UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PHILLIP JAMES DISTASIO, 

 

 Plaintiff, 

 Civil Action 2:18-cv-103 

 v. Chief Judge Edmund A. Sargus, Jr. 

 Magistrate Judge Chelsey M. Vascura 

GARY C. MOHR, et al.,

 

 Defendants. 

 

ORDER and REPORT AND RECOMMENDATION

 Plaintiff, Phillip Distasio, a state inmate who is proceeding without the assistance of 

counsel, brings this action against Gary C. Mohr, the Director of the Ohio Department of 

Rehabilitation and Correction (“ODRC”), alleging that the ODRC’s refusal to provide inmates 

who are serving a life sentence with physician-assisted suicide is unconstitutional. This matter is 

before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 

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. § 

1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having 

performed the initial screen, for the reasons that follow, the undersigned RECOMMENDS that 

the Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which 

relief may be granted. 
2 

 This matter is also before the Court for consideration of Plaintiff’s motion for leave to 

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s 

motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 

28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he had the sum of 

twelve cents in his prison account as of January 22, 2018. That amount is insufficient to pay the 

full filing fee. 

 Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account 

(Inmate Number A-513817) at Toledo Correctional Institution is DIRECTED to submit to the 

Clerk of the United States District Court for the Southern District of Ohio as an initial partial 

payment, 20% of the greater of either the average monthly deposits to the inmate trust account or 

the average monthly balance in the inmate trust account, for the six-months immediately 

preceding the filing of the Complaint. After full payment of the initial, partial filing fee, the 

custodian shall submit 20% of the inmate’s preceding monthly income credited to the account, 

but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been 

paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 

601 (6th Cir. 1997). Checks should be made payable to: Clerk, United States District Court. 

The checks should be sent to: 

 Prisoner Accounts Receivable 

 260 U.S. Courthouse 

 85 Marconi Boulevard 

 Columbus, Ohio 43215 

The prisoner’s name and this case number must be included on each check. 

 It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of 

fees or costs and that judicial officers who render services in this action shall do so as if the costs 
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had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff 

and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order 

to the Court’s financial office in Columbus. 

I. 

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. See 

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)). 

 

1

Formerly 28 U.S.C. § 1915(d). 
4 

 To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the 

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements 

set forth in Federal Rule of Civil Procedure 8(a). 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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must 

construe the complaint in the light most favorable to the non-moving party, accept all factual 

allegations as true, and make reasonable inferences in favor of the non-moving party. Total 

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 

2008) (citations omitted). The Court is not required, however, to accept as true mere legal 

conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550 

U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than 

formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978, 
5 

2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 

(1972)). 

II. 

According to the Complaint, Plaintiff is currently serving a life sentence with no 

opportunity for parole. Plaintiff alleges that he is mentally competent, citing the fact that he was 

adjudicated mentally competent to stand trial. He further alleges that his requests for “suicide 

pills” have been denied. (Compl. 5, ECF No. 1-2.) Plaintiff asks for a Court order compelling 

ODRC to acknowledge the right of an inmate who is serving a life sentence to physician-assisted 

suicide and also compelling ODRC to change its policies to permit physician-assisted suicide for 

inmates serving life sentences. 

To sustain a § 1983 claim, Plaintiff must establish that he was deprived of a right secured 

by the Constitution or laws of the United States and that this deprivation was caused by a person 

acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Ellison v. 

Garbarino, 48 F.3d 192, 194 (6th Cir. 1995). 

Plaintiff’s Complaint fails to state a claim because there is no constitutional right to 

euthanasia or physician-assisted suicide. See Washington v. Glucksberg, 521 U.S. 702, 705, 720-

34 (1997) (holding that state law prohibiting causing or aiding a suicide does not offend the 

Fourteenth Amendment of the United States Constitution); Kerry v. Din, 135 S.Ct. 2128, 2135 

(2015) (“Glucksberg rejected a claimed liberty interest in ‘self-sovereignty’ and ‘personal 

autonomy’ that extended to assisted suicide when there was a longstanding tradition of outlawing 

the practice of suicide.” (quoting Glucksberg, 521 U.S. at 723-24)); see also Vacco v. Quill, 521 

U.S. 793, 808–09 (1997) (noting that state interests in “prohibiting intentional killing and 

preserving life; preventing suicide; . . . protecting vulnerable people from indifference, prejudice, 
6 

and psychological and financial pressure to end their lives; and avoiding a possible slide towards 

euthanasia . . . easily satisfy the constitutional requirement . . . .”); Whipple v. Piper, No. 17-CV5137, 2017 WL 6756600, at *1 (D. Minn. Dec. 7, 2017) (dismissing inmate’s lawsuit 

challenging the prison’s refusal of his request to be euthanized pursuant to § 1915(e)(2)(B)(ii)). 

 Because Plaintiff cannot maintain his due-process claim of a right to physician-assisted 

suicide, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety 

pursuant to § 1915(e)(2). 

III.

 For the reasons set forth above, Plaintiff White’s motion for leave to proceed in forma 

pauperis under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) In addition, it is 

RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 28 

U.S.C. §§ 1915(e)(2)(B) and 1915A. 

 The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison 

cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s 

financial office in Columbus. Finally, the Clerk is DIRECTED to send a copy of this order to 

the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215. 

PROCEDURE ON OBJECTIONS 

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

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 
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modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1). 

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

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

IT IS SO ORDERED. 

 

 

 /s/ Chelsey M. Vascura __________ 

 CHELSEY M. VASCURA 

 UNITED STATES MAGISTRATE JUDGE