# Anderson v. Barrows

> District Court, S.D. Ohio · September 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10373893

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 17, 2019
- **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/10373893

## How later opinions describe it (automated extraction)

- concluding that more than a year in administrative segregation did not implicate inmate’s due process rights

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROY LEE ANDERSON, JR.,

Plaintiff,

v. Civil Action 2:19-cv-3631
Judge George C. Smith
Magistrate Judge Jolson

JUDGE TED BARROWS, et al.,

Defendants.

REPORT AND RECOMMENDATION
AND ORDER

Plaintiff Roy Lee Anderson, Jr., who is proceeding a pro se, is currently incarcerated at
Franklin County Correctional Center, and brings this civil rights action under 42 U.S.C. § 1983,
against Defendants Judge Ted Barrows, Franklin County Sheriff Department, Sheriff Dallas
Baldwin, Sgt. Lewis Schrader, Franklin County Correction Center, Franklin County, Ohio, and
John Doe Classification Office. (See Docs. 1, 4). This matter is before the undersigned for
consideration of Plaintiff’s Motions for Leave to Proceed in forma pauperis (Doc. 3) and the initial
screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).
For the reasons that follow, Plaintiff’s request to proceed in forma pauperis is GRANTED.
Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 28
U.S.C. § 1915(e)(2)(B).
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1) and (2) (Doc. 3), Plaintiff’s Motion is GRANTED. Plaintiff is required to
pay the full amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s certified
trust fund statement reveals that he has an insufficient amount to pay the full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at the
Franklin County Correction Center is DIRECTED to submit to the Clerk of the United States

District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of
either the average monthly deposits to the inmate trust account or the average monthly balance in
the inmate trust account, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account, but only when the amount in the account
exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. §
1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be made
payable to Clerk, United States District Court and should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.
Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do so
as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order
to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of
this Order to the Court’s financial office in Columbus.
II. INITIAL SCREEN
A. Relevant Standard
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,
or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
In reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all well-
pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that
consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action”

is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be
construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are
still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
B. Plaintiff’s Complaint
The Court has thoroughly reviewed both Plaintiff’s original Complaint, (Doc. 1), as well
as what appears to be an Amended Complaint, (Doc. 4). Generally speaking, Plaintiff’s claims
stem from an unfavorable decision issued by Judge Ted Barrows, of Franklin County Municipal
Court. (See generally, Docs. 1, 4). On May 8, 2019, Plaintiff was arrested for violating a
protective order.1 (Doc. 1 at 5). At Plaintiff’s revocation hearing on July 18, 2019, Judge Barrows
sentenced Plaintiff to 148 days at Franklin County Correctional Center with restricted privileges.
(Id.). Specifically, Judge Barrows purportedly placed Plaintiff on “phone restriction, no exercise,
and on administrative segregation 24 hours lockdown.” (Id.).

In his Complaint, Plaintiff alleges that: (1) he was not provided with “the administrative
policy” regarding his restricted privileges; (2) he has not received a hearing or notice regarding the
terms of his confinement; and (3) he is unable to speak with his family or exercise out of his cell.
(Id.). As a result, Plaintiff brought suit against Judge Barrows, Sheriff Baldwin, Sgt. Lewis
Schrader, the Franklin County Sheriff Department, the Franklin County Correction Center,
Franklin County, Ohio, and John Doe. (Docs. 1, 4). For relief, Plaintiff seeks declaratory and
injunctive relief as well as compensatory damages in the amount of $50,000 against each
Defendant. (Doc. 1 at 6).
C. Discussion
Plaintiff’s claims fail for two primary reasons. First, his claims regarding access to

privileges and a grievance system fail to state a cognizable liberty interest and consequently, fail
as a matter of law. Second, Plaintiff names several Defendants who are absolutely immune from
liability.
1. Failure to State a Claim
First, Plaintiff asserts that his inability to access a phone to call his family violates his
Eighth and Fourteenth Amendment Rights. But “without a showing that basic human needs were
not met, the denial of privileges cannot establish an Eighth Amendment violation.” Allen v.
Alexsander, No. 2:16-CV-245, 2017 WL 2952929, at *4–5 (W.D. Mich. July 11, 2017) (citation

1 Plaintiff denies violating the protective order.
omitted). Nor does a phone restriction during his 148-day sentence violate his due process rights
because the temporary loss of privileges while incarcerated does not implicate a constitutionally
protected liberty interest. See Graham v. Chicowski, No. CV 16-12258, 2018 WL 4784666, at *5
(E.D. Mich. Apr. 5, 2018), report and recommendation adopted, No. 16-CV-12258, 2018 WL

3659337 (E.D. Mich. Aug. 2, 2018); see also Alexsander, 2017 WL 2952929, at *4–5 (collecting
cases holding that loss of telephone privileges does not implicate a protected liberty interest and
finding that 90-day phone restriction did not violate plaintiff’s Eighth or Fourteenth Amendment
rights).
Plaintiff also claims that being placed in administrative segregation violates his Eighth and
Fourteenth Amendment rights. (Doc. 1 at 5). Absent “atypical and significant hardship,” however,
confinement in administrative segregation does not implicate liberty interests protected by the Due
Process clause. Sandin v. Conner, 515 U.S. 472, 484 (1995). “Generally courts will consider the
nature and duration of a stay in segregation in determining whether it imposes an atypical and
significant hardship.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (citation and

quotation marks omitted). Here, Plaintiff has purportedly been in administrative segregation since
he began serving his sentence roughly two months ago. (Doc. 1 at 5). According to the Complaint,
his release date is October 17, 2019. (Doc. 4 at 1). By itself, this duration of confinement is not
an “atypical or significant hardship.” See Powell v. Washington, 720 F. App’x 222, 226 (6th Cir.
2017) (holding that six months in administrative segregation does not constitute an “atypical and
significant” hardship implicating inmate’s due process rights); Mackey v. Dyke, 111 F.3d 460, 463
(6th Cir. 1997) (concluding that more than a year in administrative segregation did not implicate
inmate’s due process rights); Dawson v. Norwood, No. 1:06-CV-914, 2008 WL 7866181, at *6
(W.D. Mich. Sept. 16, 2008), report and recommendation adopted, No. 1:06-CV-914, 2010 WL
2232355 (W.D. Mich. June 1, 2010) (“Plaintiff was held in administrative segregation for
approximately nine months. Administrative segregation of this limited duration is not an atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.” (citation
and internal quotation marks omitted)).

Nor does confinement in administrative segregation violate Plaintiff’s Eighth Amendment
rights. “The Eighth Amendment prohibits any punishment which violates the civilized standards
of humanity and decency, or involves the unnecessary and wanton infliction of pain.” Paige v.
Manisto, No. 2:06-CV-32, 2006 WL 335666, at *2 (W.D. Mich. Feb. 13, 2006) (citing Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). In the context of administrative segregation, “conditions
must amount to a deprivation of life’s necessities to be unconstitutional” and “depend[] on their
severity or pervasiveness[.]” Eaddy v. Foltz, 782 F.2d 1041 (6th Cir. 1985) (finding that
complaints relating to contaminated food, mice entering the cells, and unsanitary condition of
leaking toilet, could, depending on their severity or pervasiveness, constitute a violation). But
“[t]he mere fact that Plaintiff was placed in segregation, with nothing more, is insufficient to state

an Eighth Amendment claim.” Paige, 2006 WL 335666, at *2.
Here, the Complaint contains limited allegations regarding the nature of Plaintiff’s
confinement to administrative segregation. Indeed, his allegations are based entirely on the
restriction of certain privileges and the fact alone that he was unfairly placed in administrative
segregation, which, as explained, do not amount to constitutional violations. Nothing in the
Complaint suggests that the nature of his confinement in administrative segregation is inconsistent
with “the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. As a result, Plaintiff’s claims
fail as a matter of law.
Next, Plaintiff alleges that he did not receive a hearing before being placed in
administrative segregation, did not receive an “administrative policy” regarding these terms, and
has not received notice as to why he is being housed in administrative segregation. (Doc. 1 at 5).
Notably, Plaintiff does not allege that he has used the institution’s grievance procedure to no avail.

Regardless, “[a]s this Court has recognized [ ], a ‘prison inmate does not have an inherent
constitutional right to an effective prison grievance procedure.’” Pollock v. Lavender, No. 2:11-
CV-00114, 2011 WL 2148584, at *6 (S.D. Ohio May 31, 2011), report and recommendation
adopted, No. 2:11-CV-00114, 2011 WL 2637329 (S.D. Ohio July 6, 2011) (quoting Israfil v.
Parks, No. 2:10–cv–132, 2010 WL 4642978, at *1 (S.D. Ohio Aug. 18, 2010)). Therefore,
Defendants’ “failure to respond, or other deficiencies in the grievance process, . . . do not give rise
to a plausible claim of federal constitutional dimension[.]” Haywood v. Gifford, No. 1:17-cv-398,
2017 WL 563316, at *3 (S.D. Ohio Oct. 4, 2017), report and recommendation adopted, No. 1:17-
cv-398, 2017 WL 5598167 (S.D. Ohio Nov. 21, 2017) (collecting cases). And, since a violation
of a constitutional right is required to obtain relief under § 1983, and there is no constitutional right

to an effective grievance procedure, Plaintiff has failed to state a claim for relief. Sales v. Hale,
No. 2:17-CV-689, 2017 WL 3457036, at *3 (S.D. Ohio Aug. 11, 2017), report and
recommendation adopted, No. 2:17-CV-689, 2017 WL 4418578 (S.D. Ohio Oct. 5, 2017)
Finally, § 1983, requires a plaintiff not only to establish a deprivation of a right secured by
the Constitution or laws of the United States, but also to show that such deprivation was caused
by a person acting under color of state law. Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542
F.3d 529, 534 (6th Cir. 2008) (citation omitted). To plead the second element, a plaintiff must set
forth facts showing that each defendant had “personal involvement” in the deprivation of his rights.
Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). Plaintiff’s Complaint does
not provide sufficient factual content or context from which the Court could infer that Sheriff
Baldwin or Sgt. Schrader caused Plaintiff’s alleged constitutional violations. As such, these claims
also fail.
2. Immunity

Briefly, Plaintiff has also brought suit against several Defendants that are immune from
suit. First, Plaintiff challenges Judge Barrows’ decision to restrict his privileges. (See Docs. 1, 4).
But judicial immunity shields judges and other public officers “from undue interference with their
duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982). “Like other forms of official immunity, judicial immunity is an immunity from suit, not
just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial
immunity is overcome only if the actions taken were not in the judge’s judicial capacity and if the
actions taken were in absence of all jurisdiction. Id. at 11–12. While Plaintiff alleges that Judge
Barrows “does not have the right to act as a judge and as an administrative officer,” (Doc. 4 at 1),
he has not alleged facts that would show that Judge Barrows acted outside the scope of his judicial

capacity. As such, Judge Barrows is immune from suit.
Second, while the allegations against Defendants Sheriff Baldwin and Sgt. Schrader are
threadbare, to the extent Plaintiff is suing them for enforcing Judge Barrows’ order, they enjoy
immunity, too. See Wilson v. Karnes, No. 2:06-CV-392, 2009 WL 467566, at *6 (S.D. Ohio Feb.
24, 2009) (rejecting plaintiff’s claim for false imprisonment because, after plaintiff’s prison
sentence, sheriff “had a duty to jail him pursuant to that court order”) (citing Mays v. Sudderth, 95
F.3d 107, 113 (5th Cir. 1996) (holding that “an official acting within the scope of his authority is
absolutely immune from a suit for damages to the extent that the cause of action arises from his
compliance with a facially valid judicial order issued by a court acting within its jurisdiction”)).
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Leave to Proceed in forma pauperis is
GRANTED (Doc. 3); however, it is RECOMMENDED that the Court DISMISS Plaintiff’s
Complaint in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B).

The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: September 17, 2019 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10373893. Public record. Not legal advice.