Holt v. Hockett

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DENNIS HOLT, Case No. 1:19-cv-583

Plaintiff,

Dlott, J.

vs. Bowman, M.J.

LEGAL CLERK HOCKETT, et al., ORDER AND REPORT

Defendants. AND RECOMMENDATION

Plaintiff, incarcerated at the Southern Ohio Correctional Facility (SOCF), has filed a pro

se civil rights complaint, which this Court construes as filed under 42 U.S.C. § 1983,1 against

defendants Legal Clerk Hockett, Inspector Mahlman, and Deputy Warden Cool, alleging that

defendants violated his rights under the First, Fourth, Fifth and Fourteenth Amendments to the

United States Constitution. (Doc. 1-1). By separate Order, plaintiff has been granted leave to

proceed in forma pauperis.

This matter is before the Court for a sua sponte review of the complaint to determine

whether the complaint or any portion of it should be dismissed because it is frivolous, malicious,

fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant

who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C.

§ 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

I. Screening of Complaint

A. Legal Standard

In enacting the original in forma pauperis statute, Congress recognized that a “litigant

1See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 624 (1979) (“Section 1983 provides a private

cause of action for the deprivation, under color of state law, of ‘rights ... secured by the Constitution and laws.’”)

(footnote omitted).

whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an

economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton

v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).

To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in

forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see

also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as

frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or

law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d

1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations

are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at

32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are

“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d

468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,

however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at

470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to

state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-

pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a

factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.

at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. Plaintiff’s Complaint

Plaintiff alleges that defendant Hockett opened plaintiff’s legal mail multiple times

outside of his presence. (Doc. 1-1, at PageID 33). Plaintiff alleges that Hockett then copied

plaintiff’s legal mail, put it back in the envelope, and brought it to him “on camera, to

manipulate the cameras as if she just opened the legal mail.” (Doc. 1-1, at PageID 33).

Plaintiff alleges that defendant Cool “turned a blind eye to” and refused to correct

Hockett’s alleged actions (Doc. 1-1, at PageID 35), and that defendant Mahlman failed to

respond to plaintiff’s grievances. (Doc. 1-1, at PageID 36). Plaintiff claims that defendants are

acting in concert with one another and “OSP” [Ohio State Penitentiary], where plaintiff was

housed prior to SOCF, and that defendants’ actions were taken in retaliation for a lawsuit that

plaintiff filed against employees at OSP. (Id. at PageID 34-37). Plaintiff also states that he has

been harassed by unidentified SOCF staff, his “legal mail comes up missing in cell

shakedowns,” and his “regular mail” is “being played with.” (Doc. 1-1, at PageID 36-37).

For relief, plaintiff seeks monetary damages and declaratory relief. (Doc. 1-1 at

PageID 38).

C. Analysis

Liberally construed and without the benefit of briefing by the parties, the complaint is

deserving of further development and may proceed at this juncture against defendant Hockett

with respect to plaintiff’s claim concerning the opening of his legal mail. See 28 U.S.C.

§ 1915(e)(2)(B) & 1915A(b). However, the complaint should otherwise be dismissed for failure

to state a claim.

First, plaintiff’s claims against any defendant in an official capacity must be dismissed to

the extent that plaintiff seeks monetary damages. Absent an express waiver, a state is immune

from damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, 506 U.S. 139, 144 (1993); Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of

Ohio has not constitutionally nor statutorily waived its Eleventh Amendment immunity in the

federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of

Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460-62 (6th Cir. 1982). The Eleventh

Amendment bar extends to actions where the state is not a named party, but where the action is

essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663. A suit

against defendants in their official capacities would, in reality, be a way of pleading the action

against the entity of which defendants are agents. Monell v. Dep’t of Social Servs., 436 U.S. 658,

690 (1978). Thus, actions against state officials in their official capacities are included in this

bar. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989). See also Colvin v.

Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th

Cir. 2009)) (“[A]n official-capacity suit against a state official is deemed to be a suit against the

state and is thus barred by the Eleventh Amendment, absent a waiver.” (citation and ellipsis

omitted)). Therefore, all of the named defendants are immune from suit in their official

capacities to the extent that plaintiff seeks monetary damages.

The complaint should also be dismissed as to defendant Cool. Plaintiff seeks to hold

Cool liable for the conduct of his subordinates or for failure to take corrective action. To the

extent that plaintiff names Cool as a defendant because of his supervisory position in the prison,

respondeat superior does not apply to § 1983 claims and may not serve as a basis for liability.

See Iqbal, 556 U.S. at 676; Monell, 436 U.S. at 694); Hill v. Marshall, 962 F.2d 1209, 1213 (6th

Cir. 1992). “[Section] 1983 liability of supervisory personnel must be based on more than the

right to control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

Furthermore, section 1983 liability is premised on active unconstitutional behavior and not a

mere failure to act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999). Plaintiff has not alleged sufficient factual content for the Court to

infer that Cool was personally involved or acquiesced in any unconstitutional behavior.

Next, plaintiff’s claims against defendant Mahlman should be dismissed. Plaintiff seeks

to hold Mahlman liable based on allegations that plaintiff’s grievances have gone unanswered.

Prison officials whose only roles “involve their denial of administrative grievances and their

failure to remedy the alleged [unconstitutional] behavior” cannot be liable under § 1983. Shehee,

199 F.3d at 300. Plaintiff has not alleged facts suggesting that Mahlman directly participated in

any alleged unconstitutional conduct. Moreover, to the extent plaintiff complains that Mahlman

failed to properly respond to his complaints, plaintiff fails to state a claim for relief because

“[p]rison inmates do not have a constitutionally protected right to a grievance procedure.” Miller

v. Haines, No. 97-3416, 1998 WL 476247, at *1 (6th Cir. Aug. 03, 1998) (citations omitted).

To the extent that plaintiff asserts that defendants Cool and Mahlman violated plaintiff’s

right to due process by failing to investigate plaintiff’s claims, “[t]here is no statutory or common

law right, much less a constitutional right, to an investigation.” Mitchell v. McNeil, 487 F.3d

374, 378 (6th Cir. 2007); see also Daniels v. Lisath, No. 2:10cv968, 2011 WL 2710786, at *2

(S.D. Ohio July 13, 2011) (same). Nor does a prison official’s alleged failure to adequately

investigate claims of misconduct rise to the level of “encouragement” that would make the

official liable for such misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir. 1992);

Bellamy, 729 F.2d at 421.

Next, to the extent that plaintiff seeks to bring a First or Fourth Amendment claim based

on his allegations that his “legal mail comes up missing in cell shakedowns” (Doc. 1-1, at

PageID 36) and that his “regular mail” is being “played with” (Doc. 1-1, at PageID 37), his

allegations are merely conclusory and insufficient to state a claim upon which relief may be

granted. See Twombly, 550 U.S. at 557. Moreover, “the Fourth Amendment proscription against

unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer,

468 U.S. 517, 526 (1984). Further, plaintiff has not alleged that any named defendant was

personally involved in these alleged actions. See Moore v. Michigan, No. 1:07-cv-561, 2008 WL

724151, at *9 (W.D. Mich. Mar. 17, 2008) (“Where a person is named as a defendant without an

allegation of specific conduct, the complaint is subject to dismissal, even under the liberal

construction afforded to pro se complaints.”).

Plaintiff also has not stated a retaliation claim against defendants. A prisoner’s claim of

retaliation “for engaging in protected conduct is grounded in the First Amendment.” Jones v.

Caruso, 421 F. App’x 550, 553 (6th Cir. 2011) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 388

(6th Cir. 1999) (en banc)). A retaliation claim has three elements: (1) the prisoner engaged in

protected conduct; (2) an adverse action was taken against the prisoner that “‘would deter a

[prisoner] of ordinary firmness from continuing to engage in that conduct’”; and (3) the

prisoner’s protected conduct, at least in part, motivated the adverse action. Id. (quoting Thomas

v. Eby, 481 F.3d 434, 440 (6th Cir. 2007), in turn quoting Thaddeus-X, 175 F.3d at 394).

Plaintiff’s retaliation claim is subject to dismissal because plaintiff has not alleged any

facts suggesting a causal connection between the alleged adverse action and protected activity.

Plaintiff suggests that defendants retaliated against him for a complaint that plaintiff filed against

non-defendant employees at another prison. (See Doc. 1-1, at PageID 34-36). However, “not

every claim of retaliation by a disciplined prisoner, who either has had contact with, or has filed

a lawsuit against prison officials, will state a cause of action for retaliatory treatment. Rather, the

prisoner must allege a chronology of events from which retaliation may plausibly be inferred.”

Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988) (citing Benson v. Cady, 761 F.2d 335, 342

(7th Cir. 1985) (“alleging merely the ultimate fact of retaliation is insufficient”)). Plaintiff offers

only a conclusory assertion that defendants were motivated by plaintiff’s prior lawsuit. (See

Doc. 1, at PageID 34-36). Without any “further factual enhancement,” plaintiff’s conclusory

allegations are simply insufficient to state an actionable claim for relief. Twombly, 550 U.S. at

555-57. See also Boxill v. O’Grady, 935 F.3d 510, 518-19 (6th Cir. 2019) (finding that the

district court properly dismissed the plaintiff’s First Amendment retaliation claim where the

plaintiff “offered no plausible, non-conclusory facts to show that [the defendant] was even aware

of [the plaintiff’s] complaints against him.”). Cf. Brown v. Carpenter, 889 F. Supp. 1028, 1034

(W.D. Tenn. 1995) (“A plaintiff cannot bootstrap a frivolous complaint with a conclusory

allegation of retaliation.”).

Nor has plaintiff stated a plausible conspiracy claim against defendants. It is well-settled

in the Sixth Circuit that conspiracy claims must be pleaded with “with some degree of

specificity, and vague and conclusory allegations unsupported by material facts are not sufficient

to state a claim.” Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010); see also

Boxill, 935 F.3d at 519 (dismissal appropriate where the plaintiff failed to state any “plausible,

non-conclusory facts to demonstrate that [the defendants] joined [the] conspiracy, shared in the

conspiratorial objective, and/or committed specific acts in furtherance of the conspiracy”);

Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch, 826

F.2d 1534 (6th Cir. 1987)) (affirming dismissal of conspiracy claims under 42 U.S.C. § 1983

because the plaintiff failed to plead the claims with the “requisite specificity”). Here, construing

the complaint liberally, plaintiff’s factual allegations are insufficient to suggest that the

defendants shared a conspiratorial objective or otherwise planned together to deprive him of a

constitutionally-protected right.

To the extent that plaintiff also intends to raise an Eighth Amendment claim, he has failed

to state a claim upon which relief may be granted. “To prove an Eighth Amendment violation,

an inmate must show that he has been deprived of the minimum civilized measures of life’s

necessities.” Estep v. Million, No. 98-6322, 1999 WL 776202, at *1 (6th Cir. Sept. 24, 1999)

(citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Plaintiff fails to present facts from

which the Court can infer that plaintiff was deprived of the minimum civilized measures of life’s

necessities. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, 557.

Finally, to the extent plaintiff claims that defendants violated his procedural due process

rights by failing to follow prison policies, a prison official’s failure to comply with a state

administrative rule or policy does not itself rise to the level of a constitutional violation. See

Laney v. Farley, 501 F.3d 577, 581 n. 2 (6th Cir. 2007); Smith v. Freland, 954 F.2d 343, 347–48

(6th Cir.1992); McVeigh v. Bartlett, No. 94-2347, 1995 WL 236687, at * 1 (6th Cir. Apr. 21,

1995) (noting that the failure to follow a prison policy directive does not rise to the level of a

constitutional violation because policy directive does not create a protectable liberty interest).

Accordingly, in sum, plaintiff may proceed at this juncture with his claim concerning the

opening of his legal mail against defendant Hockett. However, plaintiff’s complaint should be

dismissed in all other regards.

IT IS THEREFORE RECOMMENDED THAT:

The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)

and 1915A(b)(1), with the exception of plaintiff’s claim concerning the opening of his legal mail

against defendant Hockett.

IT IS THEREFORE ORDERED THAT:

1. The United States Marshal shall serve a copy of the complaint, summons, the separate

Order issued granting the plaintiff in forma pauperis status, and this Order and Report and

Recommendation upon defendant Hockett.

2. Plaintiff shall serve upon defendant or, if appearance has been entered by counsel,

upon defendant’s attorney(s), a copy of every further pleading or other document submitted for

consideration by the Court. Plaintiff shall include with the original paper to be filed with the

Clerk of Court a certificate stating the date a true and correct copy of any document was mailed

to defendant or defendant’s counsel. Any paper received by a district judge or magistrate judge

which has not been filed with the Clerk or which fails to include a certificate of service will be

disregarded by the Court.

3. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DENNIS HOLT, Case No. 1:19-cv-583

Plaintiff,

Dlott, J.

vs. Bowman, M.J.

LEGAL CLERK HOCKETT, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).