Hartzell v. Miami County Incarceration Facility
DECISION AND ENTRY: (1) DENYING WITHOUT PREJUDICE PRO SE PLAINTIFFS MOTION FOR AN ORDER DIRECTING DEFENDANTS TO PROVIDE INFORMATION; (2) GRANTING PRO SE PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT ON OR BEFORE JULY 7, 2017; AND (3) DENYING PRO SE PLAINTIFFS REQUEST FOR THE APPOINTMENT OF COUNSEL. Signed by Magistrate Judge Michael J. Newman on 6/15/2017. (dm)(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
WESTERN DIVISION AT DAYTON
KENNETH S. HARTZELL,
Case No. 3:17-cv-63
MIAMI COUNTY INCARCERATION
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
DECISION AND ENTRY: (1) DENYING WITHOUT PREJUDICE PRO SE
PLAINTIFF’S MOTION FOR AN ORDER DIRECTING DEFENDANTS TO PROVIDE
INFORMATION; (2) GRANTING PRO SE PLAINTIFF LEAVE TO FILE A SECOND
AMENDED COMPLAINT ON OR BEFORE JULY 7, 2017; AND (3) DENYING PRO SE
PLAINTIFF’S REQUEST FOR THE APPOINTMENT OF COUNSEL
This pro se civil case is before the Court for a sua sponte review of the complaint filed by
Plaintiff Kenneth S. Hartzell (“Hartzell”) pursuant to 28 U.S.C. § 1915(e)(2). Doc. 1. In
accordance with 28 U.S.C. §1915(e)(2), this Court must perform an initial review of the instant
action. McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Upon review, the
Court must dismiss any case it determines is “frivolous or malicious,” fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
While pro se pleadings are “to be liberally construed” and are “held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam), pro se plaintiffs must still satisfy basic pleading requirements. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989). Specifically, the complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Ogle v. Columbia Gas Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013). “A
claim has facial plausibility 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. (citing
Twombly, 550 U.S. at 556); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)
(applying the Iqbal and Twombly standards to a § 1915 review).
In this case, Hartzell filed a form complaint on February 23, 2017, naming the following
Defendants: the Miami County, Ohio Jail (the “Jail”); Jail kitchen staff members named Tom
_____, Larry _____, and Bruce _______; Jail medical staff members named Dr. Cole, Katie
_____, and Sue _____; and Trinity Food Services. Id. at PageID 2. A review of documents
Hartzell has filed separately since the filing of his original complaint shows that he intends to
assert claims against these Defendants under 42 U.S.C. § 1983 concerning the conditions of his
confinement at the Jail -- including, inter alia, claims concerning his medical care, nutrition, and
Hartzell’s original complaint, however, sets forth no factual
allegations in this regard and, instead, contains only requests that the Court order Defendants to
provide him with the full names and addresses of the individual Defendants (and the County
Commissioners) so that he can appropriately name them in his complaint and effectuate service
of process. See doc. 1-1 at PageID 7 (seeking the Court’s help in getting Defendants’ names and
addresses so he could “get started on a civil suit” regarding “medical” issues).
Insofar as Hartzell seeks an order directing Defendants to provide names and contact
information, the Court lacks the power to do so at this time because Defendants have not been
served. Cf. Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (stating that,
absent service of process, a district court is “powerless to issue orders affecting defendants”). As
a result, such motion is DENIED WITHOUT PREJUDICE to refile. Insofar as Hartzell, in his
original complaint, seeks to assert claims regarding his medical care, nutrition, and living
conditions at the Jail, his claims are subject to dismissal for failure to set forth specific factual
allegations stating plausible claims upon which relief may be granted. See Fed. R. Civ. P.
As noted above, on March 16, 2016, Hartzell did file a number of documents consisting
of approximately eighty (80) pages of correspondence, handwritten notes, medical records, Jail
inmate request forms, and other documents appearing to allege a lack of medical care, subpar
nutrition and living conditions at the Jail. See doc. 3. The Court liberally construes Hartzell’s
filing in this regard to be an attempt to amend his original complaint, which he is entitled to do as
a matter of course at this time. See Fed. R. Civ. P. 15(a).
However, Hartzell’s first amended complaint (doc. 3) is subject to being stricken because
it fails to comply with the requirements of Fed. R. Civ. P. 10. Specifically, Hartzell’s amended
complaint does not contain an appropriate caption and he fails to “state [his] claims . . . in
numbered paragraphs, each limited as far as practicable to a single set of circumstances.” See
Fed. R. Civ. P. 10(a) and (b). In addition, Hartzell, in his amended complaint, does not set forth
“a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.
R. Civ. P. 8 (emphasis added); see also Gurman v. Metro Hous. and Redevelopment Auth., 842
F.Supp.2d 1151, 1152-53 (D. Minn. 2011) (holding that Rule 8 prohibits a pleading party from
“cough[ing] up an unsightly hairball of factual and legal allegations, stepp[ing] to the side, and
invit[ing] the defendants and the Court to pick through the mess and determine if plaintiffs may
have pleaded a viable claim or two”).
Recognizing Plaintiff’s pro se status, and in lieu of recommending dismissal of this case
at this time, the undersigned GRANTS Hartzell leave to file a second amended complaint on or
before July 7, 2017. In so doing, Hartzell should remain cognizant of the pleading requirements
noted above -- such as setting forth a short plain statement of the claims in numbered paragraphs,
and supporting each claim with specific factual allegations.
The Court also notes that, in Hartzell’s correspondence, he appears to request the
appointment of counsel.
While courts may appoint counsel in civil cases, see 28 U.S.C.
§ 1915(e)(1), the Court has no funding for such counsel and cannot compel counsel to serve
without compensation. Mallard v. U.S. Dist. Court, 490 U.S. 296, 308-09 (1989); Lavado v.
Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993).
Therefore, Hartzell’s request for the
appointment of counsel is DENIED WITHOUT PREJUDICE. The Court will reconsider
Plaintiff’s motion if and when this case proceeds to trial. In the meantime, the Court encourages
Hartzell to contact the Greater Dayton Volunteer Lawyers Project (“VLP”) by visiting gdvlp.org
or calling (937) 461-3857.
Finally, understanding that Hartzell is proceeding pro se in this case, the Court, in the
interests of justice, NOTIFIES him of the following:
Parties are not permitted to have ex-parte communications with the Court.
This means that you cannot communicate with the Court about the merits of
your case, orally or in writing, without the other party’s participation.
You must tell the Court and the other party’s attorney, in writing, of changes
to your address and/or telephone number.
Because pro se litigants do not have access to the Court’s electronic filing
system, they are required to mail a copy of anything they file with the Court
to the other party’s attorney and enclose a signed Certificate of Service.
This requirement can be avoided if: (1) the pro se litigant personally brings
the filing to the Clerk of Court’s office for filing; (2) the attorney(s) for the
other party agree to receive service solely through the Court’s CM/ECF
filing system; and (3) the Certificate of Service in the pro se litigant’s filing
states that service will be made solely through the Court’s CM/ECF filing
system and counsel for the opposing party has so consented.
Pro se litigants are encouraged to read the Court’s Guide for Pro Se Civil
Litigants, which can be found at http://www.ohsd.uscourts.gov/pro-sehandbook.
IT IS SO ORDERED.
June 15, 2017
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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