Martin v. Zariwala et al, No. 2:2018cv00270 - Document 9 (S.D. Ohio 2018)
Court Description: OPINION and ORDER affirming and adopting 3 the Report and Recommendation; denying 8 Plaintiff's Motion for Relief from Judgment. Signed by Judge Michael H. Watson on 10/4/18. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Martin v. Zariwala et al Doc. 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION William E. Martin, Plaintiff, V. Zamvir Zariwala, et al., Defendants. Case No. 2:18-cv-270 Judge Michael H. Watson Magistrate Judge Deavers OPINION AND ORDER William E. Martin ("PiaintifT) is a prisoner proceeding pro se. He sues Roger Wiison ("Wiison"), Chief Inspector for the Ohio Department of Rehabilitation and Correction ("ODRC"), and the following employees at Madison Correctionai institution ("MaCI"): Zamvir Zariwaia ("Zariwaia"). Randaii Hawk ("Hawk"), Unit Secretary Conn ("Conn"), Rhonda R. Richard ("Richard"), Zachery Gould ("Gould"), Unit Manager Chie Workman ("Workman"), Maicoim Heard ("Heard"), and Deputy Warden Welch ("Deputy Warden Welch") under 42 U.S.C. § 1983 for purported violations of Plaintiffs civil rights. On an initial screening under 28 U.S.C. § 1915 and § 1915A, Magistrate Judge Deavers issued a Report and Recommendation ("R&R") recommending the Court dismiss all claims against aii Defendants except for Zariwaia. R&R 1- 2, ECF No. 3. The R&R further recommended dismissing some of the ciaims against Zariwaia and aiiowing others to proceed. Id. Dockets.Justia.com Specifically, although Plaintiffs Complaint did not Indicate In which capacity he sought to sue Defendants, the R&R recommended dismissing any § 1983 claims brought against Defendants In their official capacities because "[s]tate officials acting In their official capacity are not 'persons' under § 1983." Id. at 4-5 (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)). The R&R also concluded that Plaintiff could not bring class claims In this lawsuit. Id. at 5-6. It stated that although the Complaint contained a handwritten note that It was being brought as a class action and that It was being brought pursuant to Rule 23, the Complaint was devoid of any class allegations. Further, the R&R stated that Plaintiff, as a non-attorney, pro se litigant was unable to represent a class. Id. The R&R next considered Plaintiffs Individual-capacity claims against each Defendant. The R&R concluded that Plaintiff failed to allege that Hawk violated any of Plaintiffs constitutional rights and Instead alleged only that Hawk conspired with Zariwala to file a false work evaluation In order to fire Plaintiff from his prison job. In violation of a state law or state administrative rule. Id. at 6-9. The R&R noted that, absent a separate and actionable constitutional Injury, Plaintiff cannot state a claim for conspiracy under § 1983. Id. Further, it concluded that even If Plaintiff had alleged such an Injury, the Complaint failed to plead conspiracy with particularity as required by Federal Rule of Civil Procedure 9(b). Id. at 9. Case No. 2:18-cv-270 Page 2 of 7 With respect to Zariwaia, the R&R recommended dismissing (forthe same reasons just discussed) Plaintiffs conspiracy claim and any claim based on the filing of a false work evaluation. Id. it recommended permitting Plaintiffs remaining claims against Zariwaia to proceed. Id. The R&R recommended dismissing Plaintiffs claims against Conn because Plaintiff alleged that Conn reciassified Plaintiff as a porter in violation of various Ohio Revised Code sections and a policy statement, and his allegations of violations of state laws and rules cannot serve as the basis of a § 1983 claim. Id. at 9-10. To the extent Plaintiff sought to bring a § 1983 due process claim against Conn, the R&R explained that Plaintiff had no protected liberty or property interest in prison employment. Id. at 10. it further recommended dismissing Plaintiffs conspiracy claim against Conn for the same reasons addressed above, /cf. at 10-11. With respect to Workman, because Plaintiff alleged only that he filed three informal complaint resolutions ("ICR") with Workman "to no avail," his Complaint failed to state a claim. Id. at 11. The R&R quoted the entirety of Plaintiffs allegations against Gould, Wilson, Heard, Richard, and Deputy Warden Welch, which consisted of allegations that Plaintiff filed grievances with these Defendants but that Gould and Wilson failed to do their jobs and condoned the wrongs done against Plaintiff by Conn, Hawk, and Zariwaia, and that Heard, Richard, and Deputy Warden Welch failed to correct the same. Id. at 11 (quoting Compi., ECF No. 1-1). The Case No. 2:18-cv-270 Page 3 of 7 R&R concluded that the Complaint was devoid of factual allegations that Gould and Wilson failed to do their jobs or condoned the actions of other Defendants. Id. It concluded that the allegations against Heard, Richard, and Deputy Warden Welch failed to state a claim for conspiracy and likewise failed because Plaintiff has no constitutionally protected right to an effective grievance procedure. Id. at 12. Finally, the R&R denied without prejudice Plaintiffs motion for appointment of counsel. The R&R notified Plaintiff of his right to object to the same and notified Plaintiff that appellate review of Issues not specifically raised In the objection would be waived. Id. at 13-14. Plaintiff timely objected. He argues that he stated a claim because he added "42 U.S.C. § 1983" to page one of his Complaint, that the Court cannot dismiss any of his claims prior to service of the Complaint on Defendants, that Plaintiff has sought appointment of counsel to pursue his class claims, and that discovery will flesh out his claims against all of the Defendants whom Magistrate Judge Deavers recommended dismissing. Obj. 1-2., ECF No. 7. Two standards of review apply to PlalntlfTs objections. The Court reviews Magistrate Judge Deavem' denial of Plaintiffs motion to appoint counsel under the standard set forth In Federal Rule of Civil Procedure 72(a} and will set aside that Order only If It Is clearly erroneous or contrary to law. Case No. 2:18-cv-270 Page 4 of 7 The Court reviews the recommendations concerning dismissal of Plaintiffs claims under the standard in Rule 72(b). Under that standard, the Court must determine de novo any part of the Magistrate Judge's disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3). The Court may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id. The Court OVERRULES Plaintiffs objection to the denial of his motion to appoint counsel. There is "no constitutional right to appointed counsel in a civil case." See Abdur-Rahman v. Mich. Dep't of Corr., 65 F.3d 489, 492 (6th Cir. 1995) (citation omitted). Accordingly, prisoners have no right to the appointment of counsel in order to pursue a prisoner civil rights case, whether brought as an individual action or whether class certification is sought. Indeed, the most a Court can do is assist a civil litigant in obtaining pro bono counsel. Herrerra v. Mich. Dep't of Corr., Case No. 5:10-DF-11215, 2011 WL 3862640, at *6 (E.D. Mich. July 22, 2011) (citation omitted), R&R adopted at 2011 WL 3862390 (E.D. Mich. Sept. 1, 2011); 28 U.S.C. § 1915(e)(1). Thus, Plaintiffs objection to Magistrate Judge Deavers' denial of appointment of class counsel is OVERRULED. Further, because Plaintiff cannot represent, pro se, a class in this case. Magistrate Judge Deavers properly concluded that the Court must dismiss the class allegations. Likewise, the R&R properly recommended dismissing all claims against all Defendants except for Zariwala as well as the conspiracy claim and the claim based on the filing of a false work evaluation against Zariwala. Plaintiffs sole Case No. 2:18-cv-270 Page 5 of 7 objection on this point is that he included the phrase "42 U.S.C. § 1983" on the Complaint, but Plaintiff does not argue that Magistrate Judge Deavers incorrectly analyzed his claims under the § 1983 framework. Amere citation to § 1983 does not properly state a claim under that statute, and as Plaintiff has not objected to Magistrate Judge Deavers' analysis ofwhether the facts alleged in the Complaint state a claim under § 1983, the Court ADOPTS the same. This ruling is not altered by Plaintiffs statement that discovery would "changethe facts of the case." Obj. 2, ECF No. 7. It is Plaintiffs burden to plead sufficientfacts in the Complaint to state a claim for relief. Plaintiffs may not make conciusory allegations in a complaintand use discovery as a fishing expedition in an attempt to find support for allegations already made. Northampton Restaurant Grp., Inc. V. FIrstmerIt Bank, N.A., Case No. 10-4056, 2012 WL 2608807, at *3 (6th Cir. July 5, 2012) ("the language of Iqbal specifically directs that no discovery may be conducted in cases such as this, even when the information needed to establish a claim ... is solely within the purview of the defendant...." (quoting NewAlbany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046,1051 (6th Cir. 2011)); Patterson v. Novartis Pharm. Corp., 451 F. App'x 495,498 (6th Cir. 2011) ("The Supreme Court's decisions in Twombly and Iqbal do not permit a plaintiff to proceed past the pleading stage and take discovery in order to cure a defect in a complaint."). Finally, the Court is not prohibited from dismissing Plaintiffs claims prior to serving Defendants in this case, in fact, 28 U.S.C. § 1915A directs the Court to Case No. 2:18-cv-270 Page 6 of 7 review a prisoner civil rights complaint prior to docketing it, when possible, and to dismiss any portion of the complaint that fails to state a claim. § 1915(a); (b)( 1); see also 28 U.S.C. § 1915(e)(2)(ii). Accordingly, Plaintiffs objections are OVERRULED, the R&R is AFFIRMED and ADOPTED, and the Court dismisses all claims against all Defendants except for Zariwala. The Court further dismisses Plaintiffs conspiracy claim and any claim based on the filing of a false work evaluation against Zariwala. The Court dismisses the class claims. Finally, Plaintiff moves for relief from judgment from the R&R, stating that all Defendants except Zariwala were dismissed on that date. Mot. Relief Judgment, ECF No. 8. That motion is DENIED. The R&R recommended dismissal of the remaining Defendants but did not actually dismiss them. This Order does so. The Clerk shall terminate ECF Nos. 3 and 8 from the Court's pending motions list and shall terminate Hawk, Conn, Wilson, Richard, Gould, Workman, Heard, and Deputy Warden Welch as Defendants in this case. IT IS SO ORDERED. MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:18-cv-270 Page 7 of 7
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