Opinion
Case No. 2:05-cv-0367.
July 24, 2006
ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Leroy Collins, a state prisoner, filed this action against Reginald Wilkinson (whose last name is spelled "Wilkerson" in the complaint), formerly the Director of the Ohio Department of Rehabilitation and Correction, Dr. James McSweeney and Warden Timothy Brunsman, alleging that he received inadequate medical treatment for his hepatitis C while imprisoned and that he was denied housing in a non-smoking unit even though he suffers from asthma, based upon favoritism rather than medical criteria. After screening the complaint, the Court directed that process be served.
The plaintiff then filed a motion to amend his complaint to add allegations concerning his housing in a smoking or non-smoking unit. The motion indicates that he spent eight months waiting for placement into a non-smoking unit but was there for only a few months before being placed back into a smoking unit as punishment for prison misconduct. That motion to amend (#5) was filed prior to the filing of any responsive pleading by the defendants.
After the complaint had been served, but before answers were due, plaintiff filed a motion for a default. The Court, however, thereafter granted the defendants an extension of time to August 4, 2005 to file an answer, and they answered timely. As a result, the motion for a default is moot.
Thereafter, plaintiff filed several additional motions for leave to amend his complaint. One of those motions (#23) is essentially identical to the motion filed prior to the filing of responsive pleadings. Two of the other motions (##21 and 24) are essentially identical to each other, and attempt to add allegations concerning allegedly intolerable living conditions in housing areas C-1 and C-2 at the Chillicothe Correctional Institution. In those motions, plaintiff also seeks an injunction against housing inmates in those areas and the appointment of a fact-finding team by the Court, as well as transfer to another institution. Plaintiff then filed another motion to amend (#28) asking that the "medical staff" of the institution be named as defendants. He has also moved for the appointment of counsel, to have the Court rule on his various motions, and for a temporary restraining order and preliminary injunction, which motion is based upon alleged retaliatory conduct and denial of medical treatment beginning on March 1, 2006. Defendants have responded to most, if not all, of these motions.
With respect to Mr. Collins' first motion for leave to amend, he had the right to amend his complaint once as a matter of course before the filing of a responsive pleading. Consequently, his first motion to amend (#5) is granted and those allegations are deemed part of his complaint. Because they simply supplement his prior complaint, the defendants need not answer those additional allegations unless they wish to do so. Because (#5) is essentially identical to (#23), the latter motion to amend is moot.
With respect to plaintiff's motion to appoint counsel and his motion to rule on that motion (##6 and 22), this case has not progressed to the point where the Court is able to determine whether appointment of counsel is appropriate. See, Mars v. Hanberry, 752 F.2d 254 (6th Cir. 1985); Willett v. Wells, 469 F.Supp. 748 (E.D. Tenn. 1977), aff'd 595 F.2d 1227 (6th Cir. 1979). At this point, the Court cannot conclude that this is the exceptional case where the appointment of counsel is appropriate, and the motion to appoint counsel is denied. The motion to rule on the motion to appoint counsel is rendered moot by this decision.
With respect to Mr. Collins' additional motions to amend, as the defendants correctly point out, there is no evidence that any of the claims which he would intend to assert in an amended pleading relating to housing conditions in the C-1 and C-2 areas of the Chillicothe Correctional Institution have been subjected to the appropriate prison grievance procedure. The Court may refuse a plaintiff leave to amend a complaint, notwithstanding the liberality of Fed.R.Civ.P. 15(a), when the amendment would be futile. See Robinson v. Michigan Consolidated Gas Co, 918 F.2d 579 (6th Cir. 1990). 42 U.S.C. § 1997(e)(a) requires that all stages of the prison grievance system be exhausted prior to the time that an inmate file suit. The Court of Appeals, inBrown v. Toombs, 139 F.3d 1102 (6th Cir. 1998), further held that such exhaustion must be pleaded in any prisoner complaint and evidence of exhaustion must be attached. There is no indication in these motions to amend, either by way of pleading or copies of grievances, that Mr. Collins has exhausted any of these claims. As a result, those motions (##21 and 24) will be denied. Additionally, because the "medical staff" of the Chillicothe Correctional Institution is not a suable entity and is not the name of any individual, he will also not be permitted to add that description of a group of people as a named defendant. If appropriate, however, he may add individual members of the medical staff, provided that the defendants would not be prejudiced by such amendment and that he has fully exhausted any claims against any proposed new defendant.
Mr. Collins' final motion is for a temporary restraining order and preliminary injunction. Although the matters about which he seeks relief relate in some way to his prior medical conditions, his specific claim is that, beginning on March 1, 2006, he was denied medications for various medical conditions. Because his original complaint was filed well before that date, the assertions in his motion for a preliminary injunction do not arise out of the same facts set forth in his complaint. Further, as the defendants again correctly point out, there is no evidence that Mr. Collins has exhausted any remedies with respect to these matters. Both because these allegations are not part of this case and because of the failure to exhaust, there is no likelihood that he would succeed on the merits of these claims and therefore no basis for the Court to order preliminary injunctive relief.See Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994). It will therefore be recommended that this motion be denied.
Based on the foregoing, the pending motions in this case are disposed of as follows:
1. Mr. Collins' first motion to amend (#5) is granted.
2. All other motions to amend (## 21, 23, 24 and 28) are denied.
3. The motion to appoint counsel (#6) is denied.
4. The motions for rulings on prior motions (## 22 and 29) and the motion for default (#10) are moot.
5. It is recommended that the motion for preliminary injunctive relief (#31) be denied.
6. The discovery cutoff date and dispositive motion filing date are now October 31, 2006 and November 30, 2006, respectively.
With respect to rulings 1-4, any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.
With respect to the recommended disposition of ruling #31, if any party objects to this Report and Recommendation, that party may, within ten (10) 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 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).