IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Thomas Maxwell

and Duane Gibson,

Plaintiffs

 v.

John Desmarais, et al.,

Defendants

:

:

:

:

:

Civil Action 2:12-cv-0557

Judge Sargus

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff s Thomas Maxwell and Duane Gibson, inmates at Richland Correctional

Institution, bring this prisoner civil rights action under 42 U.S.C. §1983. 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

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--

(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

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identify cognizable claims, 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 as

to defendants John Desmarais, Mona Parks, Kelly Rose, Stephanie Mayo, Trinity Floyd,

Shiela Jordan, Carla Bernard, Michele Betha, Sgt. Berkhart, Sgt White, Sgt Au,

Correctional Officer Coey, Correctional Officer Thomas, Correctional Officer Burgress,

Correctional Officer J. Phillips, and Correctional Officer Putt and therefore

RECOMMENDS that they be DISMISSED. At the initial screening stage, the

Magistrate Judge finds that the complaint states a claim against defendants RICI

Warden Bradshaw, RICI Major Mapp, Dr. Fannon and Dr. Granson. Further, the

Magistrate Judge HOLDS that plaintiffs Thomas Maxwell and Duane Gibson have

improperly joined their claims and, therefore, ORDERS that the Clerk of Court create

two separate case files. Civil Action No. 2:12-cv-0557 shall continue as plaintiff Thomas

Maxwell's claims against defendants, and the Clerk of Court shall create a second case

file for the claims of plaintiff Duane Gibson.

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.

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The allegations in the complaint regarding the claims of plaintiffs Maxwell and

Gibson will be summarized separately below. The complaint asserts claims against the

following defendants: John Desmarais, Medical Director, Ohio Department of

Rehabilitation and Correction (ODRC); Mona Parks, Assistant Chief Inspector, ODRC;

M. Bradshaw, Warden, Richland Correctional Institution (RICI); Major Mapp, RICI;

Institutional Inspector Kelly Rose, RICI; Dr. Granson, RICI; Nurse Practitioner

Stephanie Mayo, RICI; Medical Administrator Trinity Floyd, RICI; Assistant Medical

Administrator Shiela Jordan, RICI; Unit Manager Administrator Carla Bernard, RICI;

Unit Manager Michele Betha, RICI; Sgt. Berkhart, RICI; Sgt White, RICI; Sgt Au, RICI;

Correctional Officer Coey, RICI; Correctional Officer Thomas, RICI; Fannon, podiatrist,

RICI; Correctional Officer Burgress, RICI; Correctional Officer J. Phillips, RICI; and

Correctional Officer Putt, RICI.

Thomas Maxwell. The complaint alleges the following facts relating to the claims

asserted by plaintiff Maxwell. In April 2001, Correctional Officer Derek Green assaulted

Maxwell and injured his neck, shoulders, and spine. He uses a walker and is going

blind. Complaint, ¶¶ 32-40, Doc. 1-2, PageID 18.

In 2008, plaintiff Maxwell filed suit in the United States District Court for the

Northern District of Ohio at Akron, Case No. 1:06-cv-926, and won a settlement. The

complaint further alleges that ". . . I have since been denied the medical help to resolve

those injuries and made to endure continued harassment by Richland Correctional

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Institution staff personnel who refused to accommodate my medical needs." Id., ¶¶ 45

and 46.

Defendants Desmarais, Floyd, Jordan, Granson and Mayo knew that Maxwell

needed to be transported in a wheelchair to the Columbus Medical Center but they

insisted that he be transported there on an unspecified date(s) by a regular prison bus

that did not accommodate a wheelchair. Maxwell is unable to walk on the bus steps

because he has a walker and drags his foot as a residual of a 2008 stroke. Id., ¶ 47.

In or about July 2011, defendants Bradshaw, Bernard and Mapp implemented

new yard rules, Complaint, Exh. B, Doc. 1-4, PageID 32-34, that discriminated against

prisoners with a disability because it prohibited them from participating in programs in

the conversation pits at the south end of the yard between 8:00 a.m. and 3:30 p.m. The

complaint alleges that this rule effectively prevented Maxwell from using the yard

during those hours because he is unable to walk up the hill to the only other area

available for recreation. He requested an accommodation, Id., Exh. C, PageID 35, but

defendants Bradshaw, Floyd, Jordan, Granson and Mayo denied the request. Id., PageID

36; Complaint, ¶¶ 48-50, Doc. 1-2, PageID 20. Sheila Jordan's response to Maxwell's

request for accommodation states that Major Mapp said that prisoners are not allowed

in the conversation pits until after the 4:00 p.m. count had cleared. Dr. Granson said that

Maxwell was able to "continue to go to go to rec where it is presently held." Complaint,

Doc. 1-6, Exh. D, PageId 36. 

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Sometime after March 30, 2012, defendant Berkhart retaliated against Maxwell

for filing grievances by forcing him to sign a statement retracting his earlier complaint

that his cell mate had assaulted him. Major Mapp was aware that Maxwell had issues

with staff but failed to stop them from harassing and retaliating against him.

Complaint, ¶¶ 51 and 52, PageID 20. 

On unspecified dates after November 2008, defendants Desmarais, Parks,

Bradshaw, Mapp, Rose, Granson, Mayo, Floyd, Jordan, Bernard, Betha, Berkhart, 

White, Au, Coey, Thomas, Burgess, Phillips, and Putt have harassed Maxwel in

retaliation for his having won a lawsuit against unidentified defendants. Id., ¶¶ 54-60.

Plaintiff Duane Gibson. Gibson has callouses, hammer toes, and neuropathy in

his feet. In 2000, he had two major surgeries on his feet. In November and December

2009, Dr. Khandekar, a podiatrist, wrote a prescription for orthopedic corrective

walking boots to relieve pain when he is walking. Gibson was also given a medical diet.

Id., ¶¶ 41-44 and 61, PageID 19 and 22. 

On an unspecified date, Dr. Fannon, also a podiatrist, told Gibson there was

nothing wrong with his feet. Gibson responded that his feet are in constant pain and

that when he walks he builds up callouses on his feet. He asked Dr. Fannon to trim his

callouses, but he told Gibson that his feet were just fine and that he needed to go play

basketball. Id., ¶¶ 63-64. Fannon knew about Gibson's two major surgeries on both his

feet. For the first 10 years Gibson was in prison, he saw a podiatrist every 60-90 days,

but the last time he saw Dr. Fannon was October 1, 2010. Then Fannon refused to write

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a follow up order for 60 days. Gibson has not had his callouses trimmed on the bottom

of his feet since October 1, 2010. Every time he takes a step, Gibson's deformed big toes

rub against his second toes, "causing severe pain and calluses that hurt really really

bad." Gibson's hammer toe and arthritis constantly hurt, and he cannot move, wiggle or

bend any of his toes. Id., ¶¶ 72-73.

In October 2010, Dr. Granson wrote a no standing order, but limited it to 90 days.

Since he has refused to rewrite the order, saying there is nothing wrong with Gibson's

feet. Id., ¶ 74. He said that policy had changed and doctors could no longer order

permanent restrictions for disabled inmates. Id., ¶ 77. Granson told Gibson that his no

standing order had expired and his bottom bunk and bottom range restrictions had also

expired. Gibson had never had any problems with Granson until he complained about

defendant Floyd's deliberate indifference to his medical treatment. Id., ¶ 78. On an

unspecified date, defendant RICI Health Administrator Trinity Floyd told the

commissary staff that Gibson no longer had a no standing in line order. Id., ¶ 76

The new prison yard rules, promulgated by defendants S. Bradshaw, Mapp, and

Bernard, prevent Gibson from getting exercise until after 6:00 p.m. (when the more

easily accessed south pits are open to inmates), because he cannot make it up the hill to

the pit/recreation area north of center light post number 7. Id., Id., ¶ 79.

On unspecified dates, defendants Desmarais, Rose, Croft and Granson violated

ODRC's dietary formulary for 9 months by substituting a cheese sandwich in his diet

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bag for graham crackers, fresh fruit and peanut butter. As a result, Gibson, who receives

the diet bag to help him maintain his weight, has lost 10 pounds. Id., ¶ 75, PageID 23.

On September 2, 2010, defendant Sheila Jordan, Assistant Health Administrator,

RICI, provided Gibson with non-orthopedic boots and told him he would have to buy

insoles at the inmate commissary. Gibson told Jordan that the Columbus Medical

Center had molds of his feet and that he needed an orthopedic boot to correct his walk

and relieve his foot pain. Jordan told Gibson that ODRC no longer made boots and that

the prison was not allowed to buy boots to fill his doctor's order. Id., ¶¶ 65-69.

On unspecified dates, Gibson "issue[d] numerous informal complaint resolution

notification of grievance[s] upon the DEFENDANT MR. ROSE as well as appeal.

DEFENDANT FLOYD fail[ed] to act, instead [he] RETALIATED against the plaintiff

Gibson for filing complaints, grievances and appeals, correspondences against the

defendants for their deliberate indifferent acts." Id., ¶ 70.

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

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)).

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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).

Discussion.

Eighth Amendment claims. The Eighth Amendment forbids prison officials from

“unnecessarily and wantonly inflicting pain” on an inmate by acting with “deliberate

indifference” toward the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,

104 (1976). To demonstrate an Eighth Amendment deprivation, a prisoner must show

that a prison official acted with deliberate indifference to his serious medical needs. 

There is both an objective and a subjective component to a cruel and unusual

punishment claim. Scott v. Ambani, 577 F.3d 642, 648 (6th Cir. 2009). The objective

component requires a plaintiff to demonstrate that the medical need was “serious.” Id.

A serious medical need is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). To

meet the subjective component, a complaint must plead “facts which show that the

prison official had a ‘sufficiently culpable state of mind.’ [Brennan v.] Farmer, 511 U.S.

[825], 834 [(1994)]; Comstock [v. McCrary, 273 F.3d 693], 834 [(6th Cir. 2001).” Prison

officials are liable only if they know of and disregard “an excessive risk to inmate health

or safety; the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must draw the inference.” 

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere negligence does not constitute

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deliberate indifference. See, Estelle, 429 U.S. at 106. Further, a prisoner does not state a

claim merely by pleading that he disagrees with the diagnosis or treatment. Estelle, 429

U.S. at 107-08; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).

Nonetheless, prison officials may not entirely insulate themselves from liability

under § 1983 simply by providing some measure of treatment. Deliberate indifference

may be established in cases where it can be shown that a defendant rendered “grossly

inadequate care” or made a “decision to take an easier but less efficacious course of

treatment.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th

Cir.2002)(quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)); see also Chance

v. Armstrong, 143 F.3d 698, 704 (2d Cir. 1998). A complaint states a claim when it alleges

that “prison authorities have denied reasonable requests for medical treatment in the

face of an obvious need for such attention where the inmate is thereby exposed to

undue suffering or the threat of tangible residual injury.” Westlake, 537 F.2d at 860; Scott

v. Ambani, 577 F.3d at 648. 

Maxwell's Eighth Amendment claims. The complaint alleges that defendants

Desmarais, Floyd, Jordan, Granson and Mayo knew that Maxwell needed to be

transported in a wheelchair to the Columbus Medical Center but insisted he take a

regular prison bus that did not accommodate a wheelchair. The complaint fails to give

defendants adequate notice of the claim. First, it does not allege the date or approximate

date defendants engaged in actionable conduct. Second, it does not indicate what harm,

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if any, plaintiff suffered as a result of that actionable conduct. Consequently, the

complaint fails to state a claim against these defendants regarding this incident.

The complaint alleges that on unspecified dates defendants Granson, Mayo,

Floyd and Jordan refused to give Maxwell pain medication or medical devices to

address his pain. Complaint, ¶ 58. However, the complaint fails to give the defendants

fair notice of when they engaged in actionable conduct and exactly what they did to

subject plaintiff to cruel and unusual punishment. Consequently, it fails to state a claim

against them as to these allegations.

Plaintiff Gibson's Eighth Amendment claims. At the initial screening stage, the

complaint's allegations that Dr. Fannon failed to provide Gibson with medical treatment

for severe foot pain states an Eighth Amendment claim against him. Complaint, ¶¶ 63-

63 and 72-73. Similarly, at this stage of the proceedings, the complaint states a claim

against Dr. Granson that he intentionally subjected Maxwell to cruel and unusual

punishment by ignoring his foot impairments and refusing to renew his no standing in

line order, bottom bunk restriction, and bottom range restriction. Complaint, ¶¶ 74, 75,

77 and 78. The complaint does not state a claim against defendant Health Care

Administrator Trinity Floyd for telling the commissary staff that Maxwell no longer had

a no standing in line order, id., Complaint, ¶ 76, because the doctor, not the Health Care

Administrator was responsible for deciding whether to give him the order.

The allegations in the complaint that defendants Desmarais, Rose, Croft and

Granson violated ODRC's dietary formulary for 9 months by substituting a cheese

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sandwich in his diet bag for graham crackers, fresh fruit and peanut butter, Complaint,

¶ 75, PageID 23, fails to give them fair notice of the claims against them. Consequently,

the complaint fails to state a claim for relief against them as to these allegations.

The allegations that defendant Assistant Health Administrator Sheila Jordan

provided Gibson with non-orthopedic boots does not state a claim that she subjected

him to cruel and unusual punishment, Complaint, ¶ 65-60, because the decision about

whether he needs orthopedic corrective boots is made by the prison doctors, not its

health administrators. The complaint does not allege any facts that, if proved, would

demonstrate that Jordan is responsible for denying Gibson orthopedic corrective boots.

No current treator at RICI has prescribed corrective orthopedic boots. The disposition of

Gibson's February 5, 2010 grievance regarding the corrective orthopedic boots states

that he had a December 2009 order for orthopedic foot molds and orthopedic walking

boots. The grievance was dismissed both as untimely and as duplicating a previous

grievance. Complaint, Exhs. 5 and 6, PageId 46-47. The Chief Inspector's decision stated

that x-rays and other medical evidence indicated that the only documented problems

with Gibson's feet was October 2000 bunion surgery on both feet. He was last seen at an

orthotic clinic in 2002. The Chief Inspector concluded that there was no medical

necessity for corrective orthopedic boots. Id. Gibson was issued orthotic inserts in

February 2007. Id., Exh. 7, PageID 48. With no current, valid doctor's order, Ms. Jordan

was under no constitutional obligation to purchase corrective orthopedic boots for

Gibson. I further note that the cause of action would appear to be barred by the two

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year statute of limitations for claims under 42 U.S.C. § 1983. Cooey v. Strickland, 479 F.3d

412, 416 (6th Cir. 2007); Banks v. City of Whitehall, 344 F.3d 550, 553-54 (6th Cir. 2003).

Disability claims. Plaintiffs Maxwell and Gibson both maintain that a July 2011

decision to close the south pits in the prison yard between 8:00 a.m. and 3:30 p.m.

discriminated against them because of their disabilities. At the initial screening stage,

the complaint states a violation of the Americans with Disabilities Act as to defendants

Warden Bradshaw and Major Mapp. The complaint does not explain Unit Manager

Bernard's involvement in the decision. The response to the ADA grievance attached to

the complaint does indicate that Major Mapp is the person who enforced the new rule

and the Warden made the final decision to deny the ADA grievance. But nowhere is

there an indication that the Unit Manager was involved in making or enforcing the new

rule; consequently, the complaint does not state a claim for relief against defendant

Bernard.

The complaint alleges that on an unspecified date defendants Rose and Berkhart

denied Maxwell the ability to exercise in a safe area with a medicine ball. Complaint, ¶

59, PageID 21. The complaint fails to give these defendants fair notice of the claims

against them because it does not plead when they engaged in the actionable conduct.

Retaliation. There are three elements a plaintiff must prove to establish a claim of

retaliation: 

(1) the plaintiff engaged in protected conduct; (2) an adverse

action was taken against the plaintiff that would deter a

person of ordinary firmness from continuing to engage in

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that conduct; and (3) there is a causal connection between

events (1) and (2)--that is, the adverse action was motivated

at least in part by the plaintiff’s protected conduct. 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)(en banc); Thomas v. Eby, 481

F.3d 434, 440 (6th Cir. 2007). The plaintiff has an initial “burden of establishing that his

protected conduct was a motivating factor behind any harm . . . .” 175 F.3d at 399. If

plaintiff establishes that his protected conduct was a motivating factor, then the burden

of production shifts to the defendant. Id. Defendant is entitled to summary judgment if

he “can show that he would have taken the same action in the absence of the protected

activity . . . .” Id. 

Maxwell's retaliation claims. The complaint alleges that sometime after March 30,

2012 defendant Sgt. Berkhart retaliated against Maxwell by forcing him to retract his

earlier complaint that his cell mate had assaulted him. At the initial screening stage, the

complaint states a claim against defendant Sgt. Berkhart.

The complaint further alleges that on unspecified dates after November 2008,

defendants Desmarais, Parks, Bradshaw, Mapp, Rose, Granson, Mayo, Floyd, Jordan,

Bernard, Betha, Berkhart, White, Au, Coey, Thomas, Burgess, Phillips, and Putt have

harassed Maxwel in retaliation for his having won a lawsuit against unidentified

defendants. Complaint, ¶ 54, PageID 20. These allegations fail to give defendants fair

notice of the claims against them because it does not allege when the retaliatory acts

occurred. Similarly the allegation that defendants Putt, Phillips, Betha and Burkhart

twice put Maxwell in segregation in retaliation for his having filed a lawsuit, id., ¶ 56,

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PageID 21, fails to allege the dates they engaged in actionable conduct. Consequently, it

fails to give them fair notice of the claim and, thus, fails to state a claim against them.

The allegation that defendants White and Au harassed Maxwell by failing to follow a

court order that he be permitted to go to meals 15 minutes early, id., ¶ 57, fails to allege

the dates they engaged in actionable conduct. Consequently, it fails to give them fair

notice of the claim and, thus, fails to state a claim against them. Finally, the allegation

that defendants Berkhart, Betha and Thomas threatened Maxwell into signing a

document stating that he was not afraid of them and threatened him against filing a

grievance, id., Complaint, ¶ 60, fails to plead the date of the actionable conduct.

Consequently, the complaint fails to give them fair notice of the claim and must be

dismissed. 

Plaintiff Gibson's retaliation claims. The allegation that defendants Rose and

Floyd retaliated against Gibson for his filing complaints, grievances, appeals, and

correspondence about defendants' deliberately indifferent acts fails to give these

defendants fair notice of the claim because the dates they allegedly engaged in

actionable conduct and the nature of that actionable conduct is not pleaded. Complaint,

¶ 70. Consequently, the complaint fails to state a claim against them as to the allegations

in paragraph 70.

Plaintiffs’ claims against Mona Parks, Assistant Chief Inspector.

Prison officials whose only roles “involve their denial of administrative

grievances and their failure to remedy the alleged retaliatory behavior” cannot be liable

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under §1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Hays v. Jefferson County, 668 F.2d 869, 874 (6th

Cir. 1982). The only alleged involvement of Parks was to deny Maxwell’s appeal of

grievances; consequently, the complaint fails to allege a cause of action against Parks.

Accordingly, it is hereby RECOMMENDED, as set out more fully above, that

Plaintiff Maxwell’s disability claim against defendants Bradshaw and Mapp

(Complaint, ¶¶48-49) states a claim at the initial screening stage, but that his Eighth

Amendment claims, his disability claims against defendants Rose, Berkhart and

Bernard (Complaint, ¶¶ 48-49 and 59), and his retaliation claims be DISMISSED for

failure to state a claim. It is FURTHER RECOMMENDED that plaintiff Gibson’s Eighth

Amendment claims against Drs. Fannon and Granson (Complaint, ¶¶ 61-64 and 71-74)

disability claim against defendants Bradshaw and Mapp (Complaint, ¶ 79) state a claim

at the initial screening stage, but that and his Eighth Amendment claims against

defendants Desmarais, Rose and Croft regarding his diet supplement (Complaint, ¶ 75),

his orthopedic corrective boot claim against defendant Jordan (Complaint, ¶ 65-69), and

his retaliation claims be DISMISSED for failure to state a claim under 42 U.S.C. §1983.

At the initial screening stage, the complaint is sufficient to state a claim against

defendants RICI Warden Bradshaw, RICI Major Mapp, Dr. Fannon and Dr. Granson,

but not defendants John Desmarais, , Mona Parks, Kelly Rose, Stephanie Mayo, Trinity

Floyd, Shiela Jordan, Carla Bernard, Michele Betha, Sgt. Berkhart, Sgt White, Sgt Au,

Correctional Officer Coey, Correctional Officer Thomas, Correctional Officer Burgress,

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Correctional Officer J. Phillips, and Correctional Officer Putt. Accordingly, it is

RECOMMENDED that all defendants except RICI Warden Bradshaw, RICI Major

Mapp, Dr. Fannon and Dr. Granson be DISMISSED from this lawsuit.

Joinder of Plaintiffs. Rule 20(a), Federal Rules of Civil Procedure provides:

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly,

severally, or in the alternative with respect to

or arising out of the same transaction,

occurrence, or series of transactions or

occurrences; and

(B) any question of law or fact common to all

plaintiffs will arise in the action.

Here plaintiffs do not assert claims arising out of the same transaction, occurrence, or

series of occurrences and the complaint does not plead common questions of law or

fact, except to the extent that both challenge the new prison yard rule. The Eighth

Amendment claims plaintiffs Maxwell and Gibson plead against defendants arise out of

their respective individual medical conditions and the course of treatment for those

conditions. The claims are entirely separate and independent. The retaliation claims

plaintiffs plead arise out of separate incidents and do not share any common facts.

Consequently it is ORDERED that the Clerk of Court open a separate case for plaintiff

Gibson’s claims.

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Maxwell filed a motion for leave to proceed in forma pauperis, but Gibson did

not. Gibson is ORDERED to file a motion for leave to proceed in forma pauperis within

thirty (30) days of the date of this Report and Recommendation.

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.

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).

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s/Mark R. Abel 

United States Magistrate Judge

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