# Pedraza v. Currier

> District Court, N.D. Ohio · September 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10372527

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 26, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10372527

## How later opinions describe it (automated extraction)

- recognizing that federal question jurisdiction is divested by unsubstantial claims
- recognizing that federal question jurisdiction is divested by unsubstantial claims

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Benjamin Pedraza, III, et al., ) CASE NO. 1:23 CV 1286
)
Plaintiffs, ) JUDGE PAMELA A. BARKER
)
v. )
) Memorandum of Opinion and Order
Lieutenant Benjamin Currier, et al., )
)
Defendants. )

INTRODUCTION
Pro se Plaintiffs Benjamin Pedraza, III, Derek Folley and Albert Townsend, filed this
action against the Grafton Correctional Institution (“GCI”), GCI Lieutenant Benjamin
Currier, GCI Warden Keith J. Foley, GCI Major Frank Garcia, GCI Lieutenant Harrison
Jackson, GCI John/Jane Doe Mailroom Employee, GCI Warden’s Administrative Assistant
Dr. James Wesson, the Ohio Department of Rehabilitation & Correction (“ODRC”), and
ODRC Director Annette Chambers-Smith. Plaintiffs filed an Amended Complaint on
August 4, 2023, and a Motion for Leave to File a Second Amended Complaint on August
18, 2023. That Motion (Doc. No. 23) is granted. They submitted a Second Amended
Complaint (Doc. No. 27) on August 24, 2023. As the Second Amended Complaint
supersedes the original Complaint and the Amended Complaint, it is the only pleading the
Court will consider.
1
In the Second Amended Complaint, Folley alleges the Defendants interfered with his
legal mail, and refused to provide potential evidence to him for his disciplinary hearing. He
asserts claims under 42 U.S.C. § 1983 for violation of the First Amendment rights to be free
from retaliation and right of access to the courts, the Sixth Amendment confrontation clause,
and the Fourteenth Amendment right to equal protection. The Second Amended Complaint
also lists claims for violation of 42 U.S.C. § 1985 and Ohio Revised Code § 149.42(c)(2);

however, the body of the pleading contains no reference to these statutes or allegations
suggesting how they are relevant. Plaintiffs filed a Motion to update damages to
$3,333,333.33. (Doc. No. 15). That Motion is granted.
Plaintiffs each filed a Motion to Proceed In Forma Pauperis (Doc. Nos. 2, 3, and 4).
Pedraza did not provide a copy of his prisoner trust account statement and his application
therefore was incomplete. While Townsend’s application was complete, none of the
allegations or legal claims in the Second Amended Complaint pertain to him. In fact, none
of the legal claims pertain to Pedraza either.1 All of the causes of action are based on
incidents that involved Folley. After filing his In Forma Pauperis Motion, Folley paid the
full filing fee of $ 402.00 claiming that the other two inmates would reimburse him for their

portion of the fee if the case had a favorable outcome for them. Generally, this Court would
not permit such an arrangement, and all Plaintiffs would equally be assessed one-third of the
filing fee. In this case, however, it is apparent that Folley is the actual Plaintiff in this case.

1 Pedraza states that he received a notice that incoming mail from the Ohio Secretary of State was being held
because it contained unauthorized funds, specifically a money order from Giant Eagle. Pedraza does not allege who
obtained the money order, why it was sent to the Secretary of State or why the Secretary of State would send it to
him. The prison asked Pedraza where he wanted it to be sent and then processed it in accordance with his instructions.
It appears he was not charged to send the money order out of the institution. Pedraza does not indicate a claim for
relief arising from this occurrence, or a defendant against whom that claim would be asserted.
2
Pedraza and Townsend are included in this action on the inference that the things that
happened to Folley could also happen to them. Because Pedraza and Townsend cannot base
their right to relief on Folley’s alleged injuries, their claims are dismissed. If they want to
proceed with claims based on their own injuries, they must file their own Complaints with
allegations that personally involved them and must take responsibility for payment of the
filing fee either in full or in installments as provided by 28 U.S.C. § 1915(e). The Motions

to Proceed In Forma Pauperis (Doc. Nos. 2, 3, and 4) are denied. This action shall proceed
solely on the claims of Folley.
BACKGROUND
The Second Amended Complaint contains very few factual allegations. Folley states
that Lieutenant Currier, Warden Foley, Director Chambers-Smith, the ODRC, and GCI, have
“been ordering and/or instituting a policy of opening ‘Inmate Folley’s Legal Mail not in his
presence... withholding Inmate Folley’s outgoing & incoming legal mail,” and retaliating
against “Inmate Folley by not processing his outgoing legal mail in a timely fashion.” (Doc.
No. 27 at PageID #: 351, 354, 355, 356, and 357). He provides no other explanation of this
statement. He then states that he “suffer[s] from ‘Schizophrenia’ and is on the Mental Health

caseload at Grafton Correctional Institution.” (Doc. No. 27 at PageID #: 352, 354, 355, 356,
and 357). He asserts, without explanation, that the Defendants discriminated against him on
the basis of mental illness. (Doc. No. 27 at PageID #: 352, 354, 355, 356, and 357). Finally,
Folley claims that these Defendants denied him equal protection when they refused to
provide him with control numbers for incoming mail while providing those numbers to
attorneys and law firms. (Doc. No. 27 at PageID #: 351, 354, 355, 356, and 357).

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The control numbers to which Folley refers are mandated by ODRC Policy 75-MAL-
03 and Ohio Admin. Code §§ 5120-9-17 which govern the handling of inmate incoming legal
mail by Ohio prisons. If an attorney with an active license to practice in the State of Ohio, a
law firm, a legal clinic, the Correctional Institution Inspection Committee, or court personnel
wish to send a confidential communication to an inmate as legal mail, that sender must apply
for and receive a control number that is placed on the envelope. Only incoming mail that is

given a control number will be treated as legal mail and opened for inspection in the presence
of the inmate. All mail without a control number will be treated as regular mail. Regular
mail is opened, copied, and delivered to the addressee. In recognition of the fact that courts
often send documents and correspondence that are not confidential and part of the public
docket, mail coming from a court is not automatically considered to be legal mail unless the
court receives a control number for the correspondence. It is the sender that determines if
the correspondence contains confidential or privileged information. It appears from the
limited information Folley provided in the Second Amended Complaint that he believes the
inmate recipient of the mail should be able to request control numbers for mail he would like
to be kept confidential even if the sender does not consider the information to be sensitive.

Folley’s only allegation pertaining to Major Garcia is that he is the immediate
supervisor of Defendant Currier. (Doc. No. 27 at PageID #: 358). He does not suggest a
legal claim he is asserting against Garcia.
Folley includes claims against John/Jane Doe Mailroom Employee. He alleges that
on July 9, 2023, he placed four envelopes in the prison mail. These envelopes contained
summonses and copies of the complaint in Folley v. Merz, No. 1:23 CV 1016 (N.D. Ohio
Aug. 15, 2023). He contends that only one of the envelopes reached its destination because
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Currier instructed John/Jane Doe Mailroom Employee to “finagle with these legal mail
envelopes.” (Doc. No. 27-1 at PageID #: 371). He contends John/Jane Doe Mailroom
Employee sent two of the letters by regular mail instead of certified mail and retaliated
against him by placing the wrong postage on one or both of the envelopes. (Doc. No. 27 at
PageID #: 361-362). He asserts this action also denied him access to courts. (Doc. No. 27
at PageID #: 362). He further claims the mail clerk placed the certified mail sticker on the

bottom of the third envelope instead of the top of the envelope. (Doc. No. 27 at PageID #:
362). He does not explain how that affected the delivery of the envelope. He contends this
establishes a claim for conversion.
Folley claims he sent kite communications to Wesson asking him for copies of all
email exchanges between Currier and Garcia between May 1, 2023 and August 14, 2023 as
well as copies of grievances they each filed. (Doc. No. 27 at PageID #: 364-368). He does
not indicate the responses he received from his request. He does not specify a legal cause of
action he is asserting against this Defendant.
Finally, Folley asserts a claim against Lieutenant Jackson. Jackson is on the Rules
Infraction Board (“RIB”). Folley alleges he was sent to segregation on July 18, 2023, for

being out of place. He contends the officer that wrote the report included information that
was incorrect. Folley demanded to see the body camera footage from the incident, but
Jackson told him the camera was not working that date. Folley admits that during the hearing
he threatened to sue Jackson and accused Jackson of “trying to railroad [him]” because he
was a Plaintiff in a civil rights action against the Institution. (Doc. No. 27 at PageID #: 359).
Jackson responded that he did not care about the lawsuit because “it is not his money.” (Doc.
No. 27 at PageID #: 359). Folley repeatedly referred to the proceedings as a “Kangaroo
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Court.” (Doc. No. 27, at PageID #: 359). This prompted Jackson to remove him from the
hearing for being unruly. (Doc. No, 27 at PageID #: 359). He states he was sentenced to
seven days in segregation. He contends the Lieutenant deprived him of his right to confront
witnesses by refusing to make the body camera footage available.
STANDARD OF REVIEW
A district court is expressly authorized to dismiss any civil action filed by a prisoner

seeking relief from a governmental entity, as soon as possible after docketing, if the court
concludes that the complaint fails to state a claim upon which relief may be granted, or if the
plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915A; Siller v. Dean, No. 99-5323, 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000); see
Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for
the proposition that attenuated or unsubstantial claims divest the district court of
jurisdiction); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that
federal question jurisdiction is divested by unsubstantial claims). A cause of action fails to
state a claim upon which relief may be granted when it lacks “plausibility in the Complaint.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal,
556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to
raise the right to relief above the speculative level on the assumption that all the allegations
in the Complaint are true. Twombly, 550 U.S. at 555. The Plaintiff is not required to include
detailed factual allegations, but must provide more than “an unadorned, the-Defendant-
unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause of action will not meet this
6
pleading standard. Id. In 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).
DISCUSSION
As an initial matter, the ODRC, GCI, and all Defendants sued in their official
capacities are immune from suits for damages under the Eleventh Amendment. Port. Auth.

Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (2009); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984)). The immunity created by the Eleventh Amendment
protects both the State itself and its agencies, divisions, departments, officials, and other
“arms of the State.” Taylor v. Ozmint, Case No. 0:10–50–HMH–PJG, 2011 WL 286133, at
*2 (D.S.C. Jan. 7, 2011); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429
(1977).
Furthermore, Folley has not stated a proper claim for relief against Warden Foley,
ODRC Director Chambers-Smith, and Major Garcia in their individual capacities. These
Defendants appear to have been included in this action solely because they directly or
indirectly supervise mailroom employees at GCI. Supervisors may be held liable for the

unconstitutional conduct of their subordinates in only certain limited circumstances.
Government officials may not be held liable for the unconstitutional conduct of their
subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676. Therefore, “a
supervisor cannot be held liable simply because he or she was charged with overseeing a
subordinate who violated the constitutional rights of another.” Peatross v. City of Memphis,
818 F.3d 233, 241 (6th Cir. 2016) (citing Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir. 2006). Instead, “supervisory liability requires some ‘active unconstitutional
7
behavior’ on the part of the supervisor.” Peatross, 818 F.3d at 241 (quoting Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). Consequently, unless Folley affirmatively
pleads the direct involvement of the Defendant in the allegedly unconstitutional action, the
Complaint fails to state a claim against that Defendant and dismissal is warranted. See
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Here, Folley does not allege any
facts to suggest Foley, Chambers-Smith, or Garcia were personally involved in any of the

actions alleged in the Complaint. He has not established a legal basis to impose liability on
these Defendants.
Folley also failed to identify any claims against Wesson. To satisfy basic notice
pleading requirements, a Complaint must give the Defendant fair notice of what the
Plaintiffs’ legal claims are and the factual grounds upon which they rest. Bassett v. National
Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). Folley did not specify any legal
causes of action which could pertain to Wesson’s actions, and none are apparent on the face
of the Complaint. He fails to state a claim upon which relief may be granted against Wesson.
The Court now turns its attention to Folley’s claims against Currier, John/Jane Doe,
and Jackson. His claims against Currier and John/Jane Doe focus on their handling of his

mail. His claim against Jackson is based on his actions in a disciplinary hearing.
Although inmates retain the right under the First Amendment to receive mail, it is
more limited in scope than the constitutional rights held by individuals in society at large.
Shaw v. Murphy, 532 U.S. 223, 228-29 (2001). Some rights, particularly those found in the
First Amendment, are simply at times inconsistent with the status of a prisoner. Id. at 229;
Turner v. Safley, 482 U.S. 78, 84-85 (1987). Incoming mail poses a particularly high threat
to prison safety and security. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). For this
8
reason, a prison regulation pertaining to incoming mail will be upheld as long as it is
“reasonably related to legitimate penological interests.” Turner, 490 U.S. at 413.
When considering regulations that govern inmate mail, a distinction is drawn between
legal mail and non-legal mail. Legal mail is given greater protection from unreasonable
intrusion because this type of correspondence may impact the inmate’s attorney-client
privilege, or his right of access to the courts. See, e.g., Wolff v. McDonnell, 418 U.S. 539,

577 (1974); Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996). Legal mail, therefore, may
be opened and inspected for contraband by prison officials only in the prisoner’s presence.
Id. Conversely, prison officials may open, inspect for contraband, copy, and read a prisoner’s
incoming non-legal mail provided that the inspection is conducted pursuant to a policy to
maintain prison security. See Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003); Lavado
v. Keohane, 992 F.2d 601, 607 (6th Cir.1993). Not all mail that a prisoner receives from a
legal source, however, is considered to be “legal mail.” Sallier, 343 F.3d at 874; Stanley v.
Vining, 602 F.3d 767, 770–71 (6th Cir. 2010). The question of what constitutes legal mail
is a question of law. Id. at 871; Jones v. Caruso, 569 F.3d 258, 268 (6th Cir. 2009).
The only claim which Folley asserts regarding his incoming legal mail is that the

Defendants denied him equal protection by refusing to allow him to assign control numbers
to his incoming legal mail while allowing courts, law firms and attorneys to request those
numbers. The Equal Protection Clause prohibits government actors from making distinctions
or treating one differently from others similarly situated without any rational basis for the
difference. Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673, 681-82 (6th Cir. 2011);
Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). Folley, however, is
not similarly situated to law firms, attorneys, correctional institution inspection committees
9
or courts. In this instance, he is the recipient of the mail and not the sender. The sender is
in the best position to determine if the information he or she places in the envelope is meant
to be confidential or privileged. In addition, law firms, attorneys, correctional institution
inspection committees and courts are far less likely than inmates to deliberately mislabel a
letter to circumvent security screenings. The Defendants did not deny Folley equal
protection under the Fourteenth Amendment by refusing to allow him to decide whether his

incoming mail should be classified as legal or regular mail.
The Complaint contains three claims pertaining to outgoing mail. First, Folley asserts
that Currier retaliated against him by “not processing his outgoing legal mail in a timely
fashion,” and John/Jane Doe Defendant retaliated against him on July 9, 2023 by failing to
put the correct amount of postage on an envelope. (Doc. No. 27 at PageID #: 351, 362).
Second, Foley claims John/Jane Doe denied him access to the courts by placing the wrong
postage on an envelope causing it to be returned for insufficient postage. Third, Folley claims
the Defendants discriminated against him on the basis of a disability.
Folley fails to state a claim for retaliation under the First Amendment. This claim is
stated solely as a legal conclusion. The Complaint provides no information about these

incidents that plausibly suggest the actions were retaliatory. Foley does not explain what he
believes to be a “timely fashion” to process mail and states nothing more than a mailroom
clerk put the incorrect amount of postage on one or two envelopes. He then concludes that
these actions were retaliatory. Accepting the limited factual allegations as true, it is equally
possible that both of these occurrences were unintended or caused by others outside of the
prison. Adding the word retaliation to a brief description of an alleged error is not sufficient

10
to state a claim. At best, it is a legal conclusion. Legal Conclusions alone are not sufficient
to state a claim upon which relief may be granted. Iqbal, 556 U.S. at 678.
Similarly, Folley failed to state a claim for discrimination based on a disability.
Again, he does not allege facts to support this claim. It too is stated solely as a legal
conclusion and must be dismissed.
Furthermore, Foley failed to state a claim for denial of access to the courts. To state

a claim for denial of access to the courts, a Plaintiff must allege that particular actions of the
Defendant prevented him from pursuing or caused the rejection of a specific non-frivolous
direct appeal, habeas corpus petition, or civil rights action. Lewis v. Casey, 518 U.S. 343,
351 (1996). The right of access to the courts is directly related to an underlying claim,
without which a Plaintiff cannot have suffered injury by being shut out of court. Christopher
v. Harbury, 536 U.S. 403, 415 (2002) (“It follows that the underlying cause of action,
whether anticipated or lost, is an element that must be described in the Complaint....”).
Plaintiff must therefore “plead and prove prejudice stemming from the asserted violation.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). In order words, he must demonstrate
“actual injury” by showing that his underlying claim was non-frivolous, and that it was

frustrated or impeded by Defendants. Lewis, 518 U.S. at 353. Folley did not suffer an actual
injury from the Defendants’ actions. The Defendants’ placement of incorrect postage on
envelopes containing documents for service in Foley v. Merz, No. 1:23 CV 1016 (N.D. Ohio
Aug. 15, 2023) had no effect on the disposition of that case. That action was dismissed on
the merits of his claims on August 15, 2023. All Defendants in the action entered an
appearance and filed a Motion to Dismiss. They did not contest the validity of service.
Folley’s access to the courts claims are dismissed.
11
In addition to claims pertaining to mail, Folley brings a claim against Jackson for his
role in a disciplinary hearing. Specifically, he asserts that Jackson denied him the right to
confront witnesses at the disciplinary proceedings by refusing to produce body camera
footage that would show the staff member was incorrect about an allegation that a corrections
officer made in the conduct report accusing him of being out of place. The right to confront
witnesses, however, does not apply in prison disciplinary proceedings. Wolff v. McDonnell,

418 U.S. 539, 567-68 (1974); Smith v. Padilla, No. 1:22-CV-1234, 2022 WL 16534540, at
*3 (N.D. Ohio Oct. 28, 2022); Mason v. United States, No. 4:20 CV 2087, 2020 WL
8474733, at *2 (N.D. Ohio Dec. 22, 2020). That claim is dismissed.
Folley also asserts a claim for violation of 42 U.S.C. § 1985. He does not explain
this claim. It is merely listed as a cause of action. To establish a violation of § 1985, Folley
must allege that the Defendants conspired together for the purpose of depriving him of the
equal protection of the laws and committed an act in furtherance of the conspiracy which
was motivated by racial or other class-based discriminatory animus. Bass v. Robinson, 167
F.3d 1041, 1050 (6th Cir. 1999). Folley does not allege facts suggesting the existence of a
conspiracy nor does he allege that any of the Defendants acted to discriminate against him

on the basis of race.
Finally, the other claims that Plaintiffs assert for denial of public records requests and
the tort of conversion, arise under state law. State employees are immune from civil liability
under Ohio law for injuries caused in the performance of the employee’s duties “unless the
... employee’s actions were manifestly outside the scope of his employment or official
responsibilities, or unless ... the ... employee acted with malicious purpose, in bad faith, or in
a wanton or reckless manner.” Ohio Rev. Code § 9.86. However, the Ohio Court of Claims
12
that has the “exclusive, original jurisdiction to determine, initially, whether the ... employee
is entitled to personal immunity under section 9.86 ....” Ohio Rev. Code § 2743.02(F).
Federal courts, including this Court, therefore cannot exercise supplemental jurisdiction over
state law claims against a state employee in his or her individual capacity until the Ohio
Court of Claims determines that the employee is not entitled to immunity under Ohio Revised
Code § 9.86. Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). Accordingly, unless

and until the Ohio Court of Claims decides that Defendants may not invoke immunity from
civil liability conferred by Ohio Revised Code § 9.86, this Court has no jurisdiction to
consider the state law claims asserted against them.
CONCLUSION
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915A. 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. The Motion to Update Damages (Doc. No. 15) and the Motion for Leave
to File a Second Amended Complaint (Doc. No. 23) are granted. All other pending Motions
(Doc. Nos. 2, 3, 4, 11, 12, 16, 17, 18, 19, 20, 21, 22, 24, 26, 28, and 29) are denied.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
Date: September 26, 2023 U. S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372527. Public record. Not legal advice.