# Bates v. Ohio Department of Rehabilitation and Corrections

> District Court, S.D. Ohio · August 3, 2022

URL: https://www.frixlaw.com/law-library/cases/10380681

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 3, 2022
- **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/10380681

## How later opinions describe it (automated extraction)

- holding that “neither a State nor its officials acting in their official capacities are ‘persons’” who may be held liable for constitutional violations in a § 1983 action
- holding that the MDOC’s modified grievance status does not in any way impinge upon a plaintiff’s First Amendment right to access to courts

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

ROBERT BATES, : Case No. 1:22-cv-337
:
Plaintiff, :
: District Judge Douglas R. Cole
vs. :
Magistrate Judge Karen L. Litkovitz
:
OHIO DEPARTMENT OF :
REHABILITATION AND :
CORRECTIONS, et al., :
:
Defendants.

ORDER and
REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville,
Ohio, brings this civil rights action against the Ohio Department of Rehabilitation and
Corrections (ODRC), ODRC Director Annette Chambers-Smith, SOCF Warden Ronald Erdos,
Linnea Mahlman, and twenty-six other individuals employed at SOCF, for alleged violations of
his rights. Plaintiff states that he sues the individual defendants in their individual capacities.
(Doc. 1, at PageID 9). Plaintiff has paid the filing fee.
This matter is before the Court for a sua sponte review of the complaint (Doc. 1) 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 § 805, 28
U.S.C. § 1915A(b). Also before the Court is plaintiff’s Motion for Preliminary Injunction and
Temporary Restraining Order. (Doc. 7).
The screening procedures established by § 1915 apply to complaints filed by prisoners
against governmental entities, officials or employees regardless of whether the plaintiff has
paid the filing fee, as in this case, or is proceeding in forma pauperis. See 28 U.S.C.
§ 1915A(a); Hyland v. Clinton, 3 F. App’x 478, 479 (6th Cir. 2001); Bell v. Rowe, No. 97-
4417, 1999 WL 196531, at *1 (6th Cir. Mar. 22, 1999) (citing McGore v. Wrigglesworth, 114

F.3d 601, 608-09 (6th Cir. 1997)); see also Fleming v. United States, 538 F. App’x 423, 426
(5th Cir. 2013) (per curiam) (citing Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998));
Miller v. Edminsten, 161 F. App’x 787, 788 (10th Cir. 2006); Lewis v. Estes, No. 00-1304,
2000 WL 1673382, at *1 (8th Cir. Nov. 8, 2000) (per curiam) (citing McGore and Seventh and
Second Circuit Court decisions).
I. Screening of Complaint
A. Legal Standard
A complaint may be dismissed as frivolous when the plaintiff cannot make any claim
with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29
(1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no

arguable legal basis when the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action
has no arguable factual basis when the allegations are delusional or rise to the level of the
irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898
F.2d at 1199. The Court need not accept as true factual allegations that are “fantastic or
delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th
Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of prisoner complaints that fail to

2
state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,

the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

3
B. Plaintiff’s Complaint
The Court understands plaintiff’s complaint to consist of the following eighteen groups of
claims. See Erickson, 551 U.S. at 94; see also Fed. R. Civ. P. 8(e).
i. Claims against Defendants ODRC, Chambers-Smith, and Erdos

Plaintiff alleges that the ODRC is the entity that employs the defendants. He alleges that
Chambers-Smith is responsible for the facilities under her control and that Erdos is liable for the
actions of the employed officers and for the safety and security of the individuals incarcerated at
SOCF. (Doc. 1, at PageID 9).
ii. Claims against Defendant Mahlman
Plaintiff alleges, without factual elaboration, that Mahlman has denied him access to the
SOCF grievance procedure, failed to properly investigate his complaints, falsified state
documents, covered-up the actions of the other defendants, and retaliated against him by placing
him on grievance restriction. Plaintiff claims that because of being placed on grievance
restriction, he is unable to properly document alleged employee misconduct at SOCF. (Doc. 1,

at PageID 10).
iii. Claims against Defendant C.O.s Milner and D. Woods
Plaintiff alleges that on February 20, 2021, C.O. Woods was making a list of the inmates
on L3 who did not go to “chow.” Plaintiff claims that as Woods was making the list, C.O.
Milner opened every door on the 1-20 range, in violation of ODRC safety policies. Plaintiff
further claims that as a result of the cell doors being open, Inmate Ogletree ran into plaintiff’s
cell and attacked him. Plaintiff alleges that prior to the attack Ogletree had threatened plaintiff
by yelling, “I’m gone wack you after chow.” Plaintiff claims that Woods witnessed Ogletree

4
making threats, ordered him to stop, and then exited the pod and went into the booth.
According to plaintiff, Ogletree continued to threaten him, and Woods returned to the pod and
shook down Ogletree’s cell. Plaintiff alleges that Woods lied on a conduct report following the
attack “to cover up the fact he failed to do his job.” (Doc. 1, at PageID 11-12).

iv. Claims against Defendant C.O.s Murry, Davis, S. Wasmer, C. Justice, and T.
Wellman, and Defendant Lts. Hale and J. Kinner

Plaintiff alleges that on May 8, 2021, between 5:17 and 5:25 p.m., C.O.s Murry and
Davis pulled him out of his cell to shake it down. Plaintiff claims that while in the cell, Murry
and Davis found a bottle of urine and, instead of issuing a conduct report, put all of plaintiff’s
property on his bed and sprayed the bottle of urine on the bed and floor. Plaintiff alleges that
Murry and Davis then left his cell, taking the bottle.
Plaintiff alleges that, between 6:00 and 6:15 p.m., Lt. Hale conducted a range check and
plaintiff informed him of the incident with Murry and Davis. Hale allegedly responded by
asking Murry and Davis, “Is this the one you was telling me about if he get out of line call me
back and we get him back in line”? Plaintiff claims that he then told Hale that he was having
chest pains and Hale stated, before exiting the range, “You better lay down for you be in a world
of hurt.”
Plaintiff alleges that at 6:30 p.m., Hale returned with Lt. Kinner and C.O.s Wasmer,
Justice, and Wellman. Plaintiff was allegedly told to “cuff up” to go to the infirmary. In the
infirmary, plaintiff allegedly spoke to a nurse and an EKG was performed. Plaintiff asserts that
Hale stated, “Since you made me do all this extra work and ain’t nothing wrong with you we
gone have some fun.” Plaintiff asserts that Hale punched him in the mouth and the four other
C.O.s beat him in the head, back, and face, while Nurse Sammons, who is not named as a
5
defendant,1 watched. Plaintiff asserts that no use of force was reported in violation of ODRC
policy. Plaintiff claims that as a result of the assault he suffered a chipped tooth, a split lip,
swelling to the left side of his face, and abrasions under his eye. (Doc. 1, at PageID 12-14).
v. Claims against Defendant C.O.s B. Gaffin and Harr and Defendant Sgt.
Barney

Plaintiff alleges that on September 6, 2021, between 3:25 and 3:31 p.m., C.O. Gaffin was
conducting a range check. According to plaintiff, Gaffin stopped at plaintiff’s cell, called
plaintiff a “snitch” for writing up an unreported use of force on May 8, 2021, and tried to break
plaintiff’s arm through the cuff port. Plaintiff claims that Gaffin did not report this incident.
Plaintiff states that the next morning he reported the incident to Nurse Rayburn, who is
not named as a defendant. She allegedly told plaintiff to fill out an “HSR” (health service
request), and he was seen that night between 9:30 and 10:30 p.m. Plaintiff claims that the next
morning, September 8, 2021, he was assaulted by an inmate. Plaintiff alleges that even though
the camera showed that he was spit on, pushed, and forced to defend himself, Sgt. Barney
retaliated against him by sending him to solitary confinement. Although not entirely clear, it
appears that plaintiff alleges that while in solitary confinement, C.O.s Gaffin and Harr conspired
with one another to cover up that Gaffin had not followed policy on September 6, 2021, by
issuing a false conduct report against plaintiff to stop him from reporting the incident. (Doc. 1,
at PageID 14-15).

1Several of plaintiff’s allegations are asserted against non-defendant third parties. To the extent that plaintiff
asserts claims against non-defendants, those claims are subject to dismissal.

6
vi. Claims against Defendant C.O. Duckworth
Plaintiff alleges that on October 21, 2022, at 2:35 p.m., C.O. Duckworth called him a
“fag” and threatened to toss his cell when plaintiff asked him to wear his mask. Plaintiff alleges
that Duckworth returned a couple of minutes later and stated, “Your family photographs and

legal papers going to be flushed for running your mouth.” Plaintiff states that at 2:45 p.m. Sgt.
Chinn, who is not named as a defendant, arrived. Duckworth purportedly told plaintiff, “As
long as you let me search your cell and fuck your shit up you won’t go to the hole.” Duckworth
then allegedly told Chinn that Duckworth “didn’t have to run [plaintiff] to the hole he was just
going to toss [his] cell” and proceeded to throw plaintiff’s property around and flush his legal
documents and photographs. Plaintiff claims that Duckworth exited the cell wearing his mask
and placed plaintiff, who had earlier exited the cell, back inside. (Doc. 1, at PageID 16).
vii. Claims against Defendant C.O. Murry
Plaintiff alleges that on November 10, 2021, C.O. Murry was conducting a range check
between 8:15 and 8:20 pm and called plaintiff a “snitch.” Plaintiff alleges that he asked for a

grievance form and, in response, Murry threatened to spray him with “O.C.” (pepper spray).
(Doc 1, at PageID 16).
viii. Claims against Defendant C.O.s Tabor and Kelly
Plaintiff alleges that on November 18, 2021, C.O. Tabor was conducting a range check at
3:57 p.m. without a mask on. Plaintiff alleges that when he asked Tabor to put his mask on,
Tabor looked at plaintiff’s name and exited the range. Plaintiff claims that Tabor returned at
4:25 p.m. and told him to “cuff up” so that Tabor could “toss [his] cell.” Plaintiff alleges that he
asked Tabor to call a supervisor, and Tabor threated to spray plaintiff. Plaintiff states that he

7
complied with the order to cuff-up out of fear of getting sprayed and was placed in the shower.
Tabor and C.O. Kelly then allegedly entered plaintiff’s cell and destroyed his property and legal
documents. Plaintiff alleges that Tabor conducted another range check at 7:17 p.m. without his
mask and continued not to wear his mask for the remainder of his shift. (Doc. 1, at PageID 17).

ix. Claims against Defendant Lts. Eaches and Hale
Plaintiff alleges that on January 3, 2022, Lts. Hale and Eaches, and Lt. Cooper, who is
not named as a defendant, came to his cell between 12:50 and 1:20 a.m. regarding an incident
that plaintiff allegedly did not partake in and told plaintiff to “cuff up [he] was going to the
hole.” Plaintiff states that he is on chronic care and is being treated for high blood pressure.
Plaintiff also claims that he has issues with stress and anxiety attacks that mimic heart attacks.
According to plaintiff, at the time of this incident his meds were being re-ordered. Plaintiff
alleges that he collapsed in the hallway and was placed in a wheelchair and taken to the
infirmary. Plaintiff states that after he was assessed by Nurse James, who is not named as a
defendant, he was wheeled to the infirmary hallway and told to “stand and walk.” Plaintiff

states that he tried to comply but when he took a step, he felt a sharp pain and collapsed.
Plaintiff alleges that Hale and Eaches activated their body cams, snatched him off the floor, and
applied force to his wrist in an attempt to break his hands. (Doc. 1, at PageID 18).
x. Claims against Defendant Lt. Eaches
Plaintiff alleges that on January 3, 2022, Lt. Eaches issued him a false conduct report.
Plaintiff asserts that, as a result, he was placed into a filthy cell in solitary confinement without
sheets, blankets, socks, towels, washrags, hygiene products, or his property. Plaintiff alleges
that he caught COVID-19. (Doc. 1, at PageID 19).

8
xi. Claims against Defendant Sgt. Barney
Plaintiff alleges that on February 5, 2022, Sgt. Barney retaliated against him by finding
him guilty of a false conduct report issued by Lt. Eaches and required plaintiff to stay in solitary
confinement longer than the twenty-nine days allowed per policy. (Doc. 1, at PageID 19-20).

xii. Claims against Defendant Lt. G. Haywood
Plaintiff alleges that in February 2022 he received legal mail that Lt. Haywood had
“tampered with, opened and copied.” Plaintiff further alleges that on March 8, 2022, he was
notified that his legal mail was opened, copied, and being withheld. (Doc. 1, at PageID 20).
xiii. Claims against Defendant C.O. Gillum
Plaintiff alleges that C.O. Gillum retaliated against him and violated ODRC policy when,
on March 31, 2022, he packed up plaintiff’s property for plaintiff to go to the “hole” and
intentionally left behind plaintiff’s pens and either gave away or left plaintiff’s food in the sink.
(Doc. 1, at PageID 20-21).
xiv. Claims against Defendant Greg Holdren

Plaintiff alleges that Holdren is supposed to conduct quarterly inspections of the prison,
conduct fire drills, test black mold in the showers, and spray for mice and cockroaches. Plaintiff
alleges that Holdren has failed to properly perform his job. According to plaintiff, there are
feces on the walls, bars, and vent. Plaintiff claims that he has been having headaches and chest
pains from “all the ‘human waste’ and ‘black mold’ in the shower.” (Doc. 1, at PageID 21).
xv. Claims against Defendant C.O.s Saville and Harsley and Sgts. Tackett and
King

Plaintiff alleges that on March 31, 2022, between 10:08 and 10:40 a.m., C.O.s Seville and
Harsley told him to “cuff up” so they could check for black mold and feces per the request of
9
Unit Manager Harris, who is not named as a defendant. Plaintiff alleges that he was placed in
the shower while they inspected his cell. Plaintiff states that, when he returned to his cell, he
saw that Seville and Harsley had thrown his property onto his bed to retaliate against and harass
him and that, when plaintiff saw the condition of his property, he asked to speak to a supervisor.

Plaintiff alleges that he was then placed back into shower, where he became dizzy, developed
chest pains and a headache, fell, and hit his head. Plaintiff states that he told Sgt. Tackett that he
needed to see medical and Tackett said, “You will once you get to J2.” Plaintiff states that once
in J2 he told Sgt. King that he needed to see medical, and King denied the request. (Doc. 1, at
PageID 22).
xvi. Claims against Defendant C.O.s McCloud and Westwood
Plaintiff alleges that on March 31, 2022, between 1:45 and 2:30 p.m., he told C.O.
McCloud that he needed chemicals to clean his cell and to see medical. McCloud allegedly
responded, “That’s to[o] bad better tell 2nd shift this my last walk I’m going home.” Plaintiff
alleges that McCloud “also stripped [him] out while his BWC was on,” in violation of ODRC

policy. Plaintiff states that on the same date he asked C.O. Westwood for chemicals and to see
medical, Westwood allegedly responded that he could not get plaintiff cleaning supplies but that
he would call medical. Plaintiff claims that medical never came and that an unidentified nurse
walked past his cell but would not stop to assist him. (Doc. 1, at PageID 22-23).
xvii. Claims against Defendant Sgt. King
Plaintiff alleges that on April 1, 2022, he stopped Sgt. King to request chemicals to clean
his cell because there appeared to be feces on the walls and vent and to tell King that medical
never came to see him when she made the rounds. (Doc. 1, at PageID 23).

10
xviii. Claims against Defendant Unit Manager Sparks
Plaintiff alleges that on April 1, 2022, as Unit Manager Sparks was passing out free
envelopes to the inmates, plaintiff told him that he needed chemicals to clean his cell. Sparks
alleged responded, “I will let the officers know on 2nd shift.” Plaintiff alleges that he never

received cleaning supplies, and on April 5, 2022, he got sick and needed to see medical. (Doc.
1, at PageID 23).
For relief, plaintiff seeks damages and injunctive relief. (Doc. 1, at PageID 24).
C. Analysis of the Complaint
Plaintiff’s complaint involves claims that arise out of separate incidents and involve
different defendants and issues. A plaintiff may not join unrelated claims and various
defendants unless the claims arise “out of the same transaction, occurrence, or series of
transactions or occurrences; and . . . any question of law or fact common to all defendants will
arise in the action.” Fed. R. Civ. P. 20(a)(2). See also George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007) (“Unrelated claims against defendants belong in different suits, not only to prevent the

sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that
prisoners pay the required filing fees—for the Prison Litigation Reform Act limits to 3 the
number of frivolous suits or appeals that any prisoner may file without prepayment of the
required fees.”).
“[T]he proper remedy for . . . misjoinder is to sever the claims against the unrelated
parties and dismiss those claims without prejudice.” Cage v. Mich., No. 16cv11679, 2018 WL
3729062, at *2 (E.D. Mich. Aug. 6, 2018). Under Fed. R. Civ. P. 21, courts have “broad
discretion ‘to order severance to avoid causing unreasonable prejudice and expense to the

11
defendant . . . and to avoid great inconvenience in the administration of justice.’” Proctor v.
Applegate, 661 F. Supp.2d 743, 781 (E.D. Mich. 2009) (quoting Nali v. Mich. Dep’t of
Corrections, No. 07-10831, 2007 WL 4465247, *3 (E.D. Mich. 2007)) (alteration in original).
At this stage in the proceedings, without the benefit of briefing by the parties to this

action, and addressing the claims in the order they are pleaded, the undersigned concludes that
plaintiff may proceed with his Eighth Amendment failure-to-protect claim against defendants
Milner and Woods based on the alleged February 20, 2021 incident. (Doc. 1, at PageID 11-12).
However, for the reasons below, plaintiff’s claims against defendants ODRC, ODRC Director
Chambers-Smith, SOCF Warden Erdos, and Mahlman, although arguably related to plaintiff’s
claims against Milner and Woods in so far as plaintiff alleges supervisory liability and a general
interference by Mahlman in the grievance process, fail to state a claim upon which relief may be
granted and should be dismissed. Plaintiff’s remaining claims against defendants Murry, Davis,
Hale, Justice, Wellman, Wasmer, Kinner, Gaffin, Harr, Duckworth, Tabor, Kelly, Hayward,
Barney, Eaches, Tackett, King, Saville, Harsley, McCloud, Westwood, Holdren, Sparks, and

Gillum are improperly joined in this action and should be dismissed without prejudice to plaintiff
re-filing a separate action or actions against those defendants if he so wishes. Fed. R. Civ. P.
20(a)(2); 21.
Plaintiff has failed to state an actionable claim against defendant ODRC because the state
agency is not a “person” or legal entity that may be sued under 42 U.S.C. § 1983. See, e.g.,
McGlone v. Warren Corr. Inst., No. 1:13cvl26, 2013 WL 1563265, at *3 (S.D. Ohio Apr. 12,
2013) (Bowman, M.J.) (Report & Recommendation) (and numerous cases cited therein) (holding
that claims against a state prison and the ODRC should be dismissed at the screening stage

12
because “neither the state prison facility nor the state corrections department is an entity capable
of being sued under § 1983”), adopted, 2013 WL 2352743 (S.D. Ohio May 29, 2013) (Dlott, J.);
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). Cf.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63-64, 71 (1989) (holding that “neither a
State nor its officials acting in their official capacities are ‘persons’” who may be held liable for
constitutional violations in a § 1983 action). Accordingly, plaintiff’s claim against the ODRC
should be dismissed.
Next, there is nothing in plaintiff’s complaint indicating that defendants Chambers-Smith
or Erdos were involved in any alleged violations of plaintiff’s rights. To the extent plaintiff
seeks to hold these defendants liable under the theory of respondeat superior, or because of their
supervisory positions, the law does not permit plaintiff to do so. Rather, “[t]o be held liable, a
supervisor must have encouraged the specific incident of misconduct or in some other way
directly participated in it.” Williams v. Hodge, No. 3:-8-0387, 2009 WL 47141, at *4 (M.D.

Tenn. Jan. 7, 2009) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). Plaintiff
alleges no such facts against defendants Chambers-Smith or Erdos. Accordingly, plaintiff’s
claims against these defendants should be dismissed.
Plaintiff has also failed to state a claim upon which relief can be granted against
defendant Mahlman. To the extent plaintiff alleges that Mahlman falsified state documents and
attempted to cover-up any of the defendants alleged conduct, plaintiff’s allegations are
conclusory and the Court can discern no constitutional violation on the part of Mahlman. To the
extent that plaintiff challenges Mahlman’s investigation of or response to his grievances, plaintiff

13
has failed to state a claim because “[t]here is no statutory or common law right, much less a
constitutional right, to an investigation.” Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007).
Moreover, to the extent that plaintiff claims that Mahlman denied him access to the
grievance procedure, plaintiff has failed to state a claim because plaintiff has no federal

constitutional right to an effective prison grievance procedure. See, e.g., Hill v. Warden,
Southern Ohio Corr. Facility, No. 1:12cv63, 2012 WL 1639991, at *2 (S.D. Ohio Mar.13, 2012)
(Litkovitz, M.J.) (recommending dismissal of portion of complaint complaining about “the
failure of prison staff to provide [plaintiff] with inmate grievance forms and other deficiencies in
the inmate grievance procedure” because “plaintiff has no federal constitutional right to an
effective prison grievance procedure”), adopted, 2012 WL 1623565 (S.D. Ohio May 9, 2012)
(Weber, J.); Dearing v. Mahalma, No. 1:11cv204, 2011 WL 3739029, at *7 (S.D. Ohio Aug.24,
2011) (Barrett, J.) (holding that the plaintiff's allegations referring to “his dissatisfaction with the
. . . investigation of [an] allegedly mishandled letter” through the prison grievance process did
not state an actionable claim under 42 U.S.C. § 1983); Williams v. Harris, No. 1:11cv362, 2011

WL 3667438, at *3 (S.D. Ohio June 15, 2011) (Litkovitz, M.J.) (recommending dismissal of
complaint against prison official responsible for responding to institutional grievances because
the plaintiff had “no constitutional right to an effective grievance procedure”), adopted, 2011
WL 3667389 (S.D. Ohio Aug. 22, 2011) (Dlott, J.); see also Walker v. Michigan Dep’t of Corr.,
128 F. App’x 441, 445 (6th Cir. 2005) (per curiam) (and cases cited therein); Argue v. Hofmeyer,
80 F. App’x 427, 430 (6th Cir. 2003) (and cases cited therein); Overholt v. Unibase Data Entry,
Inc., No. 98–3302, 2000 WL 799760, at *3 (6th Cir. June 14, 2000)).

14
Similarly, plaintiff’s claims that his constitutional rights were violated in connection with
being placed on restricted access to the grievance procedure should be dismissed. Retaliation
based upon a prisoner’s exercise of his or her constitutional rights violates the Constitution. See
Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). To set forth a First

Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected
conduct; (2) an adverse action was taken against him that would deter a person of ordinary
firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in
part, by the protected conduct. Id. The filing of a prison grievance is constitutionally protected
conduct for which a prisoner cannot be subjected to retaliation. See Smith v. Campbell, 250
F.3d 1032, 1037 (6th Cir. 2000); Shehee, 199 F.3d at 300–301. However, “[t]he Sixth Circuit
repeatedly has held that placement on modified access does not constitute an adverse action for
purposes of a retaliation claim.” Weatherspoon v. Williams, No. 2:14-cv-108, 2015 WL
2106401, at *5 (W.D. Mich. May 6, 2015) (citing Jackson v. Madery, 158 F. App’x 656, 660
(6th Cir. 2005), overruled on other grounds by Maben v. Thelen, 887 F.3d 252, 262 (6th Cir.

2018); Walker, 128 F. App’x at 446; Kennedy v. Tallio, 20 F. App’x 469, 471 (6th Cir. 2001);
Corsetti v. McGinnis, 24 F. App’x 238, 241 (6th Cir. 2001)). The right to file institutional
grievances without being subject to retaliation extends only to the filing of non-frivolous
grievances and “an ordinary person of reasonable firmness would not be deterred from filing
non-frivolous grievances merely because he or she had been placed on modified status.”
Walker, 128 F. App’x at 445–46.
Additionally, to the extent that plaintiff is asserting that because of the modified access to
the grievance process he is unable to exhaust his administrative remedies and thus is unable to

15
file a claim in federal court, the claim is also without merit. When a plaintiff has no other
remedies available to him to exhaust his grievance, a district court would then be able to hear a
related federal claim, since all possible administrative remedies would have been attempted.
See, e.g., Hartsfield v. Mayer, No. 95–1411, 1996 WL 43541, at *3 (6th Cir. Feb. 1, 1996)

(holding that the MDOC’s modified grievance status does not in any way impinge upon a
plaintiff’s First Amendment right to access to courts); see also 42 U.S.C. § 1997e(a) (requiring
only exhaustion of available administrative remedies). A corrections officer therefore cannot
prevent an inmate from proceeding to court by refusing to accept a grievance or an appeal.
Plaintiff’s claims against defendant Mahlman should therefore be dismissed.
The remainder of the complaint should be dismissed without prejudice because it consists
of claims that are unrelated to plaintiff’s claims against defendants Milner and Woods.
Plaintiff’s claims against defendants Murry, Davis, Hale, Justice, Wellman, Wasmer, Kinner,
Gaffin, Harr, Duckworth, Tabor, Kelly, Hayward, Barney, Eaches, Tackett, King, Saville,
Harsley, McCloud, Westwood, Holdren, Sparks, and Gillum do not arise out of the same

transaction, occurrence, or series of transactions or occurrences as the claims against Milner and
Woods, which occurred approximately three months before the earliest of plaintiff’s remaining
claims and involve separate and distinct factual and legal issues. Plaintiff, therefore, has
improperly included his remaining claims in this action and they should be dismissed without
prejudice to plaintiff re-filing a separate action or actions including such claims if he so wishes.
Fed. R. Civ. P. 20(a)(2); 21.
Accordingly, in sum, plaintiff may proceed at this juncture with his Eighth Amendment
failure-to-protect claims against defendants Milner and Woods based on the alleged February 20,

16
2021 incident. For the reasons stated above, plaintiff’s unrelated claims against defendants
Murry, Davis, Hale, Justice, Wellman, Wasmer, Kinner, Gaffin, Harr, Duckworth, Tabor, Kelly,
Hayward, Barney, Eaches, Tackett, King, Saville, Harsley, McCloud, Westwood, Holdren,
Sparks, and Gillum should be SEVERED and DISMISSED WITHOUT PREJUDICE. Fed.

R. Civ. P. 20(a)(2); 21. Plaintiff’s claims against defendants ODRC, ODRC Director
Chambers-Smith, SOCF Warden Erdos, and Mahlman fail to state a claim upon which relief may
be granted and should be DISMISSED with prejudice. 28 U.S.C. § 1915A(b)(1).
II. Motion for Preliminary Injunction/Temporary Restraining Order
As noted above, plaintiff has also filed a Motion for Preliminary Injunction and
Temporary Restraining Order. (Doc. 7). Plaintiff seeks to enjoin defendants “from harassing,
assaulting, allowing [plaintiff] to be assaulted, tampering with [plaintiff’s] mail, retaliating
against [plaintiff], destroying/taking [plaintiff’s] property without cause, and subjecting
[plaintiff] to cruel and unusual punishment.” (Doc. 7, at PageID 298).

In determining whether to issue a preliminary injunction/temporary restraining order, this
Court must balance the following factors:
1. Whether the party seeking the injunction has shown a “strong” likelihood
of success on the merits;

2. Whether the party seeking the injunction will suffer irreparable harm
absent the injunction;

3. Whether an injunction will cause others to suffer substantial harm; and

4. Whether the public interest would be served by a preliminary injunction.
Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v. Lexington-
Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228
17
F.3d 729, 736 (6th Cir. 2000)). The four factors are not prerequisites but must be balanced as
part of a decision to grant or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223,
1229 (6th Cir. 1985). “[A] district court is not required to make specific findings concerning
each of the four factors used in determining a motion for preliminary injunction if fewer factors

are dispositive of the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003),
abrogated on other gds. by Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015).
“The purpose of a preliminary injunction is to preserve the status quo until a trial on the
merits.” S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 848-
49 (6th Cir. 2017) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). When a
prisoner requests an order enjoining a state prison official, the Court must “proceed with caution
and due deference to the unique nature of the prison setting.” White v. Corr. Med. Servs., No.
1:08-cv-277, 2009 WL 529082, at *2 (W.D. Mich. Mar. 2, 2009) (citing Kendrick v. Bland, 740
F.2d 432, 438 n. 3 (6th Cir. 1984); Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995)). In deciding
if a preliminary injunction is warranted, the Court must “weigh carefully the interests on both

sides.” Lang v. Thompson, No. 5:10-cv-379-HRW, 2010 WL 4962933, at *4 (E.D. Ky. Nov.
30, 2010) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). A preliminary injunction
is an extraordinary remedy that should only be granted “upon a clear showing that the plaintiff is
entitled to such relief.” S. Glazer’s Distributors of Ohio, LLC, 860 F.3d at 849 (quoting Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Overstreet, 305 F.3d at 573.
A preliminary injunction is not warranted in this case. The purpose of a preliminary
injunction -- to preserve the status quo until a trial on the merits can be held, see Southern Milk
Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991) -- would not be served. The present

18
status quo in this case is, according to plaintiff, that he has suffered numerous violations of his
constitutional rights. The remedy plaintiff presently seeks is more than an injunction
maintaining the status quo; he seeks an Order from this Court requiring defendants to
affirmatively correct constitutional deficiencies yet to be proven. Such affirmative relief is

generally beyond the scope and purpose of preliminary injunctive relief. See id.
A preliminary injunction is also not warranted to the extent that plaintiff seeks injunctive
relief as to claims that are improperly joined in this action. See Taylor v. Van Lanen, No. 11-C-
249, 2011 WL 4344233, at *3 (E.D. Wis. Sept. 14, 2011) (“For the reasons stated above,
however, claims arising out of that incident are not properly joined here. Accordingly, the
motion for preliminary injunctive relief will be denied.”).
Accordingly, for the reasons stated above, it is RECOMMENDED that plaintiff’s
Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 7) be DENIED.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff serve a summons and copy of the complaint on defendants Milner and
Woods. Because plaintiff paid the filing fee in this matter and is not proceeding in forma

pauperis, he is responsible for serving the complaint on defendants Milner and Woods in
compliance with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4. Failure to
comply with the terms of this order shall result in a report and recommendation to the district
judge that plaintiff’s claims against defendants Milner and Woods be dismissed for lack of
service. Any questions regarding service should be directed to the Clerk of Court.
2. Plaintiff shall serve upon defendants Milner and Woods or, if appearance has been
entered by counsel, upon their attorney(s), a copy of every further pleading or other document

19
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 Milner or Woods or their 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. Because plaintiff has paid the required fee (Doc. 5 (noting receipt of payment)), the
Court has denied as moot his motion to proceed in forma pauperis (Doc. 11) by separate Order.
4. Plaintiff shall inform the Court promptly of any changes in his address which may
occur during the pendency of this lawsuit.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s unrelated claims against defendants Murry, Davis, Hale, Justice,
Wellman, Wasmer, Kinner, Gaffin, Harr, Duckworth, Tabor, Kelly, Hayward, Barney, Eaches,
Tackett, King, Saville, Harsley, McCloud, Westwood, Holdren, Sparks, and Gillum be
SEVERED and DISMISSED WITHOUT PREJUDICE. Fed. R. Civ. P. 20(a)(2); 21.

2. Plaintiff’s claims against defendants ODRC, ODRC Director Chambers-Smith,
SOCF Warden Erdos, and Mahlman be DISMISSED with prejudice. 28 U.S.C.
§ 1915A(b)(1).
3. Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order
(Doc. 7) be DENIED.
4. The Court certify pursuant to 28 U.S.C. § 1915(e)(2)(B) 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.

20
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
PROCEDURE ON OBJECTIONS:
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. 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).

Date: 8/3/2022 Henn Kethovd-
Karen L. Litkovitz
United States Magistrate Judge

21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380681. Public record. Not legal advice.