Husband v. Lane

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LOUIS R. HUSBAND,

Plaintiff,

v. Civil Action 2:23-cv-3053

Judge James L. Graham

Magistrate Judge Chelsey M. Vascura

DANIEL LANE, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Louis R. Husband, an Ohio inmate who is proceeding without the assistance of

counsel, brings this action against several employees of the Warren Correctional Institution

(“WCI”) under 42 U.S.C. § 1983 for violation of his constitutional rights arising out of

successive discipline imposed for the same contraband infraction. (Compl., ECF No. 1-1.) This

matter is before the Court for the initial screen of Plaintiff’s Complaint under 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), 1915A(b)(1)–(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 the Court DISMISS Plaintiff’s federal claims

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

granted, and the undersigned further RECOMMENDS that the Court DISMISS Plaintiff’s state

law claims without prejudice to re-filing in state court.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF

No. 1.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C.

§ 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he has $74.23 in his prison

account, which is insufficient to pay the filing fee.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts

(Inmate ID Number 518-177) at WCI is DIRECTED to submit to the Clerk of the United States

District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater

of either the average monthly deposits to the inmate trust account or the average monthly balance

in the inmate trust account, for the six months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and

the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to

the Court’s financial office in Columbus.

Plaintiff also moves for the appointment of counsel. (ECF No. 3.) Even when parties

proceed in forma pauperis, appointment of counsel is discretionary under 28 U.S.C. § 1915(e);

appointment of counsel in a civil case is not a constitutional right. See Lavado v. Keohane, 992

F.2d 601, 605–06 (6th Cir. 1993). Rather, “[i]t is a privilege that is justified only by exceptional

circumstances.” Id. at 606. The Court has evaluated whether such exceptional circumstances

exist and determines that the appointment of counsel is not warranted at this juncture.

Accordingly, Plaintiff’s Motion for Appointment of Counsel (ECF No. 3) is DENIED.

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 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 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 alleges that on September 22, 2022, his cell was searched and a cell phone was

retrieved. Although Plaintiff’s cellmate admitted to owning the phone, Plaintiff was issued a

conduct report for possessing contraband. The Rules Infraction Board (“RIB”) found Plaintiff

guilty and sentenced him to 120 days in segregated housing (although he was released from

segregated housing on October 28, 2022, after serving only 30 days), with sanctions including

365 days’ visitation restriction, 180 days’ commissary restriction, 180 days’ food package

restrictions, and 180 days’ clothing/hygiene package restriction. Plaintiff appealed the RIB’s

decision to legal services, which overturned the decision on November 4, 2022. (Compl. ¶¶ 1–5,

ECF No. 1-1.)

Ten days later, Plaintiff received another conduct report for possessing contraband—

specifically, for possessing the same cell phone underlying his September 22, 2022 conduct

report. Plaintiff asked the prison’s investigator why Plaintiff had received a second conduct

report for the same cell phone, and the investigator responded, “Well, I can’t just let you get

away with it. I have to get you with something.” Plaintiff informed the investigator that this

second conduct report raised double jeopardy issues, but the investigator stated that he had been

advised by legal counsel to proceed with the second conduct report. Plaintiff was again found

guilty by the RIB and was sentenced to serve another 30 days in segregated housing (although he

was released from segregated housing after serving only 29 days), along with the same visitation,

commissary, food package, and clothing/hygiene package (though the duration for these

restrictions was half the duration imposed for the previous contraband infraction). Plaintiff again

appealed the RIB’s decision to legal services, but never received a decision on his appeal.

(Compl. ¶¶ 6–12.)

Plaintiff alleges that the actions of various WCI employees violated his Fifth Amendment

rights under the Double Jeopardy Clause, his Fourteenth Amendment rights to due process and

equal protection of the laws, his Eighth Amendment right to be free of cruel and unusual

punishment, and his rights under the Ohio Constitution. (Compl., ECF No. 1-1, PAGEID #20.)

Plaintiff also alleges a conspiracy among Defendants to deprive him of his constitutional rights

under 42 U.S.C. § 1985(3). Id. As explained below, Plaintiff’s Complaint fails to state any

federal claim upon which relief may be granted.

A. Double Jeopardy

The Double Jeopardy Clause guarantees that no person shall be “subject for the same

offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. This clause prohibits

“a second prosecution for the same offense after acquittal, a second prosecution for the same

offense after conviction, and multiple punishments for the same offense.” United States v. Beaty,

147 F.3d 522, 524 (6th Cir.1998) (quoting Department of Revenue of Mont. v. Kurth Ranch, 511

U.S. 767, n. 1 (1994)). But the United States Supreme Court has explained that “the Double

Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, in

common parlance, be described as punishment.” Hudson v. United States, 522 U.S. 93, 98–99

(1997) (cleaned up). Rather, “[t]he Clause protects only against the imposition of multiple

criminal punishments for the same offense, and then only when such occurs in successive

proceedings.” Id. at 99 (internal citations omitted) (emphasis in original). Specifically, the United

States Court of Appeals for the Sixth Circuit has held that prison disciplinary proceedings do not

implicate the Double Jeopardy clause. See United States v. Simpson, 546 F.3d 394, 398 (6th Cir.

2008) (“The Double Jeopardy Clause was not intended to inhibit prison discipline.”).

Accordingly, because Plaintiff’s claim under the Double Jeopardy Clause arises only out of

prison discipline, it is RECOMMENDED that Plaintiff’s double jeopardy claim be

DISMISSED.

B. Due Process

Plaintiff has also failed to plausibly allege a due process claim. More specifically,

Plaintiff’s allegations are insufficient to implicate federal due process concerns because he has

not alleged that his assignment to segregated housing or the other imposed restrictions amounted

to a deprivation of a constitutionally protected interest. “[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). “An 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 F. App’x 559, 562

(6th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “[A]n increase in security

classification . . . does not constitute an ‘atypical and significant’ hardship in relation to the

ordinary incidents of prison life because a prisoner has no constitutional right to remain

incarcerated in a particular prison or to be held in a specific security classification.” Harbin–Bey,

420 F.3d at 577 (internal quotation marks and citation omitted); see also Moody v. Daggett, 429

U.S. 79, 88 n.9 (1976) (change in “prisoner classification” does not implicate a due process

right); Harris v. Truesdell, 79 F. App’x 756, 759 (6th Cir. 2003) (holding that neither

“punishment of more than 60 days of punitive segregation” nor a change in security

classification “give rise to a protected Fourteenth Amendment Liberty interest”); Carter v.

Tucker, 69 F. App’x 678, 680 (6th Cir. 2003) (holding that inmate’s placement in disciplinary

confinement or a change in security classification or housing assignment did not implicate the

Due Process Clause). Courts in this District have expressly held that assignment to extended

restrictive housing, ODRC’s most restrictive security level, does not implicate a due process

liberty interest. See Cook v. Davis, No. 1:19-CV-624, 2019 WL 4564741, at *4 (S.D. Ohio Sept.

20, 2019); Wheeler v. Pickaway Corr. Inst., No. 2:19-CV-3512, 2019 WL 4744781, at *4 (S.D.

Ohio Sept. 30, 2019); Hairston v. Smith, No. 2:18-CV-826, 2018 WL 4599905, at *4 (S.D. Ohio

Sept. 25, 2018), report and recommendation adopted, 2018 WL 5268747 (S.D. Ohio Oct. 23,

2018). Here, Plaintiff has not alleged that his placement in segregated housing or the imposition

of other restrictions resulted in any atypical and significant hardship in relation to the ordinary

incidents of prison life. Because Plaintiff does not have a constitutional right to a particular

security level or housing assignment, it is RECOMMENDED that Plaintiff’s Fourteenth

Amendment due process claim be DISMISSED.

C. Cruel and Unusual Punishment

Similarly, placement in segregated housing or a change in security classification is

insufficient to constitute an Eighth Amendment violation. “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) (cleaned up).

“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. (cleaned up); 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). It follows that, “[b]ecause placement in segregation is a

routine discomfort that is a part of the penalty that criminal offenders pay for their offenses

against society, it is insufficient to support an Eighth Amendment Claim.” Murray v. Unknown

Evert, 84 F. App’x 553, 556 (6th Cir. 2003). Accordingly, “[t]he mere fact that [Plaintiff] was

placed in detention, with nothing more, is insufficient to state an Eighth Amendment claim.” Id.

Because Plaintiff has not pleaded any injury beyond placement in segregated housing and other

security restrictions, it is RECOMMENDED that Plaintiff’s Eighth Amendment claim be

DISMISSED.

D. Equal Protection

Plaintiff’s equal protection claim also lacks merit. To state an equal protection claim, a

prisoner must allege sufficient facts to raise a plausible inference “that a state actor intentionally

discriminated against [him] because of membership in a protected class.” Henry v. Metro. Sewer

Dist., 922 F.2d 332, 341 (6th Cir. 1990) (cleaned up), abrogated in part on other grounds by

King v. Harwood, 853 F.3d 568, 580 n. 4 (6th Cir. 2017); see also Herron v. Harrison, 203 F.3d

410, 417 (6th Cir. 2000); Copeland v. Machulis, 57 F.3d 476, 480 (6th Cir. 1995) (citing Village

of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 255–56 (1995)). Alternatively,

Plaintiff may state a “class-of-one” equal protection claim by alleging that he “has been

intentionally treated differently from others similarly situated and that there is no rational basis

for the difference in treatment.” Franks v. Rubitschun, 312 F. App’x 764, 766 (6th Cir. 2009)

(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff’s allegations do not

demonstrate differential treatment from those similarly situated. In fact, the only allegations

related to Plaintiff’s equal protection claim are his cursory references to the Equal Protection

Clause itself. As set forth above, such “naked assertion[s] devoid of further factual

enhancement” are insufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557). Accordingly, it is RECOMMENDED that Plaintiff’s equal

protection claim be DISMISSED.

E. Conspiracy

Plaintiff’s Complaint fails to state a claim for conspiracy under 42 U.S.C. § 1985(3). To

prove a claim under §1985(3), a plaintiff must demonstrate the following elements:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal privileges

or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby

a person is either injured in his person or property or deprived of any right or

privilege of a citizen of the United States.

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005) (quoting Vakilian v.

Shaw, 335 F.3d 509, 518 (6th Cir. 2003) and United Bhd. of Carpenters & Joiners v. Scott, 463

U.S. 825, 828–29 (1983)). Additionally, to demonstrate intent, a plaintiff must show that there is

“some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the

conspirators’ actions.” Id. (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Here,

Plaintiff’s allegations of conspiracy are wholly conclusory, and he makes no allegation that

Defendants’ conduct was motivated by racial or otherwise class-based discriminatory animus.

See, e.g., Ohio ex rel. Moore v. Brahma Inv. Grp., Inc., 723 F. App’x 284, 288–89 (6th Cir.

2018) (finding plaintiffs failed to state a claim under §1985(3) where they “made only

conclusory allegations to support their claim of illegal, discriminatory conduct, and made no

allegations of a shared plan or agreement”); Radvansky, 395 F.3d at 314 (affirming district

court’s summary judgment ruling where plaintiff failed to demonstrate either a conspiracy or

invidiously discriminatory animus). Accordingly, it is RECOMMENDED that Plaintiff’s

conspiracy claim be DISMISSED.

F. State-Law Claims

The undersigned further recommends that the Court decline to exercise jurisdiction over

Plaintiff’s remaining state-law claims arising under the Ohio Constitution. Under 28 U.S.C.

§ 1367(c)(3), the Court may decline to exercise supplemental jurisdiction when the Court “has

dismissed all claims over which it has original jurisdiction.” The United States Court of Appeals

for the Sixth Circuit has held that “[i]f the federal claims are dismissed before trial, the state

claims generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.

2009) (citations omitted). Here, Plaintiff’s allegations pertaining to the Ohio Constitution fail to

provide a basis for a claim over which this Court has original jurisdiction. “The basic statutory

grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which

provides for federal-question jurisdiction, and § 1332, which provides for diversity of citizenship

jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (cleaned up). Federal-question

jurisdiction is implicated when a plaintiff pleads a claim “arising under” the federal laws or the

United States Constitution. Id. (citation omitted). For a federal court to have diversity jurisdiction

pursuant to § 1332(a), there must be complete diversity, which means that each plaintiff must be

a citizen of a different state than each defendant, and the amount in controversy must exceed

$75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

Plaintiff’s claims concerning the Ohio Constitution pertain squarely to state law and do

not arise under federal laws or the United States Constitution. Nor has Plaintiff alleged that he

and Defendants are citizens of different states or that the amount in controversy exceeds $75,000.

Thus, Plaintiff has failed to plausibly allege facts upon which the Court could rely to conclude

that this Court has original subject-matter jurisdiction over his state-law claims. Because the

undersigned is recommending dismissal of all of Plaintiff’s federal claims, it is further

RECOMMENDED that the Court decline to exercise supplemental jurisdiction over any

remaining state-law claims and that it DISMISS any such claims without prejudice to filing in

state court.

III. DISPOSITION

For the reasons set forth above, Plaintiff’s motion for leave to proceed in forma pauperis

under 28 U.S.C. § 1915(a) (ECF No. 1) is GRANTED. Plaintiff’s Motion for Appointment of

Counsel (ECF No. 3) is DENIED. It is RECOMMENDED that Plaintiff’s federal claims be

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). It is further

RECOMMENDED that that the Court decline to exercise jurisdiction over Plaintiff’s state-law

claims in accordance with 28 U.S.C. § 1367(c)(3) and that those claims be DISMISSED

WITHOUT PREJUDICE to re-filing in state court.

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 District 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 District 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