Barker v. Muskingum County Jail

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DUSTIN EDWIN BARKER, et al.,

Plaintiffs,

v. Case No. 2:21-cv-4987

Judge Sarah D. Morrison

MUSKINGUM COUNTY JAIL, et al., Magistrate Elizabeth P. Deavers

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiffs Dustin Barker and Michael Morrow, pretrial detainees at the Muskingum

County Jail, bring this prisoner civil rights action under 42 U.S.C. § 1983. (ECF Nos. 1-1, 8.)

By separate orders, both Barker and Morrow were granted leave to proceed in forma pauperis.

(ECF Nos. 4 and 14.) This matter is before the Undersigned for an initial screen of Plaintiffs’

Complaint as required by 28 U.S.C. § 1915A to identify cognizable claims and to recommend

dismissal of Plaintiffs’ 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). Also before the Court are three motions for

appointment of counsel. (ECF Nos. 2, 3, and 6.)

Having performed the initial screen, for the reasons that follow, the Undersigned

RECOMMENDS that Plaintiffs be PERMITTED to pursue their claims arising from

Defendant Muskingum County’s alleged “strip naked policy” (as discussed herein), but that the

remainder of Plaintiffs’ claims be DISMISSED. It is further ORDERED that the motions for

appointment of counsel be DENIED WITHOUT PREJUDICE TO RENEWAL.

I. PROCEDURAL HISTORY

The named Plaintiffs in this action are Dustin Barker and Michael Morrow, and the

operative Complaint consists of the Amended Complaint (ECF No. 8) as well as the initial

Complaint (ECF No. 1-1). The Undersigned explains below.

A. Parties

This action commenced on October 7, 2021 with the filing of, among other pleadings, an

initial Complaint. (ECF No. 1-1.) The only named Plaintiff was Dustin Edwin Barker. (Id.)

Named as Defendants were Muskingum County Jail, Muskingum County Sheriff’s Office,

Muskingum County, Zanesville Municipal Corporation, and State of Ohio. (Id.) It was with the

filing of an amended complaint on October 28, 2021 that the following individuals were named

as Plaintiffs: DeAngelo DeWon Tellis, Jamie Lee Mayle, Joseph Moore, Michael Robert

Carsey, Channing Goins, and Michael Morrow. (ECF No. 8 at PAGEID # 53.) On December 2,

2021, the Court issued an Order advising Plaintiffs that the Amended Complaint, ECF No. 8,

was the operative Complaint under consideration. (ECF No. 13.)

On November 4, 2021, the Court issued an Order noting that only Plaintiff Dustin Barker

had sought and been granted leave to proceed in forma pauperis, and directing the remaining

named plaintiffs, within thirty (30) days, to submit the requisite fees or application to proceed in

forma pauperis, or risk being assessed the full requisite fees and dismissal for failure to

prosecute (ECF No. 9.) Only Plaintiff Michael Morrow complied, filing an application to

proceed in forma pauperis on November 19, 2021 (ECF No. 11), which the Court granted on

December 16, 2021 (ECF No. 14 at PAGEID ## 93-94). And so on December 16, 2021, the

Court recommended that the other named Plaintiffs be dismissed for failure to prosecute,

stemming from their failure to pay the requisite fees or application to proceed in forma pauperis.

(ECF No. 14 at PAGEID # 95.) The Court adopted that recommendation on January 6, 2022.

(ECF No. 19.) The remaining Plaintiffs are thus Dustin Barker and Michael Morrow, while the

remaining Defendants are Muskingum County Jail, Muskingum County Sheriff’s Office,

Muskingum County, Zanesville Municipal Corporation, and State of Ohio.

B. Complaints

As the Court noted on December 2, 2021, the Amended Complaint, ECF No. 8, is the

operative Complaint in this action. (ECF No. 13.) The Court will, however, out of an abundance

of caution and in fairness, also consider any allegations and claims that were raised in the initial

Complaint (see ECF No. 1-1) but omitted from the Amended Complaint. It is clear from the

language that the Court’s December 2, 2021 Order recognizing the Amended Complaint as the

operative complaint was intended to stem the filing of further complaints while the Court

awaited the payment of fees or filing of in forma pauperis applications. Further, nothing in the

Amended Complaint expressed or suggested an intent to abandon anything raised in the initial

complaint but omitted from the Amended Complaint. Thus, the Court collectively recognizes

both pleadings as the operative complaint that will be subjected to an initial screen pursuant to 28

U.S.C. § 1915A.1 The Court turns now to the initial screen.

II. GOVERNING LAW

“‘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

1 One final note regarding the pleadings: although both Barker and Morrow are named Plaintiffs

in this action, the initial complaint and amended complaint were signed by, and appear to have

been authored by, only Plaintiff Barker. And while some of the claims arguably challenge

actions that allegedly could have occurred to both Plaintiffs Barker and Morrow (and other

inmates), others challenge actions that allegedly occurred only to Plaintiff Barker.

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)).

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)2 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—

***

(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

2 Formerly 28 U.S.C. § 1915(d).

basic federal pleading requirements set forth in Federal Rules 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., 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 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. COMPLAINT AND RELIEF SOUGHT

The operative complaint (“Complaint”) focuses on seven discrete incidents or matters,

arguably alludes to an eighth and ninth, and seeks five forms of relief. First, Plaintiffs assert

that, following a water boil advisory on August 3, 2021, “Corrections staff only allowed for us to

have 2 or 3 bottles of water before a more than 12 hour period with no access to drinking water.

Many were dehydrated and suffered.” (ECF No. 8 at PAGEID # 57; see also ECF No. 1-1 at

PAGEID # 11.) Second, Plaintiffs challenge an alleged “strip naked” policy, alleging that “[i]t is

a policy and practice in the Muskingum County Jail twice a week in order to exchange for clean

linens, inmates strip naked on camera, in front of female Arimark staff and corrections, and stand

in line trying to cover with a blanket.” (ECF No. 8 at PAGEID # 57; see also ECF No. 1-1 at

PAGEID # 11.) Plaintiffs decry this policy as “humiliating, dehumanizing, and borderline sexual

abuse.” (Id.) Plaintiff Barker alleges that he was sexually abused as a child, that accordingly

these forced strips have been traumatic to him, and that his requests for medical treatment for the

mental stress and injury suffered as a result have gone unmet. (ECF No. 1-1 at PAGEID # 11.)

Plaintiffs’ third allegation is that “[i]t is a policy at the Muskingum County Jail that they

do not and will not carry a law library,” which Plaintiffs contend “greatly affects” their rights to

due process and a fair trial. (ECF No. 8 at PAGEID # 57.) Fourth, Plaintiffs allege without

elaboration that the food at the Muskingum County Jail is “inadequate.” (Id.) Fifth, Plaintiffs

contend, again without elaboration, that the conditions at the Muskingum County Jail are

“deplorable, unsanitary, and unsafe.” (Id.)

A sixth claim, alleged by Plaintiff Barker, is that in August 2021, he was placed “in the

hole” for five days on “a contraband ticket.” (ECF No. 1-1 at PAGEID # 12.) He asserts that he

requested but never received a hearing on that matter, that he was placed in an 8 x 8 cell with

only a mat because there was already an inmate “on the rack” in what was intended to be a one-

inmate cell, that he was forced to eat on the floor, and that he requested but never received

medical care for which he was nonetheless charged $5.00. (Id.) Lastly, a seventh claim raised

by Plaintiff Barker (applicable to other unnamed inmates but without specific mention of

Plaintiff Morrow), is that in August of 2021, Corrections Officer Taylor called Barker and other

inmates a “homosexual slur,” for which Barker filed and appealed a grievance. (Id.)

In an eighth claim not explicitly raised, but several times alluded to, Plaintiffs allege

denial of medical care. Specifically, Plaintiff Barker alleges that he requested but was denied

medical care in connection with the trauma he has suffered as a result of the twice-a-week “strip

naked” policy, as well as from the time he spent five days in disciplinary segregation. (ECF No.

1-1 at PAGEID ## 11-12.) And finally, a ninth claim suggested by Plaintiff Barker in the

portion of the initial complaint addressing exhaustion states that he was “[a]lso denied a prayer

rug without an Iman.” (Id. at PAGEID # 9.)

Plaintiffs seek in the way of relief: first, a declaration that the actions described violate

their rights under the Constitution and laws of the United States; second, a preliminary and

permanent injunction from being made, in order to obtain clean linens, to strip on camera and in

front of females and other inmates; third compensatory damages against each defendant, jointly

and severally, in the amount of $1,000,000, and punitive damages against each defendant, jointly

and severally, in the amount of $1,000,000; fourth, a jury trial and all costs; and fifth, “Any

additional relief this Court deems just, proper, and equitable.” (ECF No. 8 at PAGEID # 58;

ECF No. 1-1 at PAGEID # 13.)

IV. DISCUSSION

A. Failure to State a Claim against Defendants

As noted above, Plaintiffs name the following defendants: (1) Muskingum County Jail;

(2) Muskingum County Sheriff’s Office; (3) Muskingum County; (4) Zanesville Municipal

Corporation; and (5) State of Ohio. Plaintiffs do not identify whether they are suing the

Defendants in their official or individual capacity. (See generally ECF Nos. 1-1, 8.) But the

named (or proper) Defendants are public entities, rather than individuals, against whom Plaintiffs

fail to allege any actual involvement in the claimed wrongdoing. This requires dismissal at this

stage of all nearly all of Plaintiffs’ claims.

To state a claim against a defendant in his or her individual capacity, a plaintiff must

allege personal involvement of the defendant in causing plaintiff’s injury. Hardin v. Straub, 954

F.2d 1193, 1196-98 (6th Cir. 1992). A party cannot be held liable under Section 1983 unless the

party personally participated in, or otherwise authorized, approved or knowingly acquiesced in,

the allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th

Cir. 1989).

Plaintiffs name the Muskingum County Jail as a Defendant. But a “jail” is not a “person”

or legal entity that can be sued under § 1983. See Watson v. Gill, 40 F. App’x 88, 89 (6th Cir.

June 26, 2002) (“The McCracken County Jail is not a legal entity susceptible to suit.”) (citing

Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)); see also Marbry v. Corr. Medical

Servs., 238 F.3d 422 (Table), 2000 WL 1720959, at *2 (6th Cir. Nov. 6, 2000) (“the Shelby

County Jail is not an entity subject to suit under § 1983.”) (citing Rhodes v. McDaniel, 945 F.2d

117, 120 (6th Cir. 1991)); Howell v. Hamilton Cty. Justice Ctr., No. 1:15-cv-303, 2015 WL

2406082, at *3 (S.D. Ohio May 20, 2015); Aladimi v. Hamilton Cty. Justice Ctr., No. 1:09-cv-

398, 2012 WL 292587, at *7 (S.D. Ohio Feb. 1, 2012). These decisions make clear that under

these circumstances Muskingum County is the appropriate Defendant and, as more fully

explained below, is liable under § 1983 only if the Plaintiff demonstrates a causal connection

between a County policy or custom and the alleged unconstitutional action. Watson, 40 F. App’x

at 89; Marbry, 2000 WL 1720959, at *2; Howell, 2015 WL 2406082, at *3; Aladimi, 2012 WL

292587, at *7. The Undersigned accordingly RECOMMENDS that Plaintiffs’ claims against

Muskingum County Jail be DISMISSED. Plaintiffs’ claims against Muskingum County are

discussed in greater detail below.

Plaintiffs also name the Muskingum County Sheriff’s Office as a Defendant in this

matter, without alleging any direct involvement in the alleged misconduct. To state a claim upon

which relief can be granted under § 1983 against supervisory personnel, Plaintiffs must allege

that a claimed constitutional violation was based on active unconstitutional behavior, Greene v.

Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999),

and cannot be based upon the mere right to control employees. Polk Co. v. Dodson, 454 U.S.

312, 326 (1981); Monell v. New York City Dep’t of Soc. Serv., 436 U.S. 658, 694 (1978). That

is, Plaintiffs must show that supervisory personnel were actually involved in the alleged violation

of constitutional rights. See Hardin, 954 F.2d at 1196-98; Leach, 891 F.2d at 1246; Greene, 310

F.3d at 899; Shehee, 199 F.3d at 300. A plaintiff must demonstrate that a supervisory defendant

“did more than play a passive role in the alleged violation or showed mere tacit approval of the

goings on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Thus, to hold a supervisor

liable under Section 1983, a plaintiff “‘must show that the official at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct . . . .’” Everson v. Leis, 556

F.3d 484, 495 (6th Cir. 2009) (quoting Shehee, 199 F.3d at 300). Plaintiffs here have not alleged

actual involvement by the Muskingum County Sheriff’s Office in any of the actions challenged

in the Complaint. Thus, the Undersigned RECOMMENDS that the Muskingum County

Sheriff’s Office be DISMISSED as a Defendant.

The same analysis, namely the failure to make any direct allegations in the Complaint,

also warrants dismissal of the Zanesville Municipal Corporation. As in Watson, Marbry,

Howell, and Aladimi above, the Muskingum County jail is a department of the county, not the

municipality, in which it is situated. Beyond noting it was the municipality of Zanesville that

declared the “boil advisory” that resulted in reliance on, and alleged rationing of, bottled water,

Plaintiffs make no direct allegations against Zanesville in connection with any of the actions

Plaintiffs challenge. And Zanesville’s declaration of a boil advisory due to a water main break

does not strike the Undersigned as an “allegation” of any wrongdoing. Accordingly, the

Undersigned RECOMMENDS that Zanesville Municipal Corporation be DISMISSED.3

Finally, Plaintiffs also name the State of Ohio as a Defendant but again fail to make any

allegations directed toward it in the complaint. Even if, however, Plaintiffs had made any

assertions against the State of Ohio, their claims would be barred by the Eleventh Amendment.

The Eleventh Amendment to the United States Constitution precludes a private party from

bringing suit against a state or any of the state’s agencies unless the state has expressly consented

to the suit or Congress has properly abrogated the state’s sovereign immunity. Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 58 (1996); Alabama v. Pugh, 438 U.S. 781, 782 (1978). “Ohio has

3 Plaintiffs also seek against Defendants, jointly and severally, compensatory damages in the

amount of $1,000,000 and punitive damages in the amount of $1,000,000. Even if any of the

named Defendants were being sued in their individual capacity, section 1983 does not permit

Plaintiffs to bring their claims for money damages against individual Defendants in their official

capacities. Turner v. Ohio Department of Rehabilitation and Correction, No. 2:19-cv-2376,

2019 WL 3842390, at *3 (S.D. Ohio Aug. 15, 2019) (citing Will, 491 U.S. at 71; Gean v.

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

not waived its sovereign immunity in federal court.” Mixon v. Ohio, 193 F. 3d 389, 397 (6th Cir.

1999). And “Congress did not intend to override well-established immunities or defenses under

the common law” by enacting § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 67

(1989). Because Eleventh Amendment immunity applies here, the Undersigned

RECOMMENDS that the State of Ohio be DISMISSED as a Defendant.

B. Conditions of Confinement Claims

As summarized above, Plaintiffs raise several claims challenging the conditions of their

confinement. To this end, the Eighth Amendment protects all people from “cruel and unusual

punishments.” U.S. Const. Am. VIII.

[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well being . . . The rationale for this

principle is simple enough: when the State by the affirmative exercise of its power

so restrains an individual's liberty that it renders him unable to care for himself, and

at the same time fails to provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it transgresses the substantive limits

on state action set by the Eighth Amendment . . . .

Wilson v. Williams, 961 F.3d 829, 839 (6th Cir. 2020) (citing Helling v. McKinney, 509 U.S. 25,

32 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199-200

(1989))). “The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit

inhumane ones, and . . . ‘the treatment a prisoner receives in prison and the conditions under

which he is confined are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan,

511 U.S. 825, 832 (1994) (first quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981), then

quoting Helling, 509 U.S. at 31). “A prison official's ‘deliberate indifference’ to a substantial

risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828 (citations omitted).

The Eighth Amendment's deliberate indifference framework includes both an objective

and subjective prong. Id. at 834; Helling, 509 U.S. at 35-37. To satisfy the objective prong, an

inmate must show “that he is incarcerated under conditions posing a substantial risk of serious

harm.” Farmer, 511 U.S. at 834. The subjective component, on the other hand, requires inmates

to show that prison officials knew of and disregarded an excessive risk, thereby acting with

deliberate indifference. Smith v. DeWine, 476 F. Supp. 3d 635, 661 (S.D. Ohio 2020) (citing

Farmer, 511 U.S. at 834, 837-38). Under the subjective prong, an official must “know[ ] of and

disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.

Here, Plaintiffs allege an unconstitutional deprivation of access to water during a period

of more than twelve hours. The Eighth Amendment requires prison officials “to provide humane

conditions of confinement” and to “ensure that inmates receive adequate food, clothing, shelter,

and medical care . . . .” Farmer, 511 U.S. at 832. However, “extreme deprivations are required

to make out a conditions-of-confinement claim . . . [b]ecause routine discomfort is ‘part of the

penalty that criminal offenders pay for their offenses against society.’” Hudson v. McMillian,

503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347). “Not every unpleasant experience a

prisoner might endure while incarcerated constitutes cruel and unusual punishment within the

meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Rather,

“[t]he Eighth Amendment is concerned only with ‘deprivations of essential food, medical care,

or sanitation,’ or ‘other conditions intolerable for prison confinement.’” See Richmond v. Settles,

450 F. App’x 448, 454-56 (6th Cir. 2011) (quoting Rhodes, 452 U.S. at 348).

Conditions-of-confinement claims involving alleged deprivations of basic needs are fact-

specific. “In general, the severity and duration of deprivations are inversely proportional, so that

minor deprivations suffered for short periods would not rise to an Eighth Amendment violation,

while ‘substantial deprivations of shelter, food, drinking water, and sanitation’ may meet the

standard despite a shorter duration.’” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)

(citation omitted). Thus, fleeting and temporary discomforts are usually insufficient to rise to the

level of a constitutional injury. See, e.g., Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th

Cir. 2001) (discussing temporary inconveniences). For example, in Davis v. Strickland, No.

2:09-cv-015, 2009 WL 2047891, at *13 (S.D. Ohio July 7, 2009), the Court found no Eighth

Amendment violation from a single period of short duration (approximately thirty-six hours)

following a water main break during which inmates were unable to flush toilets but were

provided limited rations of water. The Court noted that no long-term adverse effects were

alleged, and that there was no evidence that the defendants had purposely created a water

shortage or acted with deliberate indifference to the inmates’ needs during this period. See also

Richmond, 450 F. App’x at 455-56 (finding no Eighth Amendment violation from the denial of

seven meals over six days); Leonard v. Smoot, No. 1:13-cv-097, 2013 WL 1755750, at *3 (S.D.

Ohio Mar. 28, 2013) (finding no Eighth Amendment violation from the denial of some meals

over a short period of time absent any showing that the meal plan was inadequate or that plaintiff

suffered harm).

Accepting Plaintiffs’ allegations as true and even resolving ambiguous inferences in their

favor, the Undersigned finds that these allegations fail to state a claim upon which relief may be

granted. Plaintiffs were provided a limited amount of bottled water, but do not appear to have

been wholly deprived of water, during a short duration of time. Given the situational emergency

posed by the declaration of a “boil advisory,” there does not appear to have been on the part of

corrections officers an intent to deprive Plaintiffs of water or a deliberate indifference to

Plaintiffs’ needs during this period. And Plaintiffs do not plausibly allege that they personally

suffered any serious harm.4 Under these circumstances, Plaintiffs can satisfy neither the

4 To the extent that Plaintiffs allege that as the result of the lack of or limited access to water,

objective nor subjective components of a conditions-of-confinement claim as to their “allotment

of water during boil advisory” claim.

Regarding Plaintiffs’ claims challenging the food as inadequate and the conditions as

deplorable, it is well-settled that prisoners have a right to adequate food. See Farmer, 511 U.S.

at 832. However, the Sixth Circuit has held that, while a prisoner is constitutionally entitled to

food that is nutritionally adequate for the maintenance of normal health, complaints about “the

preparation or quality of prison food” are generally “far removed from Eighth Amendment

concerns.” Cunningham v. Jones, 567 F.2d 653, 659-60 (6th Cir. 1977). The Eighth

Amendment is implicated only when the food provided to a prisoner is insufficient to maintain

normal health. See Sims v. Michigan Dept. of Corr., 23 F. App’x 214, 216 (6th Cir. 2001) (citing

Rhodes, 452 U.S. at 347). As for the allegation that the conditions are “deplorable, unsanitary,

and unsafe,” the Eighth Amendment imposes duties on prison officials to provide humane

conditions of confinement, and to “‘take reasonable measures to guarantee the safety of the

inmates.’” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984));

Edge v. Mahlman, No. 1:20-cv-892, 2021 WL 3725988, at *3-4 (S.D. Ohio Aug. 23, 2001).

Beyond characterizing the food as “inadequate,” and the conditions as “deplorable,

unsanitary, and unsafe,” Plaintiffs fail to offer any factual allegations that would enable the

Undersigned to determine whether Plaintiffs can demonstrate that the food is insufficient to

“many were dehydrated and suffered,” (ECF No. 8 at PAGEID # 57), Plaintiffs are not entitled

to assert the rights of anyone but themselves. “‘[A] prisoner who initiates a civil action

challenging certain conditions at a prison facility in his individual capacity is limited to asserting

alleged violations of his own constitutional rights and, absent a request for class certification,

lacks standing to assert the constitutional right of other prisoners.’” Heid v. Mohr, No. 2:18-cv-

00311, 2020 WL 2764029, at *2 (S.D. Ohio May 28, 2020) (quoting Newsom v. Norris, 888 F.2d

371, 381 (6th Cir. 1989)); see also Garrison v. Michigan Dept. of Corrections, 333 F. App’x

914, 919 (6th Cir. 2009) (“a pro se litigant may represent himself on his own claims, but [he]

may not act in a representative capacity”).

maintain normal health, that the conditions impose extreme deprivations, or that prison officials

demonstrated a deliberate indifference to either or both. Plaintiffs thus fail to offer any factual

allegations from which the Undersigned could determine whether Plaintiffs can satisfy either the

objective or the subjective component of a conditions-of-confinement claim. Although Plaintiffs

are not required at this stage to offer “detailed factual allegations,” Iqbal, 556 U.S. at 678, “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)). Even as to the less stringent standards to

which pro se litigants’ pleadings should be held, “‘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)). Accordingly, the Plaintiffs’

“inadequate food” and “deplorable conditions” claims fail.

Regarding Plaintiff Barker’s allegations stemming from his confinement to five days of

disciplinary exclusion “in the hole,” “[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)). An increase in security classification

generally does not constitute an ‘atypical and significant’ hardship in relation to the ordinary

incidents of prison life because a prisoner has no constitutional right to remain incarcerated in a

particular prison or to be held in a specific security classification. See, e.g., Harris v. Truesdell,

79 F. App’x 756, 759 (6th Cir. 2003); Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003).

Likewise, confinement in segregation generally does not constitute an “atypical and significant”

hardship except in “extreme circumstances, such as when the prisoner's complaint alleged that he

is subject to an indefinite administrative segregation” or that such confinement was excessively

long in duration. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) (citing Harbin-Bey v.

Rutter, 524 F.3d 789, 795 (6th Cir. 2008); see also Sandin, 515 U.S. at 486 (“We hold that [the

inmate’s] discipline in segregated confinement did not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty interest.”); Harris, 79 F. App’x at

758-59 (holding that neither “punishment of more than 60 days of punitive segregation” nor a

change in security classification “give rise to a protected Fourteenth Amendment Liberty

interest”); Carter, 69 F. App’x at 680 (holding that inmate's placement in disciplinary

confinement or a change in security classification or housing assignment did not implicate the

Due Process Clause).

Regarding Plaintiff Barker’s allegation that he requested but did not receive a hearing on

the contraband ticket that led to his disciplinary exclusion, as discussed more fully below, there

is no cause of action for the improper adjudication of, or failure to respond to, an inmate's

grievances because inmates do not have a constitutional right to a grievance procedure. Plaintiff

Barker also asserts that he was placed in an 8 x 8 single-inmate cell, and forced to sleep on and

eat from a mat on the floor. Under the governing conditions-of-confinement standards discussed

more fully, Plaintiff’s allegations do not establish an Eighth Amendment violation, given the

relatively limited scope of the discomfort to which he was subjected in relation to the short

duration of his time in disciplinary exclusion. See, e.g., Grissom v. Davis, 55 F. App’x 756, 757

(6th Cir. 2003) (deprivation of a mattress, blankets or other bedding for six days did not violate

the Eighth Amendment). Here, Plaintiff Barker has not alleged that he was placed in segregation

indefinitely or for an excessively long period of time; it was five days. The conditions were not

unduly harsh, and again, Plaintiff Barker was in segregation for just five days. That Plaintiff

Barker requested but did not receive a hearing does not state a constitutional claim.

As discussed more fully above, a prison official’s deliberate indifference to a serious

medical condition or substantial risk of serious harm to an inmate violates the Eighth

Amendment, Farmer, 511 U.S. at 828, and this deliberate indifference framework includes both

an objective and subjective prong, id. at 834; Helling, 509 U.S. at 35-37. “Generally, the denial

of a prisoner’s request for medical care alone will not give rise to a cause of action under 42

U.S.C. § 1983. Rather, the withholding of medical services must be accompanied by

circumstances which demonstrate a deliberate indifference to the prisoner's suffering on the part

of those charged with his care and custody.” Blair v. Cuyahoga County Sheriff, 810 F.2d 199

(Table), 1986 WL 18393, at *1 (6th Cir. Nov. 14, 1986) (citing Byrd v. Wilson, 701 F.2d 592

(6th Cir. 1983); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976)).

Plaintiff Barker has failed to allege any facts from which the Undersigned can determine

whether he has satisfied either the objective or subjective components of a conditions-of-

confinement claim. Beyond alleged trauma that he has experienced from the “strip naked”

policy, Plaintiff fails to identify a serious medical need to which jail officials were deliberately

indifferent. The Undersigned accordingly RECOMMENDS that all of Plaintiffs’ conditions of

confinement claims be DISMISSED.

C. Other Claims Not Related to Conditions of Confinement

The Complaint alleges that the Muskingum County Jail does not and will not carry a law

library, and that this greatly affects inmates’ rights to due process and a fair trial. (ECF No. 8 at

PAGEID # 57.) Although prisoners may not be denied access to the courts, to state a claim upon

which relief may be granted under § 1983 stemming from the lack or inadequacy of a law library

or legal materials, a plaintiff must demonstrate actual prejudice in an existing or contemplated

proceeding. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996); Hadix v. Johnson, 182 F.3d 400,

405-06 (6th Cir. 1999); Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). Moreover, the

plaintiff must also show that the underlying action or claim allegedly prejudiced is not frivolous.

Lewis, 518 U.S. at 353-54; Hadix, 182 F.3d at 406. See also Krouskoupf v. Muskingum Cty. Jail,

No. 2:19-cv-3045, 2019 WL 4345691, at *4-5 (S.D. Ohio Sep. 12, 2019). Plaintiffs here fail to

allege any facts showing they were actually impeded in any existing or contemplated action or

claim, or that they were harmed in some other specific way by the jail’s failure to maintain a law

library. They were able to file the existing action. Plaintiffs’ conclusory allegations are

insufficient to state a claim for denial of access to the courts under § 1983. See Marcum v.

Jones, No. 1: 06-cv-108, 2006 WL 543714, at *2 (S.D. Ohio Mar. 3, 2006) (citing Scheid v.

Fanny Farmer Candy Shops, Inc.. 859 F.2d 434, 437 (6th Cir. 1988)). Therefore, the

Undersigned RECOMMENDS that this “lack of a law library” allegation be DISMISSED.

The Complaint also alleges that on an unspecified date in August, 2021, Correction

Officer Taylor (dismissed as a named Defendant in this matter) called Plaintiff Barker and other

inmates “a homosexual slur.” (ECF No. 1-1 at PAGEID # 12.) Harsh verbal treatment does not

rise to the level of a deprivation of rights secured by the Constitution or laws of the federal

government sufficient to state a claim upon which § 1983 relief may be granted. See Wingo v.

Tennessee Dept. of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (“Verbal 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.”) (citing Ivey, 832 F.2d at 955); see also Byers v. Ohio Dep’t of

Rehab. and Corr., No. 1:19-cv-661, 2019 WL 4267344, at *2 (S.D. Ohio Sep. 10, 2019)

(collecting cases); Howell, 2015 WL 2406082, at *4 (collecting cases); Pippin v. Hamilton Cty.

Sheriff, No. 1:14-cv-689, 2014 WL 12832229, at *3 (S.D. Ohio Oct. 1, 2014) (collecting cases).

The Undersigned RECOMMENDS that this claim be DISMISSED.

Plaintiffs also allude to complaints with Defendants’ grievance procedures. Specifically,

Plaintiffs state that multiple grievances were filed and appealed but never responded to (ECF No.

1-1 at PAGEID ## 9, 11); that Plaintiff Barker sent grievance forms home “for safekeeping” and

to be submitted as evidence at a later date (id. at PAGEID # 11, 12); and that some inmates were

not afforded grievances and/or grievances were not returned (ECF No. 8 at PAGEID # 55). To

the extent that Plaintiffs allege a constitutional violation stemming from the Defendants’

grievances procedures, there is no cause of action for the improper adjudication of, or failure to

adjudicate, an inmate’s grievances. See Daniels v. Lisath, No. 2:10-cv-968, 2010 WL 5071776,

at *1 (S.D. Ohio Dec. 7, 2010) (“To the extent Plaintiff is claiming that the grievance procedure

failed to produce the outcome he desired, this cannot give rise to a § 1983 claim because

‘[p]rison inmates do not have a constitutionally protected right to a grievance procedure.’”

(quoting Miller v. Haines, No. 97-3416, 1998 WL 476247, at *1 (6th Cir. Aug. 3, 1998) (citing

Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977) (Burger, C.J.,

concurring)).); Turner, 2019 WL 3842390, at *3 (collecting cases); see also Hoffmeyer v.

Chambers-Smith, No. 1:20-cv-637, 2020 WL 7698131, at *4 (S.D. Ohio Dec. 28, 2020)

(“plaintiff’s allegations that defendants mishandled his grievances are subject to dismissal

because plaintiff has no right under the Constitution to an effective prison grievance procedure.”)

(citations omitted); Wood v. Plummer, No. 3:11-cv-032, 2011 WL 2971874, at *4 (S.D. Ohio

June 27, 2011) (“‘Prison officials are not liable under § 1983 for denying or failing to act on

grievances.’” (quoting Barnett v. Luttrell, No. 08-6432, 2011 WL 831528, at *2 (6th Cir Mar.

10, 2011)). Because Plaintiffs have no constitutional right to an effective prison grievance

system, the Undersigned RECOMMENDS that these claims be DISMISSED.

Plaintiffs further allege that they were “[a]lso denied a prayer rug without an Iman.”

(ECF No. 1-1 at PAGEID # 9.) The Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) provides that “[n]o government shall impose a substantial burden on the religious

exercise” of an institutionalized person unless the government demonstrates that the burden “is

in furtherance of a compelling government interest” and “is the least restrictive means of

furthering” that interest. 42 U.S.C. § 2000cc-1(a). Even applying a liberal reading to the

complaint, the Undersigned notes that Plaintiffs directly accuse no named Defendants of

religious discrimination and provide no elaboration beyond that single statement in the

exhaustion section of the initial complaint. The Undersigned accordingly RECOMMENDS that

Plaintiffs’ “prayer rug” allegation be DISMISSED.

Finally, and most significantly, Plaintiffs allege that inmates in the Muskingum County

Jail must twice a week “strip naked,” with only a blanket to cover themselves, in front of other

inmates and staff, including females, in order to obtain fresh linens. (ECF No. 1-1 at PAGEID #

11; ECF No. 8 at PAGEID # 57.) Plaintiffs allege that this is dehumanizing, humiliating,

traumatic, and bordering on sexual abuse. Under the Fourth Amendment, “a convicted prisoner

maintains some reasonable expectations of privacy while in prison, particularly where those

claims are related to forced exposure to strangers of the opposite sex, even though those privacy

rights may be less than those enjoyed by non-prisoners.” Cornwell v. Dahlberg, 963 F.2d 912,

916 (6th Cir. 1992) (citing Bell v. Wolfish, 441 U.S. 520, 558 (1979); Kent v. Johnson, 821 F.2d

1220, 1226-27 (6th Cir. 1987)); see also Stoudemire v. Mich. Dep’t. of Corr., 705 F.3d 560, 572

n.2 (6th Cir. 2013). Generally, “[p]rison administrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain institutional security.” Bell, 441

U.S. at 547. However, in a civil rights action by pretrial detainees challenging a jail policy of

subjecting detainees to group strip searches in order to delouse them, the Sixth Circuit reminded:

“where a particular search or seizure involves significant intrusion into a detainee’s privacy

interests, the existence of ‘obvious, easy alternatives . . . that fully accommodate[] the prisoner’s

rights at diminimus cost to valid penological interests’ suggests that the institution’s need to

proceed in its chosen manner does not outweigh the burdens it imposes upon the detainee and is

therefore unreasonable.” Williams v. City of Cleveland, 771 F.3d 945, 950 (6th Cir. 2014)

(quoting Turner v. Safley, 482 U.S. 78, 90-91 (1987); see also Salem v. Mich. Dep’t. of Corr.,

643 F. App’x 526, 530 (6th Cir. 2016) (holding that a strip-search policy for inmates returning

from off-site trips, conducted in the view of other inmates, without a legitimate penological

justification violates the inmates’ Fourth Amendment rights).

The Undersigned finds such allegations sufficient to survive the subject initial screen.

Although the practice could be nothing more than attendant to the orderly collection of worn

clothing and provision of clean linens within the privacy limitations imposed by a prison setting,

the record is insufficient to conclude as much at this stage of the proceedings. The Undersigned

cannot say that Plaintiffs have failed to allege any facts that rise to the level of an actionable

claim under the Fourth Amendment. Iqbal, 556 U.S. at 678. Cf. Green, 224 F. Supp. 3d at 164

(“accusations of humiliation and embarrassment caused by strip searches, on their own, do not

state a claim under the Fourth Amendment”). Because the Undersigned cannot find that

Plaintiffs’ “strip naked” allegations are frivolous, malicious, or fail to state a claim upon which

relief may be granted, the Undersigned RECOMMENDS that this claim be permitted to proceed

beyond the initial screen against Defendant Muskingum County, although the Undersigned

expresses no opinion as to the merits of Plaintiffs’ claim.

V. MOTION FOR APPOINTMENT OF COUNSEL

Also before the Court for consideration are the Motion for Appointment of Counsel (ECF

No. 2), the Motion for Appointment of Counsel (ECF No. 3), and an untitled Motion by Plaintiff

Barker seeking the appointment of counsel (ECF No. 6). These motions are DENIED

WITHOUT PREJUDICE TO RENEWAL. Although this Court has authority under 28

U.S.C. § 1915(e) to appoint counsel in a civil case, appointment of counsel is not a constitutional

right. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (citation omitted). Rather, “[i]t is a

privilege that is justified only by exceptional circumstances.” Id. at 606. The Court has

evaluated whether such exceptional circumstances exist in this case and determines that the

appointment of counsel is not warranted at this juncture.

VI. CONCLUSION

For the reasons explained above, it is RECOMMENDED that Plaintiffs be

PERMITTED to pursue their claims arising from Defendant Muskingum County’s alleged

“strip naked” policy, but that the remainder of Plaintiffs’ claims be DISMISSED.

It is further ORDERED that the motions for appointment of counsel (ECF Nos. 2, 3, and

6) are DENIED WITHOUT PREJUDICE TO RENEWAL.

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

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.

Date: March 21, 2022 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE