Dean v. Rhea

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RALPH E. DEAN, Pro Se, ) Case No.: 1:21 CV 2356

)

Plaintiff ) JUDGE SOLOMON OLIVER, JR.

)

v. )

)

TAMMY RHEA, et al., )

) MEMORANDUM OPINION

Defendants ) AND ORDER

Pro Se Plaintiff Ralph E. Dean, a prisoner currently housed in Richland Correctional

Institution (“RiCI”), filed this civil rights action under 42 U.S.C. § 1983 against Tammy Rhea, Unit

Manager; Bobby Eslick, Unit Manager Chief; Kelly Rose, Institution Inspector; and Chris Lambert,

Chief Institution Inspector. Plaintiff alleges the defendants retaliated against him for using the

inmate grievance procedure while incarcerated at RiCI (Doc. No. 1).

For the following reasons, this action is dismissed in part.

I. BACKGROUND

Plaintiff states that he is a 64-year-old prisoner who has been designated “chronic care” by

the Ohio Department of Rehabilitation and Correction (“ODRC”) medical department. For

approximately ten years, Plaintiff had been housed in RiCI’s ground-level dormitory housing (“3-

Lower”), which is known for housing older, non-violent, drug-free prisoners. (See Doc. No. 1 at 12).

According to the Complaint, an inmate must remain free of disciplinary action to remain in 3-Lower.

(Id.). Plaintiff states that he has never had a disciplinary action lodged against him that would result

in Plaintiff being removed from 3-Lower housing. (Id. at 17).

Plaintiff states that from September 21, 2020, to January 15, 2021, he used the inmate

grievance system to address his concerns over the institution’s inadequate lighting. And on January

21, 2021, he was moved from 3-Lower to 3-Upper. Plaintiff states that this new housing arrangement

includes more violent and disruptive inmates, and it requires him to climb a two-story set of stairs

to access the 3-Upper housing area before climbing a ladderless bunk bed to reach his top bunk.

(Doc. No. 1 at 13-14, 17).

Plaintiff claims that the Defendants moved him in retaliation for filing grievances. He alleges

that Unit Manager Tammy Rhea told him that “as a result of a unit staff discussion, we felt the move

was necessary.” According to Plaintiff, Rhea did not further elaborate or explain who attended that

staff meeting, despite Plaintiff’s repeated requests for information. (Doc. No. 1 at 18-20). Plaintiff

alleges that Unit Manager Chief Bobby Eslick advised Plaintiff that he was “on a list that [he] had

created to facilitate an institution need.” (Id.). Plaintiff states that Rhea never claimed to be obeying

a “list” or following a supervisor’s instructions. (Doc. No. 1-4 at 6). After the move, Plaintiff

continued to file grievances regarding his move. According to Plaintiff, when he continued to seek

an explanation from Eslick regarding the move, Eslick responded by“threatening to retaliate even

more” if Plaintiff continued to use the inmate grievance procedure. (Id. at 16). Ultimately, Institution

Inspector Kelly Rose denied Plaintiff’s grievance, and Chief Institution Inspector Chris Lambert

denied Plaintiff’s appeal. (Id. at 14-17).

II. STANDARD OF REVIEW

Pro se pleadings are liberally construed. Boag v. MacDougall, 454 U.S. 364, 365, 102 S. Ct.

700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30

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L. Ed. 2d 652 (1972). The Court, however, 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 can be granted, or 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); 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.

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 facts 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” or “a formulaic recitation of the elements of a cause of action.” 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 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).

Further explaining the plausibility requirement, the Supreme Court stated 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, 677-678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Furthermore, “the plausibility

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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.

When reviewing a complaint, the Court must construe the pleading in the light most

favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998)

(citing Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996)). The Court is not required,

however, to conjure unpleaded facts or construct claims against defendants on behalf of a pro se

plaintiff. 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).

III. LAW AND ANALYSIS

Plaintiff’s claims are brought pursuant to 42 U.S.C. § 1983. To state a claim under § 1983,

Plaintiff must allege that a person acting under state law deprived him of a right, privilege, or

immunity secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42

(1988). Plaintiff must also allege that “the defendants were personally involved in the alleged

deprivation of federal rights.” Frazier v. Michigan, 41 F.App’x 762, 764 (6th Cir. 2002) (citing

Hall v. United States, 704 F.2d 246, 251 (6th Cir. 1983)). “Because vicarious liability is

inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

A. Official Capacity

Plaintiff claims the defendants retaliated against him for using the inmate grievance system.

To the extent Plaintiff asserts a retaliation claim against the Defendants in their official capacities,

Plaintiff’s claims are unavailing.

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The State of Ohio and its agencies are immune from suit under the Eleventh Amendment of

the United States Constitution unless the State’s immunity has been abrogated by Congress or the

State of Ohio has consented to be sued. See Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 429,

117 S. Ct. 900, 137 L. Ed. 2d 55 (1997) (Eleventh Amendment immunity applies to state agencies

and instrumentalities) (citations omitted). When enacting § 1983, Congress did not abrogate the

State’s Eleventh Amendment immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66, 109

S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Nor has the State of Ohio consented to suit under § 1983. See

Wolfel v. Morris, 972 F.2d 712, 718 (6th Cir. 1992) (the State of Ohio has not waived its Eleventh

Amendment immunity from suit in § 1983 cases). And “a suit against a state official in his or her

official capacity is not a suit against the official but rather is a suit against the official’s office.” Will,

491 U.S. at 71; see also Grinter, 532 F.3d at 572 (6th Cir. 2008).

Here, Defendants are either employed by RiCI or the ODRC. Plaintiff’s official capacity

claims against these Defendants are therefore construed as claims against the State of Ohio. And

because the State of Ohio is immune from suit, Plaintiff’s official capacity claims against the

Defendants for monetary relief are also barred under the Eleventh Amendment. See Kentucky v.

Graham, 473 U.S. 159, 169, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (“This [Eleventh Amendment]

bar remains in effect when State officials are sued for damages in their official capacity”).

B. Individual Capacity

Retaliation, though it is not expressly referred to in the Constitution, is actionable because

retaliatory actions may tend to chill an individual’s exercise of First Amendment rights. Perry v.

Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972). To state a prima facie case

for retaliation prohibited by the First Amendment, Plaintiff must establish: 1) he engaged in

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protected conduct; 2) an adverse action was taken against him that would deter a person of ordinary

firmness from continuing to engage in that conduct; and 3) that a causal connection exists between

the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

Defendants cannot be liable for a § 1983 claim in their individual capacity “premised solely

on a theory of respondeat superior, or the right to control employees.” Heyerman v. Cnty. of

Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). Rather, any liability under § 1983 must be “based only

on [the defendants] own unconstitutional behavior.” Id.; see also Gibson v. Matthews, 926 F.2d 532,

535 (6th Cir. 1991) (noting that personal liability “must be based on the actions of that defendant

in the situation that the defendant faced, and not based on any problems caused by the errors of

others, either defendants or non-defendants”). A plaintiff must therefore show, “that the official at

least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of

the offending officers.” Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982).

Here, Plaintiff claims Institution Inspector Rose denied his grievance and Chief Institution

Inspector Lambert denied Plaintiff’s appeal. Plaintiff’s claims against Rose and Lambert are based

solely on their responses to his grievances–either the denial of his grievances or the Defendants’

failure to remedy the alleged retaliatory behavior. The mere denial of a prisoner’s grievance or the

failure to intervene on a prisoner’s behalf does not rise to the level of a constitutional violation. See

Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999). Because Plaintiff fails to state any facts

suggesting Rose and Lambert directly participated, encouraged, authorized, or acquiesced in the

claimed retaliatory acts, any § 1983 claim against Rose and Lambert in their individual capacities

must fail.

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IV. CONCLUSION

For the foregoing reasons, Plaintiff’s official capacity claims against Rhea, Eslick, Rose, and

Lambert are dismissed. Plaintiff’s individual capacity claims against Rose and Lambert are also

dismissed. This action shall proceed solely on Plaintiff’s retaliation claims against Rhea and Eslick,

both of whom the Plaintiff maintains was directly involved in retaliatory actions against him.

IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

March 16, 2022

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