McCain v. Farrar

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL D. MCCAIN, SR.,

:

: Case No. 2:20-cv-3164

Plaintiff, :

: Chief Judge Algenon L. Marbley

v. :

: Magistrate Judge Chelsey M. Vascura

:

CAPT. KENNETH FARRAR, et al., :

:

Defendants.

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Magistrate Judge Vascura’s August 24, 2020 Report and

Recommendation. (ECF. No. 7). Plaintiff Michael D. McCain, Sr., a pro se prisoner, brought this

action against Defendants Captain Kenneth Farrar, Lieutenant Doughty, Officer Knisley, and

Earlena Miller (“Defendants”) under 42 U.S.C. § 1983. Mr. McCain alleges that Defendants

retaliated against him after he filed grievances and initiated litigation against them. Magistrate

Vascura recommended that Mr. McCain’s Complaint be dismissed for failure to allege facts

sufficient to support a claim of retaliation. Plaintiff timely filed his Objection to the Report and

Recommendation, claiming his Complaint satisfied the general pleading requirements.

In his Objection, Plaintiff also asks to file an Amended Complaint under Fed. R. Civ. P.

15(a) and to provide a more definite statement in accordance with FRCP 12(e). The Court

construes both of these requests as a motion for leave to file an amended complaint. Additionally,

Plaintiff argues that Magistrate Judge Vascura should be disqualified from this case. For the

following reasons, the Court DENIES Plaintiff’s motion for leave to file an amended complaint,

DENIES Plaintiff’s motion to disqualify, and AFFIRMS the Magistrate Judge’s Report and

Recommendation.

II. BACKGROUND

Plaintiff is currently incarcerated at the Ross Correctional Institution (“RCI”), and he was

previously incarcerated at Chillicothe Correctional Institution (“CCI”). While at CCI, Plaintiff

initiated a civil lawsuit against Defendant Kenneth Farrar, who was then a sergeant at CCI (the

“2015 Action”).1 The 2015 Action is still pending and involves allegations stemming from

Plaintiff’s complaints and grievances against prison officials on a range of issues, including

officers’ threats of violence and use of force against him.

After his transfer to RCI, Plaintiff was assigned to a food service position in August 2019.

(ECF No. 1-1). Both Defendant Officer Knisley and an employee of Aramark Food Services, Mr.

Nunnery, oversee the food services staff. Plaintiff describes that he was a skilled employee,

enjoyed his work, and was able to earn approximately forty dollars per week. (Id. at 3, 11).

On January 29, 2020, Plaintiff asked Mr. Nunnery “to let Officer Knisley know that my

job was complete and I could leave.” (Id. at 12). Plaintiff claims he had previously been permitted

to leave his position early once his duties were complete. (Id. at 7, 19). In response, Defendant

Knisley threatened to fire Plaintiff from his food services job. (Id. at 3).

Later that day, Plaintiff filed an informal grievance against Defendant Knisley due to this

exchange. (Id. at 3, 25). Plaintiff explained that “hanging around in the kitchen when I’m done

with my boj [sic] is a securit [sic] issue that I do not want to be apart of” and he had never been

informed that Defendant Knisley had made a rule that prisoners could not leave the dining hall

prior to the end of their shifts. (Id. at 25). Plaintiff believed “it would be best to notify the

1 See Case No. 2:15-cv-1262 (S.D. Ohio).

administration and to write the threat to find a reason to fire me up, and take it very serious.” (Id.

at 13). Captain Farrar responded to Plaintiff’s informal complaint, reminding Plaintiff that Officer

Knisley was in charge of dining room security and admonishing Plaintiff not try “to go through

Aramark workers to bypass security” in the future.

The next day, on January 30, 2020, Defendant Knisley requested to talk with Plaintiff after

releasing the other inmates from their food service positions early. (Id. at 4). Defendant Knisley

then filed a report against Plaintiff for “admitting to sneaking out and blatantly disregarding the

rule that was set forth months earlier” on multiple occasions. (Id. at 27). Subsequently, Plaintiff

was called into Sergeant Smith’s office to discuss Defendant Knisley’s conduct report, and he was

removed from his food service position for ninety days. (Id. at 5, 29). Plaintiff was re-assigned as

a “Porter Unit 5” inmate employee. (Id. at 34).

On February 3, 2020, Plaintiff replied to Captain Farrar’s response to his informal

complaint. He objected to the substance of Captain Farrar’s response and asserted that it was

retaliatory due to his involvement in the 2015 Action. (Id. at 30). Plaintiff also asserted that

Defendant Knisley’s January 30, 2020 conduct report was false and made in retaliation of

Plaintiff’s January 29, 2020 informal grievance. On February 19, 2020, Inspector Todd Diehl

investigated Plaintiff’s first informal grievance. Inspector Diehl concluded Defendant Knisley’s

actions were not inappropriate and that Mr. Nunnery had not given Plaintiff permission to leave

early. (Id. at 25).

Meanwhile, on January 31, 2020, Plaintiff filed another informal grievance against

Defendant Knisley. He again asserted that the January 30, 2020 conduct report was false, made in

retaliation of his first informal grievance, and caused him to lose his food services job. (Id. at 35).

Captain Farrar again responded, stating that if Plaintiff did not follow Defendant Knisley’s orders,

he had the right to remove Plaintiff from his position. Plaintiff replied to Captain Farrar, again

disputing the underlying facts and challenging Captain Farrar’s impartiality. Inspector Diehl also

investigated this grievance. He stated that because Plaintiff’s “concern ha[d] been previously

addressed . . . [it] will not be responded to [again] in accordance with Administrative Rule 5120-

9-31(E).” (Id.). Inspector Diehl also advised Plaintiff that his continued “improper use of the

grievance procedure may result in restricted access” pursuant to the same administrative rule. (Id.).

Plaintiff filed two additional informal complaints on February 3, 2020 and February 10, 2020.

On May 5 2020, Plaintiff was briefly re-hired to his food service position. (Id. at 9).

Plaintiff worked less than two full shifts before Defendant Lt. Doughty allegedly removed Plaintiff

from his position claiming, “Chowhall Lt. Doughty does not want this offender!” (Id. at 10).

Plaintiff has been unable to return to his food service position and on May 12, 2020, Plaintiff was

reclassed as a groundskeeper and then later as a librarian. (Id.).

On June 23, 2020 Plaintiff filed a Complaint against Defendants alleging three separate

occurrences of retaliation for Plaintiff’s use of the prison’s grievance procedures and court

proceedings against Defendants. Plaintiff did not identify the specific relief he seeks.

On August 24, 2020, Magistrate Judge Vascura issued her Report and Recommendation

granting Plaintiff’s motion to proceed in forma pauperis and recommending that Plaintiff’s

Complaint be dismissed for failure to state a claim. (ECF No. 7 at 1−2). The Magistrate Judge

concluded that Defendant “Knisley’s actions on January 30, 2020 amount to no more than run-of-

the-mill supervision of an employee[,]” and therefore could not “conclude that Plaintiff’s January

30, 2020 informal complaint was non-frivolous.” (Id. at 10). The Report and Recommendation

also emphasized that the Plaintiff failed to identify how his reassignment to the positions as a

groundskeeper and a librarian were less favorable than his food service position. (Id.).

Furthermore, Magistrate Judge Vascura stressed that, due to the numerosity of Plaintiff’s

grievances and complaints, “any action by prison officers will fall in close temporal proximity

with one or more of his complaints simply by chance.” (Id. at 11).

Subsequently on September 8, 2020, Plaintiff timely filed his Objection to Magistrate

Judge Vascura’s Report and Recommendation. (ECF No. 8). In addition to objecting, he requests

the Court grant him the opportunity to file an amended complaint under Fed. R. Civ. P. 15(a) to

provide a more definite statement entitling him to relief. (Id.). Plaintiff alleges Magistrate Judge

Vascura holds Plaintiff to a heightened pleading standard, contrary to the requirements in Fed. R.

Civ. P. 8(a)(2), because of Magistrate Judge Vascura’s alleged prejudice and personal bias against

Plaintiff. Plaintiff cites Magistrate Judge Vascura’s previous dismissal from Plaintiff’s 2015

Action as the motive for her treatment of Plaintiff and moves to disqualify her from this

proceeding. (Id. at 3).

III. STANDARD OF REVIEW

When proceeding in forma pauperis, the Court is permitted to dismiss any portion of a

complaint that fails to state a claim upon which relief may be granted or seeks monetary relief

from an immune or improper defendant. 28 U.S.C. § 1915(e)(2). Fed. R. Civ. P. 8(a)(2) sets forth

the requirements for stating a claim upon which relief can be granted. A complaint must set forth

“a short and plaint statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). While detailed, factual allegations are not necessary at this stage, mere labels and

conclusions are insufficient to withstand a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). To survive, the complaint must contain facts sufficient which, if accepted as true, would

plausibly state a claim upon which relief may be granted. Id.

When a complaint is insufficient, a party may amend their complaint either twenty-one

(21) days after serving it or, if it is a pleading which requires a response, twenty-one (21) days

after service, whichever is earlier. Fed. R. Civ. P. 15(a). Otherwise, a party must either receive the

opposing party’s written consent or the Court’s leave to amend, which should be freely given when

justice so requires. Id. Generally, leave to amend may be denied when it would result in undue

delay, prejudice to the opposing party, or when the motion is based on repeated failures to cure

deficiencies in the complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); Duchon v. Cajon Co.,

791 F.2d 43, 48 (6th Cir. 1986).

Additionally, under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate [magistrate

judge] of the United States shall disqualify himself in any proceeding in which his impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a). A party to a proceeding may bring a timely

motion under 28 U.S.C. § 144 with an affidavit alleging facts sufficient to establish that “the judge

before whom the matter is pending has a personal bias or prejudice either against him or in favor

of any adverse party[.]” 28 U.S.C. § 144. An affidavit under § 144 must allege facts that would

lead a reasonable person to believe a judge has a personal bias against the moving party. Youn v.

Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003) (citing Gen. Aviation, Inc. v. Cessna Aircraft, Co.,

915 F.2d 1038, 1043 (6th Cir. 1990)).

Personal bias sufficient for recusal must “stem from an extrajudicial source and result in

an opinion on the merits on some basis other than what the judge learned from his participation in

the case.” Youn, 324 F.3d at 423 (citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1965)).

Extrajudicial conduct encompasses only a judge’s personal biases, not judicial ones arising from

a judge’s background or view of the law. Youn, 324 F.3d at 423. Thus, an affidavit alleging

personal bias must allege that such bias “emanates from some source other than participation in

the proceedings or prior contact with related cases.” Id. Consequently, affidavits which are based

exclusively on a magistrate’s prior orders and oral statements are insufficient to warrant recusal.

Id. Further, motions for recusal must be timely. 28 U.S.C. § 144. A party must file their affidavit

supporting recusal no less than ten days before a proceeding is to be heard or at a later date with

good cause for delay. Id.

IV. LAW & ANALYSIS

A. Retaliation Claim

To establish a First Amendment retaliation claim, a plaintiff must establish that he engaged

in protected conduct, suffered an adverse action that would deter a person of ordinary firmness

from engaging in the protected conduct, and that the adverse action was motivated by the protected

conduct. Henley v. Miller, 2014 U.S. App. LEXIS 25159, at *4 (6th Cir. 2014) (citing Thaddeus-

X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)). Prisoners have a First Amendment right to file

grievances against prison officials; thus, plaintiffs may establish retaliation claims based on their

use of the prison’s grievance procedures. See Henley, 2014 U.S. App. LEXIS 25159, at *4.

Informal grievances may also qualify as protected First Amendment activity, so long as the

grievances are not frivolous. Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2018).

Generally, prisoners have no right to prison employment or particular prison work. Bradley

v. Conarty, 2018 U.S. App. LEXIS 26078, at *5-6 (6th Cir. 2018). However, under limited

circumstances, the loss of prison employment may be deemed an adverse action sufficient to assert

a retaliation claim. Id. In Siggers-El, the Sixth Circuit set forth an exception to the general rule that

recognizes a claim for retaliation where the prisoner’s transfer to another facility would result in

foreseeable negative consequences to the particular prisoner. Siggers-El v. Barlow, 412 F.3d 693,

702 (6th Cir. 2005). There, the prisoner’s transfer resulted in the foreseeable loss of his high-

paying job and it made it more difficult to visit with his attorney. Id.; see also Shehee v. Luttrell,

199 F.3d 295, 297, 300–01 (6th Cir. 1999) (recognizing that being fired from a coveted assignment

with higher pay and favorable working conditions can constitute retaliatory conduct). When a fact

finder, however, cannot reasonably “conclude that a retaliatory act would deter a person from

exercising his rights, then the act should be characterized as de minimis and dismissed at the

summary judgment stage.” Siggers-El, 412 F.3d at 703.

Here, neither Plaintiff’s Complaint nor his Objection to the Magistrate’s Report and

Recommendation sets forth a viable claim of First Amendment retaliation. Plaintiff’s allegations

stem from his reassignment from his food service position and the grievances he filed in relation

to his job assignments. Plaintiff fails to allege, however, how his reassignment would deter a

person of ordinary firmness from filing grievances. Although Plaintiff was warned that his

repeated, frivolous use of the grievance procedures could result in restricted access, no such

restrictions were ever put in place. Unlike Siggers-El, Plaintiff faced no foreseeable negative

consequences in his reassignment. Plaintiff was able to continue working once he was reassigned

as a groundskeeper and then later as a librarian. Similarly, unlike Shehee, the Plaintiff has not

demonstrated that he was reassigned to a position with lower pay or less favorable working

conditions. Here, the Plaintiff has not claimed he lost wages, but only that he was temporarily

reassigned. Although the Plaintiff has expressed his personal interests in the food service position,

his preferences do not fall within the narrow conditions required to meet the Siggers-El exception

to the general rule that prisoners generally have no right to prison employment or particular prison

work. Further, although the Plaintiff was temporarily suspended from work while being

reassigned, his temporary unemployment does not rise to the level of the firings that occurred in

Siggers-El or Shehee. Consequently, Plaintiff has failed to demonstrate how his reassignment

would prevent a person of ordinary firmness from utilizing the protected grievance procedures.

Accordingly, Plaintiff’s retaliation claim is not cognizable and is therefore DISMISSED.

B. Leave to Amend

Under Federal Rule of Civil 15(a)(1), a party may amend a pleading once “as a matter of

course” within 21 days of serving it or within 21 days of a responsive pleading. After that time has

passed, “a party may amend its pleading only with the opposing party's written consent or the

court's leave. The Court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

The Sixth Circuit has explained that, in deciding whether to grant a motion to amend, courts should

consider the futility of the amendment. Brumbalough v. Camelot Care Centers, Inc., 427 F .3d

996, 1001 (6th Cir.2005). In other words, the Court need not grant the plaintiff leave to amend the

complaint where the amendment would be futile. Daniels v. Ohio, No. 2:08-cv-16, 2008 WL

3843574 (S.D. Ohio Aug. 13, 2008) (citing Yuhasz v. Brush Wellman, Inc., 341 F .3d 559, 569

(6th Cir.2003)).

Plaintiff’s amendment request is problematic for two reasons. First, Plaintiff failed to attach

a proposed amended complaint, and he did not include any facts in his Objection that, if included

in an amended complaint, would cure the deficiencies outlined in the Magistrate’s Report and

Recommendation. Second, Plaintiff describes in closing that, if he is permitted to amend, he would

organize “the bases of his claims . . . in chronological order to make clearer” his allegations and

would submit an affidavit in support. Unfortunately, neither reorganization of the allegations in

his Complaint nor setting forth those allegations in an attached affidavit would cure the

deficiencies outlined in the Report and Recommendation. In short, Plaintiff’s proposed

amendments are futile. Accordingly, the Court DENIES his request for leave to file an amended

complaint.

C. Judicial Bias

Plaintiff’s Objection also fails to set forth a claim of personal bias that would be sufficient

to disqualify Magistrate Vascura. Plaintiff’s Objection merely alleges that Magistrate Judge

Vascura holds “prejudice and personal biest [sic] against the plaintiff” arising from the 2015

Action, from which Judge Vascura was transferred. (ECF No. 8 at 1; 2:15-cv-1262, ECF No. 100

at 1). Plaintiff claims that Judge Vascura has “attempted to have that matorious [sic] retaliation

claim dismissed and did attempt to assist the Asst. Attn. Gen. Mrs. Kelly Brogan in preventing

discovery in that still pending case[.]” (Id.). These allegations are insufficient because they are

exclusively based on Plaintiff’s prior contact with Magistrate Vascura in the 2015 Action and not

from any extra judicial source. Moreover, nothing in the record of Plaintiff’s prior matter indicates

Magistrate Judge Vascura was transferred from the case due to extra judicial sources of bias or

personal bias against the Plaintiff. Because Plaintiff’s objections to Magistrate Judge Vascura’s

qualifications are based on her prior orders, he has not set forth a sufficient affidavit under § 144

to warrant disqualification. Consequently, Plaintiff’s motion to disqualify Magistrate Judge

Vascura is DENIED.

IV. CONCLUSION

For the reasons articulated above, the Court hereby DENIES Plaintiff’s Motion for Leave

to Amend and DENIES Plaintiff’s Motion to Disqualify Magistrate Judge Vascura. Additionally,

the Court AFFIRMS the Magistrate Judge’s Report and Recommendation. This matter is hereby

DISMISSED pursuant to §§ 1915(e)(2) and 1915A(b)(1) for failure to state a claim upon which

relief may be granted.

IT IS SO ORDERED.

ALGENONA. MARBL

CHIEF UNITED STATES DISTRICT JUDGE

DATE: April 12, 2021

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