Opinion

Phillips v. May

Court
District Court, N.D. Ohio
Filed
Jan 13, 2023
Cited by
0 cases
Authority
More cited than 28.1%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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