Kendrick v. Chamber-Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARK KENDRICK, : Case No. 1:22-cv-170

:

Plaintiff, :

: District Judge Michael R. Barrett

vs. :

Magistrate Judge Elizabeth P. Deavers

:

ANNETTE CHAMBER-SMITH, et al., :

ORDER AND REPORT

:

AND RECOMMENDATION

Defendants. :

:

Plaintiff, a prisoner at the Ross Correctional Institution, has filed a pro se civil rights

complaint pursuant to 42 U.S.C. § 1983 against Defendants Annette Chamber-Smith, Ronald T.

Erdos, Linnea Mahlman, Major H. Bell, two John Doe correctional officers, and the “Highway

State Patrol Portsmouth Office.” (Doc. 1, Complaint at PageID 4). By separate Order Plaintiff

has been granted leave to proceed in forma pauperis. This matter is before the Court for a sua

sponte review of the complaint to determine whether the complaint, or any portion of it, should

be dismissed because it 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. See Prison

Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

Screening of Plaintiff’s Complaint

A. Legal Standard

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)(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—

* * *

(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); Denton, 504 U.S. at 31. See also § 1915A(b). 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 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

1 Formerly 28 U.S.C. § 1915(d).

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)).

B. Allegations in the Complaint

Plaintiff alleges that on October 7, 2021, while in segregation at the Southern Ohio

Correctional Facility (SOCF), Plaintiff became suicidal and cut his wrist. (Doc. 1 at PageID 5).

According to Plaintiff, his requests for a shower, grievance forms, and medication were previously

denied, so he made a sign with the blood from his wrist indicating that he needed grievance forms

and placed it on the floor outside of his cell. Plaintiff claims an unidentified John Doe Defendant

stopped at his cell, wadded up the sign, and left.

Plaintiff alleges that after cutting his wrist more, he made a second sign reading “suicidal.”

Plaintiff claims the same officer took the second sign. According to Plaintiff, the officer and a

second John Doe Defendant stated that because Plaintiff “likes to file lawsuits” that “he’s got

nothing coming.” (Id.).

The complaint also includes allegations regarding Plaintiff’s legal mail, prison conditions,

and the grievance process. With respect to his legal mail, Plaintiff alleges that “I received

privileged legal mail from the Ohio Supreme Court via ‘regular mail’ it had been photocopied they

kept the originals.” (Id. at PageID 7). Apparently the result of a procedure initiated in October

2021, Plaintiff alleges that “all my privileged legal mail has been treated the same from October

2021 till today” and that the delay in receiving the mail on this occasion (and being denied postage)

resulted in an untimely filing and dismissal of his case in the Ohio Supreme Court. (Id. at PageID

7, 8). Plaintiff claims that the procedure’s interference with his legal mail and invasion of privacy

violates his First Amendment rights. (See id. at PageID 8, 10).

Plaintiff also claims that he and other inmates have been treated poorly. Without factual

elaboration, Plaintiff claims “myself and others were being treated poorly in a number of ways,

food trays short on food, some of us beaten from the 7th to the 15th five people attempted suicide

2 left on stretchers one in a neck brace.” (Id.).

With respect to the grievance process, Plaintiff asserts that grievance forms were

unavailable until October 13, 2021. (Id. at PageID 8). Plaintiff indicates that this interfered with

his ability to exhaust his administrative remedies concerning his legal mail claims. Plaintiff also

maintains he sent Defendant Inspector Mahlman a kite regarding inmates having been beaten and

fear of retaliation. According to Plaintiff, Mahlman instructed inmates to file grievances to the

appropriate supervisor, despite being informed that the grievance forms were not available.

Finally, Plaintiff indicates that other prisoners requested him to call the Highway State

Patrol to obtain a “wellness check.” (Id. at PageID 9). Plaintiff indicates that he contacted

Defendant Highway State Patrol, Portsmouth Office on October 22, 2021 and was told by a

dispatcher that they do not perform wellness checks, but that she would contact the “Correctional

Institution Inspection Committee.” (Id.). Plaintiff claims that the call resulted in no help and that

an individual in segregation killed themselves soon thereafter.

Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. (Id. at

PageID 6).

C. Analysis.

Liberally construed, Plaintiff has stated Eighth Amendment deliberate indifference and

First Amendment retaliation claims against the two unidentified John Doe correctional officers.

Plaintiff has also stated a plausible claim against Defendant Erdos based on his allegations

concerning the procedures applicable to prisoner legal mail, which he claims violated his First

Amendment rights and resulted in the dismissal of his case with the Ohio Supreme Court. See

Sallier v. Brooks, 343 F. 3d 868, 873–874 (6th Cir. 2003). At this stage in the proceedings, without

the benefit of briefing by the parties to this action, the Undersigned concludes that these claims

are deserving of further development and may proceed at this juncture.

Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) &

1915A(b).

As an initial matter, the Complaint should be dismissed against Defendant Ohio State

Highway Patrol (OSHP), Portsmouth Office. It is well-settled that the state agencies are not

“persons” or legal entities that may be sued under § 1983. See, e.g., Moore v. Morgan, Case No.

1:16-cv-655, 2016 WL 5080268, at *3 (S.D. Ohio June 27, 2016) (Litkovitz, M.J.) (Report and

Recommendation) (recommending dismissal of the Ohio State Highway Patrol because it was not

a person or legal entity that may be sued under § 1983), adopted, 2016 WL 5080351 (S.D Ohio

Sept. 16, 2016); Smith v. Ohio State Highway Patrol, No. 2:15-CV-2884, 2016 WL 146311, at *1

(S.D. Ohio Jan. 13, 2016) (noting that a state agency is not a “person” subject to suit in concluding

the court “lacks jurisdiction to entertain any of the claims sought to be asserted in this action

against Defendant Ohio State Highway Patrol.”). See also Hix v. Tennessee Dep’t of Corr., 196

F. App’x 350, 355-56 (6th Cir. 2006) (and cases cited therein); Rodgers v. Michigan Dep’t of

Corr., 29 F. App’x 259, 260 (6th Cir. 2002). Furthermore, to the extent that Plaintiff seeks

damages in the instant action, the Eleventh Amendment bars his cause of action against the state

agency defendant. See McGlone v. Warren Corr. Inst., No. 1:13cv126, 2013 WL 1563265, at *3

(citing Rodgers, 29 F. App’x at 260) (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report &

Recommendation) adopted, 2013 WL 2352743 (S.D. Ohio May 29, 2013) (Dlott, J.); see also Will,

491 U.S. at 66-71; Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 454 (6th Cir. 2012) (per

curiam). Cf. Davis v. Maughmer, No. C2-00-1415, 2002 WL 484853, at *3 (S.D. Ohio Mar. 5,

2002) (holding that “any claims against the Ohio State Highway Patrol are claims against the State

of Ohio, which is entitled to sovereign immunity under the Eleventh Amendment”). The OSHP

therefore should be dismissed as a Defendant to this action.

Plaintiff’s claim brought in connection with the grievance process and Defendants’ alleged

failure to respond and/or take corrective action should also be dismissed. Plaintiff claims that he

sent Defendants Bell and Mahlman grievances, but that these Defendants failed to respond or take

corrective action. (Doc. 1, Complaint at PageID 8–9). However, “[p]rison inmates do not have a

constitutionally protected right to a grievance procedure.” Miller v. Haines, No. 97–3416, 1998

WL 476247, at *1 (6th Cir. Aug.03, 1998) (citations omitted). Prison officials whose only roles

“involve their denial of administrative grievances and their failure to remedy the alleged

[unconstitutional] behavior’” cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300

(6th Cir. 1999). Nor does a prison official’s alleged failure to adequately investigate claims of

misconduct rise to the level of “encouragement” that would make the official liable for such

misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley, 729 F.2d

416, 421 (6th Cir. 1984). Therefore, Plaintiff’s claims that Defendants Bell, Mahlman, or any

other named Defendant failed to investigate his grievances or take corrective action should be

dismissed for failure to state a claim upon which relief may be granted.2

The complaint should also be dismissed to the extent that Plaintiff seeks to hold Defendants

liable based on their supervisory positions. Without any factual elaboration, Plaintiff claims

“Warden Erdos, Major Bell, and Director Chamber-Smith, ISS Mahlman failed to train and

supervise correctional staff or to take appropriate action once informed leading to harm to the

Plaintiff and the death of others.” (Doc. 1, Complaint at PageID 10). As discussed above in

addressing the complaint’s allegations regarding the grievance process, “§ 1983 liability must be

based on more than respondeat superior, or the right to control employees.” See Shehee, 199 F.3d

at 300 (citing Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)). “[A] supervisory

official’s failure to supervise, control or train the offending individual is not actionable unless the

supervisor ‘either encouraged the specific incident of misconduct or in some other way directly

2 This includes Plaintiff’s claim that deficiencies in the grievance process precluded him from

exhausting his administrative remedies. Plaintiff alleges that “my grievance attempts required by

the P.L.R.A. have been obstructed and abuse by interference with the process.” (Doc. 1 at PageID

8). While the Prison Litigation Reform Act’s exhaustion requirement is “mandatory,” with steps

to exhaustion defined by the prison’s grievance process, Jones v. Bock, 549 U.S. 199, 211 (2007),

an inmate need only exhaust “available” remedies under the statute, not unavailable ones, Ross v.

Blake, 136 S. Ct. 1850, 1858 (2016). See also Paolone v. Altiere, No. 4:12CV1344, 2012 WL

5463871, at *3 (N.D. Ohio Nov. 8, 2012) (“A corrections officer therefore cannot prevent an

inmate from proceeding to court by refusing to accept a grievance or an appeal.”).

participated in it. At a minimum a plaintiff must show that the official at least implicitly

authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending

officers.’” Id. (quoting Hays, 668 F.2d at 874). Supervisory liability under § 1983 cannot be based

on mere awareness of misconduct or a “failure to act,” but must be based on “active

unconstitutional behavior.” Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002); see also

Shehee, 199 F.3d at 300.

Here, Plaintiff’s conclusory allegations that these Defendants failed to train, supervise, or

take corrective action in response to grievances is insufficient to state a claim upon which relief

may be granted. Plaintiff has not alleged any facts showing Defendants encouraged, participated

in, or authorized any misconduct. Furthermore, Plaintiff fails to plausibly allege a “causal

relationship” between a failure to train and the conduct of any correctional officer. See Danese v.

Asman, 875 F.2d 1239, 1244-45 (6th Cir. 1989) (citing Hays, 668 F.2d at 874). The mere fact that

Defendants Erdos, Chamber-Smith, Bell, and Mahlman have supervisory positions is insufficient

to impose liability on these Defendants.

Finally, Plaintiff’s general conditions of confinement claims are subject to dismissal for

failure to state a claim upon which relief may be granted. As noted above, Plaintiff claims he and

other inmates were “treated poorly in a number of ways.” (See Doc. 1 at PageID 7). However,

Plaintiff fails to allege what any named Defendant did or failed to do with regard to these

allegations. The complaint otherwise fails to rise to the level of a constitutional violation or meet

the pleading standards applicable to this § 1983 action. See Iqbal, 556 U.S. at 678.

Accordingly, in sum, Plaintiff may proceed with this Eighth Amendment deliberate

indifference and First Amendment retaliation claims against the two unidentified John Doe

correctional officers and with his First Amendment legal mail claim against Defendant Erdos.

Having found that the remaining claims alleged in the complaint fail to state a claim upon which

relief may be granted, Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§

1915(e)(2)(B) & 1915A(b).

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B), with the exception of Plaintiff’s First and Eighth Amendment claims against the

two John Doe correctional officers and First Amendment legal mail claim against Defendant

Erdos.

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith,

and therefore, deny Plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,

114 F.3d 601 (6th Cir. 1997).

IT IS THEREFORE ORDERED THAT:

1. The United States Marshal shall serve a copy of the complaint, summons,

the Order granting Plaintiff in forma pauperis status, and this Order and Report and

Recommendation upon Defendant Erdos.

Before service may be issued upon any remaining John Doe Defendants, Plaintiff must

file a motion to issue service setting forth the identities of the unidentified Defendants. Plaintiff

is therefore ORDERED to file a motion to issue service, including United States Marshal and

summons forms, if and when Plaintiff discovers the identity of the unnamed Defendants through

discovery. Plaintiff is advised that no service will be issued on the unnamed Defendants unless

Plaintiff complies with this Order.

2. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel,

upon Defendants’ attorney(s), a copy of every further pleading or other document submitted for

consideration by the Court. Plaintiff shall include with the original paper to be filed with the

Clerk of Court a certificate stating the date a true and correct copy of any document was mailed

to Defendants or Defendants’ counsel. Any paper received by a district judge or magistrate judge

which has not been filed with the Clerk or which fails to include a certificate of service will be

disregarded by the Court.

3. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit.

Date: June 3, 2022 s/ Elizabeth A. Preston Deavers___

Elizabeth A. Preston Deavers

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,

and shall be accompanied by a memorandum of law in support of the objections. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).