Opinion
Civil Action 2:10-CV-532.
July 12, 2010
ORDER and REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this action under 42 U.S.C. § 1983 alleging that the defendant state agency has failed to treat plaintiff's claimed psychological disorders that "result[] from being falsely imprisoned." Complaint, at 5. This matter is now before the Court on plaintiff's motion for leave to proceed in forma pauperis, Doc. No. 1, and for the initial screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A. For these reasons stated herein, the Court concludes that plaintiff's motion for leave to proceed in forma pauperis is meritorious, but that the action must be dismissed for lack of subject matter jurisdiction.
Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a), Doc. No. 1, is GRANTED. Plaintiff is assessed the full amount of the Court's $350.00 filing fee. 28 U.S.C. § 1915(b)(1).
Plaintiff's affidavit reveals that he currently possesses an amount insufficient to pay the full filing fee. The custodian of the plaintiff's inmate trust account at the institution of his residence is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio, as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six (6) months immediately preceding the filing of the complaint.
After full payment of the initial partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fees of $350.00 have been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
However, after performing the initial screen of the Complaint, the Court concludes that it lacks jurisdiction to entertain plaintiff's claim against the only defendant named in the Complaint.
Plaintiff names as the sole defendant an agency of the State of Ohio. The Eleventh Amendment to the United States Constitution, however, confers upon States and their agencies sovereign immunity from suit in federal courts. "[A]n unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662 (1974) (citations omitted). There is no indication that the State of Ohio, or its agency, the defendant Department of Mental Health, has waived the immunity conferred upon them by the United States Constitution. It follows, then, that this Court lacks jurisdiction to consider plaintiff's claim.
WHEREUPON it is ORDERED that the plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.
The Clerk of Court is DIRECTED to mail a courtesy copy of the complaint and a copy of this order to the Attorney General of Ohio, Criminal Justice Section, 150 E. Gay Street, 16th Floor, Columbus, Ohio 43215.
The Clerk of Court is DIRECTED to mail a copy of this order to the plaintiff and the prison cashier's office. The Clerk is FURTHER DIRECTED to forward a copy of this order to the Court's financial office in Columbus.
Moreover, it is RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); F.R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and 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); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).