# Malenda v. Gray

> District Court, S.D. Ohio · October 31, 2019

URL: https://www.frixlaw.com/law-library/cases/10374177

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 31, 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/10374177

## How later opinions describe it (automated extraction)

- noting that a plaintiff must give specific, well-pleaded facts, not just conclusory allegations
- holding that plaintiff stated a cognizable access to the courts claim where he “was afforded very limited access to the law library in which to file a time-sensitive motion regarding his post-conviction appeal”
- finding sufficiently serious medical need where plaintiff needed specifically prescribed, tinted eyeglasses to prevent severe double vision and loss of depth perception
- noting that, given the difficulties of operating a prison, correctional officers must have discretion in choosing how to respond to these difficulties

## Opinion text

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

GREG MALENDA,

Plaintiff,

v. Civil Action 2:19-cv-167
Judge Edmund A. Sargus
Magistrate Judge Jolson

DAVID GRAY, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER
This matter is before the Undersigned on the following: Defendants’ Motion to Dismiss
(Doc. 22); Plaintiff’s Motion for Preliminary Injunction (Doc. 14); Plaintiff’s Motion for Request
for Subpoena (Doc. 15); Plaintiff’s Motion to Amend Relief Requested (Doc. 32); Plaintiff’s
Motion for Production of Documents (Doc. 33); and Defendants’ Motions to Strike (Docs. 35, 36).
For the following reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss,
(Doc. 22), be GRANTED in part and DENIED in part. Specifically, the Undersigned
RECOMMENDS:
• DENYING Defendants’ Motion to Dismiss regarding Defendant Kolvec’s alleged
strip search of Plaintiff;

• DISMISSING Defendants Aubry, Murphy, Weer, Hunyadi, Stanforth, Grey, and
Litzenberger from this action;

• DISMISSING the following claims in their entirety:
o claims concerning the prison’s grievance system;
o claims regarding the law library; and
o claims for deliberate indifference to Plaintiff’s medical needs.

• DISMISSING without prejudice the following claims:
o claims for retaliation;
o claims pertaining to Plaintiff’s legal mail; and
o claims that Defendant Kuyrn changed, stole, manipulated, and deleted
Plaintiff’s legal files.

• DENYING Plaintiff’s Motion for Preliminary Injunction, (Doc. 14).

As for the pending motions related to the pleadings and discovery, Plaintiff’s Motion to
Amend Relief Requested, (Doc. 32), is GRANTED, and Defendants’ Motions to Strike, (Docs.
35, 36), are DENIED. Plaintiff’s Motion for Request for Subpoena, (Doc. 15), and for Production
of Documents, (Doc. 33), are DENIED without prejudice.
I. INTRODUCTION
Plaintiff Greg Malenda is a pro se prisoner currently incarcerated at Belmont Correctional
Institution (“BCI”). Plaintiff has brought a myriad of constitutional claims against 17 BCI officials
and employees. (See Doc. 12). Broadly speaking, Plaintiff alleges that Defendants violated his
First, Fourth, Eighth, and Fourteenth Amendment rights by: (1) failing to provide an effective
grievance system; (2) retaliating against him for filing grievances against prison officials; (3)
opening and destroying his personal mail; (4) performing an unjustified strip search in front of his
dormitory; (5) denying him access to the courts by failing to provide adequate access to the prison
law library; and (6) depriving him mental health and medical treatment. (See generally id.).
Plaintiff does not request any form of relief in his Amended Complaint. (See id.). But on
June 26, 2019, he moved to amend and requested the following injunctive relief:
1. require all correctional staff to wear body cameras at all times;
2. require random drug testing of all staff and contractors;
3. require additional training on the proper treatment of inmates;
4. require yearly de-escalation training;
5. require additional training on handling the special needs of mentally ill and
mentally challenged inmates;
6. issue identifier badges to inmates with special needs;
7. require video and audio recording of all mailroom processing;
8. require better searches of all staff and contractors;
9. require that all interactions with the Institutional Inspector and the Rule
Infraction Board (“RIB”) be recorded and retained for five years;
10. require that the prison’s grievance procedure be provided to the inmate without
special request;
11. require that the law library remain open and accessible for a minimum of 24
hours a week with access to 15 computers;
12. require that all cash slips be processed within one business day;
13. require that all outgoing legal mail be processed within one business day;
14. require that, during shake downs, inmates’ legal papers be retained and not
discarded;
15. bar retaliation for filing internal grievances; and
16. provide inmates with rules regarding how to file grievances.

(Doc. 32).
On May 9, 2019, Defendants filed a Motion to Dismiss for Failure to State a Claim. (Doc.
22). That Motion is now fully briefed and ripe for resolution. (See Docs. 22, 31, 34).
II. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a
claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing
the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual
allegations as true. Id. at 57. “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 (emphasis added) (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. Twombly, 550 U.S. at 555; see also
Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give
specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed
factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement”
rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 677–78 (quotation marks and citations omitted).
Furthermore, 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). Stated differently, “[t]he requirement for liberal construction. . . does
not translate to ignoring a clear failure in the pleading to allege facts which set forth a cognizable
claim.” Kidd v. Neff, No. 1:12-cv-40, 2012 WL 4442526, at *2 (E.D. Tenn. Sept. 25, 2012
(dismissing pro se plaintiff’s “incredibly vague” complaint), see also Smith v. Breen, No. 09-2770,
2010 WL 2557447, at *6 (W.D. Tenn. June 21, 2010) (collecting cases). Ultimately, to avoid
dismissal, a plaintiff’s complaint “must contain either direct or inferential allegations with respect
to all the material elements” of his claims. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902
(6th Cir. 2003) (citing Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)).
III. DISCUSSION
Defendants raise three primary arguments in support of their motion to dismiss: (1) the

Leaman Doctrine bars Plaintiff’s claims; (2) Plaintiff’s Amended Complaint fails to satisfy basic
pleading standards; and (3) Plaintiff fails to state an adequate claim for relief under 42 U.S.C.
§ 1983. (See generally Doc. 22).
A. The Leaman Doctrine
First, Defendants assert that, as a threshold issue, the Leaman Doctrine bars Plaintiff from
pursuing his claims in federal court. (Id. at 7–10). The Leaman Doctrine provides that a plaintiff
waives his right to pursue federal claims if he first pursued those claims in the Ohio Court of
Claims. Leaman v. Ohio Dept. of Mental Retardation & Developmental Disabilities, 825 F.2d
946, 952 (6th Cir. 1987). Before applying the Leaman Doctrine, the federal court must make the
“factual determination” that the “pro se litigant knowingly, intelligently, and voluntarily waived
his federal claims when filing suit in the Ohio Court of Claims.” Asley v. Cooper, No. 1:16-CV-
338, 2017 WL 4857605, at *3 (S.D. Ohio Oct. 25, 2017), report and recommendation adopted sub
nom. Easley v. Cooper, No. 1:16CV338, 2017 WL 5594125 (S.D. Ohio Nov. 21, 2017) (citation

omitted). In making this factual determination, courts consider the pro se litigant’s prior litigation
experience and whether the pleadings demonstrate “an above-average understanding of the law for
a pro se litigant.” Williams v. Smith, No. 05-CV-845, 2006 WL 2192470, at *10 (S.D. Ohio Aug.
1, 2006). Specifically, courts consider “the coherency of [the litigant’s] filings in both the federal
and Court of Claims matters, and whether the litigant referenced the statutory waiver provision in
the filings.” Troche v. Crabtree, No. 1:12-CV-176, 2014 WL 2211012, at *2 (S.D. Ohio May 28,
2014).
Here, Defendants contend that the Leaman Doctrine applies because Plaintiff is an
experienced litigator. They rely in part on the fact that Plaintiff has made three separate filings in
this matter. (Doc. 22 at 9–10). But these filings were made within several days of each other and

do not support a finding that Plaintiff has “extensive prior [ ] experience” litigating prisoner civil
rights claims in federal courts. See Lenoir v. Ohio Dep’t of Rehab. & Corr., No. 1:17-CV-586,
2019 WL 3892470, at *4 (S.D. Ohio Aug. 16, 2019), report and recommendation adopted, No.
1:17-CV-586, 2019 WL 4168968 (S.D. Ohio Sept. 3, 2019) (collecting cases and declining to
apply the Leaman Doctrine to plaintiff’s first prisoner civil rights lawsuit filed in federal court).
Defendants also assert that Plaintiff’s pleadings reflect those of an experienced litigator,
contending that Plaintiff “properly captioned the case, cited accurate jurisdictional statutes, and
cited relevant statutes for his constitutional claims in his Court of Claims filing.” (Doc. 22 at 9–
10). The Undersigned is not convinced. Plaintiff’s Amended Complaint does not demonstrate “an
above-average understanding of the law for a pro se litigant such that his filing of the state matter
can be deemed a knowing, intelligent, and voluntary waiver of his right to proceed with his federal
claims.” Troche, 2014 WL 2211012, at *3 (quotation marks and citation omitted). To the contrary,
Plaintiff’s Amended Complaint contains multiple spelling errors, minimal factual allegations, and

no reference to statutory waiver. See, e.g., id. (finding that plaintiff did not knowingly and
voluntarily waive his claims where “[t]he pleading [was] hand-written, contain[ed] multiple
spelling errors, and minimal factual allegations”).
In sum, neither Plaintiff’s prior litigation experience nor the substance of his pleadings
demonstrate that he is an experienced litigator. The Undersigned therefore finds that Plaintiff did
not make a knowing, intelligent, and voluntary waiver of his right to pursue his claims in federal
court, and, consequently, the Leaman Doctrine does not apply.
B. Sufficiency of the Pleadings
The Undersigned turns now to Defendants’ argument regarding the sufficiency of
Plaintiff’s Amended Complaint. At a high level, Defendants argue that Plaintiff’s Amended

Complaint fails to satisfy basic pleading standards and must be dismissed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. (Doc. 22 at 10–11). The Undersigned finds some merit in
this argument.
As noted, to survive a motion to dismiss, a plaintiff must “plead[] 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. And, while “detailed factual allegations” are not required, the
Federal Rules of Civil Procedure require “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 677–78 (quotation marks and citations omitted). At
base, the purpose of this requirement is to “give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Id. (citation omitted).
Here, much of Plaintiff’s Complaint fails to satisfy basic pleading requirements. Several
examples from Plaintiff’s Amended Complaint are illustrative.

9) Defendant sergeant Weer is accused of failed to address the complaint made on
defendant Everhart and Sattler, failed to investigate the report. These doings
violated and deprived plaintiff of his 1st Amendment against the United States
Constitution, when he deprived plaintiff of his right to exercise his freedom of
speech and to petition the government for a redress of grievance, and a violation
against the 4th , Amendment against the United States Constitution when defendant
deprived plaintiff for unreasonable search and seizers, and defendant violated
plaintiff 8th, Amendment right against the United States Constitution when he was
deprived by defendant for causing cruel and unusual punishments when defendant
acted indifference against the policy of Administrative Rules of ethical practices.
Plaintiff was also deprived his 14th Amendment against the United States
Constitution when defendant is deprived liberty without a chance of Due Process
of law and equal protection to his prison rights.

10) Defendant E. Hunyadi is accused of failed to address the complaint made on
defendant Everhart, all staff, failed to investigate the reports. These doings violated
and deprived plaintiff of his 1st Amendment against the United States Constitution,
when he deprived plaintiff of his right to exercise his freedom of speech and to
petition the government for a redress of grievance, and a violation against the 4th ,
Amendment against the United States Constitution when defendant deprived
plaintiff for unreasonable search and seizers, and defendant violated plaintiff 8th,
Amendment right against the United States Constitution when he was deprived by
defendant for causing cruel and unusual punishments when defendant acted
indifference against the policy of Administrative Rules of ethical practices.
Plaintiff was also deprived his 14th Amendment against the United States
Constitution when defendant is deprived liberty without a chance of Due Process
of law and equal protection to his prison rights.

(Doc. 12 at 5).

As the above examples demonstrate, Plaintiff’s Amended Complaint fails to set forth
detailed factual content, let alone facts that support each element of his constitutional claims. See
Iqbal, 556 U.S. at 678. Rather, he resorts to conclusory factual allegations before seemingly
copying and pasting vague conclusions of law. “[I]n the context of a civil rights claim, . . .
conclusory allegations of unconstitutional conduct without specific factual allegations fail to state
a claim.” Harden-Bey v. Rutter, 524 F.3d 789, 796 (6th Cir. 2008).
But despite this deficiency, the Undersigned takes Plaintiff’s allegations seriously, and
given his pro se status, will consider each of his constitutional claims on their merits.

C. Constitutional Claims
1. Supervisory Liability
First, Defendants argue that Plaintiff’s Amended Complaint must be dismissed because it
does not allege[] that Defendants were personally involved in the violation of his constitutional
rights.” (Doc. 22 at 11–13).
“[T]he Sixth Circuit requires some sort of direct involvement, whether through
encouragement, participation, or at the very least knowing acquiescence, in order to impose
liability under § 1983.” Lupo v. Voinovich, 235 F. Supp. 2d 782, 793 (S.D. Ohio 2002). And,
relevant here, “[s]upervisory liability cannot be imposed in a Section 1983 action based on a theory
of respondeat superior without proof of personal involvement.” Dillingham v. Millsaps, 809 F.

Supp. 2d 820, 844 (E.D. Tenn. 2011) (citing Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–81
(6th Cir. 1995)). Rather, to establish supervisory liability, “there must be a showing that the
supervisor encouraged the specific incident of misconduct or in some other way directly
participated in it.” Rayburn v. Blue, 154 F. Supp. 3d 523, 531 (W.D. Ky. 2015) (quotation marks,
citations, and alterations omitted). In other words, “[l]iability of supervisory personnel must be
based on more than merely the right to control employees” and “cannot be based upon a mere
failure to act.” Id. (quotation marks, citation, and alteration omitted).
Here, Plaintiff seeks to impose liability on four Defendants for failing to act. Specifically,
he accuses: Defendant Weer of “fail[ing] to address the complaint made on defendants Everhart
and Sattler” and of “fail[ing] to investigate the report,” (Doc. 12 at 5), Defendant Hunyadi of
“fail[ing] to address the complaint made on defendant Everhart and all staff” and of “fail[ing] to
investigate the reports,” (id.), Defendant Stanforth, BCI’s chief medical supervisor, of “fail[ing]
to address the ‘Chris Aubrey’ complaint made on defendants Murphy” and “fail[ing] to investigate

the report,” (id.), and Defendant Grey, the warden of BCI, of “fail[ing] to address the complaints
made on all defendants and fail[ing] to investigate any reports,” (id. at 6).
Plaintiff does not allege that these Defendants were directly involved in, encouraged,
implicitly authorized, or otherwise approved the alleged unconstitutional conduct, and
consequently, he has failed to state a claim for supervisory liability. See Leach v. Shelby Cty.
Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989); see, also Groomes, 2008 WL 4057763, at *4
(allegations that a defendant “mishandled a grievance or failed to investigate a complaint” do not
meet the “[t]he standard” for supervisory liability) (citing George v. Smith, 507 F.3d 605, 609 (7th
Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or contribute
to the [constitutional] violation. A guard who stands and watches while another guard beats a

prisoner violates the Constitution; a guard who rejects an administrative complaint about a
completed act of misconduct does not.”)).
Because Plaintiff has failed to state a claim for supervisory liability, it is RECOMMENDE
that Defendants’ Motion to Dismiss these claims be GRANTED and that Defendants Weer,
Hunyadi, Stanforth, and Grey be DISMISSED.
2. Ineffective Grievance System
Second, Plaintiff takes issue with the prison’s grievance system. Specifically, he accuses:
Defendant Haley of “illegally stopp[ing] communications to the grievance process, (Doc. 12 at 3),
Defendant Kolvek of “illegally chang[ing] documents and statements once confronted with
grievances by plaintiff, and post dating write ups,” (id.), Defendant Sattler of “bargaining with
other inmates to find if she was written up in the grievance process by plaintiff,” (id.), Defendant
Haggerty of failing to “review properly filed grievances, against the officials under his control,”
(id.), Defendant Aubry of “fail[ing] to answer kites, informal complaints and investigating mental,

emotional abuse by staff, workers,” (id. at 4), Defendant Taylor of failing to “review properly filed
grievances against the officials under his control,” (id. at 7), and Defendant Callerick of “not
reviewing properly filed grievances against the officials under his control,” (id.).
As Defendants note, “[t]here is no cause of action for the improper adjudication of, or
failure to adjudicate, an inmate’s grievances.” Taylor v. Luttrell, No. 06-2522-AN/V, 2008 WL
4065927, at *5 (W.D. Tenn. Aug. 27, 2008); see also Irvin v. Fluery, No. 2:07-cv-117, 2007 WL
3036493, at *3 (W.D. Mich. Oct. 16, 2007) (“[T]he Sixth Circuit and other circuit courts have held
that there is no constitutional right to access to an institutional grievance procedure.”).
Because Plaintiff has no constitutional right to an effective prison grievance system, it is
RECOMMENDED that Defendants’ Motion to Dismiss these claims be GRANTED. And, as this

is the only claim lodged against Defendant Haley, it is RECOMMENDED that he be DISMISSED.
See, e.g., Groomes, 2008 WL 4057763, at *4 (“Plaintiff also cannot sue any defendant for refusing
to give him a grievance form, or for improperly handling or processing his grievances, because
there is no cause of action for the improper adjudication of, or failure to adjudicate, in inmate’s
grievances.”).
3. Retaliation
Third, Plaintiff contends that a number of Defendants retaliated against him for filing
grievances. Specifically, he alleges that: Defendant Kolvek retaliated against him and destroyed
his property, (Doc. 12 at 3), that Defendant Sattler harassed him and “illegally stopped [his] drug
treatment” in retaliation “for practicing his grievance rights,” (id.), that Defendant Haggerty
retaliated against him “for writing and practicing his grievance rights,” (id.), that Defendant
Everhart “destroyed [his] property once [he] used the grievance procedure attesting to his
supervision,” (id. at 5), that Defendant Taylor improperly opened his outgoing mail in “retaliation

to stop [him] from stating the wrongs by his officers,” (id. at 7), that Defendant Callerick retaliated
against him “for writing and practicing his grievance rights,” (id.), and that Defendant Meager
opened his legal mail in “retaliation to stop [him] from stating the wrongs by his officers,” (id.).
“Retaliation on the basis of a prisoner’s exercise of his First Amendment rights violates the
Constitution.” Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (citation omitted).
In order to establish a First Amendment retaliation claim, a plaintiff must prove
that: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff 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.

Id.
Here, Plaintiff’s Amended Complaint fails to satisfy this test. To start, some of his claims
allege simply that an officer or staff member “retaliated against him for filing grievances.” (See
Doc. 12 at 3,7). These allegations address only the first requirement—that Plaintiff engaged in
protected conduct—and therefore fail to state a plausible claim for retaliation.
Plaintiff also accuses Defendants of destroying his property and opening or tampering with
his mail in retaliation for filing grievances. Assuming that these allegations satisfy the first two
requirements, they fail to satisfy the third. To show causation, the plaintiff must set forth sufficient
facts to demonstrate a plausible causal connection between the plaintiff’s protected activity and
the alleged unconstitutional conduct. See Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010). More
specifically, the prisoner must show that the defendants’ adverse action was taken “at least in part
to retaliate against the prisoner for engaging in protected conduct.” Id. In the context of summary
judgment, where a prisoner must meet a higher burden, courts generally require some evidence of
retaliatory motive. See id. At the pleading stage, however, circumstantial evidence of retaliatory
motive is often sufficient. See id. “This circumstantial evidence can include the disparate

treatment of similarly situated individuals or the temporal proximity between the prisoner’s
protected conduct and the official’s adverse action.” Id. at 475–76.
Here, Plaintiff does not provide circumstantial evidence of retaliatory motive that would
allow the Undersigned to infer that Defendants improperly handled his mail, at least in part, due
to his filing of grievances. “[A]lleging merely the ultimate fact of retaliation,” as Plaintiff does
here, “is insufficient to state . . . a claim under § 1983.” Jones v. Caruso, No. 1:10-CV-812, 2011
WL 1467647, at *9 (W.D. Mich. Apr. 14, 2011) (quotation marks, citation, and alteration omitted);
see, also White v. Stephens, No. 13-CV-2173-JDT-TMP, 2015 WL 6038014, at *8 (W.D. Tenn.
Aug. 28, 2015), report and recommendation adopted, No. 13-2173-JDT-TMP, 2015 WL 6038824
(W.D. Tenn. Oct. 15, 2015) (dismissing “vague and conclusory” retaliation claims where

complaint did not plausibly show that defendants were aware of or took action in response to
plaintiff’s protected conduct); Cox v. Jackson, 579 F. Supp. 2d 831, 848 (E.D. Mich. 2008)
(dismissing retaliation claims where “plaintiff merely allege[d] that the defendants took various
actions against him in retaliation for his having filed grievances” but did not “allege any specific
facts showing a causal connection between defendants’ action and his filing of grievances”).
Consequently, the Undersigned concludes that Plaintiff has failed to state a plausible
retaliation claim. But, given the gravity of the allegations pertaining to Defendants’ handling of
his legal mail, it is RECOMMENDED that Defendants’ Motion to dismiss these claims be
GRANTED IN PART and that Plaintiff be granted leave to amend. Specifically, Plaintiff may
have thirty (30) days to amend these claims.
4. Denial of Access to the Courts
Plaintiff also alleges that Defendants Terek, Haggerty, Kuyrn, Taylor, Callerick, Meager,

and Litzenberger denied him access to the courts. These allegations fall into two general
categories—claims regarding his legal mail and claims regarding access to the prison’s law library.
a. Legal Mail
First, Plaintiff accuses several Defendants of interfering with his legal mail. Specifically,
he alleges that Defendants Haggerty and Taylor opened his mail without going through the proper
procedures, (Doc. 12 at 3, 7), that Defendant Callerick opened his outgoing and incoming legal
mail and provided it to him without post-dates or return addresses, (id.), and that Defendant Meager
failed to send out legal mail, withheld legal exhibits, opened his legal mail, ripped off postage
dates and return addresses, delivered mail late, and sent mail late, (id.).
“A prisoner’s right to receive mail is protected by the First Amendment, but prison officials

may impose restrictions that are reasonably related to security or other legitimate penological
objectives.” Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003) (citation omitted). When the
prisoner’s mail is “legal mail,” there is a “heightened concern with allowing prison officials
unfettered discretion to open and read an inmate’s mail because a prison’s security needs do not
automatically trump a prisoner’s First Amendment right to receive mail,” especially when it
impacts “the prisoner’s legal rights, the attorney-client privilege, or the right of access to the
courts.” Id. at 874.
The Ohio Department of Rehabilitation and Correction (the “ODRC”) has developed
special protocols for the handling of inmate mail. ODRC policy 75-MAL-01 provides that “[a]ll
incoming mail, except legal mail, shall be processed in an area located outside of the facility or in
an area of the facility designated by the managing officer and approved by the appropriate regional
director to minimize possible exposure.” It defines “legal mail” as “[m]ail addressed to an inmate
clearly bearing the return address of an attorney-at-law, a public service law office, a law school

legal clinic, court of law, or the Correctional Institution Inspection Committee [ ].” See ODR 75-
MAL-01. Legal mail “may be opened and inspected for contraband only in the presence of the
inmate-addressee.” Id.
Here, while Plaintiff accuses Defendants of opening his legal mail in violation of ODRC
policy, he does not provide any information regarding the contents of the mail. In fairness, he
alleges that Defendants tampered with his mail and removed postage dates and return labels, and
it is therefore possible that he may not have important information about the mail in question. But,
to state a cognizable claim, the Undersigned must somehow make the finding that the mail was
“legal mail.” Sallier, 343 F.3d at 873 (whether mail is “legal mail” is a question of law for the
court).

On the face of the pleadings, the Undersigned cannot make that finding. See, e.g., Rowser
v. Ohio, No. 5:12CV0610, 2013 WL 123784, at *15 (N.D. Ohio Jan. 9, 2013), aff’d (Dec. 4, 2013)
(finding that there was “no indication” from plaintiff’s complaint that a letter from the Department
of Justice was “legal mail” because his complaint did not reveal the purpose or contents of the
letter); Nicklay v. Brand, No. 1:08CV330, 2008 WL 4738386, at *2 (W.D. Mich. Oct. 27, 2008)
(dismissing claim where Plaintiff did not allege that the “alleged incoming ‘legal’ mail was from
a court or attorney or otherwise identifiable as confidential legal mail that would implicate First
Amendment rights”).
The Undersigned finds that Plaintiff has failed to state a First Amendment claim regarding
Defendants’ handling of his mail. In light of the heightened concern with prisoners’ legal mail, it
is RECOMMENDED that Defendants’ Motion to Dismiss these claims be GRANTED IN PART
and that Plaintiff be granted leave to amend these claims. Plaintiff may have 30 days to do so.

b. Access to Law Library
Plaintiff also alleges that Defendants Kuyrn and Litzenberger denied him access to the law
library. More specifically, he accuses Defendant Kuyrn “of depriving [him] the hours to litigate
and research in the law library,” of “not opening the library to the mandates of Federal hours that
is allowed,” and “of coming to work when ever [she] wants to and depriving plaintiff to access the
courts,” (id. at 6), and Defendant Litzenberger of “not opening the library to the mandates of
Federal hours that is allowed,” and of “letting his employees come to work when ever they want
to,” (id.).
“Prison officials are free to reasonably regulate the time, place, and manner in which library
facilities are used so long as inmates are assured meaningful access to the courts.” Kendrick v.

Bland, 586 F. Supp. 1536, 1550 (W.D. Ky. 1984). Accordingly, inmates are not guaranteed “some
minimum amount of time in the prison law library.” Walker v. Mintzes, 771 F.2d 920, 932 (6th
Cir. 1985). Rather, as the Sixth Circuit has noted, “[w]e are concerned with a right of access to
the courts, not necessarily to a prison law library.” Id. (emphasis in original). Therefore, to state
a claim for access to the courts, a prisoner mus[t] demonstrate that the alleged [library]
shortcomings have hindered his efforts to pursue a legal claim.” Tarpley v. Jefferson Cty.
Commissioners, No. 2:09-CV-00199, 2010 WL 5819058, at *4 (S.D. Ohio Dec. 13, 2010) (citing
Lewis v. Casey, 518 U.S. 343, 351 (1996)).
Here, Plaintiff states in conclusory fashion that he was denied access to the courts. Yet he
does not allege that his inability to use the law library at certain times prejudiced his ability to
litigate a specific claim. Cf. Colvin v. Schaublin, 31 F. App’x 170, 172 (6th Cir. 2002) (holding
that plaintiff stated a cognizable access to the courts claim where he “was afforded very limited

access to the law library in which to file a time-sensitive motion regarding his post-conviction
appeal”). Nor does he allege that he has been denied access to the law library altogether. See,
e.g., Thomas v. Campbell, 12 F. App’x 295, 297 (6th Cir. 2001) (“As Thomas admits that he has
had access to the prison library, but just not as often as he desires, no constitutional violation has
been established.”).
Consequently, the Undersigned finds that Plaintiff’s allegations regarding his access to the
law library fail to state a claim. See, e.g., Russell v. Bailey, No. 1:09-CV-878, 2011 WL 1337138,
at *6 (S.D. Ohio Mar. 16, 2011), report and recommendation adopted, No. 1:09CV878, 2011 WL
1326422 (S.D. Ohio Apr. 6, 2011) (granting motion to dismiss, noting that “when an inmate alleges
his access to the courts was denied because he was denied access to the prison library or certain

books, he fails to state a claim for relief absent any showing of prejudice to his litigation”). It is
therefore RECOMMENDED that Defendants’ Motion to Dismiss these claims be GRANTED.
And, as this is Plaintiff’s only claim against Defendant Litzenberger, it is RECOMMENDED that
he be DISMISSED from this action.
As for Defendant Kuyrn, Plaintiff alleges that she changed, stole, manipulated, and deleted
his legal files. (Doc. 12 at 6). It is RECOMMENDED that Defendants’ Motion to Dismiss these
claims be GRANTED IN PART and that Plaintiff be granted leave to amend. Plaintiff shall have
thirty (30) days to amend his pleadings to state a plausible access to the courts claim. The Court
notes that an access to the courts claim requires a showing that Defendants’ conduct actually
prejudiced his ability to litigate a nonfrivolous legal claim. See, e.g., Russell v. Bailey, No. 1:09-
CV-878, 2011 WL 1337138, at *6 (S.D. Ohio Mar. 16, 2011), report and recommendation
adopted, No. 1:09CV878, 2011 WL 1326422 (S.D. Ohio Apr. 6, 2011) (dismissing complaint
where plaintiff did not allege “that after defendant allegedly deleted his research files that he was

unable to recreate his research or legal filings in a timely manner”) (citations omitted).
5. Strip Searches
Next, Plaintiff alleges that Defendant Mike Kolvek “illegal[ly] strip search[ed] [him] in
front of the entire dorm.” (Doc. 12 at 3). In moving to dismiss, Defendants do not deny that the
alleged strip search took place, nor do they attempt to show that it was reasonable. Rather, they
assert simply that prisons are given wide deference to perform strip searches and that routine strip
searches do not automatically violate the Fourth Amendment. (See Doc. 22 at 19–20).
Defendants are correct that prisons are afforded broad discretion to maintain security and
that strip searches are not “per se unconstitutional.” Long v. Henry Cnty. Jail, No.
117cv01141JDBCGC, 2018 WL 4839088, at *2 (W.D. Tenn. Oct. 4, 2018); see also Stoudemire

v. Michigan Dep’t of Corr., 705 F.3d 560, 572 (6th Cir. 2013) (noting that, given the difficulties
of operating a prison, correctional officers must have discretion in choosing how to respond to
these difficulties). But, strip searches are, by their “very nature an extreme intrusion upon personal
privacy,” and therefore, “instinctively give[] us . . . pause.” Stoudemire, 705 F.3d at 572 (quotation
marks and citations omitted).
In considering whether a particular search is reasonable, courts balance the prison’s need
for the search with the “invasion of personal rights that the search entails.” Salem v. Michigan
Dep’t of Corr., 643 F. App’x 526, 530 (6th Cir. 2016) (quotation marks and citations omitted).
Specifically, courts “consider the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted, while also
examining obvious, easy alternatives that accommodate the inmate’s privacy interests at little cost
to valid penological objectives.” Id. (quotation marks and citations omitted). Relevant here, “strip
searches performed in view of other inmates without a legitimate penological justification” violate

the Constitution. Id. (citation omitted).
While not artfully pled, Plaintiff alleges that Defendant Mike Kolvek “illegal[ly] strip
search[ed] [him] in front of the entire dorm.” (Doc. 12 at 3). Obviously, “a strip search is more
invasive when it is performed where other people can see the person being stripped.” Stoudemire,
705 F.3d at 573. Cf. Hargrove v. Frisby, No. 1:17-CV-748, 2018 WL 2937466, at *3 (S.D. Ohio
June 12, 2018), report and recommendation adopted, No. 1:17CV748, 2018 WL 3437074 (S.D.
Ohio July 17, 2018) (dismissing Fourth Amendment claim where plaintiff failed to allege that
defendants conducted the strip search in a place where he was overly exposed to public view).
Given the nature of strip searches generally, and the fact that Plaintiff alleges that he was
strip searched in public, Plaintiff’s claim against Defendant Kolvek survives Defendants’ Motion

to Dismiss. Accordingly, it is RECOMMENDED that Defendants’ Motion to Dismiss this claim
be DENIED.
6. Deliberate Indifference of Medical Needs
Finally, Plaintiff alleges that he was denied mental health and medical treatment. (See,
e.g., Doc. 12 at 4 (alleging that Defendant Aubry “depriv[ed] plaintiff mental health medical
treatment” and failed to investigate mental and emotional abuse by staff workers); id. (alleging
that Defendant Murphy failed to provide him “fair medical treatment, and refused to give [him]
medical eyeglasses that [he] purchased with his own funds”)).
The Eighth Amendment to the United States Constitution protects individuals against cruel
and unusual punishment and includes the rights of prisoners to be provided with adequate medical
care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). These claims have an objective and subjective
component. The objective prong “requires a plaintiff to show that the medical need at issue is

sufficiently serious.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (quotation marks
and citation omitted). “A medical need is sufficiently serious if it has been diagnosed by a
physician that has mandated treatment or it is so obvious that even a lay person would easily
recognize the need for medical treatment.” Burgess v. Fischer, 735 F.3d 462, 476 (6th Cir. 2013)
(citation omitted). The subjective prong requires the court to determine whether “prison officials
ha[d] a sufficiently culpable state of mind in denying medical care.” Alspaugh, 643 F.3d at 169
(citation omitted). “Under the subjective component, the plaintiff must establish that the defendant
knew of or disregarded an excessive risk to inmate health or safety.” Broyles v. Corr. Med. Servs.,
Inc., No. 08-1638, 2009 WL 3154241, at *2 (6th Cir. Jan. 23, 2009) (citation omitted).
Here, Plaintiff has failed to set forth a plausible Eighth Amendment claim. To start, his

allegations that Defendants Aubry and Murphy deprived him treatment are entirely conclusory and
do not satisfy either prong of the above test.
The same is true for Plaintiff’s allegation that Defendant Murphy refused to provide him
with eyeglasses. Under some circumstances, “the denial of prescription glasses may result in a
sufficiently serious harm under the Eighth Amendment.” Summers v. Teasley, No. 4:16CV-P141-
JHM, 2017 WL 1228420, at *4 (W.D. Ky. Mar. 31, 2017). But Plaintiff does not allege that he
has suffered any harm. Compare Koehl v. Dalsheim, 85 F.3d 86, 87–88 (2d Cir. 1996) (finding
sufficiently serious medical need where plaintiff needed specifically prescribed, tinted eyeglasses
to prevent severe double vision and loss of depth perception) with Summers, 2017 WL 1228420,
at * 4 (no Eighth Amendment violation where plaintiff failed to allege any facts showing that the
deprivation of his eye glasses resulted in any harm other than headaches, which constituted “no
more than a de minimis injury”).
Consequently, because Plaintiff has failed to allege a serious medical need, it is

RECOMMENDED that Defendants’ Motion to Dismiss these claims be GRANTED. Because no
other cognizable claims against Defendants Murphy and Aubry remain, it is recommended that
they be DISMISSED from this action.
IV. OTHER MOTIONS
A. Motion for Preliminary Injunction
Plaintiff has also moved for a preliminary injunction enjoining prison officials from
retaliating against him for filing grievances. (Doc. 14). His allegations are similar to those in his
Amended Complaint. For example, he alleges that Defendants opened, withheld and tampered
with his legal mail. (Id. at 2).
“A preliminary injunction is an extraordinary measure that has been characterized as ‘one

of the most drastic tools in the arsenal of judicial remedies.’” ACLU v. McCreary Cty., 354 F.3d
438, 444 (6th Cir. 2003) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264,
273 (2d Cir. 1986)). When considering a motion for preliminary injunction, a district court must
balance four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury without the injunction; (3) whether issuance
of the injunction would cause substantial harm to others; and (4) whether the public interest would
be served by issuance of the injunction.” City of Pontiac Retired Employees Ass’n v. Schimmel,
751 F.3d 427, 430 (6th Cir. 2014) (en banc) (citation and internal quotation marks omitted).
Under the first factor, to establish a strong likelihood of success on the merits, the movant
must demonstrate “more than a mere possibility” of success. Nken v. Holder, 556 U.S. 418, 435
(2009). This requires, “at a minimum,” a movant to show “serious questions going to the merits.”
Dodds v. United States Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (citation and internal

quotation marks omitted). The first factor is often determinative:
[C]ourts have often recognized that the first factor is traditionally of greater
importance than the remaining three. See Roth v. Bank of the Commonwealth, 583
F.2d 527, 537 (6th Cir. 1978). In fact, the Sixth Circuit has held that when the
proponent of the injunctive relief has no chance of success on the merits of the
claim, the Court may dismiss the motion without considering the other three factors.
See Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
Failure to do so is reversible error. See id.; Sandison v. Michigan High School
Athletic Ass’n, 64 F.3d 1026, 1037 (6th Cir. 1995).

Stanley v. Ohio Dep’t of Rehab. & Corr., No. C2–02–178, 2002 WL 3140935, at *3 (S.D. Ohio
August 12, 2002) (denying motion for injunctive relief after evaluation only of chance of success
on the merits factor); see also City of Pontiac Retired Employees Ass’n, 751 F.3d at 430 (“When
a party seeks a preliminary injunction on the basis of a potential constitutional violation, the
likelihood of success on the merits often will be the determinative factor.”).
While the Undersigned takes Plaintiff’s allegations regarding his mail seriously, he has not
shown a strong likelihood of success on the merits of these claims. (See supra at 13–14). And, in
cases like this one, “where a prison inmate seeks an order enjoining state prison officials, the
Undersigned is required to proceed with the utmost care and must be cognizant of the unique nature
of the prison setting.” Roden v. Floyd, No. 2:16-CV-11208, 2018 WL 6816162, at *2–3 (E.D.
Mich. Nov. 13, 2018), report and recommendation adopted, No. 16-11208, 2018 WL 6815620
(E.D. Mich. Dec. 27, 2018).
Plaintiff may attempt to pursue his claims regarding his mail through an amended
complaint against Defendants. However, he has not met his heavy burden to show that the
extraordinary remedy of a preliminary injunction is warranted. It is therefore RECOMMENDED
that his Motion for a Preliminary Injunction, (Doc. 14), be DENIED.
B. Discovery and Pleading-Related Motions
Plaintiff has filed a Motion to Amend Relief Requested. (Doc. 32). That Motion is

GRANTED, and the Undersigned has considered Plaintiff’s requested relief in reaching its
decision. Defendants’ Motion to Strike, (Doc. 35), is therefore DENIED.
Plaintiff has also filed a Motion for a Subpoena to Obtain Documentary Evidence, (Doc.
15), and a Motion for Production of Documents, (Doc. 33). These Motions are improper under
this Court’s local rules and the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 5(d)(1); S.D.
Ohio Civ. R. 37.2. “Objections, motions, applications, and requests relating to discovery shall not
be filed in this Court . . . unless counsel have first exhausted among themselves all extrajudicial
means for resolving the differences.” S.D. Ohio Civ.R. 37.2. “Pro se litigants are not exempt from
the procedural rules in civil litigation.” Mitchell v. Clayton, No. 13-11620, 2015 WL 71784, at *2
(E.D. Mich. Jan. 6, 2015); see, e.g., Perry v. Cousins, No. 15-CV-13930, 2016 WL 5941831, at

*2 (E.D. Mich. Oct. 13, 2016) (denying inmate’s motion for discovery, explaining that “his
discovery requests must first be directed to Defendant, not filed with the Court.”). Because there
is no evidence that Plaintiff first attempted to exhaust all extrajudicial means before filing these
Motions, Plaintiff’s Motions for discovery, (Docs. 15, 33), are DENIED without prejudice, and
Defendants’ Motion to Strike, (Doc. 36), is DENIED as moot.
V. 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 finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. Upon proper objection, a District 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: October 31, 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/10374177. Public record. Not legal advice.