Whitt v. Casto

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHEN H. WHITT,

Plaintiff,

v. Case No. 2:21-cv-881

Chief Judge Algenon L. Marbley

REBECCA CASTO, et al., Magistrate Elizabeth P. Deavers

Defendants.

ORDER and

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, a state inmate at the Chillicothe Correctional Institution (“CCI”), brings this

prisoner civil rights action under 42 U.S.C. § 1983. (ECF No. 1-1.) This matter is before the

Court for an initial screen of Plaintiff’s Complaint as required by 28 U.S.C. § 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. § 1915A(b).

Having performed the initial screen, for the reasons that follow, it is RECOMMENDED that the

Court DISMISS this Plaintiff’s claims against Defendants for failure to state a claim.

I.

“‘District courts are required to screen all civil cases brought by prisoners, regardless of

whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel, as

the statute does not differentiate between civil actions brought by prisoners.’ ” Espinoza

Vallecillo v. Michigan, No. 2:19-CV-13354, 2020 WL 85929, at *2 (E.D. Mich. Jan. 7, 2020)

(quoting In re Prison Litigation Reform Act, 105 F.3d 1131, 1134 (6th Cir. 1997) (emphasis

added)). Plaintiff is proceeding pro se and on March 22, 2021, was granted leave to proceed in

forma pauperis. (ECF No. 10.)

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 so doing, 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)1 as part of the

statute, which provides in pertinent part:

(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—

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(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from

such relief.

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.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rules of Civil Procedure 8(a). See also

1 Formerly 28 U.S.C. § 1915(d).

2

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 complains.” 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, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “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. (quoting Twombley, 550 U.S. at 556). “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 Cnty. Sheriff’s Dep’t., No. 08-

3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519,

520 (1972)). This lenient treatment, however, has limits; “ ‘courts should not have to guess at

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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.

Plaintiff contends that Defendants, i.e., the “Screening Committee” that grants inmates

permission to work at Ohio Prison Industries (“OPI”), violated his Fourteenth Amendment right

to equal protection because Plaintiff was not hired for a job in the welding shop or OPI. (ECF

No. 1-1, at PageID 14-15, 16.) Plaintiff explains that because four inmates who worked in the

welding shop were fired, Plaintiff was called to the shop to take a welding test. He contends that

he demonstrated that he was an experienced welder and was told that he had the job. Plaintiff

appears to suggest that because the four inmates who had been fired had to be re-hired, Plaintiff

could not be hired. Plaintiff also alleges that the reasons provided to him for why he could not

be hired in the welding shop—namely, that he had not yet appeared before the parole board, that

he had too much time remaining on his sentence to be eligible to work at OPI, which is

designated as a “sensitive work area,” that he already had a kitchen job, and that he could seek a

maintenance job—were lies and not supported by the applicable administrative regulation, 5120-

3-2, or applicable ODRC policy, 54-WRK-02.

Attached documentation shows that Defendant Steve Jenkins, Unit Manager Chief,

informed Plaintiff that 54-WRK-02 provides that the responsible Deputy Warden has the final

say in whether an inmate may be assigned to a sensitive work area. (ECF No. 1-1, at PageID

16.) The documentation also shows that Plaintiff expressed concern that Defendant Steve

Jenkins answered the Informal Complaint that Plaintiff directed to Defendant Rebecca Casto,

Deputy Warden of Operations. Finally, according to the attached documentation, Plaintiff was

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told that although he would not be approved to work in the sensitive work area at that time, he

could apply again at a later date.

“[T]he Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution ‘protects against arbitrary classifications, and requires that similarly situated

persons be treated equally.’” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005) (quoting

Richland Bookmart, Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002)). “‘Where … no suspect

class or fundamental right is implicated, governmental action subject to equal protection scrutiny

under the rational basis test must be sustained if any conceivable basis rationally supports it.’”

Ziss Bros. Const. Co., Inc. v. City of Independence, Ohio, 439 F. App’x 467, 475-76 (6th Cir.

2011) (quoting TriHealth, Inc. v. Bd. Of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 790 (6th

Cir. 2005)). “Without question, prisoners are not considered a suspect class for purposes of

equal protection litigation.” Jackson, 411 F.3d at 619 (citing Wilson v. Yaklich, 148 F.3d 596,

604 (6th Cir. 1998)). Moreover, inmates have no constitutional right to prison employment or a

particular job. Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (citing Newsom v. Norris,

888 F.2d 371, 374 (6th Cir. 1989)).

Here, Plaintiff’s Complaint fails to set forth any facts suggesting that the Defendants

intentionally treated him differently than other similarly situated inmates. That is especially so

where, as here, the Court assesses Plaintiff’s equal protection claim using the rational basis test.

“Under the rational basis test, ‘courts will not overturn government action unless the varying

treatment of different groups or persons is so unrelated to the achievement of any combination of

legitimate purposes that the court can only conclude that the government’s actions were

irrational.’” Tipton v. Mohr, No. 2:11-cv-719, 2012 WL 1031416, at *3 (S.D. Ohio Mar. 27,

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2012 ) (quoting Ziss Bros. Const. Co., Inc., 439 F. App’x at 476.) Plaintiff fails to set forth any

facts in his Complaint suggesting that the Defendants’ stated reasons for not approving him to

work in a sensitive work area were unrelated to legitimate prison operations. To the extent that

Plaintiff raises a class-of-one challenge stemming from the discretionary decision exercised by

the “screening committee” and/or vested in the Deputy Warden of Operations, that claim is not

available in the context of prison employment. Brown v. Partin, No. 1:20-CV-235, 2020 WL

5077037, at *3 (E.D. Tenn. Aug. 27, 2020). For these reasons, Plaintiff’s Complaint fails to state

a claim upon which relief can be granted.

Although Plaintiff primarily seeks approval to work at the OPI welding shop, he seeks in

the alternative damages consisting of the amount of money he will not be able to earn if denied

the welding job ($200 per month instead of $20 per month he currently makes) in the amount of

$57,600 per each Defendant for a total of $288,000. (ECF No. 1-1, at PageID 15.) The Court

assumes that Plaintiff intends to assert this claim under 42 U.S.C. § 1983. Section 1983,

however, does not permit Plaintiff to bring his claim for money damages against the Individual

Defendants in their official capacities. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,

71 (1989) (holding that neither States nor state officials acting in their official capacities are

“persons” within the meaning of § 1983). Plaintiff’s § 1983 claims for money damages against

the Individual Defendants in their official capacities, therefore, are not cognizable. Gean v.

Hattaway, 330 F.3d 758, 766 (6th Cir. 2003).

III.

For the reasons explained above, it is RECOMMENDED that the Court DISMISS all

claims against Defendants Rebecca Casto, Deputy Warden of Operations; Shane Clark, Unit

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Manager; Steve Jenkins, Unit Manager Chief; Tara Hatzo, Secretary; and Kim Bayless, Case

Manager; and any claims for monetary damages against the Individual Defendants in their

official capacities. Petitioner’s Motion to Appoint Counsel (ECF No. 2) is DENIED for want of

exceptional circumstances, Bennett v. Smith, 110 F. App’x 633, 635 (6th Cir. 2004). It

RECOMMENDED that Plaintiff’s Motion for Miscellaneous Relief (“Civil R. 12(B)(6)

Request for Relief”) (ECF No. 3) be DENIED as procedurally improper.

Finally, in Simons v. Washington, the United States Court of Appeals for the Sixth Circuit

held that pursuant to 28 U.S.C. § 1915(g), District Courts may, and often should, recommend to

future courts whether a complaint should be considered one of the three cases under which an

incarcerated plaintiff may proceed in forma pauperis. No. 20-1406, ____ F.3d ____, 2021 WL

1727619, at *2 (6th Cir. May 3, 2021). This is commonly known as the “three strikes rule.” Id.

at *1. As Plaintiff “fails to state a claim upon which relief may be granted,” 28 U.S.C. §

1915(g), it is RECOMMENDED that this case be treated as one of Plaintiff’s strikes.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

the magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal….”) (citation

omitted).

IT IS SO ORDERED.

_s/ Elizabeth A. Preston Deavers________

DATED: May 18, 2021 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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