Harris v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CORNELIUS L. HARRIS, Case No. 1:20-cv-120

Plaintiff,

Black, J.

vs. Litkovitz, M.J.

WARDEN R. ERDOS, et. al, ORDER AND REPORT

Defendants. AND RECOMMENDATION

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

civil rights complaint and amended complaint pursuant to 42 U.S.C. § 1983 in this Court. (See

Doc. 1, 3). Plaintiff’s motion to amend the complaint to include additional claims and

defendants (Doc. 3) is hereby GRANTED. 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, as amended, 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).

This matter is also before the Court on plaintiff’s motion for a preliminary injunction and

temporary restraining order. (Doc. 2).

I. The Complaint

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

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).

In the complaint, plaintiff claims that he was transferred from the Ohio State

Penitentiary to the Southern Ohio Correctional Facility (SOCF) on September 19, 2019.

Plaintiff asserts that defendants Warden Erdos, Regional Director Bobby, and ODRC Director

Annette Chambers-Smith transferred him “for the purpose of having [his] Extended Restrictive

Housing Non-Presumptive Release (EN) privileges and property restricted and for [him] to be

physically abused and harassed by SOCF prison officials who have a well-documented

reputation for physically abusing prisoners as well as violating prisoners constitutional rights.”

(Doc. 1-2, Complaint at PageID 52). Plaintiff claims that upon his arrival he was stripped

searched and subjected to threats by defendants Erdos and Gallaway.

Plaintiff claims that he was placed in a disciplinary cell, which was video monitored

and deprived him of privacy. Plaintiff further contends that the video is viewed by female

prison officials. (Id. at PageID 53). According to plaintiff, his placement in the disciplinary

cell was completely unjustified in light of his not having had a single incident report for the

previous four years.

Plaintiff next complains that defendant Taylor and John Doe Officers 1-5 denied him

recreation on September 20, 2019 and September 23, 2019. Lt. Osborne informed plaintiff that

he was denied recreation on the first occasion because plaintiff failed to place his clothing on

the bars of his cell. On September 23, 2019 plaintiff alleges that Taylor denied him recreation

because plaintiff placed his clothing on the bars of his cell. According to plaintiff, Taylor also

issued a false conduct report that plaintiff threatened to cut him.

Plaintiff claims that during the subsequent Rules Infraction Board (RIB) hearing on the

incident report, defendant Barney found him guilty without considering his testimony (Id. at

PageID 55). Plaintiff further claims that Defendant Green upheld the guilty finding despite

informing plaintiff that he knew Taylor fabricated the incident. (Id. at PageID 56).

On or about October 10, 2019, plaintiff claims that Taylor threatened him as he was

being escorted to recreation, including threatening that if he continued to file complaints that

he would cause plaintiff harm. (Id. at PageID 56–57).

On or about October 29, 2019, plaintiff alleges that Erdos transported him to unit J3

and informed him that he would not have any of his EN privileges and property. (Id. at PageID

57). Plaintiff complains that every portion of the cell was monitored by a camera, leaving him

with no privacy. He further complains that the video is viewed by female officers. (Id. at

PageID 58).

On October 26, 2019, plaintiff claims that defendant Institutional Inspector Mahlman

retaliated against him by placing him on grievance restriction. (Id.).

Next, plaintiff claims that on November 7, 2019 and November 8, 2019, defendant

Taylor and John Does 1-5 denied him recreation without justification. Taylor allegedly

insulted plaintiff and told him “I’m not taking niggers to rec today.” (Id.). On November 11,

2019, plaintiff claims that Defendant John Doe Officer 1 again denied him recreation,

informing plaintiff that “you’re wasting your time signing up for rec, you will never go to rec

again.” (Id.). According to plaintiff, he was forced to stop signing up for recreation in order to

have the opportunity to shower. Plaintiff claims that he has been denied recreation from

November 7, 2019 until the filing of this complaint. (Id. at PageID 59).

In the amended complaint, plaintiff seeks to add defendants Layne and Setty based on

threats they allegedly made against plaintiff. (Doc. 3 at PageID 79–80).

Plaintiff also claims that defendants King and Taylor deprived him of his due process

rights by failing to allow him to call witnesses during RIB hearings or appeal decisions imposing

recreation restrictions. (Id. at PageID 80–81).

Finally, plaintiff alleges that the institution’s mailroom failed to pick up outgoing mail

from his unit on March 9, 2020. Plaintiff claims that mailroom officers routinely neglect to

collect mail and that defendant Erdos has failed to address the problem. (Id. at PageID 81).

Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. (Doc. 1-

2, Complaint at PageID 51, 61–62; Doc. 3 at PageID 82).

At this stage in the proceedings, without the benefit of briefing by the parties to this

action, the undersigned concludes that plaintiff may proceed with this action against defendants

Taylor and John Doe Officers 1-5, based on his allegations that these defendants denied him

recreation for a prolonged period of time without any penological purpose. See Patterson v.

Mintzes, 717 F.2d 284, 289 (6th Cir. 1983). However, plaintiff’s remaining claims should be

dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).

First, the complaint should be dismissed as to all defendants in their official capacities 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 (1993); Edelman v. Jordan, 415 U.S. 651 (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 (6th Cir. 1985); State of Ohio v. Madeline

Marie Nursing Homes, 694 F.2d 449 (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; Ford Motor Company v. Dept. of

Treasury, 323 U.S. 459, 464 (1945). 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, 436 U.S. at 690. 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); Scheuer

v. Rhodes, 416 U.S. 232 (1974). 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.

Plaintiff’s claims against defendants Erdos, Bobby, and Annette Chambers-Smith

brought in connection with his prison and cell placement should also be dismissed. A prisoner

has “no constitutional right to remain incarcerated at a particular prison or to be held in a specific

security classification.” Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005). The Supreme

Court has held that the Constitution does not give rise to a liberty interest in avoiding transfer

from a “low-to maximum-security prison because ‘[c]onfinement in any of the State’s

institutions is within the normal limits or range of custody which the conviction has authorized

the State to impose.’” Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005) (quoting Meachum v.

Fano, 427 U.S. 215, 225 (1976)). A liberty interest may be implicated when a transfer or change

in classification imposes an “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 223 (quoting Sandin v. Connor, 515 U.S. 472, 484

(1995)). However, the mere fact that an inmate is transferred to another prison or receives an

increase in security classification does not amount to an atypical and significant hardship

because prisoners have “no constitutional right to remain incarcerated in a particular prison or to

be held in a specific security classification.” Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir.

2005); see also Johnson v. Mohr, No. 2:15cv86, 2015 WL 1526804, at *2 (S.D. Ohio Apr. 3,

2015) (Graham, J.); Lawson v. Haddon, No. 1:09cv551, 2009 WL 2242692, at *4 (W.D. Mich.

July 16, 2009) (and cases cited therein). Accordingly, plaintiff’s claims regarding his transfer

and placement should be dismissed.1

Plaintiff’s related claim that he was deprived of privacy by virtue of his cell assignment

should also be dismissed. As noted above, plaintiff complains that his cells were video

monitored, which he claims is viewed by female officers. However, “[a] right of privacy in

1 Plaintiff’s conclusory allegation that these defendants conspired to have him transferred also is subject to dismissal.

Conspiracy claims “must be pled with some specificity: vague and conclusory allegations that are unsupported by

material facts are not sufficient to state a § 1983 claim.” Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004). Plaintiff

has alleged no facts in support of his conspiracy claim from which the Court can reasonably infer that these defendants

conspired to violate plaintiff’s constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

traditional Fourth Amendment terms is fundamentally incompatible with the close and continual

surveillance of inmates and their cells required to ensure institutional security and internal

order.” Hudson v. Palmer, 468 U.S. 517, 527–28 (1984). Because the complaint does not

include allegations that his cell was monitored or any search of his person was conducted in an

effort to harass him, in an unnecessarily invasive manner, or without penological purpose, his

allegations do not rise to the level of a constitutional violation. See Stoudemire v. Mich. Dept. of

Corr., 705 F.3d 560, 572 (6th Cir. 2013). Cf. Kent v. Johnson, 821 F.2d 1220, 1227–28 (6th Cir.

1987) (finding that the plaintiff stated a claim by alleging that “the female prison guards have

allowed themselves unrestricted views of his naked body in the shower, at close range for

extended periods of time, to retaliate against, punish and harass him for asserting his right to

privacy”). Accordingly, plaintiff’s claims based on the video monitoring of his cell should be

dismissed.

To the extent that plaintiff seeks to hold Warden Erdos liable based on his supervisory

position, this claim is also subject to dismissal. Plaintiff claims that Erdos failed to take actions

to curb the behavior of the officers denying him recreation and failing to collect his legal mail.2

(See Doc. 1-2, Complaint at PageID 61; Doc. 3 at PageID 81). However, plaintiff’s claim rest on

a theory of respondeat superior, which does not apply to § 1983 claims and may not serve as a

basis for liability. See Iqbal, 556 U.S. at 676; Monell v. Dep’t of Social Servs., 436 U.S. 658

(1978); Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992). “[Section] 1983 liability of

2 To the extent that plaintiff seeks to bring a claim based upon the mailroom officers’ failure to pick his mail up on

March 9, 2020, this claim is also subject to dismissal. Although prisoners have a First Amendment right to

communicate with the outside world by sending and receiving mail, see Thronburg v. Abbott, 490 U.S. 401, 407

(1989), “short, non-content based delays in prison mail are not unreasonable and fail to state a constitutional question.”

Cotton v. Schotten, No. 95-4085, 1997 WL 299386, at *1 (6th Cir. June 4, 1997). Plaintiff has also failed to state a

viable claim of the denial of access to the courts under the First Amendment, as he has not alleged that he suffered an

actual injury in any nonfrivolous legal proceeding. See Lewis v. Casey, 518 U.S. 351–53 (1996); Hadix v. Johnson,

182 F.3d 400, 405–406 (6th Cir. 1999).

supervisory personnel must be based on more than the right to control employees.” Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984). 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). The mere fact that

defendant Erdos is the Warden at SOCF is not enough to impose liability under section 1983.

Plaintiff also fails to state an actionable claim to the extent that he seeks to hold any

defendant liable for the use of threats, slurs, or other insults. Plaintiff fails to state a viable claim

under § 1983, which requires a showing of a deprivation of “a right secured by the United States

Constitution or a federal statute.” See Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir. 2003).

It is well-settled that “[v]erbal harassment or idle threats by a state actor do not create a

constitutional violation and are insufficient to support a section 1983 claim for relief.” Wingo v.

Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam) (citing Ivey v.

Wilson, 832 F.2d 950, 955 (6th Cir. 1987)); see also Miller v. Wertanen, 109 F. App’x 64, 65

(6th Cir. 2004) (holding that a guard’s verbal threat to sexually assault an inmate “was not

punishment that violated [the prisoner’s] constitutional rights”); Chilcott v. Erie Cnty. Domestic

Relations, 283 F. App’x 8, 11 (3rd Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases cited

therein). Additionally, while prison officials should not use degrading or racist language when

interacting with inmates, the use of such language does not rise to the level of a constitutional

violation. See Hursey v. Anderson, No. 16-1146, 2017 WL 3528206, at *4 (6th Cir. Mar. 31,

2017). A prison official’s use of racial slurs and other insults, “although unprofessional and

reprehensible, does not rise to the level of constitutional magnitude” and is insufficient to

support a constitutional claim for relief. Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th

Cir. 2007) (citing Torres v. Oakland County, 758 F.2d 147, 152 (6th Cir. 1985)); see also Ivey,

832 F.2d at 954. Cf. Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir. 2004).

Plaintiff’s claim that Taylor wrote a false conduct report against him should also be

dismissed. Erroneous or even fabricated allegations of misconduct by an inmate, standing alone,

do not constitute a deprivation of a constitutional right. See, e.g., Reeves v. Mohr, No.

4:11cv2062, 2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012) (and cases cited therein)

(holding that the prisoner failed to state a claim upon which relief may be granted to the extent

that he claimed he had “a constitutional right to be free from false accusations”). “A

constitutional violation may occur, if as a result of an accusation, the Plaintiff was deprived of a

liberty interest without due process.” Reeves, supra, 2012 WL 275166, at *2 (citing Sandin v.

Conner, 515 U.S. 472, 485 (1995)). Plaintiff’s allegations are insufficient to trigger

constitutional concerns in this case because he has not alleged any facts even remotely

suggesting that any resulting disciplinary action deprived him of a protected liberty interest.

To the extent that plaintiff may seek relief in connection with the investigation of his

complaints or the grievance process, plaintiff fails to state a claim upon which relief may be

granted. “There 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. 2:10-cv-968, 2011 WL 2710786, at *2 (S.D. Ohio July 13, 2011). Furthermore, to the extent

that plaintiff claims that the grievance procedure failed to produce the correct outcome, this

cannot give rise to a § 1983 claim 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). 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 v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

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 v. Bradley, 729 F.2d 416, 421 (6th Cir.

1984). Therefore, plaintiff has failed to state a claim upon which relief may be granted in

connection with the investigation of his complaints or the grievance process.

Plaintiff has also failed to state a due process claim against Barney, Green, King, and

Taylor in connection with his RIB hearings. Plaintiff fails to allege facts showing that

defendants’ actions had the effect of altering the term of his imprisonment or imposed restraints

which amounted to an “atypical and significant hardship on [plaintiff] in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). See Jones v. Baker, 155

F.3d 810, 812 (6th Cir. 1998); Mackey v. Dyke, 111 F.3d 460 (6th Cir. 1997); Rimmer-Bey v.

Brown, 62 F.3d 789, 791 (6th Cir. 1995). Plaintiff does not allege facts showing that his RIB

proceeding resulted in the lengthening of his prison sentence, the withdrawal of good-time

credits, or the deprivation of any necessities of life. Sandin, 515 U.S. at 486; Smith v.

Corrections Corp. of America, 5 F. App’x. 443, 444 (6th Cir. 2001) (thirty days of disciplinary

segregation does not rise to level of atypical and significant hardship).

Although plaintiff claims that the RIB proceedings before King and Taylor resulted in

recreation restrictions,3 the loss of recreational privileges does not amount to an “atypical and

significant hardship” under Sandin. Cf. Payne v. Dretke, 80 F. App’x 314, 315 (5th Cir. 2003)

(per curiam) (involving commissary and recreation restrictions); Barham v. Duckworth, No. 95-

2913, 1997 WL 686207, at *1 (7th Cir. Oct. 28, 1997) (involving 30-day loss of recreational

privileges); Davis v. Collins, No. 4:13CV140 CDP, 2013 WL 3457096, at *3 (E.D. Mo. July 9,

2013) (and cases cited therein) (“Under the standards set forth in Sandin, the loss of recreation

time cannot be said to be atypical, significant deprivations that could encroach upon any liberty

3 Plaintiff indicates that King imposed a recreation restriction for seven days. Plaintiff does not indicate the term

imposed by Taylor. (See Doc. 3 at PageID 80–81).

interest.”); Maxwell v. Clarke, No. 7:12cv00477, 2013 WL 2902833, at *9 (W.D. Va. June 13,

2013) (citing holding in Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997), that six-month

period of segregation with “no outside recreation” did not impose an atypical and significant

hardship on the prisoner), aff’d, 540 F. App’x 196, No. 13-7056, 2013 WL 5405536 (4th Cir.

Sept. 27, 2013) (per curiam); Brown v. LeBlanc, Civ. Act. No. 09-1477-P, 2013 WL 1947180, at

*9 (W.D. La. Mar. 27, 2013) (Report & Recommendation) (“12 weeks loss of yard/recreation

privileges does not constitute the type of atypical punishment that presents a significant

deprivation which would implicate due process concerns”), adopted, 2013 WL 1947175 (W.D.

La. May 9, 2013). Accordingly, plaintiff’s due process claims should be dismissed for failure to

state a claim upon which relief may be granted.

Finally, plaintiff’s claim that defendant Mahlman placed him on grievance restriction in

retaliation for filing complaints should also be dismissed. “Courts in this circuit have

consistently upheld procedures which modify or restrict the ability of prisoners (who have been

deemed abusive grievance filers) to file unfettered grievances.” Odom v. Helton, No. CIV.A. 12-

80, 2013 WL 4012889, at *7 (E.D. Ky. Aug. 6, 2013) (citing Hartsfield v. Mayer, No. 95-1411,

76 F.3d 378 (table), 1996 WL 43541, at *2 (6th Cir. Feb. 1, 1996) (unpublished order)).

Furthermore, “[t]he Sixth Circuit repeatedly has held that placement on modified access does not

constitute an adverse action for purposes of a retaliation claim.” Weatherspoon v. Williams, No.

2:14-cv-108, 2015 WL 2106401, at *5 (W.D. Mich. May 6, 2015) (citing Jackson v. Madery,

158 F. App’x. 656, 660 (6th Cir. 2005)); Walker v. Michigan Dep’t of Corr., 128 F. App’x. 441,

446 (6th Cir. 2005); Kennedy v. Tallio, 20 F. App’x. 469, 471 (6th Cir. 2001); Corsetti v.

McGinnis, 24 F. App’x. 238, 241 (6th Cir. 2001)). The right to file institutional grievances

without being subject to retaliation extends only to the filing of non-frivolous grievances and “an

ordinary person of reasonable firmness would not be deterred from filing non-frivolous

grievances merely because he or she had been placed on modified status.” Walker, 128 F.

App’x. at 445-46. See also Moore v. Sergent, 22 F. App’x 472 at *474 (6th Cir. 2001)

(upholding a pre-screening process for grievances, noting that “[a]s [the plaintiff] has not been

prevented from continuing to file grievances, he has not been subjected to retaliation”).

Accordingly, plaintiff’s claim that Mahlman placed him on grievance restriction is insufficient to

state a claim upon which relief may be granted and should be dismissed.

Accordingly, in sum, plaintiff may proceed with this action against defendants Taylor and

John Doe Officers 1-5, based on his allegation that these defendants improperly denied him

recreation. However, plaintiff has failed to provide summons and U.S. Marshal forms for

service. It is therefore ORDERED that plaintiff, within thirty (30) days of the date of this

Order, submit a completed summons and U.S. Marshal form for service on defendant Taylor.

Once the Court receives the requested summons and United States Marshal forms, the Court will

order service of process by the United States Marshal. As noted below, plaintiff must file a

motion to issue service on the remaining unidentified defendants before service will be issued on

these defendants.

Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) &

1915A(b).

II. Motion for a Preliminary Injunction and Temporary Restraining Order

As noted above, plaintiff has also filed a motion for a preliminary injunction and

temporary restraining order. (Doc. 2). Plaintiff seeks an injunction against defendant Erdos

based on threats made against plaintiff and Erdos’s alleged failure to “curb the threatening

behavior of his underlings.” (Id. at PageID 71).

In determining whether to issue a preliminary injunction/temporary restraining order, this

Court must balance the following factors:

1. Whether the party seeking the injunction has shown a “strong” likelihood

of success on the merits;

2. Whether the party seeking the injunction will suffer irreparable harm

absent the injunction;

3. Whether an injunction will cause others to suffer substantial harm; and

4. Whether the public interest would be served by a preliminary injunction.

Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v. Lexington-

Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228

F.3d 729, 736 (6th Cir. 2000)). The four factors are not prerequisites but must be balanced as

part of a decision to grant or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223,

1229 (6th Cir. 1985). “[A] district court is not required to make specific findings concerning

each of the four factors used in determining a motion for preliminary injunction if fewer factors

are dispositive of the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003),

abrogated on other gds. by Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015).

“The purpose of a preliminary injunction is to preserve the status quo until a trial on the

merits.” S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 848-

49 (6th Cir. 2017) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). When a

prisoner requests an order enjoining a state prison official, the Court must “proceed with caution

and due deference to the unique nature of the prison setting.” White v. Corr. Med. Servs., No.

1:08-cv-277, 2009 WL 529082, at *2 (W.D. Mich. Mar. 2, 2009) (citing Kendrick v. Bland, 740

F.2d 432, 438 n. 3 (6th Cir. 1984); Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995)). In deciding

if a preliminary injunction is warranted, the Court must “weigh carefully the interests on both

sides.” Lang v. Thompson, No. 5:10-cv-379-HRW, 2010 WL 4962933, at *4 (E.D. Ky. Nov. 30,

2010) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). A preliminary injunction is

an extraordinary remedy that should only be granted “upon a clear showing that the plaintiff is

entitled to such relief.” S. Glazer’s Distributors of Ohio, LLC, 860 F.3d at 849 (quoting Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Overstreet, 305 F.3d at 573.

Plaintiff has not alleged facts sufficient to warrant a temporary restraining order/

preliminary injunction in this case. Plaintiff has made no attempt to apply the above factors to

his situation. The motion includes additional allegations of verbal harassment and threats

allegedly made against him. As noted above, verbal harassment or idle threats are insufficient to

support a claim under § 1983. See Wingo, 499 F. App’x at 455. Accordingly, plaintiff has not

established a substantial likelihood of success on the merits of his constitutional claims or that he

will suffer irreparable harm absent a preliminary injunction. A preliminary injunction is also not

warranted in this case because the purpose of a preliminary injunction—to preserve the status

quo until a trial on the merits can be held, see Southern Milk Sales, Inc. v. Martin, 924 F.2d 98,

102 (6th Cir. 1991)—would not be served. The present status quo in this case is, according to

plaintiff, that he has suffered numerous violations of his constitutional rights. The remedy

plaintiff presently seeks is more than an injunction maintaining the status quo; he seeks an Order

from this Court requiring defendants to affirmatively correct constitutional deficiencies yet to be

proven. Such affirmative relief is generally beyond the scope and purpose of preliminary

injunctive relief. See id.

Accordingly, it is RECOMMENDED that plaintiff’s motion for preliminary

injunction/temporary restraining order (Doc. 2) be DENIED.

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint, as amended, 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 that defendants Taylor

and John Doe Officers 1-5 improperly denied him recreation.

2. Plaintiff’s motion for a preliminary injunction and temporary restraining order (Doc. 2)

be DENIED.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s motion to amend (Doc. 3) is GRANTED.

2. That plaintiff submit a completed summons and U.S. Marshal form for service on

defendant Taylor within thirty (30) days of the date of this Order. Once the Court receives the

requested summons and United States Marshal forms, the Court will order service of process by

the United States Marshal.

Before service may be issued upon any remaining John Doe defendants, plaintiff must

file a motion to issue service setting forth the identities of the unidentified defendants. Plaintiff

is therefore ORDERED to file a motion to issue service, including United States Marshal and

summons forms, if and when plaintiff discovers the identity of the unnamed defendants

through discovery. Plaintiff is advised that no service will be issued on the unnamed

defendants unless plaintiff complies with this Order.

3. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,

upon defendants’ attorney, 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 defendants or defendants’ 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.

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

occur during the pendency of this lawsuit.

Date: 3/23/20 s/Karen L. Litkovitz

Karen L. Litkovitz

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CORNELIUS L. HARRIS, Case No. 1:20-cv-120

Plaintiff,

Black, J.

vs. Litkovitz, M.J.

WARDEN R. ERDOS, 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).