UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILLIAM E. MARTIN 

 Plaintiff, 

 Civil Action 2:17-cv-1145 

 v. Judge George C. Smith 

 Magistrate Judge Elizabeth P. Deavers 

JOHN R. KASICH, et al. 

 

 Defendants. 

 

ORDER and 

INITIAL SCREEN REPORT AND RECOMMENDATION 

 Plaintiff, a state inmate under the supervision of the Ohio Department of Rehabilitation 

and Correction, brings this prisoner civil rights action under 42 U.S.C. § 1983. (ECF No. 1.) 

Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who render 

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This 

matter is before the Court sua sponte for an initial screen of Plaintiff’s Complaint as required by 

28 U.S.C. § 1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s 

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. 28 U.S.C. § 1915A(b). 

 The Undersigned finds that Plaintiff’s claims are not cognizable under 42 U.S.C. § 1983 

and therefore RECOMMENDS that the Court DISMISS his Complaint. 

I.
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 According to the Complaint, Defendants transported Plaintiff off-site in order to undergo 

a medical procedure. (ECF No. 1-1 at 5.) Plaintiff states that, while he was away, another 

prisoner stole his property, which Defendants allegedly failed to properly protect. (Id.) 

According to Plaintiff, Defendants variously allowed the other prisoner to steal Plaintiff’s 

property, destroyed Plaintiff’s property, and failed to respond to Plaintiff’s grievances. (Id. at 5-

8.) 

II.

 Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to 

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490 

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the 

statute, which provides in pertinent part: 

(2) 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-- 

* * * 

 (B) the action or appeal-- 

 (i) is frivolous or malicious; 

 (ii) fails to state a claim on which relief may be granted; or . . . . 

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or 

upon determination that the action fails to state a claim upon which relief may be granted. 

                                                            

1

Formerly 28 U.S.C. § 1915(d). 
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 To properly state a claim upon which relief may be granted, a plaintiff must satisfy the 

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also 

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule 

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual 

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 

727 F.3d 502, 503 (6th Cir. 2013). 

 Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a] 

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause 

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked 

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). 

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a 

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on 

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on 

a host of considerations, including common sense and the strength of competing explanations for 

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court 

holds pro se ain complaints “‘to less stringent standards than formal pleadings drafted by 

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th 

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient 
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treatment, however, has limits; “‘courts should not have to guess at the nature of the claim 

asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. 

Brown, 891 F.2d 591, 594 (6th Cir. 1989)). 

III. 

 Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which 

provides as follows: 

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an 

action at law, suit in equity, or other proper proceedings for redress. 

 

In order to proceed under Section 1983, a plaintiff must prove both that (1) the perpetrator acted 

under color of state law; and (2) the conduct deprived the complainant of rights, privileges, or 

immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 

527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev’d and remanded sub 

nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under 

§ 1983 must allege that the deprivation of his rights was intentional or at least the result of gross 

negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not actionable 

under § 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987). 

A. Claims against Defendants in their Official Capacities 

 As a preliminary matter, § 1983 does not permit Plaintiff to bring his claim for money 

damages against Defendants in their official capacities. Section 1983 imposes liability only upon 

a “person” who, under color of law, subjects another person to a deprivation of federal rights. 42 

U.S.C. § 1983. In suits for damages, state officials acting in their official capacity are not 

“persons” under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). 
5 

Plaintiff’s § 1983 claims against Defendants in their official capacities, therefore, are not 

cognizable. See Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding that § 1983 

claims against agents of the state in their official capacity are not cognizable). 

B. Defendants’ Immunity from State Law Claims

 Plaintiff’s complaint sounds in tort. See Nickell v. Gonzalez, 17 Ohio St. 3d 136, 139, 

477 N.E.2d 1145 (Ohio 1985) (setting out the elements of “[t]he tort of lack of informed 

consent”). With respect to a state law tort claim, a federal court sits as a court of the forum state 

and is bound to apply its substantive law. Guaranty Trust Co. v. York, 326 U.S. 99, 108–09 

(1945). The Sixth Circuit has recognized “Ohio law requires that, prior to asserting a claim 

against a state employee in his individual capacity, the Court of Claims must first determine that 

the employee is not entitled to the immunity provided for in Ohio Revised Code § 9.86.” Haynes 

v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989). The Ohio Court of Claims has made no such 

determination in this matter. This Court, therefore, is not in a position to determine whether 

Defendants are immune from Plaintiff’s state law tort claim. Until the Ohio Court of Claims 

determines that they are not immune, then, Plaintiff’s claims are not cognizable in this Court. 

Prior to the Court of Claims’ determination, there is no claim under Ohio law upon which relief 

can be granted against Defendants in their individual capacity. The only cognizable claim, at 

least initially, lies against the State of Ohio in the Court of Claims. Id. (citing Ohio Rev. Code 

Ann. § 2743.02(F)). Accordingly, the Undersigned finds that Plaintiff’s state law tort claim is 

not properly before this Court and will not be until such time as a cause of action against 

Defendants is recognized under Ohio law. 

 
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IV. 

 For the reasons explained above, the Undersigned RECOMMENDS that Plaintiff’s 

claims in this matter be DISMISSED. 

PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, it 

may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

 The Clerk is DIRECTED to forward a copy of this Order and Report and 
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Recommendation to the Attorney General's Office, Criminal Justice Section, Corrections 

Litigation Unit, 150 East Gay Street, Columbus, OH 43215. 

 IT IS SO ORDERED. 

 

Date: January 9, 2018 /s/ Elizabeth A. Preston Deavers 

 ELIZABETH A. PRESTON DEAVERS 

 UNITED STATES MAGISTRATE JUDGE