay in medical treatment.” (internal quotation marks and citation omitted)).
Moreover, “when a prison doctor provides treatment, albeit carelessly or inefficaciously, to a
prisoner, he has not displayed a deliberate indifference to the prisoner’s needs, but merely a
degree of incompetence which does not rise to the level of a constitutional violation.” Id. at 591
(quotation marks and citation omitted).
Here, nothing in Plaintiff’s Complaint reveals that Defendant Dr. Ayers (or individuals
who Plaintiff might seek to add as defendants) were aware of facts from which they could infer
that Plaintiff faced a substantial risk of serious harm and that they consciously disregarded that
risk. Significantly, Plaintiff is not alleging that he has contracted the COVID-19 virus and is
being denied testing and treatment. Rather, his primary complaint appears to be that his transfer
to another corrections facility has been delayed. But an inmate has no constitutional right to be
incarcerated in a particular facility. See Harbin–Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005)
(“[A] prisoner has no constitutional right to remain incarcerated in a particular prison or to be
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held in a specific security classification.” (internal quotation marks and citations omitted)); cf.
See Wilkinson v. Austin, 545 U.S. 209, 222-23 (2005) (“[T]he Constitution itself does not give
rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.”).
Accordingly, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED
pursuant to § 1915(e)(2).
III.
For the reasons set forth above, 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. In addition, Plaintiff’s motion to proceed in forma pauperis is GRANTED.
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. §
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
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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

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