UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

EDWARD KIMMIE, 

 

 Plaintiff, 

 Civil Action 2:18-cv-334 

 v. Judge George C. Smith 

 Magistrate Judge Chelsey M. Vascura 

 

JUDGE CHRISTOPHER BOYKO, et al., 

 

 Defendants. 

 

ORDER and REPORT AND RECOMMENDATION

 Plaintiff, a prisoner proceeding without the assistance of counsel, has submitted a request 

to file a civil action in forma pauperis. (ECF No. 3.) The Court GRANTS Plaintiff’s request to 

proceed in forma pauperis. 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 also before the undersigned 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). The undersigned has reviewed Plaintiff’s filing and has determined 

that the Court must dismiss Plaintiff’s claim against one defendant and that Plaintiff’s 

submission as to the other named Defendants violates Federal Rule of Civil Procedure 8(a). 

Accordingly, it is RECOMMENDED that the Court dismiss Plaintiff’s claim against Defendant 
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Judge Christopher Boyko. Plaintiff is ORDERED to correct the deficiencies as to his claim 

against the other Defendants ON OR BEFORE May 23, 2018. 

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

, which 

provides in pertinent part as follows: 

(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. 

 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 

 

1

Formerly 28 U.S.C. § 1915(d). 
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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 complaints “‘to less stringent standards than formal pleadings drafted by 

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010) 

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has 

limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. 
4 

Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 

(6th Cir. 1989)). 

II. 

Plaintiff’s claim against United States District Judge Christopher Boyko is based upon 

the judge’s alleged failure to enter an appropriate judgment under Rule 54(b) of the Federal 

Rules of Civil Procedure when he dismissed an action Plaintiff had filed in the United States

District Court for the Northern District of Ohio. Plaintiff alleges that Judge Boyko’s action 

violated rights guaranteed by the United States Constitution’s Due Process Clause. Plaintiff asks

for monetary damages in the amount of three million dollars. 

No matter how liberally the Court construes Plaintiff’s Complaint, his claims against 

Defendant Judge Boyko are barred by the doctrine of judicial immunity. “It is well-established 

that judges enjoy judicial immunity from suits arising out of the performance of their judicial 

functions.” Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004) (citing Pierson v. Ray, 386 

U.S. 547, 553- 54 (1967)). Judicial immunity is overcome only if the actions taken are not 

within the judge’s judicial capacity or if the actions, “though judicial in nature, [are] taken in the 

complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted). 

A review of Plaintiff’s Complaint reveals that those exceptions do not apply here. Thus, because 

Judge Boyko is entitled to absolute judicial immunity, it is RECOMMENDED that Plaintiff’s 

claims against Judge Boyko be dismissed. 

III. 

Plaintiff’s claim against the other Defendants in this action appears to relate to an alleged 

failure by officials and/or employees of the Ohio Department of Rehabilitation and Correction to 
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provide Plaintiff necessary medical care for bone spurs in his neck. Plaintiff names the 

following people, all apparently associated with the Ohio Department of Rehabilitation and 

Correction, as Defendants: Gary Croft, J. Moore, Annette Chambers, Ms. Champney, Dr. Kline, 

Lt. Jamison, and Mrs. Mahlam. In the allegations in support of his claim, however, he identifies 

actions by only the following three people: Dr. Lesniact, Dr. Peppers, and the institutional 

inspector of p.c.i. 

It is well established that “[t]he Eighth Amendment forbids prison officials from 

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

toward [his] serious medical needs.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010) 

(internal quotations omitted). To state a claim for a violation of that right under 42 U.S.C. 

§ 1983, a prisoner must allege the violation and “show that the alleged deprivation was 

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 

The prisoner must allege that the defendant has violated the Constitution through his or her “own 

individual actions.” Iqbal, 556 U.S. at 676. In addition, a prisoner may not base a claim against 

a defendant upon the actions of that person’s subordinates or employees. Id. In other words, a 

prisoner states a claim under § 1983 only by alleging facts showing specifically how the actions 

of a specific state official or employee violated the Constitution. 

Plaintiff’s Eighth Amendment claim violates Rule 8(a) of the Federal Rules of Civil 

Procedure, which provides as follows: 

(a) Claim for Relief. A pleading that states a claim for relief must contain: 
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 (1) a short and plain statement of the grounds for the court’s 

jurisdiction, unless the court already has jurisdiction and the claim 

needs no new jurisdictional support; 

 (2) a short and plain statement of the claim showing that the pleader is 

entitled to relief; and 

 (3) a demand for the relief sought, which may include relief in the 

alternative or different types of relief. 

Plaintiff’s current submission is deficient because he has not alleged any action by any of the 

named Defendants. The undersigned cannot, therefore, discern the factual basis for his Eighth 

Amendment claim as it pertains to any of the people he has named. Unless Plaintiff supplements 

the allegations in his Complaint by identifying the specific events that gave rise to his claim and 

the specific involvement of each Defendant in those events, the undersigned will recommend the 

dismissal of his claim against Defendants Croft, Moore, Chambers, Champney, Kline, Jamison, 

and Mahlam. 

 Plaintiff is ORDERED to correct the foregoing deficiencies ON OR BEFORE May 23, 

2018. To comply with this order, Plaintiff must submit an amended complaint that complies 

with Rule 8(a)’s requirements, as set forth above. The undersigned cautions Plaintiff that failure 

to timely comply with this Order will result in a recommendation of dismissal. 

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 
7 

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). 

Plaintiff is further specifically advised that the portion of this document that constitutes 

the Report and Recommendation is just that part that recommends the dismissal of his claim 

against Judge Boyko. Accordingly, only his objections to that portion of this document are due 

within fourteen days of the date of this Order and Report and Recommendation. 

 /s/ Chelsey M. Vascura 

 CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE