UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

GAUGE ROBINETTE, SR., : Case No. 2:22-cv-1592 : Plaintiff, : : District Judge James L. Graham vs. : Magistrate Judge Caroline H. Gentry :

ROSS CORRECTIONAL INSTITUTION, : REPORT AND : RECOMMENDATION Defendant. : :

Plaintiff, a prisoner at the Ross Correctional Institution, has filed a pro se civil rights complaint in this Court. By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to

. This matter is before the Court for a sua sponte review of the complaint 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,

(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Screening of Plaintiff’s Complaint A. Legal Standard Congress enacted

, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez,

(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.’”

at 31 (quoting Neitzke v. Williams,

(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

(iii) seeks monetary relief against a defendant who is immune from such relief.

(e)(2)(B); Denton,

. See also § 1915A(b). 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 Hill v. Lappin,

, 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.,

(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

1 Formerly

(d). of action’” is insufficient. Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

(quoting Twombly,

). 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.’”

(quoting Twombly,

). 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.”

“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,

(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., No. 08-3978,

, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner,

(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors,

, 976–77 (6th Cir. 2012) (quoting Wells v. Brown,

(6th Cir. 1989)). B. Allegations in the Complaint Plaintiff brings this action under

against defendant Ross Correctional Institution (RCI). (See Doc. 1-1, Complaint at PageID 19). In the complaint, plaintiff alleges that he has been subjected to “surgical prostate pens/powerful laser pointers” while at RCI, resulting in “no emotions/bad vision/bad smell/taste/feeling/nerve damage.” (Id. at PageID 21–22). Specifically, plaintiff makes the following factual allegations in the complaint: For 2 years I have been followed and tortured at this prison (Ross Correctional Institution) with surgical laser/prostate pens/peck pens—phanom 4’s/EMPG guns/have had stuff sprayed on me thru the windows by CO’s/employees/inmates that have been requested by employees also they used them on my private parts from Sergeants Office on third shift with inmates from windows to make me get off in my sleep and to make me bug out also would use insulin pens to inject me with meth and heroin/suboxen strip from the windows cameras in my cell like micro cams and also in the toilet would sit in my maintenance shafts and tell me to masturbate or would use there equipment so they call it on me until I did what they asked they have gassed me with srt sleeping gas multiple time to where I breathe diff now plus my vision is worse also use micro-waves in the neighbors cell to cook me . . .

(Id. at PageID 29). Plaintiff further alleges that he has been denied protective custody, was “hit with something” to make him sleep, has had his commissary taken from him, and been subjected to threats. (Id. at PageID 29–30). As relief, plaintiff seeks monetary damages. (Id. at PageID 22). C. Analysis

Plaintiff’s complaint is subject to dismissal at the screening stage. See

(e)(2)(B) and 1915A(b). As noted above, the only named defendant to this action is the Ross Correctional Institution. (See

at PageID 19).

provides that provides that “[e]very person who, under the color of any statute . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”

. A correctional facility is not a “person” subject to suit under

. See Parker v. Michigan Dept. of Corrections, 65 F. App’x. 922, 923 (6th Cir. 2003) (Department of Corrections not a “person” under § 1983). See also, e.g., McGlone v. Warren Corr. Inst., No. 1:13cv126,

, at *3 (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report & Recommendation) (and numerous cases cited therein) (holding that claims against a state prison and the ODRC should be dismissed at the screening stage because “neither the state prison facility nor the state corrections department is an entity capable of being sued under § 1983”), adopted,

(S.D. Ohio May 29, 2013) (Dlott, J.); see also Hix v. Tennessee Dep’t of Corr.,

(6th Cir. 2006) (and cases cited therein); Rodgers v. Michigan Dep’t of Corr.,

(6th Cir. 2002). Furthermore, because plaintiff only seeks damages as relief in this action, the Eleventh

Amendment bars plaintiff’s cause of action against the state agency defendant. McGlone, supra,

, at *3 (citing Rodgers,

); see also Will, 491 U.S. at 66-71; Wingo v. Tennessee Dep’t of Corr.,

(6th Cir. 2012) (per curiam). Accordingly, because plaintiff has failed to state an actionable claim against the named defendant, the complaint should be dismissed pursuant to

(e)(2)(B) and 1915A(b). IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to

(e)(2)(B) and 1915A(b). 2. The Court certify pursuant to

(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,

(6th Cir. 1997).

Date: May 2, 2022 /s/ Caroline H. Gentry Caroline H. Gentry United States Magistrate Judge NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,

(1985); United States v. Walters,

(6th Cir. 1981).