Foster v. Ohio D.R.C.

1

CHRISTOPHER FOSTER, Plaintiff, v. OHIO D.R.C., ET AL., Defendants.

No. 2:22-cv-2153

United States District Court, S.D. Ohio, Eastern Division

June 16, 2023

ALGENON L. MARBLEY, CHIEF JUDGE

ORDER

CAROLINE H. GENTRY, UNITED STATES MAGISTRATE JUDGE

This civil rights action, filed by state prisoner Christopher Foster, is before the Court for an initial screening of the complaint.^[1]28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). The initial screening must be completed before Defendants are served and the case can proceed.

Several issues complicate the screening process here. An overriding complication is that Plaintiff's submissions to the Court are not entirely comprehensible. Most importantly, as explained further below, it is not clear what claims Plaintiff is asserting in this action. Therefore, the undersigned ORDERS Plaintiff to file a Second Amended Complaint that clearly identifies each claim he is asserting in this lawsuit, and also identifies the Defendant(s) being sued for each such claim. See Fed.R.Civ.P. 12(e) (allowing the Court to grant a defendant's motion for more definite statement and order plaintiff to submit an amended complaint if the existing complaint is “so vague or ambiguous that the [defendant] cannot reasonably prepare a response”). The undersigned will then screen that pleading as required by 28 U.S.C. §§ 1915A(a) and 1915(e)(2).

Plaintiff may be asserting a claim of intentional discrimination under Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). “Title II of the ADA provides in pertinent part, that no qualified individual with a disability shall, because of that disability, ‘be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.'” Mingus v. Butler, 591 F.3d 474, 481-82 (6th Cir. 2010) (quoting 42 U.S.C. § 12132). “The ADA applies to both federal and state prisons.” Id. (citing Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998)). In summary:

Title II of the ADA prohibits intentional disability discrimination by a public entity or in the context of “services, programs, or activities of a public entity....” 42 U.S.C. § 12132 (2018). Similarly Section 504 of the Rehabilitation Act prohibits intentional disability discrimination under “any program or activity receiving Federal financial assistance” or exclusion from participation in any such program or activity “solely by reason of' a disability. 29 U.S.C. § 794(a) (2018).

A claim of intentional discrimination under Title II requires proof that the plaintiff 1) had a qualifying disability, 2) was otherwise qualified to participate in the public program, service, or activity at issue, and 3) was excluded from participation in the public program or was discriminated against by the public entity because of his or her disability. Fritz v. Michigan, 747 Fed.Appx. 402, 404 (6th Cir. 2018). A claim under Section 504 of the Rehabilitation Act requires the same showing except that the plaintiff must prove the discrimination was “solely” because of the disability. Id. Sole causation is not a requirement for a Title II claim. Anderson v. City of Blue Ash, 798 F.3d 338, 357 n.1 (6th Cir. 2015).

Shaffer v. City of Columbus, 444 F.Supp.3d 872, 879 (S.D. Ohio 2020).

Plaintiff also may be asserting a claim for a reasonable modification or accommodation under Title II. See Larson v. Eppinger, No. 2:20-cv-4997, 2021 WL 2659998, at *5 (S.D. Ohio June 29, 2021) (citing Anderson v. City of Blue Ash, 798 F.3d 338, 353-56 (6th Cir. 2015)) (“the Sixth Circuit implicitly acknowledged that Title II recognizes distinct claims for ‘reasonable modifications' and intentional discrimination.”).

Plaintiff also may be asserting a claim under 42 U.S.C. § 1983 and the Eighth Amendment to the U.S. Constitution for deliberate indifference to a serious medical need:

The government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Estelle [v. Gamble, 429 U.S. 97, 103 (1976)]. But mere failure to provide adequate medical care to a prisoner will not violate the Eighth Amendment. In those circumstances, a constitutional violation arises only when the doctor exhibits “deliberate indifference to a prisoner's serious illness or injury,” id. at 105, 97 S.Ct. 285 (emphasis added), that can be characterized as “obduracy and wantonness” rather than “inadvertence or error in good faith,” Wilson [v. Seiter, 501 U.S. 294, 299 (1991)] (quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). To establish a prison official's deliberate indifference to a serious medical need, an inmate must show two components, one objective and the other subjective. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The plaintiff must show both that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation and that the official acted with a culpable enough state of mind, rising above gross negligence. Id. at 834-35, 114 S.Ct. 1970.

Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018).

There are several reasons why it is necessary for Plaintiff to clearly identify the claims he is asserting in this lawsuit. First, the Court must know what claims are being pled before it can conduct the required screening. Similarly, Defendants who are required to answer the Complaint must know what claims are being pled before they are required to file a responsive pleading. See Fed. R. Civ. P. 12(e) (allowing defendant to file a motion for more definite statement).

Second, the Court must know what claims are being pled to determine whether this lawsuit is properly venued in the United States District Court for the Southern District of Ohio. See 28 U.S.C. § 1391(b) (generally requiring a case to be brought where a defendant resides or where the events giving rise to the claims occurred). For example, claims about disability discrimination, medical care or retaliation may be properly venued in the United States District Court for the Northern District of Ohio, where the Toledo Correctional Institution is located.

Third, Plaintiff has repeatedly suggested that he has not presented his actual claim to the Court yet. (E.g., ECF No. 6, PageID 37 (I cannot continue or complete this Complaint until I first attain a preliminary injunction to get court access in the first place...”); ECF No. 8, PageID 57 (“I reserve this Completion of Complaint matter until I can attain a preliminary injunction...”); ECF No. 8, PagelD 59 (“I shall resume this Complaint process once I get access to Court by injunction . . . I reserve the filing process here until the Court brings the Defendant(s) into compliance on an administrative basis that gives me Court access to participate in this case.”)). Plaintiff has also hinted at a variety of potential claims.^[2] It is unclear whether these claims (seemingly against many parties) could appropriately be asserted in a single lawsuit under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 18 (joinder of claims); Fed.R.Civ.P. 20 (joinder of parties); and Fed.R.Civ.P. 21 (misjoinder and nonjoinder of parties).

Fourth, the Court must know what claims are being pled to determine whether there is a nexus between the “imminent danger” identified by Plaintiff-which is a required allegation to overcome the bar on allowing a prisoner with “three strikes” to proceed in forma pauperis-and the claims asserted in this lawsuit. See Sweatt v. Hininger, No. 22-5635 (6th Cir. Jan. 27, 2023) (citing Lapine v. Waino, No. 17-1636, 2018 WL 6264565, at *2 (6th Cir. Oct. 11, 2018) and Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009)) (denying motion to proceed in forma pauperis because “Sweatt did not show a nexus between the imminent danger and the claims in his complaint.”); Jenkins v. Sherry, No. 2:21-cv-239, 2022 WL 263211, at *4 (W.D. Mich. Jan. 28, 2022) (discussing the nexus requirement in several circuits).^[3]In other words, a plaintiff cannot obtain or maintain in forma pauperis status if he pleads “imminent danger” with respect to one issue and yet asserts claims that arise from totally separate issues. See Pettus, 554 F.3d at 297 (rejecting argument that “an indigent prisoner with a history of filing frivolous complaints could, by merely alleging an imminent danger, file an unlimited number of lawsuits, paying no filing fee, for anything from breach of a consumer warranty to antitrust conspiracy.”).

Here the Court found that Plaintiff sufficiently pled imminent danger in only one respect: his “allegations that prison medical staff have refused him treatment for his chronic pain conditions.” (Opinion & Order, ECF No. 23, PageID 183). That issue appears to have a sufficient nexus to a claim under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in violation of the Eighth Amendment. However, Plaintiff has indicated in several filings that he is not asserting a claim under Section 1983. (ECF No. 24, PageID 187 (“not only is this an ADA suit based on post-2010 amendment, this is not such a civil rights suit...”); ECF No. 24, PageID 191 (“it is not a typical, or 1983, filing”); ECF No. 24, PageID 192 (“the 42USC1983 stigma [should be] removed too, because that is the statute associated with the same race, status, etc., limit of typical consideration that has nothing to do with the crisis faced in this Judicial inquiry about attaining emergency justice. This is not (ECF No. 22) a race, or 1983, etc., suit . . ”); ECF No. 26, PageID 209 (“this is not a 1983 claim”); ECF No. 27, PageID 223 (“neither case is 1983 based”-referring to this case and a separately pending habeas corpus matter); but see ECF No. 12, PageID 68 (citing § 1983...