MacConnell v. NaphCare Inc et al

Filing 6

ORDER - IT IS THEREFORE ORDERED THAT: 1. The United States Marshal (USM) is ORDERED to make service of process in this case under Fed. R. Civ. P. 4(c)(3) upon presentation of properly completed process, copies of the Complaint, and the USM Form 285. All costs of service shall be advanced by the United States.2. Plaintiff must serve the named defendants or their attorney in the event an attorney's appearance is entered in the record with a copy of every document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date and verifying that Plaintiff mailed a true and correct copy of any document to defendants or their attorney. Any paper r eceived by a District Judge or Magistrate Judge that has not been filed with the Clerk of Court or that fails to include a certificate of service will be disregarded by the Court. 3. Plaintiff must inform the Clerk of Court promptly of any changes of address which he has during the pendency of this lawsuit. Failure to do so may result in dismissal of his case for failure to prosecute. Signed by Magistrate Judge Sharon L Ovington on 2/15/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RION T. MacCONNELL,
Plaintiff,

:
Case No. 3:13cv00034

:

vs.

:

District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

NAPHCARE INC., et al.,

:

Defendants.

:

ORDER

Plaintiff Rion T. MacConnell is currently a prisoner in the Montgomery County Jail,
serving a sentence related to a first degree misdemeanor. He brings this case pro se under 42
U.S.C. §1983 seeking damages and injunctive relief. He claims that Defendants have not
provided him with medical care and have been deliberately indifferent to his medical needs
in violation of the Eighth and Fourteenth Amendments to the Constitution.
The Court previously granted Plaintiff’s Application to Proceed in forma pauperis
under 28 U.S.C. §1915. This case is presently before the Court for a sua sponte review to
determine whether Plaintiff’s Complaint, or any portion of it, should be dismissed because it
is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a named defendant who is immune from such relief. If the Complaint
suffers from one or more of these deficiencies, it must be dismissed under 28 U.S.C.

§1915(e)(2)(B).
By enacting the original in forma pauperis statute, 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.” Denton v. Hernandez, 504 U.S. 25, 31 (1992)(quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress authorized the federal
courts to sua sponte dismiss an in forma pauperis Complaint if satisfied that it raises
frivolous or malicious claims. Denton, 504 U.S. at 31; see 28 U.S.C. §1915(e)(2)(B).
Reviewing an in forma pauperis Complaint under §1915(e)(2)(B), the Court asks
whether it raises a claim with a rational or arguable basis in fact or law; if not, it is frivolous
or malicious and subject to dismissal. See Neitzke, 490 U.S. at 328-29; see also Lawler v.
Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable legal basis
when, for example, the defendant is immune from suit or when the plaintiff claims a violation
of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no
arguable factual basis when the allegations are delusional or irrational. See Denton, 504 U.S.
at 32-33; see also Lawler, 898 F.2d at 1199.
Congress has also authorized the sua sponte dismissal of an in forma pauperis
Complaint that fails to state a claim upon which relief may be granted or that seeks monetary
relief from a defendant who is immune from such relief in this Court. 28 U.S.C.
§1915(e)(2)(B)(ii-iii). The Court’s preliminary review of Plaintiff’s pro se Complaint
assumes the truth of his allegations and construes them liberally in his favor. See Herron v.
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Harrison, 203 F.3d 410, 414 (6th Cir. 2000); see also Miller v. Currie, 50 F.3d 373, 377 (6th
Cir. 1995).
Accepting Plaintiff’s factual allegations as true and construing his pro se Complaint
liberally in his favor reveals that he raises sufficient allegations and claims to avoid sua
sponte dismissal. Plaintiff raises rational, rather than delusional, factual allegations. Cf.
Lawler, 898 F.2d at 1199 (“Examples of claims lacking rational facts are prisoner petitions
asserting that Robin Hood and his Merry Men deprived prisoners of their access to mail or
that a genie granted a warden’s wish to deny prisoners any access to legal texts.”). His
factual allegations, moreover, are sufficiently specific to raise at least an arguably plausible
claim under the Eighth Amendment. He alleges in part that one or more defendants
intentionally delayed testing and further treatment of his bleeding colon and cancer in his
gastrointestinal system. He further alleges that before his incarceration he had received
testing and treatment in the Miami Valley Hospital for these medical problems and that after
his incarceration Defendants failed to provide him with the specialized medical care he
needed or access to such medical care outside the Jail. These allegations are sufficient at this
early stage of the litigation to avoid sua sponte dismissal. “[D]eliberate indifference to
serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of
pain,’ ... proscribed by the Eighth Amendment. This is true whether the indifference is
manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed. Regardless of how evidenced, deliberate indifference to a
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prisoner’s serious illness or injury states a cause of action under § 1983.” Estelle v. Gamble,
429 U.S. 97, 104-05, 97 S.Ct. 285, 291 (1976).
Accordingly, Plaintiff’s Complaint is not subject to sua sponte dismissal under 28
U.S.C. §1915(e)(2).

IT IS THEREFORE ORDERED THAT:
1.

The United States Marshal (USM) is ORDERED to make service of process in
this case under Fed. R. Civ. P. 4(c)(3) upon presentation of properly completed
process, copies of the Complaint, and the USM Form 285. All costs of service
shall be advanced by the United States.

2.

Plaintiff must serve the named defendants – or their attorney in the event an
attorney’s appearance is entered in the record – with a copy of every document
submitted for consideration by the Court. Plaintiff shall include with the
original paper to be filed with the Clerk of Court a certificate stating the date
and verifying that Plaintiff mailed a true and correct copy of any document to
defendants or their attorney. Any paper received by a District Judge or
Magistrate Judge that has not been filed with the Clerk of Court or that fails to
include a certificate of service will be disregarded by the Court.

3.

Plaintiff must inform the Clerk of Court promptly of any changes of address
which he has during the pendency of this lawsuit. Failure to do so may result
in dismissal of his case for failure to prosecute.

February 15, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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