The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
John E. Phillips, CASE NO. 3:21-cv-02228
Plaintiff, Judge James G. Carr
v.
Warden Harold May, et al. ORDER
Defendants.
This is a pro se prisoner civil rights case filed under 42 U.S.C. § 1983. Plaintiff, John
Phillips, brings constitutional claims against Toledo Correctional Institution (“ToCI”) employees,
Warden, Harold May, and Assistant Healthcare Administrator, Anitra Barker.
Plaintiff asserts that defendants retaliated against him in violation of the First Amendment
by using mind-control agents, ignoring his medical needs, and disregarding his kite grievances.
Plaintiff further claims that this retaliation subjected him to cruel and unusual punishment under
the Eighth Amendment and denied him of his right to due process under the Fourteenth
Amendment. Defendants argue that plaintiff does not provide any factual basis for these claims.
Pending before this court is defendants’ Motion to Dismiss (Doc. 18, plaintiff’s Motion in
Opposition (Doc. 19), and defendants’ Reply (Doc. 20). For the reasons below, I grant defendants’
Motion to Dismiss.
Background
Plaintiff is an inmate at ToCI. Plaintiff asserts that his job in January 2020 as a “chow hall
worker” is the basis for defendants’ retaliation. (Doc. 18, pgID 170). Defendants argue that
plaintiff does not establish any factual basis for the alleged retaliation. (Id., pgID 165).
Plaintiff states on August 19, 2021, he observed a hose protruding out of a vent in his jail
cell. Plaintiff claims defendants were using a machine similar to an “MK Ultra” to emit
“heroin/fentanyl and a nerve agent” in his cell, which caused his body to itch, hurt, and swell and
restricted his ability to breathe, as a means to “torture and harass” him. (Id., pgID 169). Plaintiff
alleges he began reaching out to staff members for help but was ignored or referred to mental
health services. (Id.)
On August 21, 2021, plaintiff notified the Ohio Department of Rehabilitation and
Correction’s Security Threat Group of the machine in his cell. (Id.) Plaintiff contends that he also
sent several kites between September 13 and August 20, 2021. Further, plaintiff reports calling the
Prison Rape Elimination Act hotline numerous times between September 5 and October 11, 2021
to report this alleged retaliation. (Doc. 8, pgID 71). However, these grievances were ignored by
defendant May. (Id).
In addition to the use of the nerve agent machine, plaintiff asserts that ToCI staff members
intentionally failed to provide him with adequate medical care for his swollen face and body. (Id.,
pgID 73). However, plaintiff admits that he was diagnosed with an allergy to his laundry detergent
and was given steroid shots to treat his swelling. (Doc. 19, pgID 173).
Concurrently, the medical unit treated plaintiff for Hepatitis C, which may have also
contributed to these symptoms. (Doc. 18, pgID 163). Plaintiff argues that he should have been
placed in “critical care” status for this diagnosis, but he denies Hepatitis was the cause of his
symptoms. (Doc. 8, pgID 73).
Standard of Review
Under Fed. R. Civ. Pro. 12(b)(6), a motion to dismiss permits a defendant to test the legal
sufficiency of a complaint without subjecting the parties to discovery. See, e.g., Yuhasz v. Brush
Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). Courts must analyze a complaint and its factual
allegations in a light most favorable to the plaintiff. See, e.g., Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007).
To overcome a motion to dismiss, a complaint must facially present plaintiff’s entitlement
to relief. Complaints require more than “labels, conclusions, and formulaic recitation of the
elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, claims
set forth in a complaint must be plausible on their face rather than merely conceivable. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
A court may grant a 12(b)(6) motion only if it is clear that the plaintiff is unable to prove
any facts in support of the claims entitling him or her to relief. Pfennig v. Household Credit Servs.,
295 F.3d 522, 525-26 (6th Cir. 2002) (citing Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559,
561 (6th Cir. 1998)). Accordingly, my task is to determine whether plaintiff will prevail on his
claims, not whether he can offer evidence in support of those claims. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974).
Discussion
I must determine whether Plaintiff’s complaint sufficiently alleges: 1) Defendants
retaliated against him for engaging in activity protected under the First Amendment; 2) defendants
subjected plaintiff to cruel and unusual punishment under the Eighth Amendment; and/or 3)
plaintiff was denied due process under the Fourteenth Amendment.1
1 Notably, this case presents facts that are too impossible to merit further development as a matter of law. Plaintiff’s
allegations that defendants used mind control agents are plainly “fantastic” and “delusional”. See, e.g., Neitzke v.
Williams, 490 U.S. 319, 328 (1989). This Court retains the authority to dismiss cases bringing such claims. Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999). In sum, some allegations, such as those raised by plaintiff here, are simply
too irredeemably bizarre to be able to state a plausible claim under Iqbal/Twombly.
Plaintiff brings this action under 42 U.S.C. § 1983, which allows him to recover if
government officials have violated his civil rights. Qualified immunity protects government
officials from liability “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). If a defendant raises the defense of qualified immunity, the plaintiff must
show that the defendant is not so entitled. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).
The law relating to qualified immunity is well established and involves a two-prong test.
The court must determine whether: 1) “the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right,” and 2) “the right at issue was clearly established at the time of
defendant’s alleged misconduct.” Pearson, supra, 555 U.S. at 232 (citations omitted). If either
part of this test fails, the defendant is entitled to qualified immunity. Haley v. Elsmere Police
Dep’t, 452 F. App’x 623, 626 (6th Cir. 2011).
1. First Amendment: Retaliation Claim
Plaintiff’s amended complaint raises a First Amendment claim against defendants for their
alleged retaliation against him. (Doc. 8, pgID 70). For the reasons described below, I grant
defendants’ Motion to Dismiss as to plaintiff’s First Amendment claim.
To prevail on a First Amendment retaliation claim, “a plaintiff must show that (1) he was
engaged in 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) there is a causal
connection between elements one and two – that is, the adverse action was motivated at least in
part by the plaintiff’s protected conduct.” Hazel v. Quinn, 933 F. Supp. 2d 884, 888 (E.D. Mich.
2013) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)).
Plaintiff argues that defendants retaliated against him because of his prior title as a “chow
hall worker.” (Doc. 8, pgID 70). Plaintiff believes that this was the sole basis for defendants’
alleged deliberate indifference to his medical needs and the denial of adequate ToCI grievance
processes. Id.
First, I do not find that plaintiff’s bare assertion that his prior position as a chow hall worker
lends itself to protected conduct under the First Amendment. However, a prisoner’s right to file
grievances is clearly protected conduct. Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
Regardless, I do not find that plaintiff suffered an adverse action that would deter a person
of ordinary firmness from engaging in the conduct. Plaintiff’s claimed injuries from the retaliatory
act of the “mind agent machine,” defendants’ alleged indifference to medical needs, and asserted
inadequate grievance procedures were de minimis. Namely, plaintiff’s only injuries amounted to
swelling of his face and body and difficulty breathing. Accordingly, the severity of plaintiff’s
alleged injuries was insubstantial and unlikely to be a deterrent for others.
Finally, because plaintiff is unable to establish both prongs of his First Amendment
retaliation claim, he will similarly be unable to establish a causal connection between them.
Plaintiff has failed to present facts sufficient to support a finding that defendants intended to
retaliate against him. Therefore, I dismiss plaintiff’s First Amendment retaliation claim.
2. Eighth Amendment: Cruel and Unusual Punishment
Plaintiff asserts that defendants violated his Eighth Amendment right to be free from cruel
and unusual punishment by deliberately failing to address his medical needs. To prevail on an
Eighth Amendment claim, inmates “must satisfy both an objective and subjective component.”
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citing Moore v. Holbrook, 2 F.3d 697, 700
(6th Cir. 1993)).
The subjective component of an Eighth Amendment claim centers around the prison
official’s state of mind. Curtin, 631 F.3d at 383. Thus, this component requires the court to
consider whether the government official acted with deliberate indifference to a prisoner’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976). The objective component requires a
plaintiff to prove that the deprivation of medical care was sufficiently serious. Farmer v. Brennan,
511 U.S. 825, 834 (1994).
Therefore, a prisoner will succeed on an Eighth Amendment claim only if he establishes:
1) the prison official had a willful and wanton state of mind, and 2) the prison official used cruel
and unusual punishment against him resulting in substantial injuries.
A. The Subjective Component: Intentional Harm
Under the Eighth Amendment, an officer acts intentionally by acting with “obduracy and
wantonness, not inadvertence or good faith error.” Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir.
1992). Further, courts are reluctant to question the adequacy of medical judgment where a prisoner
has received the treatment sought. Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976).
Plaintiff has not met his burden of proving the subjective component of the Eighth
Amendment as he fails to establish sufficient facts showing that either defendant May or defendant
Barker acted intentionally to ignore his medical needs.
First, plaintiff claims that he suffered from swelling in his face and body and had difficulty
breathing. (Doc. 8, pgID 73). However, plaintiff later admits that he received steroids for the
swelling, which he states was caused by his laundry detergent. (Doc. 19, pgID 173).
Moreover, plaintiff concedes that he was also treated for Hepatitis C but was not placed in
“critical care” as he desired. Id. I decline to question the adequacy of plaintiff’s medical treatment.
Plaintiff presents insufficient facts to establish deliberate indifference as to his known medical
needs. Estelle, at 105. Therefore, plaintiff has failed to meet the subjective component of his Eighth
Amendment claim.
B. The Objective Component: Sufficiently Serious Harm
The Eighth Amendment is violated when a prisoner’s serious medical diagnosis is left
untreated. See Blackmore v. Kalamazoo Cty., 390 F.3d 890, 896-899 (6th Cir. 2004). However, a
plaintiff must present “medical proof that the provided treatment was not an adequate medical
treatment of [the inmate’s] condition or pain.” Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir.
2013).
Moreover, the Prison Litigation Reform Act of 1996 limits the injuries in which a prisoner
can recover. 42 U.S.C. § 1997e, et seq.; Merchant v. Hawk-Sawyer, 37 F. App’x 143, 145-46 (6th
Cir. 2002). Thus, minor injuries resulting in “swelling, pain, and cramps” are de minimis injuries
and cannot lead to recovery. Jarriett v. Wilson, 414 F.3d 634, 162 F. App’x 394, 401 (6th Cir.
2005) (unpublished opinion).
Defendants argue that plaintiff’s asserted injuries – swelling and difficulty breathing – is
not “sufficiently serious” under the Eighth Amendment’s objective standard. I agree.
Even taking Plaintiff’s factual assertions as true, Plaintiff did not establish that the
defendants had a culpable mental state or that he sustained sufficiently serious injuries. I find that
plaintiff fails to meet his burden of establishing both the subjective and objective prongs, and
therefore, I dismiss plaintiff’s Eighth Amendment claims.
3. Fourteenth Amendment: Due Process
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, §
1. To establish a due process violation, a plaintiff must show that one of his liberty interests is at
stake. Wilkinson v. Austin, 545 U.S. 209 (2005).
Prison discipline only violates a constitutionally protected liberty interest when the
discipline rises to the level of an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 478 (1995). Further, the Sixth
Circuit has held that there is no constitutionally protected due process right to an effective prison
grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005).
Plaintiff asserts that defendants deprived him of his liberty interests when they failed to
respond to his grievances. However, “failing to follow proper procedures is insufficient to establish
an infringement of a liberty interest.” Grinter v. Knight, 532 F.3d 567, 574 (6th Cir. 2008)
(quotations omitted). The Due Process Clause does not protect every procedural aspect of a
prisoner’s life. See, Id.
Plaintiff has not identified a constitutionally protected liberty interest that amounts to an
atypical or unusual hardship. Thus, I dismiss plaintiff’s Fourteenth Amendment claim in favor of
the defendants.
Conclusion
For the foregoing reasons, it is hereby ORDERED THAT:
1.) Defendants’ motion to dismiss (Doc. 18) be, and the same hereby is granted.
2.) An appeal from this decision could not be taken in good faith, as jurists of reason
could not rationally dispute either its rationale or result. Therefore, to maintain an appeal, plaintiff
must prepay the requisite filing fee in advance.
So ordered.
James G. Carr
Sr. U.S. District Judge