The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TARA T. PEACE, aka Todd E. Peace, )
) CASE NO. 4:20CV0713
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
ANNETTE M. CHAMBERS-SMITH, )
DIRECTOR OF THE OHIO )
DEPARTMENT OF REHABILITATION & )
CORRECTION, et al., )
) MEMORANDUM OF OPINION
Defendants. ) AND ORDER
Pro Se Plaintiff Tara T. Peace, aka Todd E. Peace' filed this action under 42 U.S.C. §
1983 against Annette M. Chambers-Smith, Director of the Ohio Department of Rehabilitation &
Correction (“ODRC”); ODRC Bureau of Classification Chief Brian Wiltrup; Management and
Training Corporation; Neil Turner, Warden of the North Central Correctional Complex
(“NCCC”); NCCC Rules Infraction Board (“RIB”) Chairman John Prichard; NCCC Unit
Manager S. Curry; NCCC Case Manager Melinda Taylor; and, NCCC Deputy Warden Jane Doe.
In the Complaint (ECF No. 4), Plaintiff alleges she was denied due process and subjected to cruel
and unusual punishment in connection to a disciplinary sanction that increased her security
' Plaintiff claimed in a prior action that he “presents as a feminine acting male”
with the “speech patterns, body language and hand gestures of a woman.” Plaintiff also
stated he is homosexual, considered a “Queen,” and answers to the name “Tara.” Peace
v. Mohr, No. 4:12CV2283, slip. op. at 1-2 (N.D. Ohio April 29, 2013) (Pearson, J.) (ECF
No. 7 in No. 4:12CV2283). Peace refers to herself using feminine pronouns.
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classification rating and resulted in her transfer to another security level prison. She seeks
monetary relief.
I. Background
Plaintiff’s claims stem from a prison disciplinary proceeding, and her objection to the
sanction imposed. She was housed at NCCC in March 2019 when the incident in question
occurred. Plaintiff contends Inmate Ford had been treating her disrespectfully, calling her
derogatory names and insinuating to other inmates that she was a “snitch.” Peace states she
retaliated against Ford by approaching him in his sleeping area and repeatedly punching him.
Ford responded to the attack by returning punches. Plaintiff states that she left the area when,
under unwritten prison law, the point had been made clear that she would not tolerate disrespect.
Both inmates were charged with conduct violations. Peace, as the aggressor, was charged with
assault. Ford was charged with fighting. Both were found guilty at a RIB hearing. Ford, who
had an otherwise clean conduct record, received a sanction of 15 days in segregation, suspended,
and an order of separation from Plaintiff. Plaintiff had two Rule 4 assault conduct violations in
12 months. Therefore, she was sanctioned with restricted housing, an increase in her security
classification rating from Level 2 to Level 3, and transfer to a higher security level correctional
institution.
Plaintiff contends the charges and penalties imposed on her were disproportionate to
those imposed upon Inmate Ford. She also alleges that one other prior conduct violation for
assault should not be enough to increase a security classification rating it should require four to
six prior violations. Plaintiff claims she was denied due process.
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Plaintiff was transferred to the Northeast Ohio Correctional Center (““NEOCC’”) in April
2019. She indicates she was sexually harassed and assaulted by inmates at that prison. Plaintiff
contends this violated her Eighth Amendment rights. In the meantime, she appealed her conduct
rule violation sanction through the ODRC. The Regional Director reviewed the case and
reversed the security classification rating increase. In October 2019, Plaintiff's security
classification rating was restored to Level 2 and she was transferred to the Pickaway Correctional
Institution.
II. Standard for Dismissal
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 US. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a
claim upon which relief may be granted or if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir, 1996). An action has no arguable basis in law
when a 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). See also Lawler, 898 F.2d at 1199.
When determining whether a 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 facts to state a
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claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(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.” Jd. at
555. Although a complaint need not contain detailed factual allegations, its “[f]actual allegations
must be enough to raise a right to relief above the speculative level . . . on the assumption that all
the allegations in the complaint are true.” /d. (citation omitted). The court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan vy. Allain, 478 U.S.
265, 286 (1986).
The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), further explains 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.” Jd. at 678. Furthermore, “[t]he plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” /d. (quoting Twombly, 550 U.S. at 556). This determination is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Jd.
at 679.
II. Law and Analysis
A. Parties
As an initial matter, the ODRC is an agency of the State of Ohio and therefore is immune
from suits for damages. The Eleventh Amendment is an absolute bar to the imposition of
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liability upon state agencies. Latham v. Office of Atty. Gen. of State of Ohio, 395 F.3d 261, 270
(6th Cir, 2005).
Plaintiff also names Management and Training Corporation as a Defendant in this action.
NCCC is privately owned and operated by Management and Training Corporation. It is named
as a Defendant because it employs individuals who are also named as Defendants in this action.
Section 1983, however, does not permit a plaintiff to sue a defendant for the actions of others on
the theory of respondeat superior liability. Monell vy. Dep’t of Soc. Servs., 436 U.S. 658, 692-94
(1978). When the defendant is a corporate entity, a Plaintiff may only hold it liable under § 1983
for the entity’s own wrongdoing. /d. It cannot be held liable solely on the actions of its
employees. /d. An entity violates § 1983 when its official policy or custom actually serves to
deprive an individual of her constitutional rights. /d. Here, Plaintiff does not allege an official
policy or custom of Defendant Management and Training Corporation caused a violation of her
constitutional rights. Instead, her allegations are directed at the decisions and actions of
individual officers and employees of Management and Training Corporation. That is not
sufficient to state a claim for relief against Defendant Management and Training Corporation.
B. Due Process
Plaintiff first contends she was denied due process before having her security
classification rating increased and being transferred to another prison. The Fourteenth
Amendment provides, in relevant part: “nor shall any State deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. AMEND. XIV, § 1. In addition to setting the
procedural minimum for deprivations of life, liberty, or property, the Due Process Clause bars
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“certain government actions regardless of the fairness of the procedures used to implement
them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It does not prohibit every deprivation by
the government of a person’s life, liberty or property. Harris v. City of Akron, 20 F.3d 1396,
1401 (6th Cir. 1994). Only deprivations of constitutionally protected interests that are conducted
without due process are subject to suit under 42 U.S.C. § 1983. Id.
The Due Process Clause has a procedural component and a substantive one. The two
components are distinct from each other because each has different objectives, and each imposes
different constitutional limitations on government power. A procedural due process limitation,
unlike its substantive counterpart, does not require that the government refrain from making a
choice to infringe upon a protected liberty or property interest. It simply requires that the
government provide notice of the reason for the deprivation and a meaningful opportunity to be
heard before its makes such a decision. Howard y. Grinage, 82 F.3d 1343, 1349-53 (6th Cir.
1996); Loudermill v. Cleveland Bd. of Educ., 721 F.2d 550, 563 (6th Cir. 1983). The goal is to
minimize the risk of erroneous deprivation, to assure fairness in the decision-making process,
and to assure that the individual affected has a participatory role in the process. Howard, 82 F.3d
at 1349-53. Procedural due process claims do not consider the egregiousness of the deprivation
itself, but only question whether the process accorded prior to the deprivation was
constitutionally sufficient. Jd. at 1350. Although the existence of a protected liberty or property
interest is the threshold determination, the focus of this inquiry centers on the process provided,
rather than on the nature of the right.
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Substantive due process, on the other hand, serves the goal of preventing “governmental
power from being used for purposes of oppression,” regardless of the fairness of the procedures
used. See Daniels, 474 U.S. at 331. Substantive due process serves as a vehicle to limit various
aspects of potentially oppressive government action. /d. It serves as a check on legislation or
official misconduct that infringes on fundamental rights otherwise not explicitly protected by the
Bill of Rights. Howard, 82 F.3d at 1349. It also serves as a “limitation on official misconduct,
which although not infringing on a fundamental right, is so literally “conscience shocking,’ .. . as
to rise to the level” of a constitutional violation. Jd.
1. Procedural Due Process
The first step in a procedural due process inquiry is to determine whether Plaintiff was
deprived of a protected liberty or property interest. Prisoners have narrower liberty and property
interests than other citizens as “[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction Justified by the considerations underlying
our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995) (brackets in original). The
question of what process is due is answered only if the inmate establishes a deprivation of a
constitutionally protected liberty or property interest. Wilkinson y. Austin, 545 U.S. 209, 221
(2005).
The Due Process Clause, standing alone, confers no liberty or property interest in freedor
from government action taken within the sentence imposed. Sandin, 515 U.S. at 480.
“Discipline by prison officials in response to a wide range of misconduct falls within the
expected perimeters of the sentence imposed by a court of law.” Jd. at 485. “[T]he Constitution
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itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of
confinement.” Wilkinson, 545 U.S. at 221. Only those sanctions which impose “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life” will
implicate the Due Process Clause. Sandin, 515 U.S. at 484.
Plaintiff claims she was sanctioned with an increase in her security classification rating
and transfer to a higher security level prison. In general, prisoners do not have a protected liberty
or property interest in being incarcerated in a particular prison or to be held under a specific
security classification rating. Olim vy. Wakinekona, 461 US. 238, 245 (1983); Cash y. Reno, No.
97-5220, 1997 WL 809982, at *1 (6th Cir. Dec. 23, 1997). The only exception to that rule is
when the inmate has been reclassified to supermax prison which imposes significant restrictions
on movement beyond what is typically imposed in a maximum security prison. Wilkinson, 545
U.S. at 224.
Plaintiff was not transferred to the Ohio State Penitentiary, Ohio’s supermax facility, nor
did she have her security classification rating raised to that degree. Instead, her security
classification was raised from a Level 2 to a Level 3, and she was housed in the NEOCC.”
NEOCC does not impose restrictions on its inmates that are atypical or significant hardships in
> The ODRC describes Level 2 in its 3-Tier prison system as requiring more
supervision than Level 1 inmates, but still allowing inmates to have “greater autonomy
and freedom of movement during the day to encourage pro-social behavior.” Privileges
are greater than those allowed to Level 3 inmates and inmates “may be eligible for
Reintegration Units.” Level 3 provides stricter security. Inmates are still “considered
General Population, but [it] is designed for inmates who are more likely to, or have
previously engage(d), in disruptive prison behavior.” See
https://dre.ohio.gov/policies/classification (last visited Dec. 31, 2020).
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relation to ordinary prison life. Therefore, Plaintiff does not allege a deprivation of an interest
protected by the Due Process Clause.
Moreover, even if Plaintiff had alleged she was deprived of a protected liberty or property
interest, Plaintiff has not alleged facts suggesting the pre-deprivation disciplinary hearing she
received did not satisfy the requirements of due process. The Court’s ability to review prison
disciplinary proceedings is limited. District courts have no authority to review a disciplinary
committee’s resolution of factual disputes or to make a redetermination of an inmate’s innocence
or guilt. Superintendent, Mass. Corr. Inst., Walpole, v. Hill, 472 U.S. 445, 455 (1985). The only
question for the Court to determine is whether the hearing complied with the basic requirements
needed to satisfy due process.
The standard is not a difficult one to meet. To comply with the requirements of the Due
Process Clause, prison officials need only provide a prisoner facing loss of a constitutionally
protected liberty or property interest with: (1) a written notice of the charges at least 24 hours
prior to any hearing; (2) an opportunity to call witnesses and present documentary evidence in
her defense when permitting her to do so will not be unduly hazardous to institutional safety or
correctional goals; and, (3) a written statement by the fact-finders as to the evidence relied on and
the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974).
Prisoners do not have a due process right of confrontation and cross-examination, or a right to
counsel, in prison disciplinary proceedings. Id. at 569-70.
Moreover, due process requires only that disciplinary findings resulting in the loss of a
constitutionally protected interest be supported by “some evidence” in the record. Hill, 472 U.S.
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at 454-56. This standard is satisfied when “there is any evidence in the record that could support
the conclusion reached by the disciplinary board.” Id. The hearing officer is not required to base
findings on overwhelming or irrefutable proof of guilt. Even when the evidence is contradictory
or partially exculpatory, a hearing officer may base a finding of guilt on only “some evidence”
that indicates the prisoner is guilty. Id. at 457.
In this case, although Plaintiff attempts to characterize her claim as a denial of due
process, she simply attacks the result of the disciplinary hearing and the sanction imposed.
Plaintiff does not complain about the hearing process, nor does she suggest she was denied
sufficient notice of the charges. In addition, there was some evidence to support the finding of
guilt. Plaintiff does not deny that she attacked Inmate Ford in his sleeping area. The RIB
Chairperson also had a video of the incident, which supports Plaintiff’s description of the events
that led to the charges. Thus, there is no suggestion that Plaintiff was denied a hearing that
comports to the requirements of due process.
2. Substantive Due Process
Furthermore, Plaintiff’s substantive due process rights were not violated by Defendants.
Due process claims of this nature involve official acts which cause a deprivation of a substantive
fundamental right. Mertik v. Blalock, 983 F.2d 1353, 1367 (6th Cir. 1993). In addition, under
substantive due process, courts have invalidated laws or actions of government officials that
“shocks the conscience.” See United States v. Salerno, 481 U.S. 739, 746 (1987). These actions
are unconstitutional regardless of the procedural protections provided. Parate v. Isibor, 868 F.2d
821, 832 (6th Cir. 1989). A citizen, however, does not suffer a constitutional deprivation every
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time she is subjected to some form of harassment by a government agent. Id. at 833. The
conduct asserted must be “so severe, so disproportionate to the need presented, and such an abuse
of authority as to transcend the bounds of ordinary tort law and establish a deprivation of
constitutional rights.” Id.
Plaintiff does not allege facts suggesting she was deprived of a fundamental right. Her
substantive due process claim, therefore, would have to be based on conduct alleged to be so
severe that it shocks the conscience. Plaintiff does not allege facts suggesting that any part of the
disciplinary hearing process itself was so egregious that it transcended ordinary tort law and rose
to a constitutional level. She does allege instances of sexual harassment and assault by other
inmates that occurred at NEOCC after her transfer. None of Defendants, however, is associated
directly with NEOCC. They are all employed by either Management and Training Corporation
or work for the ODRC central office. Thus, Plaintiff has not alleged facts to suggest her
substantive due process rights were violated by the named Defendants.
C. Eighth Amendment
Finally, Plaintiff asserts an Eighth Amendment claim for the assaults and sexual
harassment by inmates at NEOCC after her transfer there from NCCC. To state a claim for relief
under the Eighth Amendment, the inmate must show (1) that she was incarcerated under
conditions which pose a serious risk of harm and (2) that the defendant personally acted with a
sufficiently culpable state of mind with regard to the inmate’s health or safety. Farmer v.
Brennan, 511 U.S. 825, 834 (1994). The Court need not decide whether the conditions Plaintiff
found at NEOCC were sufficiently serious to meet the objective standard of the Eighth
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Amendment because none of Defendants are at that institution. Plaintiff attempts to tie them in
by suggesting that their decision to raise her security classification rating and transfer her to
another prison placed her in close proximity with the prisoners who would harass her. The
named Defendants, however, were not in a position to know which NEOCC inmates would pose
a risk to Plaintiff’s safety and were not in a position to assign her to an appropriate cell to protect
her. Raising her security classification rating and transferring her from one institution to another,
without more, is also not enough to satisfy the subjective component of an Eighth Amendment
claim. Therefore, Plaintiff’s Eighth Amendment claim is dismissed.
IV. Conclusion
Accordingly, 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.
IT IS SO ORDERED.
December 31, 2020 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge
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