Morris Sr. v. Warden, North Central Correctional Complex

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LEON A. MORRIS, SR., : Case No. 2:22-cv-3461

:

Plaintiff, :

: District Judge Edmund A. Sargus, Jr.

vs. :

Magistrate Judge Karen L. Litkovitz

:

WARDEN, NORTH CENTRAL :

CORRECTIONAL COMPLEX, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the North Central Correctional Institution (NCCI), has filed a pro

se civil rights complaint in this Court. (Doc. 1). Plaintiff has also filed six amended

complaints and/or motions to amend his complaint. (Doc. 6, 9, 11, 15, 17). By separate Order

issued this date, plaintiff’s motions to amend were granted. Plaintiff has also filed several

other pending motions (Doc. 7, 8, 16, 21), which are addressed below.

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, as amended and

supplemented, 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

1 Formerly 28 U.S.C. § 1915(d).

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)).

B. Allegations in the Complaints

In the initial complaint filed in this case, plaintiff claims that defendants Amber

Ablefinlin and R. West, institutional cashiers at the Correctional Reception Center (CRC) and

NCCI, unlawfully removed funds from his prison trust fund account. (Doc. 1 at PageID 3).

Without any factual elaboration, plaintiff also claims that defendants Cole, Sgt. Booker, L.

Shuler, and Warden John Watson—individuals at the CRC and NCCI—acted to “aid & abet”

Ablefinlin and West in violating his constitutional rights. (Doc. 1 at PageID 3).

In the first amended complaint, plaintiff asserts without any additional factual allegations

that his rights to due process, equal protection, and to be free from discrimination and cruel and

unusual punishment were violated. (Doc. 6). The complaint names as defendants C/O

Crawford, Unit Manager Starcher, Unit Case Manager Woods, Sgt. Bright, and Warden Watson.

The second amended complaint includes allegations against defendants Starcher, Woods,

Bright, Davis, Watson, and Shuler. (Doc. 9 at PageID 66). Plaintiff complains that institutional

inspector Starcher assisted the institutional cashier defendants in taking funds from his prison

account. Plaintiff claims that Woods interfered with his ability to notarize court documents and

that his state-court appeal was dismissed. (Id. at PageID 67-68). Without any supporting facts,

plaintiff also alleges that Bright “continues to single me out for discrimination, violates my due

process, equal protection, free from inhumane treatment.” (Id. at PageID 67). Plaintiff further

alleges that Davis, Watson, and Shuler violated his constitutional rights by permitting and/or

failing to correct the conduct of institutional staff. (See id. at PageID 68).

In the third amended complaint, plaintiff claims that Sgt. Bright “moved plaintiff to

WYANDOT C/D from Crawford C/D stating ‘he’s tired of me.’” (Doc. 11 at PageID 84).

According to plaintiff, Bright retaliated against him for filing a complaint against Warden

Watson. Plaintiff also again alleges that Unit Manager Jones aided and abetted institutional

cashier West.

In the fourth complaint submitted in this action, plaintiff reasserts his claims that West

and Ablefinlin improperly withdrew funds from his prison account and that other defendants—

Watson, Shuler, Jones, Woods, and Davis—aided and abetted them. (Doc. 15).

Finally, in the fifth complaint, plaintiff alleges that in November of 2022 defendant Sgt.

Williams harassed him in an effort to provoke plaintiff into an altercation. (Doc. 17). Plaintiff

claims that he was provided with a pass to report to the captain’s office; however, Williams

stated “go the long way boy and do what you [are] told fuck that sign.” (Id. at PageID 116).

According to plaintiff, he “immediately recognized that Williams was retaliating, aiding and

abetting his friends, defendants in this case.” (Id.).2

As relief, plaintiff seeks monetary damages. (Doc. 1 at PageID 4; Doc. 9 at PageID 69;

Doc. 11 at PageID 84; Doc. 15 at PageID 104; Doc. 17 at PageID 117).

C. Analysis

Plaintiff’s complaint is subject to dismissal at the screening stage. See 28 U.S.C. §§

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

To the extent that plaintiff seeks to hold defendants Ablefinlin, West, or any other

defendant3 liable for withdrawing his funds, plaintiff’s claim should be dismissed. In order to

state a claim based on the loss of his property, plaintiff must first “plead . . . that state remedies

for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir.

2 Plaintiff has also filed a document entitled “Complaint Made Clear,” which clarifies and/or reasserts the claims raised

in his complaints. (See Doc. 13).

3 As noted above plaintiff alleges that several defendants aided and abetted the institutional cashier defendants. (See

Doc. 1 at PageID 3; Doc. 11 at PageID 84; Doc. 15 at PageID 103).

1983). See also Hudson v. Palmer, 468 U.S. 517 (1984). “If satisfactory state procedures are

provided in a procedural due process case, then no constitutional deprivation has occurred

despite the injury.” Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir.

2004). Accordingly, in order to state a procedural due process claim under section 1983 “the

plaintiff must attack the state’s corrective procedure as well as the substantive wrong.” Meyers

v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (quoting Vicory, 721 F.2d at 1066). A

plaintiff “may not seek relief under Section 1983 without first pleading and proving the

inadequacy of state or administrative processes and remedies to redress [his] due process

violations.” Jefferson, 360 F.3d at 588.

Plaintiff has not alleged any facts even remotely indicating that his remedies under Ohio

law to redress the wrong of which he complains are inadequate. Plaintiff’s complaint fails to

explain why a state tort remedy for conversion would not suffice to address his claim. See Fox v.

Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Therefore, he fails to state a due process

claim that is actionable in this § 1983 proceeding.

Plaintiff’s conclusory allegations against many of the named defendants should also be

dismissed. For example, in the first amended complaint plaintiff alleges that C/O Crawford, Unit

Manager Starcher, Unit Case Manager Woods, Sgt. Bright, and Warden Watson violated his

rights to due process, equal protection, and to be free from discrimination and cruel and unusual

punishment were violated. (See Doc. 6 at PageID 45). Without any supporting facts, plaintiff

also alleges that Bright “continues to single me out for discrimination, violates my due process,

equal protection, free from inhumane treatment.” (Doc. 9 at PageID 67). Plaintiff does not make

any factual allegations regarding defendants’ actions that could reasonably be construed as

violating his constitutional rights.4 More than bare assertions of legal conclusions are required to

satisfy federal notice pleading requirements, and a complaint must contain “either direct or

inferential allegations respecting all the material elements to sustain a recovery under some

viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.

1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)

(citations omitted) (emphasis in original)). The Court is unable to discern from plaintiff’s

conclusory assertions what defendants did, or failed to do, to violate his rights. The complaint

consists of legal conclusions unsupported by sufficient factual content to enable the Court to

conclude that the complaint states a plausible claim for relief against these defendants.

Plaintiff’s claim that defendants violated his First Amendment right to access the courts

is also subject to dismissal. In order to state an actionable claim, an inmate must plead and

demonstrate that the lack of legal materials or the shortcomings in the prison legal assistance

program have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal

claim. Lewis v. Casey, 518 U.S. 343, 351-53 (1996); see also Pilgrim v. Littlefield, 92 F.3d 413,

416 (6th Cir. 1996). “Examples of actual prejudice to pending or contemplated litigation include

having a case dismissed, being unable to file a complaint, and missing a court-imposed

deadline.” Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005).

In addition, when bringing a denial of access to the courts claim, “the underlying cause of

action, whether anticipated or lost, 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). “[T]he predicate claim (must) be described well enough to

apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim is

4 This includes plaintiff’s allegations that various defendants “aided and abetted” the institutional cashier defendants,

as well as the conclusory allegations in the first, third, and fourth amended complaints. (See Doc. 6, 11, 15).

more than hope.” Id. In other words, “only prisoners with non-frivolous underlying claims can

have standing to litigate an access-to-courts action.” Hadix v. Johnson, 182 F.3d 400, 405-406

(6th Cir. 1999) (citing Lewis, 518 U.S. at 353 & n. 3).

In this case, plaintiff alleges that Woods refused to contact the notary for him and that his

state-court appeal was dismissed. (Doc. 9 at PageID 67-68). However, plaintiff fails to allege

any facts showing that he suffered an actual injury in any nonfrivolous legal proceeding as a

result of Wood’s actions. Plaintiff fails to specify the underlying cause of action he claims was

dismissed or plead any facts that would allow the Court to conclude that his predicate claim was

nonfrivolous or that defendant’s actions resulted in the dismissal of his case.5 Plaintiff’s First

Amendment access to courts claim should be dismissed.

The complaint should also be dismissed to the extent that plaintiff claims defendants

Bright or Williams retaliated against him. Plaintiff alleges that Bright transferred him for filing a

complaint against defendant Watson. (Doc. 11 at PageID 84). As noted above, plaintiff claims

he was moved from Crawford C/D to WYANDOT C/D, after Bright informed him that he was

tired of plaintiff. Plaintiff also alleges that defendant Williams retaliated against him. (See Doc.

17 at PageID 116).

A prisoner’s claim of retaliation for engaging in protected conduct is grounded in the

First Amendment. Jones v. Caruso, 421 F. App’x 550, 553 (6th Cir. 2011) (citing Thaddeus-X v.

5 Plaintiff claims that his appeal in “C.A. 29514” was dismissed due to Woods failure to contact a notary. (Doc. 9 at

Page ID 67). Review of plaintiff’s appeal in the Montgomery County, Ohio Court of Appeals, Case No. 29514, reveals

that plaintiff filed a notice of appeal on June 28, 2022. On July 7, 2022, the State of Ohio filed a motion to dismiss.

On July 8, 2022 the Ohio appeals court issued a Show Cause Order, to which plaintiff responded. The action was

dismissed on July 24, 2022 on the basis that the appeal was duplicative of another appeal filed by plaintiff and the

court lacked jurisdiction over an appeal of a non-final order.

Viewed at https://pro.mcohio.org/. This Court may take judicial notice of court records that are available online to

members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d

327, 332 n.3 (6th Cir. 1999)).

Blatter, 175 F.3d 378, 388 (6th Cir. 1999) (en banc)). A retaliation claim has three elements: (1)

the prisoner engaged in protected conduct; (2) an adverse action was taken against the prisoner

that “‘would deter a [prisoner] of ordinary firmness from continuing to engage in that conduct’”;

and (3) the prisoner’s protected conduct, at least in part, motivated the adverse action. Id.

(quoting Thomas v. Eby, 481 F.3d 434, 440 (6th Cir. 2007), in turn quoting Thaddeus-X, 175

F.3d at 394).

In this case, plaintiff’s allegations are insufficient to state a retaliation claim. As an

initial matter, plaintiff does not allege that defendant Williams actions were in response to any

protected conduct. With respect to his allegation that Bright subjected him to a retaliatory

transfer for filing a complaint, plaintiff has pled insufficient facts to suggest that his transfer

involved a loss of privileges, amounted to a worse placement, or any other facts to plausibly

suggest that his transfer would deter a prisoner of ordinary firmness from engaging in protected

conduct.

In any event, plaintiff’s conclusory allegations of retaliatory motive are insufficient to

state an actionable claim for relief. Plaintiff has failed to allege any facts to support his

conclusory claim that Bright “act[ed] in reprisal for plaintiff’s filing a complaint against

[Warden] Watson, et al.” (Doc. 11 at PageID 84). The same is true of his conclusory allegation

that plaintiff “immediately recognized that William was retaliating” when allegedly harassing

him. (Doc. 17 at PageID 116). “[C]onclusory allegations of retaliatory motive ‘unsupported by

material facts will not be sufficient to state . . . a claim under § 1983.’” Harbin v. Rutter, 420

F.3d 571, 580 (6th Cir. 2005) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir.

1987)). “[N]ot every claim of retaliation by a disciplined prisoner, who either has had contact

with, or has filed a lawsuit against prison officials, will state a cause of action for retaliatory

treatment. Rather, the prisoner must allege a chronology of events from which retaliation may

plausibly be inferred.” Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988) (citing Benson v.

Cady, 761 F.2d 335, 342 (7th Cir. 1985) (noting that “alleging merely the ultimate fact of

retaliation is insufficient”)). Without any “further factual enhancement” plaintiff’s conclusory

allegations are simply insufficient to state an actionable claim for relief. Twombly, 550 U.S. at

555–57. See also Whiteside v. Collins, No. 2:08-cv-875, 2009 WL 4281443, at *9 (S.D. Ohio

Nov. 24, 2009) (finding the plaintiff’s retaliation claim was subject to dismissal, noting that

“conclusory allegations of retaliatory motive and temporal proximity alone are insufficient to

establish his retaliation claim”) (Report and Recommendation), adopted, 2010 WL 1032424

(S.D. Ohio Mar. 17, 2010). Accordingly, plaintiff’s retaliation claims should be dismissed.

To the extent that plaintiff seeks to hold defendant Williams (see Doc. 17 at PageID 116)

or any other defendant liable for the use of threats, racial slurs, or other insults, he has failed to

state a viable claim under § 1983, which requires a showing of a deprivation of “a right secured

by the United States Constitution or a federal statute.” See Spadafore v. Gardner, 330 F.3d 849,

852 (6th Cir. 2003). It is well-settled that “[v]erbal 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.” Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam)

(citing Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)); see also Chilcott v. Erie Cnty.

Domestic Relations, 283 F. App’x 8, 11 (3rd Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases

cited therein). Additionally, while prison officials should not use degrading or racist language

when interacting with inmates, the use of such language does not rise to the level of a

constitutional violation. See Hursey v. Anderson, No. 16-1146, 2017 WL 3528206, at *4 (6th

Cir. Mar. 31, 2017). A prison official’s use of racial slurs, “although unprofessional and

reprehensible, does not rise to the level of constitutional magnitude” and is insufficient to

support a constitutional claim for relief. Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th

Cir. 2007) (citing Torres v. Oakland County, 758 F.2d 147, 152 (6th Cir. 1985)); see also Ivey,

832 F.2d at 954. Cf. Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir. 2004).

Accordingly, plaintiff’s claims against defendant Williams should be dismissed.

Plaintiff’s claims that defendant Davis, Watson, and Shuler violated his rights in

connection with the grievance process or by failing to correct the conduct of institutional staff

should also be dismissed. (See Doc. 9 at PageID 68). Plaintiff appears to claim that Davis

violated his constitutional rights by failing to address Woods’ alleged refusal to provide plaintiff

with a notary. (See id.). Plaintiff further claims that Warden Watson “allows his staff to

oppressively treat plaintiff and deny plaintiff access to the courts.” (Id.). Finally, plaintiff

claims inspector Shuler permitted staff to “deny plaintiff a grievance process.” (Id.). 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

Davis, Watson, Shuler, or any other defendant failed to investigate or take corrective action

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

Accordingly, in sum, because plaintiff has failed to state a claim upon which relief may

be granted against the named defendants, the complaint, as amended, should be dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

D. Pending Motions

Plaintiff has filed several additional motions related to the claims presented in his

complaints. In his motion to return funds (Doc. 7), plaintiff reasserts the allegation that funds

were unlawfully deducted from his inmate trust account. In the motion to obtain public

information (Doc. 8), plaintiff seeks an Order from this Court “to obtain vital public

information” to support his allegations against defendants. Plaintiff has also filed a motion for a

writ of mandamus for defendants and other institutional staff to comply with his public

information and records request. (See Doc. 21). Finally, plaintiff has filed a motion requesting a

confidential investigation against defendant Jones (Doc. 16) in connection with the allegations

raised in his fifth amended complaint.

In light of the recommendation that plaintiff’s complaint against defendants be dismissed

for failure to state a claim upon which relief may be granted, plaintiff’s pending motions (Doc. 7,

8, 16, 21) should be DENIED.

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff’s complaint, as amended and supplemented, be DISMISSED with

prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and plaintiff’s pending motions

(Doc. 7, 8, 16, 21) be DENIED.

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).

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).

Date: 1/3/2023 Harm K Kethovr-

Karen L. Litkovitz

United States Magistrate Judge

13