Lee v. Tumbleson

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEROME VINCENT LEE, JR.,

Plaintiff,

v. Civil Action 2:21-cv-4706

Judge James L. Graham

Magistrate Judge Chelsey M. Vascura

SGT. TUMBLESON, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Jerome V. Lee Jr., a state inmate who is proceeding without the assistance of

counsel, brings this action against two employees of the Ross Correctional Institute (collectively

“Defendants”), alleging that the prison officials wrongfully confiscated Plaintiff’s personal

property in violation of the 8th and 14th Amendments. (Compl., ECF No. 5). This matter is

before the Court for the initial screen of Plaintiff’s Complaint under 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);

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 § 1915A for failure to state a claim on which relief may be

granted.

I. BACKGROUND

In his Complaint, Plaintiff alleges one the Defendants took Plaintiff’s personal property

from his jail cell while Plaintiff was placed in limited privilege housing. (Compl. 4, ECF No. 5.)

Plaintiff details the property he lost and his attempts to utilize the prison’s internal grievance

procedure to obtain relief for the property losses he suffered. (Id.)

Plaintiff asserts that this Court has jurisdiction under 42 U.S.C. §1983 to adjudicate his

claims because Defendants have not resolved the grievance in question, and it has been three

months since the incident. (Id. at 7.) Plaintiff alleges he has attempted to resolve his claim with

prison employees, but no information has been provided in response. (Id.)

Plaintiff seeks injunctive and monetary relief.

II. STANDARD OF REVIEW

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, 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. “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., 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)).

III. ANALYSIS

Applying the foregoing, the undersigned recommends dismissal of Plaintiff’s Complaint

in its entirety.

Even accepting Plaintiff’s allegations as true, he has failed to state a claim upon which

relief can be granted because he has not sufficiently alleged the inadequacy of the remedies

available under Ohio law. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by

Daniels v. Williams, 474 U.S. 327 (1986) and Hudson v. Palmer, 468 U.S. 517 (1984). In

Paratt, the Supreme Court held that the existence of adequate post-deprivation state remedies

eliminates any due process claim arising from the negligent deprivation of a prisoner’s property.

451 U.S. at 539–44. The Hudson Court extended Parratt’s application to all § 1983 due process

claims involving deprivation of property, regardless of whether the deprivation is negligent or

intentional. Hudson, 468 U.S. at 533–36. Cf. Jefferson v. Jefferson Cnty. Pub. Sch. Sys., 360

F.3d 583, 587–88 (6th Cir. 2004) (“If satisfactory state procedures are provided in a procedural

due process case, then no constitutional deprivation has occurred despite the injury.”).

Following Parratt and Hudson, the United States Court of Appeals for the Sixth Circuit held that

in a § 1983 case “claiming the deprivation of a property interest without procedural due process

of law, the plaintiff must plead and prove that state remedies for redressing the wrong are

inadequate.” Vicory v. Walton, 721 F.2d 1062, 1065–66 (6th Cir. 1983). Where a plaintiff fails

to do so, dismissal for failure to state a claim is appropriate. See, e.g., Gibbs v. Hopkins, 10 F.3d

373, 377-78 (6th Cir. 1993) (dismissal of procedural due process claim upheld where the plaintiff

had “not pled or shown that [the state] judicial remedies are inadequate . . . .”); Ruiz v. Fisher,

No. 96-4212, 1998 WL 661139, at *5 (6th Cir. Sept. 2, 1998) (concluding that the plaintiff had

failed to state a claim of either intentional or negligent deprivation of property where he had not

pled “that state remedies for redressing the wrong [were] inadequate”).

In this instant case, Plaintiff has failed to sufficiently plead that the post-deprivation tort

remedies available to him under Ohio law are inadequate to adjudicate his property-loss claims

as required under Parratt and Vicory. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir.

1999) (citing Hudson, 468 U.S. at 534–36) (“State tort remedies generally satisfy the

postdeprivation process requirement of the Due Process Clauses.”). In effort to satisfy his

burden, Plaintiff challenges Defendants’ administration of the prison’s inmate grievance

procedure. (Compl. 7, ECF No. 5.) Plaintiff states that prison staff “keep[s] extending the time

claiming they need more time to give a proper answer, but it has been three months.” (Id.)

Plaintiff’s dissatisfaction with the handling of his administrative grievances, however, fails to

state a claim or otherwise satisfy his burden because “there is no inherent constitutional right to

an effective grievance procedure.” Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003)

(citing Hewitt v. Helms, 459 U.S. 460, 467 (1983); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th

Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); and Flick v. Alba, 932 F.2d 728, 729

(8th Cir. 1991)). Beyond Plaintiff’s expressed dissatisfaction with the handling of his

administrative grievances, his Complaint contains only “naked assertions,” Twombly, 550 U.S. at

557, and provides insufficient factual content or context from which the Court could reasonably

infer that Ohio’s post-deprivation tort remedies are inadequate to adjudicate his property-loss

claims.

Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims

pursuant to 28 U.S.C. § 1915A.

IV. DISPOSITION

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS

Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. § 1915A.

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).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE