Rowbotham v. Lucas

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID PAUL ROWBOTHAM,

Plaintiff,

v. Civil Action 2:22-cv-2459

Chief Judge Algenon L. Marbley

Magistrate Judge Chelsey M. Vascura

SHERIFF DAVID LUCAS, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an Ohio state inmate proceeding without the assistance of counsel, brings this

action against Defendants, Sheriff David Lucas and Sergeant Dewey Morgan of the Belmont

County Sheriff’s Office, alleging that Defendants interfered with various rights related to access

to courts, religion, medical treatment, conditions of confinement, and administrative grievances.

(Am. Compl., ECF No. 11.) The Court previously granted Plaintiff’s motion for leave to proceed

in forma pauperis (ECF No. 9); accordingly, this matter is before the Court for the initial screen

of Plaintiff’s Amended Complaint as required by 28 U.S.C. §§ 1915(e)(2) and 1915A to identify

cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it,

which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see

also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial

screen, for the reasons that follow, the undersigned RECOMMENDS that that the Court

DISMISS Plaintiff’s claims pursuant to § 1915(e)(2) and 1915A(b)(1) for failure to state a claim

on which relief may be granted.

I. STANDARD OF REVIEW

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), which

provides in pertinent part as follows:

(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; [or]

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

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. See

also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion

of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).

Further, 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 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) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

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 Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff’s Amended Complaint lists sixteen discrete claims, each asserted against both

Defendants Lucas and Morgan. (See Statement of Claim, ECF No. 11, PAGEID #97–98.)

Although Plaintiff does not identify any particular statutes or constitutional provisions on which

his claims are based, the undersigned construes Plaintiff’s Amended Complaint to advance

claims under 28 U.S.C. § 1983 for violations of his First Amendment rights of access to courts

and freedom of religion, violations of his Eighth Amendment rights related to his medical

treatment and conditions of confinement, and violations of his Fourteenth Amendment rights to

procedural due process. The undersigned will consider each claim in turn.

A. First Amendment Claims

1. Access to Courts

Plaintiff’s claim nos. 1 and 5 allege that Lucas and Morgan denied him access to

paperwork related to existing litigation, which resulted in the dismissal of unspecified claims in

Ohio courts, and denied him access to the law library and contact information for attorneys. The

undersigned construes these allegations to advance claims for violation of his right of access to

the courts.

Prisoners have a First and Fourteenth Amendment right of access to the courts. See Lewis

v. Casey, 518 U.S. 343, 351–54 (1996). To state a claim that a state actor has violated that right,

a plaintiff must allege an “actual injury” and official conduct undertaken with more than mere

negligence. See Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); Gibbs v. Hopkins, 10

F.3d 373, 379 (6th Cir. 1993). “Actual injury” can be demonstrated by “the late filing of a court

document or the dismissal of an otherwise meritorious claim.” Pilgrim v. Littlefield, 92 F.3d 413,

416 (6th Cir. 1996). In addition, the underlying action cannot be frivolous. Lewis, 518 U.S. at

353; accord Hadix v. Johnson, 182 F.3d 400, 405–06 (6th Cir. 1999) (“By explicitly requiring

that plaintiffs show actual prejudice to non-frivolous claims, Lewis did in fact change the ‘actual

injury’ requirement as it had previously been applied in this circuit.”). Thus, “the underlying

cause of action . . . is an element that must be described in the complaint, just as much as

allegations must describe the official acts frustrating the litigation.” Christopher v. Harbury, 536

U.S. 403, 415 (2002) (citing Lewis, 518 U.S. at 353, n.3). “Like any other element of an access

claim, the underlying cause of action and its lost remedy must be addressed by allegations in the

complaint sufficient to give fair notice to a defendant.” Id. at 416. Accordingly, to state a claim

for denial of access to courts, a plaintiff must: (1) clearly state the underlying claim; and

(2) include supporting facts that describe “official acts frustrating the litigation” to show actual

injury. Id. at 415.

Here, Plaintiff refers only to “cases dismissed in Ohio Courts” without providing any

supporting facts on which the undersigned could rely to conclude that his underlying claim is

non-frivolous. See Christopher, 536 U.S. at 416 (holding that “the predicate claim [must] be

described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of

the underlying claim is more than hope.”); Johnson v. Humphrey, No. 1:18-cv-43, 2018 WL

1151812, at *8 (S.D. Ohio Mar. 5, 2018) (dismissing access-to-courts claim premised upon

alleged denial to law library access where inmate alleged only that he missed a required deadline,

explaining that such allegations were insufficient to permit the Court to “infer that a nonfrivolous

claim has been hampered”); see also Walker v. Mintz, 771 F.2d 920, 932 (6th Cir. 1985) (“We

are concerned with a right of access to the courts, not necessarily to a prison law library. There is

no claim made here that any particular prisoner was actually impeded in his access to the

courts.”). It is therefore RECOMMEDED that the Court DISMISS Plaintiff’s access-to-courts

claims.

2. Freedom of Religion

Plaintiff’s claim no. 12 appears to advance a claim that Defendants violated his First

Amendment right to freedom of religion. However, Plaintiff’s only relevant allegation is that

Defendants “denied me my right to religious services.” This wholly conclusory allegation does

not “contain sufficient factual matter to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678 (cleaned up). It is therefore RECOMMEDED that the Court DISMISS

Plaintiff’s freedom of religion claim.

B. Eighth Amendment Claims

1. Deliberate Indifference to Medical Needs

Plaintiff’s claim nos. 7 and 13–15 allege that Defendants were indifferent to his medical

needs when they denied him medical care related to Plaintiff’s slip and fall in the showers,

Defendants’ refusal to provide Plaintiff with personal protective equipment when he was

instructed to clean up another inmate’s blood in Plaintiff’s cell, Defendants’ refusal to provide

adequate lighting during the overnight hours, which allegedly resulted in headaches and sore and

watery eyes, and Defendant’s refusal to provide clean washed clothes, which resulted in “bumps

and a sore.” Plaintiff also alleges that Defendants refused to provide medical forms that Plaintiff

requested.

It is well established that “[t]he Eighth Amendment forbids prison officials from

unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference

toward [his] serious medical needs.” Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010)

(internal quotations omitted). A claim for deliberate indifference “has both objective and

subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). The United

States Court of Appeals for the Sixth Circuit has explained:

The objective component mandates a sufficiently serious medical need. [Blackmore

v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir. 2004).] The subjective component

regards prison officials’ state of mind. Id. Deliberate indifference “entails

something more than mere negligence, but can be satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm

will result.” Id. at 895–96 (internal quotation marks and citations omitted). The

prison official must “be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.”

Id. at 896 (internal quotation marks and citation omitted).

Barnett, 414 F. App’x at 787–88; see also Jones, 625 F.3d at 941 (“[T]he prison official must

have acted with a state of mind similar to recklessness. Thus, to prove the required level of

culpability, a plaintiff must show that the official: (1) subjectively knew of a risk to the inmate’s

health, (2) drew the inference that a substantial risk of harm to the inmate existed, and

(3) consciously disregarded that risk.”) (citations omitted). “In examining whether a claimed

injury is ‘sufficiently serious’” to sustain a claim for deliberate indifference, “courts look to the

effect of any delay in treatment caused by an officer’s inaction.” Vaughn v. City of Lebanon, 18

F. App’x 252, 274 (6th Cir. 2001) (emphasis in original). Specifically, a plaintiff “who

complains that delay in medical treatment rose to a constitutional violation must place verifying

medical evidence in the record to establish the detrimental effect of the delay in medical

treatment to succeed.” Id. (citing Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir.

2001)).

Here, Plaintiff has not alleged any facts upon which the undersigned could rely to

conclude that Plaintiff exhibited any serious medical needs to which Defendants were

deliberately indifferent. Plaintiff does not allege that he suffered any injury whatsoever as a

result of his slip and fall or his contact with another inmate’s blood. Further, his headaches and

sore and watery eyes do not rise to the level of a constitutionally-implicated serious medical

need. See Thompson v. Skaggs, No. 2:22-CV-682, 2022 WL 1485281, at *8 (S.D. Ohio May 11,

2022), report and recommendation adopted, 2022 WL 1811080 (S.D. Ohio June 2, 2022) (itchy

and burning eyes were not a serious medical need); Harris v. Likens, No. 1:20-CV-00049, 2021

WL 1213287, at *3 (M.D. Tenn. Mar. 31, 2021) (blurry vision and headaches due to uncorrected

vision was not a serious medical need). Nor do Plaintiff’s complaints of “bumps and a sore” rise

to this level. See Williams v. Tomlin, No. 98-1234, 1999 WL 644383, at *1 (6th Cir. Aug. 13,

1999) (patches of dry skin was not a serious medical need); Watkins v. Butcher, No. 1:21 CV

609, 2021 WL 3110001, at *3 (N.D. Ohio July 22, 2021) (blistering that reduced to a scab was

not a serious medical need); Jennings v. Al-Dabagh, 97 F. App’x 548, 550 (6th Cir. 2004) (delay

in treating Plaintiff’s skin infection was not a serious medical need in the absence of evidence

that the delay could have led to “severe consequences, such as a systemic infection, amputation

of a limb, or even death”). It is therefore RECOMMENDED that the Court DISMISS

Plaintiff’s claims for deliberate indifference to his serious medical needs.

2. Conditions of Confinement

Plaintiff complains as to several aspects of his conditions of confinement. Plaintiff’s

claim nos. 4 and 16 allege that on one occasion, Plaintiff refused to eat beef that Defendants

allowed to fall below a safe serving temperature and he was not provided with an alternative

meal; that on an unspecified number of occasions, Defendants served inmates inadequate food

portions; and that Defendants never serve inmates salad, green beans, cookies, or cakes.

Additionally, Plaintiff’s claim no. 6 alleges that apart from a “tiny bar” of soap, Defendants

denied him soap for showering or washing his hands for over a month. Plaintiff’s claim no. 11

alleges that Defendants did not allow Plaintiff to purchase vitamin supplements, Tylenol, or

envelopes from the commissary. Finally, it is unclear whether Plaintiff intends to assert a

conditions-of-confinement claim premised upon slippery conditions of the shower floors in claim

no. 15.

Under certain circumstances, an inmate’s right to be free of cruel and unusual punishment

may be violated by substandard conditions of confinement. “To move beyond the pleading stage

in this setting, an inmate must allege that he has been deprived ‘of the minimal civilized measure

of life’s necessities.’” Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008) (quoting Rhodes

v. Chapman, 452 U.S. 337, 347 (1981)). “Alleging that prison conditions ‘are restrictive and

even harsh’ does not suffice because such conditions ‘are part of the penalty that criminal

offenders pay for their offenses against society.’” Id.; see also Hudson v. McMillian, 503 U.S. 1,

9 (1992) (“[E]xtreme deprivations are required to make out a conditions-of-confinement claim

[under the Eighth Amendment]. Because routine discomfort is part of the penalty that criminal

offenders pay for their offenses against society, only those deprivations denying the minimal

civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth

Amendment violation.”) (internal quotation marks and citations omitted).

Here, Plaintiff has not alleged an extreme deprivation to state an Eighth Amendment

conditions-of-confinement claim. Inadequate or unsafe food rises to the level of an Eighth

Amendment violation only when the prison fails to provide adequate nutrition to inmates. See

Richmond v. Settles, 450 F. App’x 448, 456 (6th Cir. 2011) (no Eighth Amendment violation

where the plaintiff did not allege that his health suffered as a result of meal deprivation);

Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977) (no Eighth Amendment violation if the

food provided by the prison was “sufficient to maintain normal health”). Plaintiff’s complaints of

isolated incidents of inadequate or below-temperature food are not accompanied by allegations

that he was denied adequate nutrition as a result. Complaints “about preparation or quality of

prison food . . . would generally be far removed from Eighth Amendment concerns.”

Cunningham, 567 F.2d at 659–60.

Similarly, Plaintiff’s allegation that he was given only one bar of soap over the course of

a month are unaccompanied by any allegations “that the deprivation seriously harmed him in

some way.” J.P. v. Taft, 439 F. Supp. 2d 793, 811 (S.D. Ohio 2006) (holding that a temporary

deprivation of hygiene products did not form the basis of a conditions-of-confinement claim);

see also Moore v. Chavez, 36 F. App’x 169, 171 (6th Cir. 2002) (inability to purchase hygiene

products did not “rise to the level of cruel and unusual punishment” when the plaintiff “did not

allege . . . that he suffered extreme discomfort due to his inability to purchase the items or that he

was completely denied the basic elements of hygiene”); Thompson, 2022 WL 1485281, at *6

(deprivation of hygiene products for two to three weeks “does not state a claim of constitutional

magnitude”).

Defendants’ refusal to allow Plaintiff to purchase items at the commissary also does not

rise to the level of a constitutional violation. See Vick v. Core Civic, 329 F. Supp. 3d 426, 451

(M.D. Tenn. 2018) (“As a general matter, there is no constitutional right of access to a jail or

prison commissary.”); Fisher v. Fed. Bureau of Prisons, 484 F. Supp. 3d 521, 534 (N.D. Ohio

2020) (same, collecting cases). Nor has Plaintiff alleged any injury whatsoever from his inability

to purchase these items.

Finally, the slippery shower-floor conditions Plaintiff alleges fail to pose a sufficiently

grave threat for purposes of satisfying the objective component of an Eight Amendment claim.

See, e.g., Shuler v. Hall, No. 3:18-cv-1223, 2019 WL 1777899, at *7-8 (M.D. Tenn. Apr. 23,

2019) (no viable Eighth Amendment claim where inmate complained of flooding in his cell and

later suffered a injuries when he slipped in the water and fell); Bell v. Ward, 88 F. App’x 125,

127 (7th Cir. 2004) (“The condition that Bell attributes to the prison officials’ oversight—the

accumulation of water on the floor—did not present a substantial risk of serious injury. Although

wet floors do present a possibility that inmates might slip, Bell’s allegations do not suggest a

substantial risk of serious harm that reflects the deliberate indifference required to impose

liability under the Eighth Amendment.”) (citations omitted); Reynolds v. Powell, 370 F.3d 1028,

1031–32 (10th Cir. 2004) (holding standing water in shower did not pose substantial risk of

serious harm, even though plaintiff was on crutches and had warned prison officials that he was

at a heightened risk of falling); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“an inch or

two” of accumulated water in the shower not “an excessive risk to inmate health or safety”);

LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“[S]lippery prison floors . . . do not state

even an arguable claim for cruel and unusual punishment.”). See also Carter v. Corrs. Corp. of

Am., No. 1:15-cv-90, 2015 WL 7015557, at *5 (M.D. Tenn. Nov. 12, 2015) (collecting cases for

the proposition that “[a] wet floor is not a sufficiently grave threat to constitute a substantial risk

of serious harm as required to violate the Eighth Amendment”); Tullos v. Balk, No. 1:18-cv-883,

2018 WL 5306906, at *4 (W.D. Mich. Oct. 26, 2018) (same); Soimis v. Holloway, No. 16-1177,

2018 WL 3966277, at *4 (W.D. Tenn. Aug. 17, 2018) (same).

It is therefore RECOMMENDED that the Court DISMISS Plaintiff’s conditions-of-

confinement claims.

C. Fourteenth Amendment Claims

Finally, Plaintiff alleges in claim nos. 2, 3, and 8–10 that Defendants provided

unsatisfactory responses to his grievances regarding a Prison Rape Elimination Act complaint,

destruction of his personal mail, and the opening of his legal mail by other Jail staff outside

Plaintiff’s presence. Plaintiff also complains that Defendants denied him any grievance forms or

an inmate rule handbook. The undersigned construes these allegations to advance claims for

violation of the Fourteenth Amendment’s Due Process Clause.

“[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). Plaintiff’s due process claim fails because he has not identified a constitutionally

protected liberty or property interest that was implicated by Defendants’ handling of his

grievances. “Failing to follow proper procedures is insufficient to establish an infringement of

a liberty interest.” Grinter v. Knight, 532 F.3d 567, 574, 576 (citing Olim v. Wakinekona, 461

U.S. 238, 250 (1983)). Rather, “[a]n 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 Fed.Appx. 559, 562 (6th Cir.

2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Further, as to claims for the

deprivation of a property interest without procedural due process of law, “the plaintiff must plead

and prove that state remedies for redressing the wrong are inadequate.” Vicory v. Walton, 721

F.2d 1062, 1065–66 (6th Cir. 1983). Where a plaintiff fails to do so, dismissal for failure to state

a claim is appropriate. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 377–78 (6th Cir. 1993)

(applying Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474

U.S. 327 (1986) and Hudson v. Palmer, 468 U.S. 517 (1984)). Having alleged neither a change

in conditions of confinement as a result of Defendants’ handling of his grievances, nor the

inadequacy of state remedies for addressing any property deprivations, Plaintiff fails to state a

procedural due process claim.

Moreover, Plaintiff’s dissatisfaction with the handling of his administrative grievances

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

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

2003) (citing Hewitt v. Helms, 459 U.S. 460, 467 (1983); Antonelli v. Sheahan, 81 F.3d 1422,

1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); and Flick v. Alba, 932 F.2d

728, 729 (8th Cir. 1991)).

It is therefore RECOMMENDED that the Court DISMISS Plaintiff’s procedural due

process claims.

III. DISPOSITION

For the foregoing reasons, it is RECOMMENDED that the Court DISMISS this action

pursuant to §§ 1915(e)(2) and 1915A(b)(1) for failure to state a claim on which relief may be

granted.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE