Feaster v. Chambers-Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

TERRANCE J. FEASTER, : Case No. 1:22-cv-453

:

Plaintiff, :

: District Judge Susan J. Dlott

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

ANNETTE CHAMBERS-SMITH, et al., :

:

Defendants. :

:

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Ohio State Penitentiary, previously located at the Southern Ohio

Correctional Facility (SOCF), has filed a pro se civil rights complaint in this Court pursuant to 42

U.S.C. § 1983. 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 brings this complaint against defendants ODRC Director Annette Chambers-

Smith, SOCF Warden Ronald T. Erdos, SOCF Health and Safety Coordinator Greg Holdren,

SOCF Inspector Linnea Mahlman, and SOCF Nurse Practitioner David Conley in their individual

capacities. (Doc. 1-1, Complaint at PageID 12). As discussed below, the complaint includes three

claims concerning the conditions of confinement at SOCF, alleged denial of medical care, and the

administrative grievance process.

As to his claim regarding the conditions of confinement, plaintiff claims that in August

and September of 2020, plaintiff filed complaints with the SOCF medical department and

defendant Greg Holdren. (Id. at PageID 13-14). Plaintiff alleges that the prison conditions at

SOCF included black mold and rust in the showers, cells, and prison ventilation, as well as extreme

mice and roach infestation. (Id. at PageID 14). According to plaintiff, as a result of exposure to

the conditions at SOCF, he sustained severe and permanent damage to his feet and respiratory

system, resulting in physical pain while standing, shortness of breath, and anxiety/emotional

distress. He further alleges that he contracted “P.B.C.” and developed a heart murmur. (Id. at

PageID 14-15).

In his second claim, plaintiff alleges that he was denied medical treatment for his injuries.

Specifically, plaintiff alleges he was assessed by defendant Nurse Practitioner Conley on numerous

occasions. During this time, plaintiff claims that his injuries became more severe and infected, yet

Conley “deliberately refused to refer the plaintiff to a proper physician and foot doctor.” (Id. at

PageID 14).

With respect to the grievance process, plaintiff claims that he filed numerous complaints,

grievances, and kites with defendant Inspector Mahlman concerning the prison conditions and his

medical care. (Id. at PageID 17). According to plaintiff, Mahlman’s failed to take action on his

complaints, investigate his grievances, or properly implement the grievance process. Plaintiff

further claims that Mahlman instead placed him on grievance restriction and confiscated his

complaints from his cell. (Id. at PageID 17-18).

As relief, plaintiff seeks injunctive relief, as well as monetary damages. (Id. at PageID 20).

C. Analysis.

Based on the above factual allegations, plaintiff brings three claims. First, plaintiff claims

defendants Chambers-Smith, Erdos, and Holdren violated his Eighth Amendment rights in

connection with the prison conditions at SOCF. In his second claim, plaintiff alleges that

defendant Conley was deliberately indifferent to his serious medical needs, also in violation of the

Eighth Amendment. Finally, plaintiff alleges that defendant Mahlman violated his due process

rights in connection with the grievance process.

At this stage in the proceedings, without the benefit of briefing by the parties to this action,

the undersigned concludes that plaintiff may proceed with his Eighth Amendment, medical-care

claim against defendant Conley. Out of an abundance of caution, plaintiff may also proceed with

his conditions of confinement claim against defendant Holdren. However, the remainder of

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

First, plaintiff’s claims against defendants Chambers-Smith and Erdos are subject to

dismissal. As noted above, plaintiff claims that these defendants violated his constitutional rights

in connection with the alleged conditions at SOCF. To establish an Eighth Amendment violation,

a plaintiff must first demonstrate objectively the unique deprivation of “the minimal civilized

measure of life’s necessities.” Id. at 454 (quoting Rhodes, 452 U.S. at 347); see also Brown v.

Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer, 511 U.S. at 834) (“[T]he inmate must

show that he is incarcerated under conditions posing a substantial risk of serious harm.”). He then

must subjectively show the defendant acted “wantonly, with deliberate indifference to the

plaintiff’s serious needs.” Richmond, 450 F. App’x at 455 (citing Farmer, 511 U.S. at 834).

However, “a prison official cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official knows of and disregards an excessive

risk to inmate health or safety; the official must both 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.”

See Farmer, 511 U.S. at 837.

In this case, plaintiff has not alleged any facts to plausibly suggest that defendants

Chambers-Smith and Erdos were aware of the conditions allegedly resulting in his injuries,2 much

less that they were deliberately indifferent to his safety. Although plaintiff claims these defendants

should have addressed the conditions at SOCF through compliance with state regulations and

ODRC policies, “[m]erely failing to alleviate a significant risk that the official should have

perceived is insufficient to establish liability.” Schrader v. Collins, No. 97-4471, 1998 WL

863427, at *1 (6th Cir. Nov. 23, 1998) (citing Farmer, 511 U.S. at 837-38)).

Furthermore, to the extent that plaintiff claims defendants were negligent or otherwise

seeks to hold defendants liable for failing to comply with state regulations or ODRC policy (see

Doc. 1-1, Complaint at PageID 14), he has failed to state a claim actionable in this § 1983

proceeding. See, e.g., Warren v. Doe, 28 F. App’x 463, 464 (6th Cir. 2002) (citing Ritchie v.

Wickstrom, 938 F.2d 689, 692 (6th Cir. 1991), as support for holding that “the district court

properly dismissed [the plaintiff’s] case because his allegations involved mere negligence that is

not actionable under § 1983”). See also See Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007)

(“Allegations of state law or state constitutional violations will not support a § 1983 claim.”); Smith

v. Freland, 954 F.2d 343, 347–48 (6th Cir. 1992) (violation of municipal policy does not create

liability under § 1983); McVeigh v. Bartlett, No. 94–2347, 1995 WL 236687 (6th Cir. Apr. 21,

2 Plaintiff’s claim against defendant Holdren is distinguishable at least in this regard, as plaintiff alleges that he

complained to Holdren about the prison conditions (Doc. 1-1, Complaint at PageID 15-16). Plaintiff’s claim against

Holdren is worthy of further development and as noted above, out of an abundance of caution, plaintiff may proceed

with this claim at this juncture in the proceedings.

1995) (“failure to comply with a prison policy . . . does not rise to the level of a constitutional

violation because the policy directive simply does not create a protectable liberty interest.”).

Accordingly, plaintiff’s claims against defendants Chambers-Smith and Erdos should be

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

Plaintiff’s claims against defendant Inspector Linnea Mahlman are also subject to dismissal

at the screening stage. As noted above, in his third claim, plaintiff alleges that Mahlman violated

his due process rights by failing to process his complaints/grievances, investigate his complaints,

and placing him on grievance restriction. However, plaintiff’s claims against Mahlman brought

in connection with the grievance process cannot give rise to a § 1983 claim because “[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). 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.) (Report & Recommendation) (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.). 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).

To the extent that plaintiff claims that his restricted access to the grievance process resulted

in a constitutional violation, he has also failed to state a claim upon which relief may be granted.

“The 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); Walker v. Michigan Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir.

2005); 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. Accordingly,

plaintiff has failed to state a claim upon which relief may be granted to the extent that he alleges a

constitutional violation in connection with being placed on restricted access to the grievance

process.

Plaintiff has also failed to state claim upon which relief may be granted based on his

allegation that Mahlman has prevented him from exhausting his claims through the administrative

grievance process. (Doc. 1-1, Complaint at PageID 19). 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.”).

Accordingly, plaintiff’s claims seeking to hold Mahlman liable in connection with the

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

Accordingly, in sum, plaintiff may proceed with his Eighth Amendment conditions-of-

confinement claim against defendant Holdren and his Eighth Amendment medial-care claim

against defendant Conley. 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

with prejudice. 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)

and § 1915A(b), with the exception of plaintiff’s Eighth Amendment conditions-of-confinement

claim against defendant Holdren and medical-care claim against defendant Conley.

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 defendants Holdren and Conley as directed by plaintiff, with costs of

service to be advanced by the United States.

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.

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

occur during the pendency of this lawsuit.

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: January 25, 2023 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge