(See Doe. 1-1, at PageID 56).

cG Analysis

Liberally construed, plaintiff's complaint, as supplemented (Docs. 1-1 & 1-6), states an
Eighth Amendment excessive-force claim against defendants Erving, Ruckel, Parish, Esaum,
Buroughton, Sparks, and Warren, and an Eighth Amendment failure-to-protect claim against
defendant Nolan. At this stage in the proceedings, without the benefit of briefing by the parties
to this action, the undersigned concludes that these claims are deserving of further
development and may proceed at this juncture. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
However, plaintiff's remaining claims should be dismissed for failure to state a claim upon
which relief may be granted.

First, plaintiff's claims against any defendant in an official capacity must be dismissed to
the extent that plaintiff seeks monetary damages. Absent an express waiver, a state is immune
from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf &
Eddy, 506 U.S. 139, 144 (1993); Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of
Ohio has not constitutionally nor statutorily waived its Eleventh Amendment immunity in the
federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of
Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460-62 (6th Cir. 1982). The Eleventh
Amendment bar extends to actions where the state is not a named party, but where the action is
essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663; Ford Motor
Company v. Dep't. of Treasury, 323 U.S. 459, 464 (1945). A suit against defendants in their
official capacities would, in reality, be a way of pleading the action against the entity of which
defendants are agents. Monell v. Dep't of Social Servs., 436 U.S. 658, 690 (1978). Thus, actions

against state officials in their official capacities are included in this bar. Will v. Michigan Dept.


IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, as supplemented
(Docs. 1-1 & 1-6), summons, the separate Order issued granting the plaintiff in forma pauperis
status, and this Order and Report and Recommendation upon defendants Erving, Ruckel, Parish,

Esaum, Buroughton, Sparks, Warren, and Nolan.

2, Plaintiff shall serve upon defendants or, if appearance has been entered by
counsel, upon defendants’ attorney, a copy of every further pleading or other document
submitted for consideration by the Court. Plaintiff shall include with the original paper to be
filed with the Clerk of Court a certificate stating the date a true and correct copy of any
document was mailed to defendants or defendants’ counsel. Any paper received by a district
judge or magistrate judge which has not been filed with the Clerk or which fails to include a
certificate of service will be disregarded by the Court.

3. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit.

Date: 5 [ 2 { / g ‘
Karen L. Litkovitz

United States Magistrate Judge

10


F.2d 950, 955 (6th Cir. 1987).

Additionally, plaintiff's claim that defendant Erving falsely wrote a conduct report
against him is subject to dismissal for failure to state a claim upon which relief may be granted.
Erroneous or even fabricated allegations of misconduct by an inmate, standing alone, do not
constitute a deprivation of a constitutional right. See, e.g., Reeves v. Mohr, No. 4:11-cv-2062,
2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012) (and cases cited therein) (holding that the
prisoner failed to state a claim upon which relief may be granted to the extent that he claimed he
had “a constitutional right to be free from false accusations”). “A constitutional violation may
occur, if as a result of an accusation, the Plaintiff was deprived of a liberty interest without due
process.” Jd. at *2 (citing Sandin v. Conner, 515 U.S. 472, 485 (1995)). Plaintiff's allegations
are insufficient to trigger constitutional concerns because he has failed to allege facts suggesting
that he was deprived of a protected liberty interest without due process as a result of the
allegedly false conduct report.

Further, plaintiff's claims against defendants MahIman, Davis, Salyers, and Wilson
should be dismissed. Plaintiff's claims against these defendants are based upon allegations that
they failed to take corrective action after he filed “complaints.” (See Doc. 1-1, at PageID 53-54).
Prison officials whose only roles “involve their denial of administrative grievances and their
failure to remedy the alleged [unconstitutional] behavior” cannot be liable under § 1983. Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Plaintiff has not alleged facts suggesting that these
defendants directly participated in any alleged unconstitutional conduct. Moreover, to the extent
plaintiff complains that these defendants failed to properly respond to his complaints, plaintiff
fails to state a claim for relief because “[p]rison inmates do not have a constitutionally protected

right to a grievance procedure.” Miller v. Haines, No. 97-3416, 1998 WL 476247, at *1 (6th


of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). See also
Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334,
344 (6th Cir. 2009) (“[A]n official-capacity suit against a state official is deemed to be a suit
against the state and is thus barred by the Eleventh Amendment, absent a waiver.” (citation and
ellipsis omitted)). Therefore, all of the named defendants are immune from suit in their official
capacities to the extent that plaintiff seeks monetary damages.

Next, the complaint should be dismissed as to defendant Warden Erdos. It is well-
settled that the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute
liability onto supervisory personnel. See, e. g., Wingo v. Tennessee Dep't of Corr., 499 F.
App’x 453, 455 (6th Cir. 2012) (citing Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981)). “In
order to find supervisory personnel liable, a plaintiff must allege that the supervisors were
somehow personally involved in the unconstitutional activity of a subordinate, . . . or at least
acquiesced in the alleged unconstitutional activity of a subordinate.” /d. (citing Dunn y.
Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984)); see also Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (quoting Cardinal y,
Metrish, 564 F.3d 794, 803 (6th Cir. 2009)) (to succeed on claim against supervisory state
prison officials, the plaintiff must show the officials “at least implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending officers”). Plaintiff has
not alleged sufficient factual content for the Court to infer that the Warden was personally
involved or acquiesced in any alleged unconstitutional behavior.

Plaintiff's claim that defendant Erving used derogatory language toward plaintiff also
fails to state a claim upon which relief may be granted. Derogatory language, although

unprofessional, does not rise to the level of a constitutional violation. See Ivey v. Wilson, 832


The Court finds that plaintiff has not alleged facts sufficient to warrant a preliminary
injunction. Plaintiff has failed to demonstrate a substantial likelihood of success on the merits of
his constitutional claims. Furthermore, plaintiffs allegations fail to demonstrate that that he will
suffer irreparable harm absent a preliminary injunction.

Moreover, a preliminary injunction is not warranted in this case because the purpose of a
preliminary injunction—to preserve the status quo until a trial on the merits can be held—would
not be served. Great Lakes Brewing Co., 860 F.3d at 848; Martin, 924 F.2d at 102. The present
status quo in this case is, according to plaintiff, that he has suffered violations of his
constitutional rights. The remedy plaintiff presently seeks, a transfer to another prison, is more
than an injunction maintaining the status quo; he seeks an Order from this Court requiring
defendants to affirmatively correct constitutional deficiencies yet to be proven. Such affirmative
relief is generally beyond the scope and purpose of preliminary injunctive relief. See id.

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint, as supplemented (Docs. 1-1, 1-6) be DISMISSED with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff's
Eighth Amendment excessive-force claims against defendants Erving, Ruckel, Parish, Esaum,
Buroughton, Sparks, and Warren, and plaintiff's Eighth Amendment failure-to-protect claim
against defendant Nolan.

2: Plaintiffs motions for preliminary injunction (Docs. 1-3 & 1-4) be DENIED.

3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v.

Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LAWRENCE R. BURFITT, II, Case No. 1:18-cv-260
Plaintiff,
Barrett, J.
vs. Litkovitz, M.J.
C/O M. ERVING, et al., ORDER AND REPORT
Defendants. AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), in Lucasville,
Ohio, has filed a pro se civil rights complaint against the following corrections officials at SOCF:
“C/O M. Erving,” “Lt. M. Esaum,” “Lt. R. Buroughton,” “C/O Charlie Ruckel,” “C/O T.
Parish,” “UM Brian Sparks,” “Major David Warren,” “MHA Ms. Salyers,” “UM Brian Nolan,”
“Chief Inspector Roger Wilson,” “UMA Cinthia Davis,” Warden Ron Erdos, and “Inspector
Linnea Mahlman.” (Doc. 1-1, at Page ID 47, 52).' Plaintiff has also filed a supplemental
complaint (Doc. 1-6) and two motions for preliminary injunction (Docs. 1-3 & 1-4). By separate
Order, plaintiff has been granted leave to proceed in forma pauperis.

This matter is before the Court for a sua sponte review of the complaint (Doc. 1-1), as
supplemented (Doc. 1-6), to determine whether the complaint or any portion of it should be
dismissed because it 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. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

Also before the Court are plaintiff's motions for preliminary injunction. (Docs. 1-3 & 1-4).

‘In his complaint, plaintiff variously spells defendant Buroughton’s name “Buroughton” and “Burroughton” and
defendant Nolan’s name “Nolan” and “Noland.” Herein, these defendants’ names are spelled Nolan and
Buroughton to reflect the spelling used by the Clerk’s Office in the case caption of this lawsuit.


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LAWRENCE R. BURFITT, II, Case No. 1:18-cv-260

Plaintiff,

Barrett, J.

vs. Litkovitz, M.J.
C/O M. ERVING, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

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


Cir. Aug. 03, 1998) (citations omitted).
Il. Analysis of Motions for Preliminary Injunction

Plaintiff seeks an injunction to accomplish his transfer to Toledo Correctional
Institution or “another level 4 Prison,” alleging that he is subject to retaliation at SOCF for
filing lawsuits. (Doc. 1-3, at PageID 72-75; see also Doc. 1-4, at PageID 76-80). In

determining whether to issue a preliminary injunction, this Court must balance the following

factors:
1. Whether the party seeking the injunction has shown a
“strong” likelihood of success on the merits;
2: Whether the party seeking the injunction will suffer
irreparable harm absent the injunction;
33 Whether an injunction will cause others to suffer

substantial harm; and

4. Whether the public interest would be served by a
preliminary injunction

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); United Food & Commercial Workers
Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 347 (6th Cir.
1998); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). The four
factors are not prerequisites, but must be balanced as part of a decision to grant or deny
injunctive relief. Leary, 228 F.3d at 736; Performance Unlimited v. Quester Publishers, Inc., 52
F.3d 1373, 1381 (6th Cir. 1995). A preliminary injunction is an extraordinary remedy that
should only be granted “upon a clear showing that the plaintiff is entitled to such relief” and
proof that the circumstances clearly demand it. S. Glazer’s Distributors of Ohio, LLC v. Great
Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017) (citations omitted); Leary, 228 F.3d at

739.


strikes, and brought him to medical. (/d.). As plaintiff was taken to medical, defendant C/O
Ruckel allegedly “twisted [plaintiff's] arms as to break them.” (/d.).

Plaintiff claims that, when he arrived at medical, defendant Ruckel “hurled” him to the
ground and beat him “off camera.” (/d.). According to plaintiff, defendants Parish, Esaum,
Buroughton, Sparks, and Warren also beat him. (See id.; see also Doc. 1-6, at PageID 90).
Plaintiff claims that, as a result of the alleged beating, he required surgery on his jaw and eye
socket. (Doc. 1-1, at PagelD 53). Plaintiff claims that defendant Nolan and several unnamed
nurses observed the beating but failed to intervene. (/d.).

Plaintiff further contends that “since [his] placement at SOCF on Nov. 14, 2014: [he]
was beat off camera on March 27th and May 7th, 2015." (Doce. 1-6, at PageID 89).
Additionally, he contends that, at an unspecified time, defendant Erving was placed on leave
for an incident involving another inmate. (/d.). Plaintiff attaches to his complaint declarations
from three inmates claiming, respectively, to have seen plaintiff's injuries following the
alleged September 19, 2017 incident (Doc. 1-6, at PageID 104), to have been at the hospital
when plaintiff arrived and to have overheard an unidentified SOCF officer state “[t]hat’s what
happens when you mouth off to a C.O. at Lucasville” (id., at PageID 105), and to have heard
plaintiff being beaten in medical (id., at PageID 106).

Plaintiff claims that defendants Mahlman, Wilson, Davis, Salyers, and various
unnamed mental health administrators were aware of plaintiff's complaints but “refuse[d] to
allow [him] to address a problem that affects [his] life in prison.” (Doc. 1-1, at PageID 53-54).
Plaintiff claims that defendant Warden Erdos “continues to allow” SOCF officers to beat
inmates “off camera.” (/d., at PageID 54).

As relief, plaintiff seeks monetary damages and injunctive relief against the defendants.

*The alleged March 27 and May 7, 2015 incidents are currently being litigated in this Court in Case No. 15-cv-730.
4


however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.”” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at
470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan vy. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Jd. at 557. The complaint must “give the defendant fair notice of what the .. .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. Allegations in Complaint

In his complaint, as supplemented, plaintiff alleges that, on September 19, 2017,
defendant C/O M. Erving called plaintiff derogatory names as Erving was walking plaintiff to
the shower. (Doc. 1-1, at PageID 53). Plaintiff asserts that when he “refused to move” and
attempted “to make [Erving] apologize,” Erving “sprayed” plaintiff and issued a false conduct

report. (/d.). According to plaintiff, unnamed officers then “cuffled]” plaintiff, using knee


IL. Screening of Complaint

A. Legal Standard

In enacting the original in forma pauperis statute, 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.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
Jorma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as
frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or
law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a legal interest which clearly does not
exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations
are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at
32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are
“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d
468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(i) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,