Underwood v. Montgomery County, Ohio et al

Filing 3

REPORT AND RECOMMENDATIONS; ORDER TO THE CLERK - It is accordingly recommended that the Complaint, insofar as it alleges individual liability of the Sheriff, be dismissed without prejudice for failure to state a claim upon which relief can be granted . The Clerk shall not issue process as to the Sheriff in his individual capacity without further order of the Court. The balance of the Complaint does appear to state claims for relief against the named but unknown corrections officers and against Mo ntgomery County. Accordingly, when the plaintiff presents properly prepared process directed to Montgomery County, the Clerk shall issue the same. Since the Plaintiff was granted leave to proceed in forma pauperis, the Marshal shall serve such proces s if presented with a properly prepared Marshal's service form. Once Montgomery Countyhas been served, Plaintiff will be in a position to obtain the names of the John and Jane Doe Defendants and amend the Complaint to name them. Objections to R&R due by 3/23/2009. Signed by Magistrate Judge Michael R Merz on 3/5/2009. (kopf1, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON
KALA UNDERWOOD, Plaintiff, -vs: MONTGOMERY COUNTY, OHIO, et al., Defendants. : Case No. 3:09-cv-083 District Judge Thomas M. Rose Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS; ORDER TO THE CLERK

This action is before the Court for review prior to issuance of process. Plaintiff was granted leave to proceed in forma pauperis under 28 U.S.C. §1915. 28 U.S.C. §1915(e)(2), as amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April 26, 1996)(the "PLRA"), reads as follows:

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 (A) the allegation of poverty is untrue; or (B) the action or appeal -(i) is frivolous or malicious; (ii) fails to state a claim upon which relief can be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989).
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In deciding whether a complaint

is "frivolous," that is, the Court does not consider whether a plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong. Rather the test is an objective one: does the complaint have an arguable basis in law or fact? It is appropriate for a court to consider this question sua sponte prior to issuance of process "so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton, 504 U.S. 25, 112 S. Ct. 1728, 118 L. Ed. 2d at 349. Dismissal is permitted under §1915(e) only "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985). §1915(e)(2) does not apply to the complaint of a non-prisoner litigant who does not seek in forma pauperis status. Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999). Filing an in forma pauperis application tolls the statute of limitations. Powell v. Jacor Communications Corporate, 320 F.3d 599 (6th Cir. 2003)(diversity cases); Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)(federal question cases). The Complaint alleges that on February 27, 2008, Plaintiff was physically assaulted without cause while being booked into the Montgomery County Jail. The Complaint does not state a claim for relief in hisn individual capacity against the person who was Sheriff on February 27, 2008, because it does not allege any action by the Sheriff in Plaintiff's case. It is accordingly

recommended that the Complaint, insofar as it alleges individual liability of the Sheriff, be dismissed without prejudice for failure to state a claim upon which relief can be granted. The Clerk shall not issue process as to the Sheriff in his individual capacity without further order of the Court.
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The balance of the Complaint does appear to state claims for relief against the named but unknown corrections officers and against Montgomery County.1 Accordingly, when the Plaintiff presents properly prepared process directed to Montgomery County, the Clerk shall issue the same. Since the Plaintiff was granted leave to proceed in forma pauperis, the Marshal shall serve such process if presented with a properly prepared Marshal's service form. Once Montgomery County has been served, Plaintiff will be in a position to obtain the names of the John and Jane Doe Defendants and amend the Complaint to name them. March 5, 2009.
s/ Michael R. Merz United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).

The Magistrate Judge has some question about ¶ 17 because it alleges false arrest and imprisonment in the act of placing Plaintiff in a police cruiser, but corrections officers are not ordinarily involved in patrol and arrest with cruisers.
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