Sims v. McCloud

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

DWAYNE SIMS, : Case No. 1:23-cv-105

:

Plaintiff, :

: District Judge Jeffery P. Hopkins

vs. :

Magistrate Judge Stephanie K. Bowman

:

C/O MCCLOUD, et al., :

:

Defendants. :

:

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Toledo Correctional Institution, 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).

Also before the Court is plaintiff’s motion seeking preliminary injunctive relief. (Doc.

5).

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).

1 Formerly 28 U.S.C. § 1915(d).

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 Complaint

Plaintiff brings this complaint against defendants C/O McCloud, Cynthia Davis, Jeremy

Oppy, Larry Green, Donald Redwood, and Corey Samson. (Doc. 1-1, Complaint at PageID 10).

Plaintiff alleges that on October 31, 2022, defendant McCloud slammed his hand in his cell’s cuff

port and “began to push with all of his weight,” in an effort to break plaintiff’s hand and not allow

him to remove it. (Id. at PageID 11). According to plaintiff, he suffered severe damage to his

hand and elbow, but was denied treatment by defendant nurse Corey Samson. Plaintiff indicates

that he received an Extended Restrictive Housing (ERH) placement based on the incident, despite

having never received a conduct report, Rules Infraction Board (RIB) hearing, or disciplinary

sanction. (Id. at PageID 12-13). According to plaintiff, he filed a complaint with defendant Green

and notified defendants Oppy, Davis, and Redwood, but these defendants did not respond to his

grievances.

The complaint also includes allegations of retaliation for using the prison grievance

system/appeal process. (Id. at PageID 12). Plaintiff claims that he filed a lawsuit based on an

incident that occurred on October 9, 2021. According to plaintiff, he was punched and slapped

several times in his face, but was nevertheless given a disciplinary sanction of one year of ERH

placement in connection with the incident. It appears from the complaint that plaintiff successfully

appealed the sanction, but alleges that defendant Oppy retaliated against him by refusing to review

his placement and keeping him in restrictive housing. Plaintiff further asserts that he informed

defendants Green and Davis of the issue, but they instructed plaintiff to talk to Oppy. (Id.).

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

14).

C. Analysis.

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 excessive force

claim against defendant McCloud and Eighth Amendment denial of medical care claim against

defendant Samson. Plaintiff’s retaliation claim against defendant Oppy is also worthy of further

development and may proceed at this juncture. However, the remainder of plaintiff’s claims

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

First, plaintiff’s due process claim brought in connection with the grievance process should

be dismissed. As noted above, plaintiff alleges that he was not provided with a RIB hearing or

any other disciplinary sanctions following the October 9, 2021 and October 21, 2022 incident.

However, plaintiff has failed to state a due process claim in connection with the RIB proceedings,

because the challenged disciplinary actions did not amount to a deprivation of a constitutionally

protected liberty interest. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that

the Fourteenth Amendment confers on prisoners only a “limited” liberty interest “to freedom from

restraint which . . . imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life,” or which “will inevitably affect the duration of his sentence.”

Sandin, 515 U.S. at 484, 487; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Williams

v. Wilkinson, 51 F. App’x 553, 556 (6th Cir. 2002). The Sixth Circuit has held that confinement

in segregation generally does not rise to the level of an “atypical and significant” hardship

implicating a liberty interest except in “extreme circumstances, such as when the prisoner’s

complaint alleged that he is subject to an indefinite administrative segregation” or that such

confinement was excessively long in duration. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir.

2010) (citing Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008)) (emphasis in original); see

also Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012) (holding that the prisoner’s 8-year

confinement in segregation was of “atypical duration” and thus “created a liberty interest that

triggered his right to due process”). Cf. Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (ruling

that an inmate’s transfer to Ohio’s “supermax” prison “imposes an atypical and significant

hardship” given the combination of extreme isolation of inmates, prohibition of almost all human

contact, indefinite duration of assignment, and disqualification for parole consideration of

otherwise eligible inmates).

Here, plaintiff has not alleged that the challenged disciplinary proceeding resulted in the

lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any

necessities of life. Moreover, plaintiff has not alleged any facts to suggest that he was subjected

to a lengthy disciplinary placement amounting to an atypical or significant hardship that would

trigger constitutional concerns.2 Accordingly, because plaintiff does not have a protected liberty

interest under the circumstances alleged herein, any claim against defendants for their conduct in

the disciplinary proceedings fails to state a cognizable federal claim under the Fourteenth

Amendment’s Due Process Clause.

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

to respond to his grievances or take corrective action. Plaintiff’s claim that Green or any other

defendant failed to respond to his complaint 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

2 Cf. Jones, 155 F.3d at 812 (holding that an inmate’s administrative segregation for two and a half years while his

participation in a prison riot was being investigated did not amount to an atypical and significant hardship); Mackey

v. Dyke, 111 F.3d 460, 461, 463 (6th Cir. 1997) (117-day delay in releasing the plaintiff from administrative

segregation to the general prison population did not impose an atypical or significant hardship on the plaintiff and thus

did not trigger due process concerns); Bradley v. Evans, No. 98-5861, 2000 WL 1277229, at *7 (6th Cir. Aug. 23,

2000) (and numerous cases cited therein in support of holding that placement for 14 months in administrative

segregation did not impose an atypical or significant hardship on the prisoner); Collmar v. Wilkinson, No. 97-4374,

1999 WL 623708, at *3 (6th Cir. Aug. 11, 1999) (30 days in Security Control, 14 days in Disciplinary Control and six

to eight months in Administrative Control did not constitute an “atypical hardship” under Sandin).

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). Accordingly, plaintiff’s complaint that defendants Green, Redwood, Oppy, and Davis

failed to respond to his complaints/grievances or correct the conduct of other fails to state a claim

upon which relief may be granted.

Accordingly, in sum, plaintiff may proceed with his Eighth Amendment excessive force

claim against defendant McCloud; Eighth Amendment denial of medical care claim against

defendant Samson; and First Amendment retaliation claim against defendant Oppy. 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).

D. Preliminary Injunction Motion

Plaintiff has also filed an “Order to Show Cause for a Preliminary Inunction & a Temporary

Restraining,” which the Court understands to seek preliminary injunctive relief. (See Doc. 5). The

document submitted—which is drafted for a signature from a United States District Judge—seeks

release from extended restrictive housing at SOCF, to provide plaintiff with his conduct report

records, for defendants to stop retaliating against him and interfering with his legal mail, and to

separate him from all defendants. (See id.).

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 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.

Plaintiff has not alleged facts sufficient to warrant a preliminary injunction in this case.

Plaintiff has made no attempt to apply the above factors to his situation. A preliminary injunction

is also not warranted in this case because 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 remedy plaintiff presently seeks is more than

an injunction maintaining the status quo; he seeks an Order from this Court requiring the correction

of deficiencies yet to be proven. Such affirmative relief is generally beyond the scope and purpose

of preliminary injunctive relief. See id.

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 excessive force claim

against defendant McCloud; Eighth Amendment denial of medical care claim against defendant

Samson; and First Amendment retaliation claim against defendant Oppy.

2. Plaintiff’s motion for a preliminary injunction/temporary restraining order (Doc. 5)

be DENIED.

3. 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 McCloud, Samson, and Oppy 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).

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge