IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Donald Ray Lewis, Jr.,

Plaintiff

 v.

Warden, Chillicothe Correctional

Institution, et al.,

Defendants

:

:

:

:

:

:

Civil Action 2:12-cv-0573

Judge Smith

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff Donald Ray Lewis, Jr., an inmate at Chillicothe Correctional Institution,

brings this prisoner civil rights action under 42 U.S.C. §1983 alleging that defendants

have denied him proper treatment for his cancer. This matter is before the Magistrate

Judge for a Report and Recommendation on initial screening of the complaint pursuant

to 28 U.S.C. §1915A(a) and (b)1

 and 42 U.S.C. §1997e(c) to identify cognizable claims,

1

The full text of §1915A reads:

(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or

employee of a governmental entity.

(b) Grounds for Dismissal.--On review the court shall

identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint--

Case: 2:12-cv-00573-GCS-MRA Doc #: 2 Filed: 06/28/12 Page: 1 of 4 PAGEID #: <pageID>
and to dismiss the 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. The Magistrate Judge finds that the

complaint fails to state a claim upon which relief may be granted and therefore

RECOMMENDS dismissal of the complaint.

The complaint alleges, in full: "On several occasions as the Plaintiff will be able to

demonstrate, the medical staff here at the Chillicothe Correctional Institution has been

ineffective in proceeding with medical treatment for the cancer that Plaintiff has and

has shown deliberate indifference to Plaintiff’s medical needs." 

Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley

v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.

Pardus, 551 U.S. 89, 93127 S.Ct. 2197 (2007):

. . . Rule 8(a)(2) requires only "a short and plain statement of the claim

showing that the pleader is entitled to relief." Specific facts showing that

the pleader is entitled to relief are not necessary; the statement need only

"'give the defendant fair notice of what the . . . claim is and the grounds

(1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who

is immune from such relief.

(c) Definition.--As used in this section, the term

"prisoner" means any person incarcerated or detained in any

facility who is accused of, convicted of, sentence for, or

adjudicated delinquent for, violations of criminal law or

terms and conditions of parole, probation, pretrial release, or

diversionary program.

2

Case: 2:12-cv-00573-GCS-MRA Doc #: 2 Filed: 06/28/12 Page: 2 of 4 PAGEID #: <pageID>
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. , , 127

S.Ct. 1955, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Moreover, pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. at

94; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).

Here the complaint fails to give any defendant notice of what he or she did to

subject plaintiff Lewis to cruel and unusual punishment. It does not allege the date(s)

they engaged in actionable conduct. Simply put, the complaint fails to give defendants

fair notice of the grounds upon which plaintiff’s claims rest. 

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

for failure to state a claim under 42 U.S.C. §1983.

IT IS FURTHER ORDERED that the United States Marshal serve upon each

defendant named in part III, B and C of the form civil rights complaint a summons, a

copy of the complaint, and a copy of this Order. Defendants are not required to answer

the complaint unless later ordered to do so by the Court.

The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney

General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,

OH 43215.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

3

Case: 2:12-cv-00573-GCS-MRA Doc #: 2 Filed: 06/28/12 Page: 3 of 4 PAGEID #: <pageID>
Civ. P. 72(b).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge

4

Case: 2:12-cv-00573-GCS-MRA Doc #: 2 Filed: 06/28/12 Page: 4 of 4 PAGEID #: <pageID>