# Keran, Jr. v. Smith

> District Court, S.D. Ohio · May 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10377767

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 3, 2021
- **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/10377767

## How later opinions describe it (automated extraction)

- applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

LESTER V. KERAN, JR.,

Plaintiff,

v. Civil Action 2:21-cv-1943
Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
ANNETTE C. SMITH, DIRECTOR, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Lester V. Keran, Jr., an Ohio inmate who is proceeding without the assistance
of counsel, brings this action against Defendants Annette C. Smith, Director; Sherry D. Smith,
ODRC/MCI OPI Regional Director; Walt Holley, ODRC/MCI OPI Superintendent; and S.
Harford, ODRC/MCI OPI Employee, in which he alleges the Defendants failed to properly train
him in the safe operation of machinery in the Ohio Penal Industries (“OPI”) sheet metal shop,
and improperly terminated his employment with OPI when he refused to work on certain
machines without proper training, in violation of 42 U.S.C. § 1983. (See Pl.’s Compl., ECF No.
1-1.) This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28
U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of
Plaintiff’s Complaint, or any portion of it, which 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. 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1)–(2); see also McGore v. Wrigglesworth,
114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that
follow, the undersigned RECOMMENDS that the Court DISMISS this action pursuant to
§§ 1915(e)(2) and 1915A(b)(1) for failure to state a claim on which relief may be granted.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF
No. 3.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C.

§ 1915(b)(1). Plaintiff’s certified trust fund statement reveals that has only $132.18 in his prison
account, which is insufficient to pay the filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts
(Inmate ID Number A149140) at Marion Correctional Institution (“MCI”) is DIRECTED to
submit to the Clerk of the United States District Court for the Southern District of Ohio as an
initial partial payment, 20% of the greater of either the average monthly deposits to the inmate
trust account or the average monthly balance in the inmate trust account, for the six months
immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks
should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of
fees or costs and that judicial officers who render services in this action shall do so as if the costs
had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff
and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order
to the Court’s financial office in Columbus.

I. STANDARD OF REVIEW
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which
provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that—
* * *
(B) the action or appeal—
(i) is frivolous or malicious; [or]
(ii) fails to state a claim on which relief may be granted. . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See
also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion
of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be
granted”).
Further, to properly state a claim upon which relief may be granted, a plaintiff must
satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil
Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under
Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, in order to state a claim upon which relief may be granted, “a complaint must contain
sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The plausibility of an inference depends on a host of considerations,
including common sense and the strength of competing explanations for the defendant’s
conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds pro se
complaints “to less stringent standards than formal pleadings drafted by lawyers.” Garrett v.
Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “courts should not have
to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–
77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. BACKGROUND
Plaintiff alleges that he has worked in MCI’s OPI sheet metal shop as a material handler
for eight years. (Compl. ¶ 4.) He alleges that on December 24, 2019, “the defendant” ordered
Plaintiff to instead work in the grinder and sander area. (Id. ¶ 3.) Plaintiff refused, stating that
he had never been trained to use the grinders or sanders. (Id. ¶ 4.) As a result of his refusal, “the
defendant” fired Plaintiff from his prison employment with the OPI sheet metal shop. (Id. ¶ 5.)
Plaintiff contends that Defendants’ failure to provide training on the grinders and sanders
constitutes deliberate indifference in violation of the Eighth Amendment, and that had
Defendants properly trained him, he would not have been removed from his prison job. (Id. ¶¶ 1,
9–10, 14, 20.) Plaintiff further alleges that Defendants violated his Fourteenth Amendment due

process rights when they terminated his employment with the OPI metal shop, as his termination
required prior approval from prison officials pursuant to ODRC policy, and required that he first
receive poor performance evaluations. (Id. ¶ 11–12, 15.)
Plaintiff argues that the Defendants’ actions violated his Eighth and Fourteenth
Amendment rights in violation of 42 U.S.C. § 1983. (Id. ¶ 1.) He seeks declaratory and
injunctive relief, as well as unspecified damages. (Id. ¶¶ 22–26.)
III. ANALYSIS
A. Lack of Allegations of Personal Involvement
Plaintiff specifies that “Defendants are being sued in their individual capacity under the
color of state law . . . .” for violations of his constitutional rights pursuant to 42 U.S.C. § 1983.
(Compl. ¶ 1.) However, Plaintiff’s Complaint is devoid of any allegations of personal
involvement by any Defendant. The United States Court of Appeals for the Sixth Circuit “has

consistently held that damage claims against government officials arising from alleged violations
of constitutional rights must allege, with particularity, facts that demonstrate what each
defendant did to violate the asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684
(6th Cir. 2008) (citing Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th
Cir. 2002)) (emphasis in original). “[C]ategorical references to ‘Defendants’” do not meet this
standard. Marcilis v. Twp. of Redford, 693 F.3d 589, 596–97 (6th Cir. 2012).
Here, although Plaintiff individually names Annette C. Smith, Sherry Smith, Walt
Holley, and S. Harford as Defendants, the Complaint’s allegations nonetheless attribute all
actions to “the defendant” or “defendants” without specifying actions taken by any one
individual. These are precisely the kind of categorical references to “Defendants” that the Sixth

Circuit has rejected in the context of alleged constitutional violations by government actors.
Accordingly, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED.
Moreover, as detailed below, even if Plaintiff had specified each Defendant’s personal
involvement, his Complaint would still fail to state a claim for violation of § 1983.
B. Eighth Amendment Claim
Plaintiff alleges that Defendants’ failure to provide training to inmates on use of sanders
and grinders in the OPI sheet metal shop amounts to deliberate indifference to inmate safety in
violation of the Eighth Amendment. “The [Eighth] Amendment . . . imposes duties on [prison]
officials, who must provide humane conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable
measures to guarantee the safety of the inmates . . . .” Farmer v. Brennan, 511 U.S. 825, 932–33
(1994) (internal quotation marks and citations omitted); see also Helling v. McKinney, 509 U.S.
25, 33 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200

(1989)) (holding that the Eighth Amendment “requires that inmates be furnished with the basic
human needs, one of which is ‘reasonable safety’”).
Such claims under the Eighth Amendment require a plaintiff “to prove both the
subjective and objective elements necessary to prove an Eighth Amendment violation.” Helling,
509 U.S. at 35. To satisfy the objective component for a claim based upon a failure to prevent
harm, “the inmate must show that he is incarcerated under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834 (citations omitted). The United States Supreme Court
has offered the following guidance with respect to the objective factor:
[The objective factor] requires a court to assess whether society considers the risk
that the prisoner complains of to be so grave that it violates contemporary standards
of decency to expose anyone unwillingly to such a risk. In other words, the prisoner
must show that the risk of which he complains is not one that today’s society
chooses to tolerate.
Helling, 509 U.S. at 36.
“To satisfy the subjective component, an inmate must show that prison officials had a
sufficiently culpable state of mind.” Berksire v. Beauvais, 928 F.3d 520, 535 (6th Cir. 2019)
(internal quotation marks and citations omitted). The United States Court of Appeals for the
Sixth Circuit has explained as follows:
“[T]hat state of mind is one of deliberate indifference to inmate health or safety.
Although the deliberate indifference standard describes a state of mind more
blameworthy than negligence, this standard is satisfied if the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
Id. (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (internal quotation marks and
citations omitted)).
The Sixth Circuit has not “addressed claims related to the hazardous working conditions
of inmates, [but] other circuits have held that the Eighth Amendment is implicated when
prisoners are forced to perform physical labor which is beyond their strength, endangers their
lives, or causes undue pain.” Jackson v. Schultz, No. 18-11140, 2018 WL 6985112, at *3 (E.D.
Mich. Nov. 27, 2018), report and recommendation adopted, 2019 WL 141529 (E.D. Mich. Jan.
9, 2019); see also Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983); Morgan v. Morgensen,
465 F.3d 1041, 1045 (9th Cir. 2006). The Eighth Circuit also held that “the intentional

placement of a prisoner in dangerous surroundings can violate the Eighth Amendment, though
mere negligence is not sufficient.” Jackson, 2018 WL 6985112, at *3 (citing Bibbs v.
Armontrout, 943 F.2d 26, 27 (8th Cir. 1991).
Here, Plaintiff has failed to sufficiently allege an Eighth Amendment violation. Although
Plaintiff has alleged that his assignment to the grinder and sander area was unsafe due to lack of
training, Plaintiff has not alleged that he was required to work in this position, or that he was
required to work at all. Thus, even under the law of other circuits, Plaintiff has not plausibly
alleged an Eighth Amendment violation premised on the allegedly unsafe working conditions.
See also Robertson v. Shelby Cty., Tenn., No. 05-2579 P, 2007 WL 9706140, at *5 (W.D. Tenn.

July 13, 2007) (“[C]ourts have recognized that the mere failure to provide proper instructions or
safety devices for use on prison work details does not constitute deliberate indifference.”)
(quoting Smalls v. Berrios, No. 3:06cv96, 2007 WL 1827465, at *7 (N.D. Fla. June 25, 2007))
(holding that plaintiff’s allegations that defendant’s failure to provide instructions or safety
training on work equipment did not rise to the level of deliberate indifference and, at most,
suggested negligence). Accordingly, the undersigned RECOMMENDS that this claim be
DISMISSED.
C. Fourteenth Amendment Claim
Plaintiff has also failed to plausibly allege a Fourteenth Amendment due process claim.

More specifically, Plaintiff’s allegations are insufficient to implicate federal due process
concerns because he has not alleged that his employment termination amounted to a deprivation
of a constitutionally protected interest.
“[T]he Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005). “An inmate establishes a liberty interest when a change in conditions of confinement
‘imposes atypical and significant hardship on [him] in relation to the ordinary incidents of prison
life.’” Williams v. Lindamood, 526 F. App’x 559, 562 (6th Cir. 2013) (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)). The United States Court of Appeals for the Sixth Circuit has

held repeatedly that prisoners do not have a constitutional right to a prison job. E.g., Dobbins v.
Craycraft, 423 F. App’x 550, 552 (6th Cir. 2011) (“[Plaintiff inmate] has no constitutional right
to prison employment because the loss of his position does not impose an ‘atypical and
significant hardship . . . in relation to the ordinary incidents of prison life.’”) (quoting Sandin,
515 U.S. at 484); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (“It is well established,
however, that no prisoner has a constitutional right to a particular job or to any job.”); Carter v.
Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (“A prisoner has no constitutional right to prison
employment or a particular prison job.”).
Because Plaintiff’s termination from his materials handler position at the sheet metal
shop does not impose an “atypical and significant hardship on [him] in relation to the ordinary
incidents of prison life,” Plaintiff’s due process claim must fail. Sandin, 515 U.S. at 484.
Accordingly, it is RECOMMENDED that Plaintiff’s Fourteenth Amendment due process claim
be DISMISSED.

IV. DISPOSITION
For the reasons set forth above, Plaintiff’s motion for leave to proceed in forma pauperis
under 28 U.S.C. § 1915(a)(1) and (2) (ECF No. 1) is GRANTED. In addition, it is
RECOMMENDED that the Court DISMISS this action pursuant to §§ 1915(e)(2) and
1915A(b)(1) for failure to state a claim on which relief may be granted.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.
§ 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377767. Public record. Not legal advice.