Frost v. Murphy et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBERT V. FROST,
Plaintiff,
vs.
ROBIN MURPHY, et al.,
Defendants.
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Case No. 2:25-cv-1103
District Judge Edmund A. Sargus, Jr.
Magistrate Judge Stephanie K. Bowman
ORDER AND REPORT & RECOMMENDATION
Plaintiff Robert V. Frost, a state prisoner formerly incarcerated at London Correctional
Institution (LoCI), and proceeding without the assistance of counsel, brings this civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 1-7, PageID 149-66 (Signed Complaint); Doc. 5-2, PageID
124 (Civil Cover Sheet)). Plaintiff names the following Defendants: Robin Murphy, Health Care
Administrator at LoCI; Kristi Gapen, Quality Improvement Coordinator at LoCI; Karen Stanford,
Assistant Chief Inspector with Ohio Department of Rehabilitation and Corrections (ODRC); Dr.
Andrew D. Eddy, Chief Medical Officer with ODRC; Mergitu Hubena and Patrick Olabode, both
Certified Nurse Practitioners at LoCI; ODRC; The Ohio State University (OSU) Medical
Department; and Unnamed Doe with OSU Medical Department. 1 (Doc. 1-7, PageID 150-52, 155).
The case has been referred to the Undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(b) and this Court’s Amended General Order 22-05.
By separate Order, Plaintiff was granted leave to proceed in forma pauperis. (Doc. 7).
1 Because it is unclear if Plaintiff is alleging claims against OSU Medical Department as an entity or against
an Unnamed Doe working for OSU (see Doc. 1-7, PageID 152, 155, 159), the Court considers Plaintiff’s
allegations as against both the unnamed individual and the entity in screening his claims below.
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This matter is now before the Undersigned for an initial screening of the Signed Complaint
(Doc. 1-7) as required by law. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). Plaintiff also seeks
appointment of legal counsel to represent him in this case. (Doc. 1-7, PageID 160). For the reasons
that follow, the Undersigned concludes that Plaintiff’s Eighth Amendment deliberate indifference
and Ohio state law medical malpractice claims against Defendants Murphy, Stanford, Gapen, Dr.
Eddy, Hubena, Olabode, and Unnamed OSU Doe may PROCEED for further development. The
Undersigned RECOMMENDS that Plaintiff’s remaining claims be DISMISSED, as explained
below. Further, Plaintiff’s motion for appointment of counsel is DENIED without prejudice.
I. 	INITIAL SCREENING STANDARD
Because Plaintiff is a prisoner who is seeking “redress from a governmental entity or
officer or employee of a governmental entity,” the Court is required to screen the Complaint to
determine whether it, 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. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).
A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with
a rational or arguable basis in fact or law. 	Neitzke v. Williams, 490 U.S. 319, 328-29 (1989);
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis
when the defendant is immune from suit or when a plaintiff claims a violation of a legal interest
which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis
when the allegations are “delusional” or “rise to the level of the irrational or wholly incredible.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992) (citations omitted); Lawler, 898 F.2d at 1199. The
Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing a
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complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,
490 U.S. at 327-28).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint filed by a
pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” 	Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). 	But the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). See also
Hill, 630 F.3d at 470-71 (finding that the “dismissal standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded
factual allegations as true but need not “accept as true a legal conclusion couched as a factual
allegation.” 	Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain “detailed factual allegations,” it must provide “more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). 	A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation
omitted). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” 	Id. at 557. 	The complaint must “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
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II. 	ALLEGATIONS IN THE COMPLAINT/AMENDED COMPLAINT
Plaintiff alleges that Defendants’ actions caused Plaintiff’s approved eye surgery to never
happen, leading to his partial blindness. (Signed Complaint, Doc. 1-7, PageID 153-60).
A. Deliberate indifference, dereliction of duty, or malpractice against Stanford
Plaintiff first alleges that on September 24, 2020, Defendant Stanford told him that he was
approved for eye surgery at OSU. (Id. at PageID 153). But on January 22, 2024, Plaintiff alleges,
Stanford informed him that “someone” had mistakenly added him to the surgery list, even though
he recalls filling out paperwork for the surgery while on a “medical roundtrip.” 	(Id. at PageID
153-54). Plaintiff also alleges that Stanford is the “most culpable” in negligence and malpractice
because she was the one to inform him about ODRC, OSU, and Dr. Eddy approving him for
surgery but then later she told Plaintiff that he was scheduled for surgery by mistake. (Id. at PageID
158). Plaintiff alleges that Stanford gave him misinformation or lied about the others approving
him for surgery, resulting in deliberate indifference, dereliction of duty, or malpractice. (Id.).
Plaintiff alleges that Defendant Murphy was negligent for failing to take his eye condition
seriously. 	(Id. at PageID 153). 	Plaintiff alleges that Murphy showed deliberate indifference
toward his health because she did not schedule a consultation with OSU even though the surgery
was approved by a collegial review board. (Id.). Plaintiff also alleges that Murphy tried to hinder
his access to the prison grievance system to prevent him from requesting medical assistance. (Id.).
B. Deliberate indifference and negligence against Dr. Eddy.
Plaintiff next alleges that Defendant Dr. Eddy, as Chief Physician with ODRC, is
responsible for Plaintiff not receiving medical care from the outset. (Id. at PageID 154). Plaintiff
alleges that Dr. Eddy received a report from Franklin Medical Center on October 14, 2014. (Id.).
Plaintiff alleges that he was informed by another doctor that “pre-op work” was supposed to be
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done on December 30, 2014. (Id.). But that never occurred, Plaintiff alleges; and Dr. Eddy never
saw Plaintiff to inspect his injuries. 	(Id.). 	Plaintiff alleges that Dr. Eddy showed deliberate
indifference to Plaintiff’s medical needs for over 20 years by failing to conduct a physical
evaluation of Plaintiff’s medical issues. (Id. at PageID 158-59). Plaintiff alleges that Dr. Eddy
was negligent in treating his chronic headaches and pain. (Id. at PageID 159).
C. Negligence and supervisory liability against ODRC
Plaintiff next alleges that Defendant ODRC is responsible as the “overseer” of the ODRC
departments and leaders. (Id. at PageID 154). Plaintiff alleges that he filed grievances but was
ignored or “spun” in different directions. (Id.). Plaintiff also alleges that Stanford and Dr. Eddy
work for ODRC’s Central Office and are negligent for their malfeasance or malpractice. 	(Id.).
Plaintiff alleges that ODRC should be held liable for not providing him with proper medical care
since the time this health issue first started in 1998. (Id. at PageID 158). Plaintiff further alleges
that ODRC is liable for not holding Stanford and Dr. Eddy accountable for their actions. (Id.).
D. Medical malpractice and negligence against OSU Medical Department
Plaintiff next alleges that Defendant OSU Medical Department is at fault for not following
up with an evaluation despite Plaintiff signing a consent form. 	(Id. at PageID 155). 	Plaintiff
reiterates his allegations that on January 22, 2024, Defendant Stanford told him that he was put on
the surgery list by mistake. (Id.). Plaintiff alleges that if “someone” added him to the surgery list
by mistake, then that amounts to medical malpractice. (Id.). Plaintiff alleges that OSU Medical
Department is also negligent for the delayed surgery. (Id. at PageID 159). Plaintiff alleges that
OSU told him they had been looking for him since 2012, which Plaintiff learned of in 2022 or
2024. 	(Id.). 	Plaintiff alleges that surgery was recommended well after 2012, a fact he recalled
because he signed paperwork for the surgery. (Id.).
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E. Deliberate indifference against Murphy
Continuing his allegations from his first claim, Plaintiff next alleges that Defendant Stanford
informed him on October 22, 2020, that a surgery consultation would be scheduled sometime
between September 24, 2020, and December 24, 2020. (Id. at PageID 155). Plaintiff alleges that
Stanford told him to file a grievance with Defendant Murphy if the consultation was not done.
(Id.). Plaintiff alleges that he tried to file a grievance with Murphy, but Murphy told him it was
“not grievous” and to file a “kite” instead. 	(Id., also see PageID 157). 	Plaintiff alleges that
Murphy did not tend to his health care and showed deliberate indifference to his need for surgery.
(Id.). Additionally, Plaintiff alleges that Murphy supervised Gapen, Hubena, and Olabode; and he
alleges that Murphy, in her supervisor role, neglected to follow-up with Plaintiff’s care. 	(Id.at
PageID 157). Plaintiff also alleges that Murphy would not provide him with the approved round-
trip transportation for the medical consultation. 	(Id.). 	Plaintiff alleges that it was medical
negligence for these Defendants to implement the Alternative Plan of Care, discussed below, and
that even so, nothing had been done since. (Id.).
F. 	Derelict in their duties against Gapen and Stanford
Plaintiff next alleges that Defendant Gapen was part of the collegial review board that
approved the consultation for his eye surgery. 	(Id. at PageID 156). 	Plaintiff reiterates that
Defendant Stanford informed him of the surgery approval on October 22, 2020, but then he alleges
that the review board later decided to not approve the surgery on December 4, 2023. (Id.). Plaintiff
alleges that Gapen and Stanford were derelict in their duties for informing him that he was
approved for surgery to then turn around to tell him he was not approved. (Id.).
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G. Unclear claims against Hubena and Olabode
In his last claim, Plaintiff alleges that Defendants Hubena and Olabode entered him into an
Alternative Plan of Care for in-house treatment at LoCI instead of the approved eye surgery at
OSU. (Id.). Plaintiff alleges that they only asked about headaches and never asked about other
symptoms; and he alleges that they did not provide treatment when he complained of chronic
headaches and pain. 	(Id.). 	Plaintiff further alleges that Hubena and Olabode were part of the
review board and opposed the surgery that was approved by OSU. (Id.).
Generally speaking, Plaintiff alleges that all Defendants were deliberately indifferent to his
medical needs. He also alleges that Defendants took “no action” to provide him with proper care,
amounting to cruel and unusual punishment and a Due Process violation. 	(Id. at PageID 159).
Plaintiff alleges that he has suffered partial blindness due to the lack of surgery and that he has
glaucoma in his “bad eye.” (Id. at PageID 160). He also alleges that the strain on his eyesight has
resulted in a cataract in his “good eye.” 	(Id.). 	Plaintiff alleges that he suffers from chronic
headaches and pain from these issues. 	(Id.). 	Overall, Plaintiff alleges that he did not receive
consultation for the promised eye surgery nor had the surgery, had no routine follow-ups nor proper
health care, had no pain medication, and faces the potential for complete blindness due to the lack
of surgery. (Id.).
Plaintiff seeks monetary relief. (Id.).
III. 	DISCUSSION
The Undersigned understands Plaintiff to be raising the following claims:
1. 	Eighth 	Amendment 	deliberate 	indifference 	claims 	against 	Defendants 	Murphy,
Stanford, Gapen, Dr. Eddy, Hubena, Olabode, and Unnamed OSU Doe for allegedly
failing to provide care for Plaintiff’s serious medical needs that required eye surgery;
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2. 	First Amendment claim against Defendant Murphy for allegedly hindering Plaintiff’s
right to file grievances;
3. 	Fourteenth Amendment Due Process claims against all Defendants;
4. 	Ohio state law medical malpractice claims against Defendants Murphy, Stanford,
Gapen, Dr. Eddy, Hubena, Olabode, and Unnamed OSU Doe; and
5. 	Dereliction of duty claims against all Defendants.
As an initial matter, Plaintiff acknowledges that claims must be filed within two years.
(Signed Complaint, Doc. 1-7, PageID 161). Plaintiff asserts that the continuing violations theory
should permit review of all his claims because, allegedly, he never received the proper medical
treatment or health care to stop his partial blindness. (Id.). Regardless, Plaintiff alleges that he
became aware of at least some of the material facts in January 2024. (Id. at PageID 153-55).
Accordingly, at this stage in the proceedings, and without the benefit of an answer or other
briefing, the Undersigned concludes that Plaintiff’s Eighth Amendment deliberate indifference and
Ohio state law medical malpractice claims against Defendants Murphy, Stanford, Gapen, Dr.
Eddy, Hubena, Olabode, and Unnamed OSU Doe may PROCEED for further development in an
abundance of caution. The Court advises Plaintiff that this is only a preliminary determination.
The Court has not made a determination as to the merits of the claims being allowed to proceed at
this juncture, nor has the Court considered any potential defenses. Defendants are not precluded
from filing a motion to dismiss, a motion for a more definite statement, or other appropriate
motions under the Federal Rules of Civil Procedure. See, e.g., Wiley v. Austin, No. 8:20-cv-220,
2020 WL 6204382, at *3 (D. Neb. Oct. 22, 2020).
Plaintiff’s remaining claims, as explained in further detail below, should be DISMISSED
for the failure to state a claim upon which relief may be granted.
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A. Official Capacity Claims for Monetary Damages
Any official capacity claims for monetary damages should be dismissed as barred by the
Eleventh Amendment of the United States Constitution. Maben v. Thelen, 887 F.3d 252, 270 (6th
Cir. 2018). Absent an express waiver, a state is immune from damage suits under the Eleventh
Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144 (1993) (citations
omitted). 	The State of Ohio has not constitutionally nor statutorily waived its Eleventh
Amendment immunity in the federal courts. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th
Cir. 1999); Smith v. DeWine, 476 F. Supp. 3d 635, 652 (S.D. Ohio 2020) (citations omitted).
The Eleventh Amendment bar extends to actions where the state is not a named party, but
where the action is essentially one for recovery of money from the state. Edelman v. Jordan, 415
U.S. 651, 663 (1974) (quoting Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945)).
And a suit against defendants in their official capacities would be a way of pleading the action
against the entity of which defendants are agents. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690 (1978); Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (quoting Kentucky v. Graham, 473
U.S. 159, 165 (1985)) (“While personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law, individuals sued in their official
capacities stand in the shoes of the entity they represent.” (internal quotation marks omitted)).
Thus, actions against state officials in their official capacities are included in this bar. Maben, 887
F.3d at 270; Smith, 476 F. Supp. 3d at 650-52; Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010)
(quoting Cady v. Arenac Cnty., 574 F.3d 334, 344 (6th Cir. 2009)) (“[A]n official-capacity suit
against a state official is deemed to be a suit against the state and is thus barred by the Eleventh
Amendment, absent a waiver.”).
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Plaintiff indicates that he is suing Defendants in their individual and official capacities; and
he seeks monetary relief. (Signed Complaint, Doc. 1-7, PageID 150-51, 160). Plaintiff’s official
capacity claims are considered claims against the State of Ohio and any claims for monetary
damages against Defendants in their official capacities should be DISMISSED. 	Smith, 476 F.
Supp. 3d at 650-51; Colvin, 605 F.3d at 289; Maben, 887 F.3d at 270.
B. Medical Malpractice and Negligence Claims under § 1983
While Plaintiff may proceed with his medical malpractice claims under Ohio state law, any
medical malpractice or negligence claims raised under § 1983 fail to state a claim upon which
relief may granted. 	“Complaints of [medical] malpractice or allegations of negligence are
insufficient to entitle plaintiff to relief” under § 1983. Vick v. Core Civic, 329 F. Supp. 3d 426,
445 (M.D. Tenn. 2018) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)) (noting the
difference between medical malpractice and negligence compared to Eighth Amendment
deliberate indifference under § 1983); Eads v. Butler Cnty. Sheriff Dep’t, No. 1:24-cv-225, 2024
WL 2941843, at *3 (S.D. Ohio June 11, 2024) (citation omitted)) (permitting state law medical
malpractice claims to proceed but dismissing medical malpractice and negligence claims raised
under § 1983). Plaintiff’s medical malpractice and negligence claims raised under § 1983 should
be DISMISSED.
C. First Amendment Grievance Procedure Claims
Plaintiff’s allegations that Defendant Murphy hindered his access to prison grievance
procedures fails to state a claim upon which relief may be granted. 	The First Amendment
guarantees “the right of the people . . . to petition the Government for a redress of grievances.”
U.S. CONST . amend. I. A prisoner has the right to file grievances against prison officials under the
First Amendment. 	Heyward v. Cooper, 88 F.4th 648, 657 (6th Cir. 2023) (quoting Herron v.
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Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). The First Amendment, however, does not impose
an “affirmative obligation” on the government to consider, respond to, or grant any relief on a
petition for redress of grievances. Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir.
2020) (quoting Smith v. Ark. St. Highway Emps., Loc. 1315, 441 U.S. 463, 465 (1979) (per
curiam)). 	In other words, an inmate has neither a constitutionally protected interest in a jail or
prison grievance procedure, nor the right to an effective procedure. Mitchell v. McNeil, 487 F.3d
374, 378 (6th Cir. 2007) (citation omitted) (“There is no statutory or common law right, much less
a constitutional right, to an investigation.”); Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir.
2003) (collecting cases).
Plaintiff alleges that Murphy hindered his access to the grievance procedure by telling him
that his grievance was “not grievous” and to file a kite instead. 	(Signed Complaint, Doc. 1-7,
PageID 153, 155). While that fact may be relevant to some of his other allegations, it does not
create a standalone claim upon which relief may be granted. Mitchell, 487 F.3d at 378; Argue, 80
F. App’x at 430. Plaintiff’s First Amendment claim against Murphy for allegedly hindering his
right to file grievances should be DISMISSED.
D. Claims Against State Agencies
To the extent that Plaintiff is alleging claims against ODRC and OSU Medical Department
as entities, (see Signed Complaint, Doc. 1-7, PageID 152, 154-55, 158-59), such claims fail to state
a claim upon which relief may be granted under § 1983. 	“Section 1983 creates liability for
‘persons’ who deprive others of federal rights under color of law. Only a ‘person’ faces liability
under the statute.” Hohenberg v. Shelby Cnty., Tenn., 68 F.4th 336, 342 (6th Cir. 2023) (citing
Will v. Mich. Dep’t of St. Police, 491 U.S. 58, 64 (1989)). A state corrections department is not a
“person” subject to civil action under § 1983. E.g., Marcum v. Ohio, No. 2:24-cv-4048, 2025 WL
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1347266, at *6 (S.D. Ohio May 8, 2025) (collecting cases); Latham v. Ohio Parole Bd., No. 1:15-
cv-488, 2015 WL 5905833, at *2-3 (S.D. Ohio Sept. 16, 2015) (collecting cases). Likewise, the
OSU Medical Department is part of The Ohio State University, an agency of the State of Ohio.
See Watters v. Dewine, No. 1:25-cv-514, 2025 WL 1827816, at *3 (N.D. Ohio July 2, 2025) (citing
Matteson v. Ohio St. Univ., No. C2-99-1267, 2000 WL 1456988, at *3 (S.D. Ohio Sept. 27, 2000)
(noting that “it is well settled that the Ohio State Medical Center is an instrumentality of the State
of Ohio entitled to Eleventh Amendment immunity”)).
Any claims against ODRC and OSU Medical Department are construed as claims against
the State of Ohio, and as mentioned above, the State of Ohio has not waived its immunity under
the Eleventh Amendment. Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999) (citations omitted).
As agencies of the State of Ohio, ODRC and OSU Medical Department are immune from suit and
these two entities should be DISMISSED as defendants here.
E. Due Process Claims
Plaintiff’s Due Process allegations fall short of stating a claim upon which relief may be
granted. As noted above, a plaintiff must provide a “short and plain statement” providing sufficient
factual details to show a plausible claim for relief, with allegations that are not mere threadbare
assertions. Fed. R. Civ. Pro. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	Plaintiff makes a general allegation that
Defendants’ actions violated his Due Process rights under the Fourteenth Amendment but fails to
allege any facts beyond such threadbare assertions. (Signed Complaint, Doc. 1-7, PageID 159).
Any Due Process claims should be DISMISSED.
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F. 	Dereliction of Duty Claims
To the extent that Plaintiff alleges a dereliction of duty claim under Ohio state law (see id.
PageID 156, 158), such claims fail to state a claim upon which relief may be granted. The State
of Ohio has codified dereliction of duty in a criminal statute, Ohio Revised Code § 2921.44, which
does not provide a separate civil cause of action. Foster v. Portage Cnty., No. 5:21-cv-1983, 2022
WL 2789340, at *3 (N.D. Ohio July 15, 2022) (collecting cases). Accordingly, Plaintiff cannot
bring dereliction of duty claims against Defendants and any such claims should be DISMISSED.
IV. 	MOTION TO APPOINT COUNSEL
Plaintiff requests legal representation because of his partial blindness. (Signed Complaint,
Doc. 1-7, PageID 160). It is well settled that indigent parties in civil cases have no constitutional
right to a court-appointed attorney. Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th
Cir. 1995) (citations omitted); Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003) (citing Lavado
v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993)). But the Court may appoint counsel in its own
discretion. Abdur-Rahman, 65 F.3d at 492; Lanier, 332 F.3d at 1006 (citing Lavado, 992 F.2d at
604-06). The appointment of counsel, however, is a privilege that is justified only in exceptional
circumstances. 	Lanier, 332 F.3d at 1006 (citing Lavado, 992 F.2d at 605-06). 	In determining
whether to exercise its discretion, the Court should consider the complexity of the issues, the
procedural posture of the case, and Plaintiff’s apparent ability to prosecute the case without the
help of counsel. See id. (citations omitted); Lavado, 992 F.2d at 606. And as other courts in this
District have noted, “there are not enough lawyers who can absorb the costs of representing persons
on a voluntary basis to permit the Court to appoint counsel for all who file cases on their own
behalf.” E.g., Straughter v. Eddy, No. 2:23-cv-1268, 2023 WL 3900673, at *5 (S.D. Ohio June 8,
2023); Hillman v. Phipps, No. 2:25-cv-579, 2025 WL 3525302, at *1 (S.D. Ohio Dec. 9, 2025).
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Because Plaintiff’s case is still in the early stages of litigation, the Court declines to exercise
discretion to appoint counsel at this juncture. Plaintiff’s motion to appoint counsel is DENIED
without prejudice, subject to renewal or reconsideration should Plaintiff’s claims survive the
preliminary stages of these proceedings.
V. 	CONCLUSION
The Undersigned determines that Plaintiff, in an abundance of caution, may PROCEED
at this juncture on his Eighth Amendment deliberate indifference claims and his Ohio state law
medical malpractice claims against Defendants Murphy, Stanford, Gapen, Dr. Eddy, Hubena,
Olabode, and Unnamed OSU Doe. But Plaintiff has not signed the USM 285 forms for the U.S.
Marshals to effectuate service. (See Doc. 1-9, PageID 183-90).
IT IS THEREFORE ORDERED THAT:
1. 	To proceed, Plaintiff must sign the service forms on his own behalf and submit a signed
form for each remaining Defendant WITHIN 30 days of the date of this Order with a
motion to issue service. 	The Clerk of Court is DIRECTED to return the unsigned
service forms (Doc. 1-9) to Plaintiff for him to sign and refile.
2. 	Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel,
upon Defendants’ attorney, a copy of every further pleading or other document
submitted for consideration by the Court. Plaintiff shall include with the original paper
to be filed with the Clerk of Court a certificate stating the date a true and correct copy
of any document was mailed to Defendants or Defendants’ counsel. 	Any paper
received by a District Judge or Magistrate Judge which has not been filed with the
Clerk, or which fails to include a certificate of service, will be disregarded by the Court.
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3. 	Additionally, one Defendant against whom Plaintiff has been permitted to proceed at
this juncture, Unnamed OSU Doe, is identified only by the individual’s place of
employment, rather than by name. 	(Signed Complaint, Doc. 1-7, PageID 152, 155).
Because Plaintiff has provided insufficient identifying information for this Defendant,
see Jones v. Sheriff Officer Unknown of Lancaster Cnty., No. 8:20CV365, 2021 WL
2351118, at *3 (D. Neb. June 9, 2021), the Court will treat this individual as an
unidentified defendant. 	Plaintiff is advised that, before service may be issued upon
Unnamed OSU Doe, he must file a motion to issue service setting forth the identity of
this defendant. 	Plaintiff must also provide updated United States Marshal and
summons forms for service on Unnamed OSU Doe once the individual’s identity is
discovered. 	Plaintiff is therefore ORDERED to file a motion to issue service,
including updated United States Marshal and summons forms, if and when Plaintiff
discovers the identity of this Defendant through discovery. No service will be issued
on this Defendant unless Plaintiff complies with this Order.
4. 	Plaintiff must also keep this Court informed of his current address and promptly file a
Notice of New Address should his address change.
5. 	Plaintiff’s request for counsel (Doc. 1-7, PageID 160) is DENIED without prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. 	Plaintiff’s remaining claims be DISMISSED, including his official capacity claims for
monetary damages, medical malpractice and negligence claims raised under § 1983,
Fourteenth Amendment Due Process claims, and dereliction of duty claims.
2. 	Plaintiff’s First Amendment right to file grievances claim against Defendant Murphy
be DISMISSED.
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3. 	Plaintiff’s claims against Ohio state agencies ODRC and OSU Medical Department be
DISMISSED. Because Plaintiff has failed to state a plausible claim against Defendants
ODRC and OSU Medical Department the Undersigned further RECOMMENDS that
these Defendants be DISMISSED from this action.
4. 	The Court CERTIFY pursuant to 28 U.S.C. § 1915(a)(3) that, for the reasons discussed
above, 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, 114 F.3d 601 (6th Cir. 1997).
PROCEDURE ON OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations. 	This period may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. 	A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. 	Failure to make objections in
accordance with this procedure may forfeit rights on appeal. 	See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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IT IS SO ORDERED AND RECOMMENDED.
Date: 1/28/2026 	s/Stephanie K. Bowman
STEPHANIE K. BOWMAN
United States Chief Magistrate Judge
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