Merriman v. Cangemi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Monolito J. Merriman, ) CASE NO. 1:20 CV 1827

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

v. )

)

Officer Cangemi, et al., ) Memorandum of Opinion and Order

)

Defendants. )

INTRODUCTION

Pro se Plaintiff Monolito J. Merriman, a prisoner incarcerated in Richland Correctional

Institution (“RCI”), brings this action under 42 U.S.C. § 1983 against the following defendants:

Correction Officer Cangemi (“Officer Cangemi”); First Shift Captain J. Thomas (“Thomas”); R.

Wilson (“Wilson”), “employe[e] at Richland Correctional Institution”; K. Allen (“Allen”), Deputy

Warden of Special Services; Kelley Rose (“Rose”), Institution Inspector; Richland Correctional

Institution (“RCI”); and the Ohio Department of Rehabilitation and Correction (“ODRC”). Doc.

No. 1. Plaintiff alleges that Officer Cangemi made racist and discriminatory remarks and the

prison staff should have “better handled” the incident.

For the reasons that follow, this action is dismissed.

BACKGROUND

Plaintiff claims that on May 24, 2020, while he was in the food line, he overheard Officer

Cangemi on the telephone, saying, “F * * * Ramadan and f * * * the muslims. I do not give a s *

* * about them or their meals. F * * * their meals. I am leaving. [I have] better things to do.

Y’all have to deal with them when I am gone.” Plaintiff states that the officer refused to give

Plaintiff his name. Plaintiff asserts that following the incident, he sent a kite to Allen, the Deputy

Warden of Special Services, who then forwarded the kite to Thomas, the first shift captain.

According to Plaintiff’s complaint, the shift captain “sided with the officer.” Plaintiff, therefore,

sent kites to Wilson, who would not provide Plaintiff the officer’s name. Plaintiff then filed a

grievance that was forwarded to Rose, Institution Inspector, who conducted an investigation into

the incident. Thereafter, Plaintiff learned the officer’s name and that Plaintiff’s grievance was

granted. Plaintiff states, however, that he then asked to grieve his complaint further, to the

ODRC, where his grievance remains unanswered. Doc. No. 1 at PageID ## 3, 5.

In his Complaint, Plaintiff seeks an order “for the [Court] to hold Officer Cangemi

responsible for the racist and discriminating remarks he made against Muslims, the Ramadan

Meal, and how he truly feels inside.” Id. at Page ID #4. Plaintiff also seeks disciplinary action

against Thomas, Wilson, and Allen, stating that “this incident should have been better handled by

staff.” Id. Finally, he states that he would also “like to * * * sue” RCI, Officer Cangemi,

Thomas, and Wilson, for “trying to cover all this up,” as well as the ODRC. Id. at PageID # # 6-

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STANDARD OF REVIEW

Pro se pleadings are held to “less stringent standards than formal pleadings drafted by

lawyers” and must be liberally construed. Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per

curiam) (citing Haines v. Kerner, 404 U.S. 519 (1972)); see also Franklin v. Rose, 765 F.2d 82,

85 (6th Cir. 1985) (pro se complaints are entitled to liberal construction) (citations omitted).

That said, the Court is not required to conjure unpleaded facts or construct claims on Plaintiff’s

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behalf. See Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) (citation omitted); Beaudett v.

City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985).

Plaintiff seeks to proceed with this action in forma pauperis. (Doc. No. 2). The district

court must dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if the Court

determines the action is frivolous or malicious, fails to state a claim for relief upon which relief

may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28

U.S.C. § 1915(e)(2)(B). The Court must also dismiss an in forma pauperis action under §

1915(e) if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct.

1827, 104 L. Ed. 2d 338 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990). A claim

lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory

or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. In order to

withstand scrutiny under §1915(e)(2), “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Hill v. Lappin, 630 F.3d

468, 471 (6th Cir. 2010). Id. at 471 (internal quotation marks and citation omitted).

When determining whether the plaintiff has stated a claim upon which relief can be

granted, the Court must construe the complaint in the light most favorable to the plaintiff, accept

all factual allegations as true, and determine whether the complaint contains “enough fact to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127

S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff’s obligation to provide the grounds for

relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Id. Although a complaint need not contain detailed factual

allegations, its “factual allegations must be enough to raise a right to relief above the speculative

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level on the assumption that all the allegations in the complaint are true.” Id. The Court is “not

bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain,

478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986).

The Supreme Court further explained the “plausibility” requirement, stating that “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.” Ashcroft v. Iqbal,

556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Furthermore, “the plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

that a defendant acted unlawfully.” Id. This determination is a “context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id.

DISCUSSION

Plaintiff brings this claim under 42 U.S.C. § 1983. To state a claim under § 1983, the

plaintiff must show that a person acting under color of state law deprived him of rights,

privileges, or immunities secured by the Constitution or laws of the United States. See Gomez v.

Toledo, 446 U.S. 635, 640 (1980) (citation omitted).

As an initial matter, RCI and the ODRC are not proper parties to this civil rights action.

The Eleventh Amendment is an absolute bar to the imposition of liability upon state agencies and

state officers sued in their official capacities. Latham v. Office of Atty. Gen. of State of Ohio, 395

F.3d 261, 270 (6th Cir. 2005); Bouquett v. Clemmer, 626 F. Supp. 46, 48 (S.D. Ohio 1985).

The ODRC is clearly a state agency and entitled to Eleventh Amendment immunity. And RCI is

a prison facility owned and operated by the ODRC and, therefore, also not a legal entity capable

of being sued under § 1983. See Miles v. Richland Corr. Inst., No. 1:14 CV 01648, 2015 U.S.

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Dist. LEXIS 12722, at *7 (N.D.Ohio Jan. 27, 2015) (citing Brown v. Imboden, No. 1:11 CV

529, 2011 U.S. Dist. LEXIS 94059, 2011 WL 3704952 at * 2 (N.D.Ohio Aug.23, 2011) (finding

that Mansfield Correctional Institution is not sui juris and, therefore, not capable of being sued

under § 1983)).

Plaintiff’s only claim purportedly asserts a denial of equal protection. The Equal

Protection Clause prohibits discrimination by government actors that either burdens a

fundamental right, targets a suspect class, or intentionally treats one differently than others

similarly situated without any rational basis for the difference. Rondigo, L.L.C. v. Township of

Richmond, 641 F.3d 673, 681-682 (6th Cir. 2011); Radvansky v. City of Olmsted Falls, 395

F.3d 291, 312 (6th Cir.2005). The threshold element of an equal protection claim is disparate

treatment. Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). When

disparate treatment is shown, the equal protection analysis is determined by the classification

used by government decision-makers.

Here, Plaintiff claims that Officer Cangemi made racist and discriminatory remarks about

Muslims and their Ramadan meals while Plaintiff was in the food line. He also claims that the

incident should have been better addressed by Thomas (the first shift captain), Wilson (an RCI

employee, whose title or position is unclear), and Deputy Warden Allen.

Plaintiff fails to assert sufficient facts to suggest that Officer Cangemi denied him equal

protection. In making an equal protection challenge, Plaintiff bears the initial burden of

demonstrating that a discrimination of some substance has occurred against him which has not

occurred against other individuals who were similarly situated. City of Cleburne, Texas v.

Cleburne Living Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Clements

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v. Fashing, 457 U.S. 957, 967, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1982). The use of racially

derogatory language, while unprofessional and deplorable, does not violate the Constitution. See

Blades v. Schuetzle, 302 F.3d 801, 805 (8th Cir.2002) (citing DeWalt v. Carter, 224 F.3d 607,

612 (7th Cir.2000); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.1987); Williams v. Bramer,

180 F.3d 699, 706 (5th Cir.), clarified on rehearing, 186 F.3d 633 (5th Cir.1999). Standing

alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a

prisoner of a protected liberty interest, or deny a prisoner equal protection of the laws. See Ivey

v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (per curiam) (Eighth Amendment); Patton, 822 F.2d

at 700 (due process); Williams, 180 F.3d at 705-06 (equal protection). See generally Shabazz v.

Cole, 69 F. Supp.2d 177, 199-201 (D. Mass.1999) (collecting cases).

While Officer Cangemi’s comments may have been offensive, and particularly

reprehensible as they were uttered in the course of his official duties, his actions did not deprive

Plaintiff of equal protection of the laws.

Moreover, even if Plaintiff had stated an actionable claim against Officer Cangemi, his

claims against the remaining prison staff fail. While Plaintiff lists Rose, Institution Inspector, as a

defendant, his complaint does not allege any facts against Rose. In fact, Plaintiff states in his

complaint that Rose conducted an investigation, and consequently, his grievance was granted.

Additionally, Plaintiff does not allege that Thomas, Wilson, or Allen participated in the

actions that Plaintiff claims was discriminatory. Plaintiff cannot establish the liability of any

defendant absent a clear showing that the defendant was personally involved in the activities that

form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371, 96

S. Ct. 598, 46 L. Ed. 2d 561 (1976); Mullins v. Hainesworth, No. 95-3186, 1995 U.S. App.

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LEXIS 36082, 1995 WL 559381 (6th Cir. Sept. 20, 1995).

To the extent Plaintiff alleges Thomas, Wilson, and Allen are liable as Officer Cangemi’s

supervisors, his claim has no merit. Plaintiff cannot hold a supervisor liable for the actions of an

employee under a theory of respondeat superior based on the supervisor’s right to control the

employee or the supervisor’s failure to act. Bass v. Robinson, 167 F.3d 1041, 1048 (6th

Cir.1999) (citing Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (1989)). Rather, the

supervisors must have actively engaged in unconstitutional behavior. Id. For liability to attach to

the supervisors, Plaintiff must, therefore, allege facts to suggest that they did more than play a

passive role in the alleged violations or show mere tacit approval of the officer’s actions. Id.

Plaintiff must show that the supervisors “‘at least implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct of the offending subordinate.’” Taylor v. Michigan

Dep’t of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995) (emphasis in original) (quoting Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). Plaintiff alleges no facts from which this Court can

infer that Thomas, Wilson, or Allen implicitly authorized, approved, or knowingly acquiesced in

the alleged unconstitutional conduct of Officer Cangemi.

CONCLUSION

For the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. § 1915 (e). The

Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not

be taken in good faith.

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IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Dated: 11/4/20 Chief Judge

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