McKinney v. Paddock

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANTHONY L. MCKINNEY, : Case No. 2:20-cv-1450

:

Plaintiff, :

: District Judge Michael H. Watson

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

DENISE PADDOCK, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATIONS1

This matter is presently before the Court on the parties’ second cross-motions for summary

judgment. (Doc. #s 152, 155).2 Both Plaintiff and Defendants filed responsive memorandums to

the opposing party’s motions. (Doc. #s 156, 167, 169, 177). The pending motions have been

referred to the undersigned for a Report and Recommendations pursuant to 28 U.S.C. § 636 and

General Order 22-05. This matter is now ripe for review.

I. BACKGROUND

Plaintiff, Anthony L. McKinney, who is currently in the custody of Ohio Department of

Rehabilitation and Correction (“ODRC”) serving his sentence at Madison Correctional Institution,

brought this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s Complaint consists of 44

handwritten pages asserting a myriad of allegations against the Warden of Ross Correctional

Institution (“RCI”), as well as, employees of London Correctional Institution (“LOCI”), including,

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

2 The undersigned previously issued a Report and Recommendations on the parties’ first cross-motions for summary

judgment on July 15, 2022. (Doc. #96). However, on January 11, 2023, District Judge Watson found that additional

discovery in the case needed to occur and rejected the July 15, 2022 Report and Recommendations as moot. (Doc.

#130).

Denise Paddock, Lieutenant Ryan Kammer, Lieutenant Shawn Frye, former Sergeant Brian

Preston, Warden Norman Robinson, and “hearing officers unknown.” (Doc. #4).

According to Plaintiff, Defendants violated his constitutional rights under the First, Fourth,

Eighth, Thirteenth, and Fourteenth Amendments. Id. Additionally, Plaintiff alleges several state

law counts against Defendants, including breach of contract, theft, larceny, extortion, and

defamation. Id. Specifically, the claims in Plaintiff’s Complaint initially stem from an incident

that occurred on March 18, 2019, when Plaintiff was working in the LOCI law library with another

inmate and requested that the law librarian print certain documents. Id. at 146. The law librarian,

Defendant Paddock, printed the documents requested by Plaintiff and identified them as containing

content related to the sovereign citizens, which is identified in Ohio prisons as an active security

threat group (“STG”). (Doc. #4, PageID #s 146-147, 187; Doc. #155-4, PageID #2622).

Defendant Paddock informed Plaintiff that he was not permitted to have sovereign citizen

documents and instructed him to take them to another corrections officer for inspection. (Doc. #4,

PageID #147; Doc. #155-4, PageID #2622). Plaintiff was then escorted to Defendant Frye’s office

where he was instructed to hand over the disputed documents so that they could be reviewed by

LOCI’s legal counsel. (Doc. #4, PageID #s 148, 187). While Plaintiff initially objected, he

eventually complied and relinquished the disputed documents to Defendant Frye. (Doc. #4,

PageID #148; Doc. #155-11, PageID #s 2779-80). No conduct report was issued at this time. (Doc.

#4, PageID #s 148-49; Doc. #155-11, PageID #s 2780-81).

On March 31, 2019, Plaintiff issued an informal complaint at the prison kiosk, detailing

the March 18, 2019 incident and alleging numerous claims against Defendants Paddock and Frye.

(Doc. #4, PageID #s 149-50; Doc. #155-5, PageID #2638). As part of this grievance, Plaintiff

made several “demands” of LOCI, including releasing him from custody, returning his personal

property, denying Defendant Frye’s request to use credit, discharging Defendants Paddock and

Frye from their positions, hiring new library employees, and providing Plaintiff more time in the

law library. (Doc. #4, PageID #s 149-150, 153-57; Doc. #155-5, PageID #2638).

Meanwhile, LOCI legal counsel conducted a review of the documents taken from Plaintiff

and ultimately concluded that the documents did, in fact, contain unauthorized content related to

the sovereign citizens. (Doc. #4, PageID #187). As a result, a corrections officer, Defendant

Kammer, authored a conduct report on April 9, 2019, describing the incident and his finding that

Plaintiff’s possession of the documents violated “Rule 17 - Engaging in unauthorized group

activities.” Id. Before Plaintiff received notice of the conduct report, he responded to his informal

grievance at the prison kiosk, informing LOCI prison officials that they demonstrated their

“general acquiescence” to his demands by virtue of their failure to respond, thereby constituting

an “agreement” to his terms and demands “by operation of law.” (Doc. #4, PageID #s 149-57;

Doc. #155-5, PageID #2638). The next morning, Plaintiff received the April 9, 2019 conduct

report informing him of Defendant Kammer’s finding that he violated Rule 17. (Doc. #4, PageID

#s 150, 187).

Due to the alleged violation of Rule 17, the matter was referred to the Rules Infraction

Board (“RIB”). Id. at 190. Believing that such charges were “fictitious” and that he already had

a “contract” with prison officials on the alleged violation, Plaintiff decided not to participate in the

RIB proceedings. Id. at 149-158. When Plaintiff was brought to the RIB hearing on April 18,

2019, he informed them of his general objections to the procedure and their jurisdiction but

otherwise did not participate in defending the charge. See id. at 149-58, 190-96. As a result, the

RIB concluded that Plaintiff violated Rule 17 and sentenced him to 90 days in Limited Privilege

Housing (“LPH” or “the hole”). Id. at 149-158, 190-96. After the hearing, Plaintiff was brought

to a holding cell where he was strip-searched by two unknown corrections officers for contraband.

Id. at 153-54.

The next morning, on April 19, 2019, Defendant Preston, a corrections officer, was sent to

Plaintiff’s cell to pack up his belongings since he had been moved to LPH. (Doc. #4, PageID #158;

Doc. #155-6, PageID #2654). Upon arriving at Plaintiff’s cell, Defendant Preston concluded that

Plaintiff was in violation of “Rule 51 – possessing contraband and materials in excess of the

permitted amount for inmates” and, thus, issued a new conduct report on this basis. (Doc. #4,

PageID #s 158-60, 198; Doc. #155-6, PageID #s 2652-54). According to the conduct report, the

excess contraband included legal papers, legal books, two towels, one pair of altered sweatpants,

two pairs of socks, one state shirt, and one pillow. (Doc. #4, PageID #198). Plaintiff did not

participate in the RIB proceedings stemming from this conduct report and was found to be in

violation of Rule 51. Id. at 198-203. While no additional time in LPH was imposed, Plaintiff’s

locker boxes were temporarily held while he was in segregation and when he was transferred from

LOCI to RCI. Id. at 161, 198-203.

Due to the abuses he alleges he has suffered, Plaintiff filed the instant action on March 24,

2020. (Doc. #4).

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2548 (1986). Additionally, this initial burden may be satisfied by the moving party “pointing

out to the court that the [non-moving party], having had sufficient opportunity for discovery, has

no evidence to support an essential element of his or her case.” Barnhart v. Pickrel Schaeffer &

Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993).

The burden then shifts to the non-moving party, who “must set forth specific facts showing

that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)

(quoting Fed. R. Civ. P. 56(e)). Here, in opposing summary judgment, the non-moving party

cannot “simply show that there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986). Indeed,

unverified pleadings and self-serving affidavits alone are not enough to create an issue of fact

sufficient to survive summary judgment. Johnson v. Washington Cty. Career Ctr., 982 F. Supp.

2d 779, 788 (S.D. Ohio 2013).

Finally, in ruling on a motion for summary judgment, the court is “not required to speculate

on which portion of the record the nonmoving party relies, nor is it obligated to wade through and

search the entire record for some specific facts that might support the nonmoving party’s claim.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091,

110 S.Ct. 1839 (1990). Thus, in determining whether a genuine issue of material fact exists on a

particular issue, the court is entitled to rely upon the Rule 56 evidence specifically called to its

attention by the parties. See id.

III. DISCUSSION

A. Preliminary Matters

Before proceeding to the merits of the parties’ motions, the undersigned finds that it is

necessary to delineate what is and is not before the Court. At the outset, the undersigned

acknowledges that this case has a rather unusual and storied history. Most of these difficulties

arose out of a discovery conference held by the undersigned on November 12, 2021, where

Defendants’ prior counsel, Lori Duckworth, made certain statements indicating that Plaintiff was

“exonerated” following an investigation by the Federal Bureau of Investigation (“FBI”) and/or the

Ohio Bureau of Criminal Investigation (“BCI”). See Doc. #120, PageID #s 2246-50. In response,

the undersigned ordered Defendants to provide Plaintiff with any documents that existed to support

these statements. See id.; see also Doc. #132, PageID #s 2415-20. When no such discovery was

received on any external investigation, Plaintiff filed numerous requests to obtain this information.

See e.g., Doc. #s 95, 97, 116, and 139. Compounding this issue was the fact that Ms. Duckworth

had left the Ohio Attorney General’s Office and that Defendants’ new counsel consistently insisted

that Ms. Duckworth was mistaken and that no such investigation occurred. See e.g., Doc. #107,

PageID #1622; Doc. #107-1, PageID #1902; Doc. #118, PageID #s 2193-94; Doc. #119, PageID

#s 2198-99. Indeed, most of the discovery disputes that consumed this case revolved around the

uncertainty as to whether an outside investigation and ensuing “exoneration” even occurred.

Ultimately, the disputes over the existence of this alleged external investigated resulted in

the undersigned ordering Defendants’ legal counsel to file an affidavit outlining (1) the steps they

took to confirm that the FBI or any entity outside of ODRC was not involved in the investigation

of Plaintiff’s STG status; (2) the circumstances, if any, under which the FBI or any entity outside

of ODRC would become involved with a security threat group analysis; (3) the efforts that they

and Ms. Duckworth undertook to ensure that this case was properly transitioned from Ms.

Duckworth before she withdrew as counsel in September 2022; and (4) any attempts, including

the use of non-party subpoenas, to contact Ms. Duckworth and to resolve any factual

misrepresentations that have been made by the Ohio Attorney General’s Office to this Court. (Doc.

#132, PageID #2420).

In response, Defendants’ counsel filed three affidavits, including that of Corrections

Warden Assistant I, Matthew Crisler; Assistant Attorney General Marcy Vonderwell; and Ms.

Duckworth. (Doc. #s 137-1, 137-2, 137-3). Upon review, the undersigned determined that the

“affidavits clarify that there was no investigation by the FBI or any other entity outside of ODRC

regarding Plaintiff’s [STG] status and the activities surrounding the March 18, 2019 incident.”

(Doc. #147, PageID #2519).

Despite this determination, Plaintiff’s summary judgment briefings are replete with

references to the non-existent investigation and exoneration by the FBI. See Doc. #s 155, 167, 173.

Indeed, most of the claims that he moves for summary judgment on have morphed into their own

claims based on his belief that this investigation occurred or contain facts related to this belief. See

id. Thus, to the extent that Plaintiff brings new or altered claims based on his belief that this

investigation occurred, his claims fail for two reasons. First, Plaintiff’s Complaint does not contain

any facts or claims related to an external investigation by the FBI or any other entity outside ODRC

regarding his STG status. As such, Plaintiff cannot move for summary judgment on claims that

were not raised in his Complaint. Second, and more significantly, this Court has already

determined that no such external investigation occurred. Accordingly, Plaintiff’s reliance on

allegations that the Court has already determined to be unfounded will not be considered as

evidence sufficient to raise genuine issues of material fact. Here, the undersigned recognizes that

Plaintiff is proceeding pro se. Nonetheless, he is required to set forth admissible evidence that

supports his properly-pled claims and raises genuine issues for trial in opposing Defendants’

properly-supported summary judgment motion. See McKinnie v. Roadway Express, Inc., 341 F.3d

554, 558 (6th Cir. 2003) (pro se litigants “are not entitled to special treatment, including assistance

in regard[] to responding to dispositive motions.”).

Similarly, the undersigned will not entertain Plaintiff’s new claims against Sergeant Mayer,

Sergeant Newkirk, or any other individual who was not properly named as a Defendant in

Plaintiff’s Complaint. Additionally, the undersigned will not consider Plaintiff’s extensive

arguments on copyright infringement. While not the model of clarity, Plaintiff’s Complaint can in

no way be construed as supporting a claim for copyright infringement under 17 U.S.C. § 501-503.

Although pro se pleadings must be liberally construed and are “held to less stringent standards

than formal pleadings drafted by lawyers[,]” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,

(2007), pro se parties must still satisfy basic pleading requirements. Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989). Indeed, “even a pro se complaint ‘must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Ogle v. Columbia Gas

Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013).

Thus, as noted above, Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Section

1983 provides a civil cause of action for persons “who are deprived of any rights, privileges, or

immunities secured by the Constitution or federal laws by those acting under color of state law.”

Smith v. City of Salem, 378 F.3d 566, 576 (6th Cir. 2004). In order to state a claim under § 1983,

a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must

show that the deprivation was committed by a person acting under color of state law. West v.

Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814

(6th Cir. 1996). Further, because § 1983 is a method for vindicating federal rights as opposed to a

source of substantive rights itself, the first step in an action under § 1983 is to identify the specific

constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807

(1994).

In this case, the undersigned has liberally construed Plaintiff’s allegations to set forth the

following federal claims: retaliation and access to the courts under the First Amendment, an illegal

search and seizure under the Fourth Amendment, cruel and unusual punishment under the Eighth

Amendment, slavery under the Thirteenth Amendment, and denial of due process under the

Fourteenth Amendment. See Doc. #4. Additionally, Plaintiff alleges several state law counts

against Defendants, including breach of contract, theft, larceny, extortion, and defamation. Id.

In response, Defendants initially counter that Plaintiff failed to exhaust his administrative

remedies and, therefore, his claims should be dismissed for failure to comply with the Ohio

Grievance Process. (Doc. #152, PageID #s 2538-41). However, even if Plaintiff did exhaust his

administrative remedies, Defendants maintain that there is no genuine dispute of material fact

related to his claims and, thus, they are entitled to judgment as a matter of law. Id. at 2541-52. The

undersigned will address each of these claims in turn.

B. Exhaustion of Administrative Remedies

Defendants first move for summary judgment on the basis that Plaintiff failed to exhaust

his administrative remedies under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

(Doc. #152, PageID #s 2538-41). As failure to exhaust administrative remedies is “an affirmative

defense under the PLRA[,]” Defendants bear the burden of proof on this issue. Jones v. Bock, 549

U.S. 201, 216, 127 S. Ct. 910 (2007); see also Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012)

(“[T]he failure to exhaust ‘must be established by the defendants.’”) (quoting Napier v. Laurel

Cnty, Ky., 636 F.3d 218, 225 (6th Cir. 2011)). Thus, “[w]hen the defendants in prisoner civil rights

litigation move for summary judgment on administrative exhaustion grounds, they must prove that

no reasonable jury could find that the plaintiff exhausted his administrative remedies.” Mattox v.

Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Surles v. Andison, 678 F.3d 452, 455-56 (6th

Cir. 2012)); see also Blissit v. Fiquiris, 345 F. Supp. 3d 931 (S.D. Ohio 2018) (granting summary

judgment based upon inmate’s failure to comply with Ohio’s grievance process for excessive force

claim, discussing burden of proof).

The PLRA bars prisoners from filing federal lawsuits under 42 U.S.C. § 1983 “with respect

to prison conditions…until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). In discussing the applicability of the PLRA exhaustion requirement, the Supreme

Court has made clear that it “applies to all inmate suits about prison life, whether they involve

general circumstances or particular episodes, and whether they allege excessive force or some

other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983 (2002). Further, such exhaustion

is “mandatory under the PLRA and unexhausted claims cannot be brought in court.” Jones, 549

U.S. at 211.

In order “[t]o properly exhaust a claim, prisoners must tak[e] advantage of each step the

prison holds out for resolving the claim internally and by following the ‘critical procedural rules’

of the prison’s grievance process to permit prison officials to review, and, if necessary, correct the

grievance ‘on the merits’ in the first instance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th

Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)). Proper exhaustion “demands

compliance with an agency’s deadlines and other critical procedural rules” so that the adjudicative

system can function effectively. Woodford, 548 U.S. at 90-91.

Despite this, the PLRA only requires prisoners to exhaust all “available” administrative

remedies. 42 U.S.C. § 1997e(a). Thus, if the administrative remedy is considered unavailable, the

requirement to exhaust may be excused. As such, the Supreme Court has identified three situations

where an administrative procedure is unavailable to prisoners and is therefore not subject to the

exhaustion requirement: (1) “when (despite what regulations or guidance materials may promise)

it operates as a simple dead end—with officers unable or consistently unwilling to provide any

relief to aggrieved inmates”; (2) when “some mechanism exists to provide relief, but no ordinary

prisoner can discern or navigate it” because it is “so opaque” or “so confusing”; and (3) “when

prison administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 643-44 (2016).

The procedure established for resolving inmate complaints in Ohio is a three-step process

that is codified in Ohio Administrative Code (“O.A.C.”) § 5120-9-31(K) (eff. May 1, 2008).3 The

first step requires inmates to submit an informal complaint resolution form to the supervisor of the

department or staff member responsible for the issue within fourteen days of the complained-of

event. O.A.C. § 5120-9-31(K)(1) (eff. May 1, 2008). Within seven days of receiving the informal

complaint, ODRC shall provide a written response that “reflect[s] an understanding of the inmate’s

complaint, [is] responsive to the issue, cite[s] any relevant departmental or institutional rules or

policies and specif[ies] the action taken, if any.” Id. Any failure on the part of ODRC to provide

such a response within the prescribed timeframe constitutes waiver and allows the inmate to

proceed to step two of the grievance procedure. Id.

Further, inmates otherwise dissatisfied with the results of step one may proceed to step two

by filing a notification of grievance with the inspector of institutional services within fourteen days

3 In their motion for summary judgment, Defendants refer to the current code version of O.A.C. § 5120-9-31, which

became effective on March 21, 2021, and outlines the procedure in subsection (J) as opposed to subsection (K).

However, Plaintiff’s informal complaints were initiated during the effective dates for two prior versions of this section,

O.A.C. § 5120-9-31 (eff. May 1, 2008) and O.A.C. § 5120-9-31 (eff. Apr. 5, 2019). While the changes made in these

three versions do not change the substantive analysis of Plaintiff’s claims, the undersigned will refer to version

effective from May 1, 2008 until April 4, 2019 to lay out the procedure since this is when the incident underlying the

first informal complaint occurred. However, when discussing the exhaustion of specific claims, the undersigned will

cite to the version in effect at that time of the particular incident.

of the informal complaint response or waiver of the informal complaint step. O.A.C. § 5120-9-

31(K)(2) (eff. May 1, 2008). Thereafter, the inspector of institutional services has fourteen days to

provide the inmate with a written response to the notification of grievance that “summarize[s] the

inmate’s complaint, describe[s] what steps were taken to investigate the complaint and the

inspector of institutional service[s]’s findings and decision.” Id. Upon notice to the inmate, the

inspector of institutional services may extend the time to provide such a response by up to fourteen

days. Id. However, if a response has not been provided within twenty-eight days from the receipt

of the grievance, the inmate may proceed to step three of the grievance procedure. Id.

Finally, if otherwise dissatisfied at step two, the inmate may proceed to step three by

submitting an appeal to the office of the chief inspector at ODRC within fourteen days of the date

of the grievance disposition. O.A.C. § 5120-9-31(K)(3) (eff. May 1, 2008). Decisions of the chief

inspector are final, meaning that the O.A.C. provides no further means for appeal. Id.

In this case, the allegations in Plaintiff’s Complaint appear to be initially raised in three

separate informal complaints: (1) the March 31, 2019 informal complaint against Defendants

Paddock and Frye regarding the March 18, 2019 incident and confiscation of his documents with

STG content; (2) the April 13, 2019 informal complaint regarding Defendant Kammer asking

Plaintiff to sign the conduct report for the Rule 17 violation; and (3) the May 24, 2019 informal

complaint regarding Plaintiff’s missing property from the April 18, 2019 pack-up and his transfer

from LOCI to RCI on May 16, 2019. See Doc. #4, PageID #s 149-62; Doc. #152-1, PageID #s

2570-75.

According to Defendants, the grievance process was available to Plaintiff at all times and

his failure to comply with this mandatory process merits granting summary judgment in their favor.

(Doc. #152, PageID #s 2540-41). In support, Defendants provided the affidavit of ODRC Assistant

Chief of the Chief Inspector’s Office Emma Collins, who is the custodian of grievance records.

(Doc. #152-1, PageID #s 2566-68). In her affidavit, Ms. Collins attests that she oversees the

grievance procedure at LOCI and has personal knowledge of the grievances initiated by Plaintiff

in 2019. Id. at 2566-67. Specifically, with regard to Plaintiff’s March 31, 2019 informal complaint,

Ms. Collins attests that it was successfully escalated to a formal grievance on April 11, 2019. Id.

at 2566. However, by not filing an appeal with the Office of the Chief Inspector after Defendant

Kammer responded to his formal grievance on April 12, 2019, Plaintiff failed to complete the

mandatory third step in the grievance process. Id.

As for Plaintiff’s April 13, 2019 informal complaint, Ms. Collins attests that Defendant

Kammer responded on April 18, 2019 but Plaintiff did not file the notification of grievance, and,

therefore, did not continue to the second step of the grievance process. Id. at 2567.

Finally, in reference to Plaintiff’s May 24, 2019 informal complaint regarding his missing

property from the April 19, 2019 pack-up and the May 16, 2019 transfer, Ms. Collins attests that

while the informal complaint does not reference Defendant Preston, Plaintiff successfully

escalated the complaint through all three steps of the grievance process. Id. Here, Ms. Collins also

verified that Plaintiff successfully exhausted his administrative process on three out of the five

occasions in 2019, thereby demonstrating that he was aware of how to properly use grievance

procedures. Id. Further, attached to Ms. Collins’ affidavit is a verified copy of Plaintiff’s grievance

history from 2019 that substantiates her attestations. See id. at 2569-79.

In response, Plaintiff disputes Defendants’ position that he failed to comply with the

grievance process and declares that Ms. Collins’ affidavit constitutes perjury. See Doc. #155,

PageID #s 2595-96; Doc. #173, PageID #s 2983-84; Doc. #173-1, PageID #3014. Specifically,

with regard to his March 31, 2019 informal complaint, Plaintiff asserts that “on 4/8/2019 the

defendant defaulted by failing to respond.” (Doc. #155, PageID #2595; see also Doc. #173,

PageID #s 2983-84; Doc. #173-1, PageID #3014). Thus, according to Plaintiff, Defendant

Kammer’s failure to respond to Plaintiff’s informal complaint with a disposition “made escalation

to appeal unavailable.” (Doc. #173, PageID #2983). While Plaintiff acknowledges that Defendant

Kammer responded on April 11, 2019, he contends that the response was untimely and that

Defendant Kammer had already “defaulted.” Id. at 2983-84. Here, Plaintiff also criticizes Ms.

Collins’ affidavit for only referring to Defendant Kammer’s April 11, 2019 response and not

recognizing that Defendant Kammer had failed to provide a timely response three days prior. Id.

at 2984; see also Doc. #173-1, PageID #3014. Further, Plaintiff argues that Ms. Collins’s

statements that he was able to exhaust his administrative remedies later in 2019 only serve to

demonstrate that the grievance procedure was available at RCI but not at LOCI. Id. at 2983-84.

Finally, Plaintiff contends that he nonetheless tried to appeal his March 31, 2019 and April 13,

2019 informal complaints and attaches what purports to be letter to the chief inspector requesting

these appeals. See id. at 2984 (citing Doc. #173-1, PageID #3005). The accompanying mail slip

has a handwritten date of February 11, 2019 and a RCI receipt stamp of February 13, 2020. (Doc.

#173-1, PageID #3004).

Plaintiff’s arguments are unavailing for several reasons. As an initial matter, Plaintiff’s

argument that Defendant Kammer’s failure to timely respond to his March 31, 2019 informal

complaint constituted “default” and, thereby excused his performance at step three is based on a

misunderstanding of the grievance procedure. Indeed, it is undisputed that Defendant Kammer did

not respond to Plaintiff’s informal complaint within the prescribed seven-day period. However,

this failure did not serve to excuse Plaintiff from completing the rest of the process but, instead,

served to “automatically waive[]” the first step and allow Plaintiff to proceed to step two. O.A.C.

§ 5120-9-31(K)(1) (eff. May 1, 2008). Accordingly, as reflected on the grievance history report

and acknowledged by Defendants, Plaintiff’s March 31, 2019 informal complaint was escalated to

a formal grievance when ODRC failed to timely respond. (Doc. #152-1, PageID #s 2566, 2570-

71). Defendant Kammer timely responded to this grievance on April 12, 2019. Id. Thus, Plaintiff’s

subsequent failure to appeal to the chief inspector, see id., demonstrates that Plaintiff failed to

exhaust his March 31, 2019 informal complaint.

Further, Plaintiff’s statements that the grievance appeal process was not available at LOCI

and/or while in LPH is not supported by the record. In this case, apart from the unsworn assertions

contained in his summary judgment briefings, Plaintiff does not present any evidence in support

of his claim that the grievance process was unavailable to him at LOCI and/or while in LPH.4 See

Maston v. Montgomery Cnty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 851-52 (S.D. Ohio 2011)

(pro se party cannot rely on allegations in unsworn filings).

Additionally, the declaration that Plaintiff provides to challenge the integrity of Ms.

Collins’ affidavit offers no more than unsupported, conclusory allegations and, therefore, also fails

to establish that the Defendants hindered Plaintiff’s ability to exhaust the grievance process. The

Sixth Circuit requires an affidavit to contain a certain baseline level of specificity. See, e.g., Pierce

v. Rowland, No. 20-5731, 2021 WL 3929549, at *4 (6th Cir. Sept. 2, 2021) (citing Revis v.

Meldrum, 489 F.3d 273, 287-88 (6th Cir. 2007)) (“[A] plaintiff cannot create a fact dispute by

submitting an affidavit chock full of conclusory allegations.”); Chambers v. Hardy, No. 19-5201,

2019 WL 8138590, at *4 (6th Cir. Oct. 30, 2019) (inmate’s statements that he “attempted to

exhaust” his administrative remedy and “filed a BP-11 and never heard any response on it” were

4 The undersigned also notes that the O.A.C. specifically provides that “Inmates may utilize the inmate grievance

procedure regardless of any disciplinary status, or other administrative or legislative decision to which the inmate

may be subject.” O.A.C. § 5120-9-31(D) (eff. May 1, 2008).

“vague and unsupported by specific facts” necessary to defeat an otherwise proper summary

judgment motion); Belser v. James, No. 16-2578, 2017 WL 5479595, at *2 (6th Cir. June 6, 2017)

(inmate’s statements that a grievance coordinator “would not process none of the grievances” and

“came to [the inmate’s] cell and told [him] to sign off on the grievance and that nothing was going

to be done[;]” that he received “no response” from the grievance coordinator after “several kites[;]”

and that the grievance coordinator “would not process or give an identifier number for some of the

grievances” were too “generalized” to create a genuine issue of material fact).

Further, even if there were evidence to support Plaintiff’s claim that the appeal process was

made unavailable to him, the Sixth Circuit still requires prisoners to make “affirmative efforts to

comply with the administrative procedures before analyzing whether the facility rendered these

remedies unavailable.” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (quoting Napier, 636 F.3d

at 223). Accordingly, “[w]hen a prisoner makes affirmative efforts to comply but does not

succeed,” the inquiry turns on “whether those efforts to exhaust were sufficient under the

circumstances.” Id. (quoting Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011)) (internal

quotation marks omitted). Here, the only evidence that Plaintiff relies upon in support of his claim

that he tried to appeal his grievances is an unauthenticated and undated exhibit containing what

purports to be a letter to the chief inspector requesting appeals of his March 31, 2019 and April

13, 2019 informal complaints. See Doc. #173-1, PageID #3005. While the letter itself is undated,

the accompanying mail slip indicates that the letter was received by RCI’s mail clerk on February

13, 2020,5 which is almost a year after the informal complaints at issue were initiated. See Doc.

#155-9, PageID #2774; Doc. #173-1, PageID #s 3004-05. Accordingly, even if this letter were

5 The handwritten date on the mail slip indicates that it was sent on February 11, 2019. (Doc. #173-1, PageID #3004).

However, given that the letter addressed Plaintiff’s informal complaints from March 31, 2019 and April 13, 2019, the

undersigned interprets the reference to 2019 as a typographical error.

accepted as a credible source, the significant lapse in time alone would make the letter “insufficient

under the circumstances” to demonstrate that Plaintiff made “affirmative efforts” to exhaust his

remedies. See Lee, 789 F.3d at 677.

In short, Plaintiff’s statements and declarations are insufficient to create a genuine issue of

material fact that Plaintiff appealed these grievances or that the grievance procedure was rendered

unavailable to him.

Moreover, on this record, the undersigned finds that Defendants have submitted evidence

of non-exhaustion of the claims arising out of the March 18, 2019, April 9, 2019, and the April 19,

2019 incidents such that “no reasonable jury could find that the plaintiff exhausted his

administrative remedies.” Mattox, 851 F.3d at 590. Specifically, the undisputed evidence

establishes that Plaintiff’s claims arising out of the March 18, 2019 incident were documented in

an informal complaint filed by Plaintiff on March 31, 2019. (Doc. #4, PageID #s 149-50; Doc.

#152-1, PageID #s 2566, 2570). This informal complaint was then escalated to a formal grievance

on April 11, 2019 when ODRC failed to timely respond. (Doc. #152-1, PageID #s 2566-67, 2570-

72). On April 12, 2019, Defendant Kammer timely responded to the formal grievance. Id.

Thereafter, Plaintiff did not appeal the disposition of the formal grievance and, therefore, failed to

complete the third step in the grievance process. See id.; see also O.A.C. § 5120-9-31(K)(2)-(3)

(eff. May 1, 2008).

Similarly, the undisputed evidence establishes that Plaintiff documented his claims arising

out of the April 9, 2019 conduct report against Defendant Kammer in an informal complaint filed

on April 13, 2019. (Doc. #152-1, PageID #s 2567, 2573). Defendant Kammer timely responded

to this informal grievance on April 18, 2019. Id. Since Plaintiff did not subsequently file a

notification of grievance, he failed to complete the second step of the grievance process. See id.;

see also O.A.C. § 5120-9-31(J)(1)-(2) (eff. April 5, 2019).

Lastly, the undisputed evidence establishes that Plaintiff documented his claims against

Defendant Preston regarding the April 19, 2019 pack-up in an informal complaint filed on May

24, 2019. (Doc. #152-1, PageID #s 2567, 2574). This informal complaint also included separate

allegations regarding Plaintiff’s missing property resulting from his transfer from LOCI to RCI on

May 16, 2019. Id. Thus, while the informal complaint was timely filed (and ultimately exhausted)

on Plaintiff’s claims related to his May 16, 2019 transfer, the claims related to the April 19, 2019

pack-up that is at issue in this case were not filed within the fourteen-day window prescribed by

O.A.C. § 5120-9-31(J)(1) (eff. April 5, 2019). See id. Accordingly, Plaintiff’s failure to timely file

his informal complaint on the claims stemming from the April 19, 2019 pack-up also demonstrate

that he did not comply with grievance procedure. See id.; see also O.A.C. § 5120-9-31(J)(1) (eff.

April 5, 2019).

Again, proper exhaustion “demands compliance with an agency’s deadlines and other

critical procedural rules” so that the adjudicative system can function effectively. Woodford, 548

U.S. at 90-91. Further, “[t]here is no question that exhaustion is mandatory under the PLRA and

that unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211. Accordingly, the

undersigned finds that Plaintiff failed to exhaust his administrative remedies pursuant to the

mandatory PLRA requirements with respect to the claims arising out of the incidents at issue in

this case.

For these reasons, the undersigned RECOMMENDS that Defendants’ motion for

summary judgment on administrative exhaustion be GRANTED. However, in the event that

District Judge Watson disagrees with this analysis, the undersigned will also consider the merits

on the remainder of Plaintiff’s claims.

C. Retaliation under the First Amendment

Both Plaintiff and Defendants move for summary judgment on Plaintiff’s retaliation

claims. (Doc. #152, PageID #s 2541-43; Doc. #155, PageID #s 2596-98, 2601). Retaliation based

upon a prisoner’s exercise of his constitutional rights violates the Constitution. See Thaddeus–X v.

Blatter, 175 F.3d 378, 394 (6th Cir. 1999). To state a retaliation claim, a plaintiff must allege three

elements: (1) that he was engaged in protected conduct; (2) an adverse action was taken against

him that would deter a person of ordinary firmness from continuing to engage in that conduct; and

(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct. Id.

In this case, Plaintiff generally alleges multiple instances of retaliation against Defendants.

(Doc. #4, PageID #s 153, 154, 156, 161, 178). Specifically, Plaintiff’s Complaint appears to allege

several adverse actions taken against him as a result of him filing an informal complaint at the

prison kiosk, including the confiscation of his legal materials containing STG content; the issuance

of the first conduct report; his subsequent sentence to LPH; the strip-search conducted prior to his

LPH sentence; the issuance of the second conduct report; the subsequent confiscation of his

property that was over the permitted limit; and his transfer to RCI. See id.6

In applying these elements to Plaintiff’s claims, the parties do not dispute that Plaintiff

engaged in protected conduct to the extent that he was working on legitimate legal work and by

6 In his motion for summary judgment, Plaintiff also alleges that “[t]he withholding of the results of the FBI, BCI

investigation/ exoneration[] was adverse action[] because [] during [the November 12, 2021] proceedings[,] plaintiff

learned that the defendants initiated a criminal investigation with the FBI, BCI, etc…” (Doc. #155, PageID #2596);

See also Doc. #167, PageID #s 2948-49, 2951; Doc. #173, PageID #2977. However, as outlined in the Preliminary

Matters section above, this claim fails for two reasons. First, this was not an adverse action alleged in his Complaint.

See Doc. #4. Second, this Court has already determined that no documents were withheld by Defendants or their

counsel and that no external investigation ever occurred. (Doc. #147).

filing the informal complaint. (Doc. #152, PageID #2541). See Herron v. Harrison, 203 F.3d 410,

415 (6th Cir. 2000) (“An inmate has an undisputed First Amendment right to file grievances

against prison officials on his own behalf.”); see also Clark v. Johnston, 413 F. App’x 804, 814

(6th Cir. 2011) (recognizing that inmates enjoy a First Amendment right to file grievances against

prison staff). Accordingly, Plaintiff’s conduct is sufficient to establish the first element of a

retaliation claim.

The second prong of a retaliation claim evaluates whether there was an adverse action taken

against the plaintiff. As noted above, Plaintiff identifies numerous events that he believes to

constitute adverse action. Of these events, the undersigned finds that each could arguably

constitute adverse action with the exception of his transfer to RCI. Indeed, the Sixth Circuit has

routinely held that, absent extraordinary circumstances, transfer to another prison is not considered

adverse for purposes of establishing a retaliation claim. See e.g., Smith v. Yarrow, 78 F. App’x

529, 543 (6th Cir. 2003); LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013); Mandela v.

Campbell, 181 F.3d 102 (Table) (6th Cir. 1999). As Plaintiff has not alleged any extraordinary

circumstances arising from his transfer from LOCI to RCI, it cannot be found to constitute an

adverse action. However, assuming arguendo that Plaintiff’s allegations related to the confiscation

of his property, the issuance of the conduct reports, his sentence to LPH, and the subsequent strip-

search constituted adverse actions, the undersigned finds that the second element is met and will

proceed to the final step.

The third and last prong of a retaliation claim is causation. Defendants challenge Plaintiff’s

ability to produce evidence of a “causal connection” between the first two elements of his

retaliation claim. Under the third element, “the subjective motivation of the defendants is at issue.”

Thaddeus-X, 175 F.3d at 399. Notably, “conclusory allegations of retaliatory motive ‘unsupported

by material facts will not be sufficient to state ... a claim under § 1983.’” Harbin–Bey, 420 F.3d at

580 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)). “[A]lleging merely the

ultimate fact of retaliation is insufficient.” Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987).

Instead, retaliation claims must include a “chronology of events from which retaliation may

plausibly be inferred.” Ishaag v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995) (quoting Cain v.

Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988)).

Apart from his conclusory allegations that he was retaliated against for utilizing the

grievance procedure, Plaintiff’s Complaint fails to include any factual allegations suggesting that

Defendants were motivated by protected conduct. Similarly, Plaintiff’s summary judgment

briefings also fail to demonstrate such a causal connection. In fact, Plaintiff’s summary judgment

briefings largely focus on Plaintiff’s mistaken belief that an external investigation conducted by

the FBI and BCI exonerated him. See Doc. #155, PageID #s 2597-98; Doc. #167, PageID #s 2948-

51; Doc. #173, PageID #s 2976-77. According to Plaintiff, Defendants’ failure to turn over the

results of this external investigation demonstrates that their adverse actions were motivated by the

filing of his informal complaint. See id. However, as explained in the Preliminary Matters section

above, the Court has already found Plaintiff’s contentions that he was exonerated by an external

investigation to be unsubstantiated. Further, these allegations were not raised in Plaintiff’s

Complaint. Here, it is also noted that Plaintiff’s contentions that he did not receive the results of

the internal investigation, (Doc. #167, PageID #s 2949-52; Doc. #173, PageID #s 2976-77), are

without support. Instead, the undisputed evidence demonstrates that Plaintiff received the conduct

reports for both the Rule 17 and Rule 51 violations, which detail the facts of the underlying

violations as well as the dispositions. (Doc. #4, PageID #s 150, 158-60, 187, 198). As such, these

unsupported allegations fail to raise a genuine issue as to a causal connection between Defendants’

purported adverse actions and Plaintiff’s protected conduct.

Moreover, a review of the record demonstrates that no such causal connection exists. For

instance, Plaintiff’s claim that Defendant Paddock retaliated against him by taking his legal

materials with STG content as a result of him filing an informal complaint is contradicted simply

by the sequence of the events alleged. Indeed, the undisputed evidence establishes that Plaintiff’s

STG documents were taken on March 18, 2019, which was before Plaintiff initiated his informal

complaint at the prison kiosk on March 31, 2019. (Doc. #4, PageID #s 148-53, 187). Thus, the

evidence demonstrates a chronology of events that is inconsistent with Plaintiff’s argument that

Defendant Paddock’s confiscation of his legal materials containing STG content was motivated by

the filing of his informal complaint at the prison kiosk. Therefore, Defendant Paddock is entitled

to summary judgment on Plaintiff’s retaliation claim.

Additionally, Defendant Kammer’s issuance of the conduct report was a direct result of

Plaintiff’s violation of Rule 17 for possessing the STG content. Indeed, Defendant Kammer states

in the conduct report that the documents suspected as containing STG content were found in

Plaintiff’s possession on March 18, 2019 and that the subsequent investigation revealed that the

documents were, in fact, associated with the unauthorized group, the sovereign citizens. Id. at 187.

As stated in the conduct report, Rule 17 prohibits inmates from “[e]ngaging in unauthorized group

activities as set forth in paragraph (B) of [O.A.C. §] 5120-9-37[,]” which extends to an inmate

knowingly or intentionally “[p]ossessing […] any material related to an unauthorized group.” Id;

see also O.A.C. § 5120-9-06(C)(17). Having reason to believe that Plaintiff violated Rule 17,

Defendant Kammer reasonably issued a conduct report pursuant to O.A.C. § 5120-9-07(B), and

the matter was referred to the RIB for a hearing. Id. Finally, while Plaintiff chose not to participate

in the proceedings, the RIB (as opposed to Defendant Kammer or any other Defendant named in

this case) found Plaintiff guilty of violating Rule 17 and sentenced him to LPH for 90 days under

O.A.C. § 5120-9-09(A)(4). (Doc. #4, PageID #s 190-196). Accordingly, despite Plaintiff’s

unsupported claims otherwise, the alleged adverse actions of Defendant Kammer’s conduct report

and the RIB’s sentence to LPH were not motivated by the filing of Plaintiff’s grievance on March

31, 2019. Instead, the evidence of record demonstrates that the incidents were the direct result of

Plaintiff’s possession of STG contraband on March 18, 2019, which constituted a rule violation.

Therefore, Defendant Kammer is entitled to summary judgment on Plaintiff’s retaliation claim.

Similarly, Defendant Preston’s pack-up of Plaintiff’s over-the-limit property was a direct

result of his violation of Rule 51. As explained in Defendant Preston’s conduct report, Plaintiff’s

cell contained legal materials and personal property in excess of the 2.4 cubic feet of property

permitted by O.A.C. § 5120-9-33. Id. at 198. With the exception of one legal box, Plaintiff appears

to acknowledge that the property exceeded the permitted amount but nonetheless maintains that

the pack-up was performed in retaliation for his informal complaint. Id. at 158-160. Again,

Plaintiff fails to allege any facts or present any evidence that would support a finding that his filing

of the informal complaint motivated Defendant Preston to confiscate Plaintiff’s property. Rather,

the undisputed evidence supports a finding that, following Plaintiff’s assignment to LPH,

Defendant Preston was sent to Plaintiff’s cell to move his belongings and found that the property

exceeded the permitted amount, in violation of Rule 51. (Id. at 158-60, 198; Doc. #155-6, PageID

#2654). As a result, Defendant Preston issued a conduct report and confiscated Plaintiff’s over-

the-limit property on the basis of the rule violation and not in retaliation for Plaintiff utilizing the

grievance procedure. Thus, Defendant Preston is entitled to judgment as a matter of law with

respect to Plaintiff’s retaliation claim.

Finally, to the extent that Plaintiff alleges general claims of retaliation against

“Defendants” collectively, his claims fail as a matter of law. Again, in order to maintain a § 1983

claim, a Plaintiff must make a clear showing that each named defendant was personally involved

in the activity that forms the basis of the complaint. See e.g., Lanman v. Hinson, 529 F.3d 673, 684

(6th Cir. 2008) (“claims against government officials arising from alleged violations of

constitutional rights must allege, with particularity, facts that demonstrate what each defendant

did to violate the asserted constitutional right”); Marcilis v. Twp. of Redford, 693 F.3d 589, 596–

97 (6th Cir. 2012) (“[C]ategorical references to ‘Defendants’” do not meet this standard.).

Accordingly, Plaintiff’s general claims that “Defendants” retaliation against him are insufficient.

As such, the undersigned RECOMMENDS that Defendants’ motion for summary

judgment on Plaintiff’s retaliation claims be GRANTED and that Plaintiff’s motion on these

claims be DENIED.

D. Access-to-Courts under First Amendment

The parties have also moved for summary judgment on Plaintiff’s claim regarding his First

Amendment “access to courts” claims. (Doc. #152, PageID #s 2547-48, PageID #s 1223-25; Doc.

#155, PageID #s 2598-2601). According to Plaintiff, Defendants “prevented Plaintiff from due

[diligence] in his criminal case OSCR-10-7130.” (Doc. #4, PageID #165). Specifically, he alleges

that his access to the courts was violated by Defendants Paddock’s and Frye’s confiscation of his

STG legal materials, Defendant Preston’s confiscation of his over-the-limit legal materials, and

the RCI Warden’s policy restrictions on legal books and time in the library. Id. at 165-166, 169-

180.

Although prisoners have a constitutional right of access to the courts, “meaningful access

will vary with the circumstances, and officials are to be accorded discretion in determining how

that right is to be administered.” Bounds v. Smith, 430 U.S. 817, 821, 830-31, 97 S.Ct. 1491

(1977); John L. v. Adams, 969 F.2d 228, 233-34 (6th Cir. 1992). An inmate who claims his access

to the courts was denied merely because he was denied access to the prison library fails to state a

claim. Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985). Rather, the inmate “must go one

step further and demonstrate that the alleged shortcomings in the library or legal assistance

program hindered his efforts to pursue a [non-frivolous] legal claim.” Lewis v. Casey, 518 U.S.

343, 351, 116 S.Ct. 2174 (1996). In other words, a plaintiff must demonstrate an actual injury. Id.

“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). Additionally,

the underlying action cannot be frivolous. Lewis, 518 U.S. at 353. 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.

Defendants are entitled to summary judgment on Plaintiff’s access-to-court claims for

several reasons. As an initial matter, the only non-frivolous underlying claim that Plaintiff

identifies as being prejudiced by Defendants’ conduct is his criminal appellate proceedings.

However, access-to-courts claims predicated on a challenge to a criminal conviction are barred by

Heck v. Humphrey, 512 U.S. 477 (1994). See Sampson v. Garrett, 917 F.3d 880, 881–82 (6th Cir.

2019) (access-to-courts claim that necessarily relies on invalidity of underlying criminal

conviction is barred by Heck). If Plaintiff wishes to attack the validity of his criminal conviction,

he must do so via proceedings in habeas corpus. Id.

Additionally, to the extent that Plaintiff alleges that Defendants interfered with a non-

frivolous underlying claim other than his criminal appellate proceedings, he has failed to

specifically identify the type of legal proceedings he had pending in the courts. Here, Plaintiff does

not clearly identify an underlying claim other than his criminal appellate proceeding that was

frustrated by the confiscation of his legal materials or limited access to the law library. As such,

he does not have standing to bring an access-to-courts claim as the undersigned has no way of

assessing whether the underlying claim is frivolous. See e.g., Christopher, 536 U.S. at 415 (“[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 more than hope.”); Hadix v. Johnson, 182 F.3d

400, 405-406 (6th Cir. 1999) (“only prisoners with non-frivolous underlying claims can have

standing to litigate an access-to-courts action.”) (citation omitted).

Finally, Plaintiff has failed to demonstrate that he has suffered an actual injury sufficient

to state a viable access-to-courts claim. Instead, he identifies a number of things he “would have”

done or issues he “would have” raised in his criminal case had his legal boxes not been confiscated

and his library time not been limited. (Doc. #4, PageID #s 165-66, 169-79). Therefore, in addition

to being barred by Heck, such hypothetical injuries are insufficient to establish an injury in fact

and, thus, necessitate a finding that Defendants be granted summary judgment.

Accordingly, the undersigned RECOMMENDS that Plaintiff’s motion for summary

judgment on his access-to-courts claims be DENIED and Defendants’ motion for summary

judgment on Plaintiff’s access-to-courts claims be GRANTED. Additionally, the undersigned

RECOMMENDS that these claims be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim upon which relief may be granted.7

E. Unreasonable Search and Seizure under the Fourth Amendment

Both parties also move for summary judgment on Plaintiff’s claim that his rights were

violated under the Fourth Amendment of the Constitution. (Doc. #152, PageID #s 2548-50; Doc.

#155, PageID #s 2602, 2604-06). In his Complaint, Plaintiff alleges that his rights were violated

by a strip search conducted after the RIB hearing on April 18, 2019 that constituted an illegal

search and seizure. (Doc. #4, PageID #s 153-54).

The Fourth Amendment to the United States Constitution protects individuals “against

unreasonable searches and seizures.” U.S. Const. Amend. IV. However, in a prison environment,

an inmate’s right to privacy is greatly diminished because prison officials must be afforded

discretion on how they ensure the safety of inmates, staff, and the general public. Wilkinson v.

Austin, 545 U.S. 209, 227, 125 S.Ct. 2384 (2005). Thus, to satisfy Fourth Amendment concerns,

searches “must be conducted in a reasonable manner.” Bell v. Wolfish, 441 U.S. 520, 560 (1979).

A search conducted in an abusive fashion “cannot be condoned.” Id. The Sixth Circuit has

recognized that any type of “strip search”8 is far more intrusive than a mere cell search or other

“pat-down” body search. See Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 572-573 (6th

Cir. 2013).

7 Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental

entity,” and is proceeding in forma pauperis, the Court must, at any time, dismiss the Complaint, or any portion of it,

that 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). Accordingly, the undersigned also uses his

authority to dismiss these allegations for failing to state a claim upon which relief may be granted. Id.

8The term “strip search” is often used as an “umbrella term” that encompasses a variety of behaviors, ranging from

the conduct described in Stoudemire (stripping to underwear), to a visual inspection of a fully naked individual without

scrutiny of body cavities, to a visual body-cavity search which may include inspection of anal and genital areas. The

most invasive type of “strip search” would be a manual body-cavity search, involving “some degree of touching or

probing of body cavities.” Parkell v. Danberg, 833 F.3d 313, 327 (3rd Cir. 2016).

In considering whether a particular search is reasonable, courts balance the prison’s need

for the search with the “invasion of personal rights that the search entails.” Salem v. Michigan

Dep’t of Corr., 643 F. App’x 526, 530 (6th Cir. 2016) (quotation marks and citations omitted).

Specifically, courts “consider the scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in which it is conducted, while also

examining obvious, easy alternatives that accommodate the inmate’s privacy interests at little cost

to valid penological objectives.” Id. (quotation marks and citations omitted). Notably,

“‘detect[ing] and deter[ing] the possession of contraband’” is a legitimate penological objective.

Stoudemire, 705 F.3d at 573 (quoting Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 132 S. Ct. 11510, 1517 (2012)). Thus, in the absence of evidence to the contrary, courts

“must assume that a search of a prisoner is initiated in an effort to detect and deter contraband.”

Id.

In this case, Defendants do not deny that the strip search occurred but maintain that a search

following a finding of contraband is routine LOCI policy. (Doc. #152, PageID #2549) (citing Doc.

#152-1, PageID #2586). Indeed, in pleading the claim, Plaintiff acknowledged that the purpose of

strip search was to look for contraband, explaining that he was taken from the RIB proceeding and

put in a holding cell where he was stripped of his clothes and legal papers and “made to bend over

and lift and spread private parts for the officers to examine for contraband[.]” (Doc. #4, PageID

#154). In his motion for summary judgment, Plaintiff also does not appear to contest that the strip

search was conducted for purpose of detecting contraband but, instead, argues that “[t]here is no

routine search when [he] was exonerated.” (Doc. #155, PageID #2606). However, as previously

established by the Court, Plaintiff’s arguments regarding an alleged exoneration by the FBI or BCI

are without merit as they have been found to be unsubstantiated by credible evidence. Moreover,

Plaintiff’s argument fails to address his own admissions that the strip search was conducted for the

purpose of detecting or deterring contraband, a legitimate penological objective. See Stoudemire,

705 F.3d at 573.

Nonetheless, recognizing that a strip search is inherently intrusive, the undersigned also

points out that Plaintiff has failed to allege any facts suggesting that the search of his person was

conducted in an overly intrusive manner or in a place where he was overly exposed to public view.

Contrast Stoudemire, 705 F.3d at 575 (double amputee female inmate stated claim for “humiliating

strip search in full view of several (or perhaps many) others”); see also Salem v. Mich. Dept. of

Corr., 643 F. App’x. 526 (6th Cir. 2016) (defendant not entitled to qualified immunity where strip

search of female inmates required them to sit on an unwashed chair wet with bodily fluids from

other prisoners and spread their labia in full public view of others, without a legitimate penological

justification for public and unsanitary conditions). Instead, Plaintiff alleges in a conclusory fashion

that “this search was a[n] illegal search and seizure[]” and that “[n]othing of contraband was

found.” (Doc. #4, PageID #154). Finally, Plaintiff’s claim that this search was unreasonable is

particularly without merit given his acknowledgement that the prison officials conducted the

search in an effort to detect contraband following a RIB proceeding where Plaintiff was found

guilty of possessing STG contraband. Construing all the facts in Plaintiff’s favor, the undersigned

finds that Plaintiff’s allegations are insufficient to state a claim under the Fourth Amendment, let

alone compel summary judgment in his favor.

Therefore, the undersigned RECOMMENDS that the Court DENY Plaintiff’s request for

summary judgment on his strip-search claim under the Fourth Amendment and GRANT the

Defendants’ motion for summary judgment on this claim. The undersigned also RECOMMENDS

that the Court DISMISS the claim for failure to state a claim upon which relief may be granted.9

F. Cruel and Unusual Punishment under the Eighth Amendment

Both parties also move for summary judgment on Plaintiff’s claims that his rights were

violated under the Eighth Amendment. (Doc. #152, PageID #s 2548-50; Doc. #155, PageID #s

2602, 2604-06). In his motion for summary judgment, Plaintiff alleges that his Eighth Amendment

rights were violated when he was subjected to a strip-search following the RIB hearing on April

18, 2019 and when the Defendants labeled him as a sovereign citizen. (Doc. #155, PageID #s

2604-06). While these claims do not appear to be clearly alleged in Plaintiff’s Complaint, the

undersigned finds that a very liberal construction of his Complaint warrants addressing these

claims.

The Eighth Amendment protects all people from “cruel and unusual punishments.” U.S.

Const. Am. VIII. With regard to the treatment of inmates in prison “[t]he Constitution ‘does not

mandate comfortable prisons,’ but neither does it permit inhumane ones, and... ‘the treatment a

prisoner receives in prison and the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976

(1994) (first quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981), then quoting Helling v.

McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 2480 (1993)). “A prison official’s ‘deliberate

indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”

Id. at 828 (citations omitted).

9 Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental

entity,” and is proceeding in forma pauperis, the Court must, at any time, dismiss the Complaint, or any portion of it,

that 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). Accordingly, the undersigned also uses its

authority to dismiss these allegations for failing to state a claim upon which relief may be granted. Id.

The Eighth Amendment’s deliberate indifference framework includes both an objective

and subjective prong. Id. at 834; Helling, 509 U.S. at 35-37. To satisfy the objective prong, an

inmate must show “that he is incarcerated under conditions posing a substantial risk of serious

harm.” Farmer, 511 U.S. at 834. The subjective component, on the other hand, requires inmates

to show that prison officials knew of and disregarded an excessive risk, thereby acting with

deliberate indifference. Smith v. DeWine, 476 F. Supp. 3d 635, 661 (S.D. Ohio 2020) (citing

Farmer, 511 U.S. at 834, 837-38). Under the subjective prong, an official must “know[ ] of and

disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.

Strip-search

In his motion for summary judgment, Plaintiff argues that the strip-search conducted after

the RIB hearing on April 18, 2019 violated his Eighth Amendment rights. (Doc. #155, PageID #s

2605-06). According to Plaintiff, following the hearing, he was forced “to bend over and spread

his rectum with his own fingers, as the officer continued saying I can[’]t see[,] I can[’]t see[,] I

still can[’]t see[,] forcing plaintiff to hurt himself by spreading wider, physically and mentally[]”

and leading to Plaintiff to cry. Id.

Based on the foregoing, Plaintiff’s claim that the April 18, 2019 strip-search violated his

Eighth Amendment rights is without merit. In contrast to the Fourth Amendment, which assesses

whether the search is objectively unreasonable, a search is only considered to violate the Eighth

Amendment if it constitutes “cruel and unusual punishment,” meaning that the official conducting

the search acted “with a sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 300

(1991). As one court explained:

The Fourth and Eighth Amendments have different roles to play with

respect to bodily searches and protect different categories of constitutional

rights. The Eighth Amendment safeguards prisoners against the use of

searches that correctional officers subjectively intend as a form of

punishment.

Henry v. Hulett, 969 F.3d 769, 781 (7th Cir. 2020) (en banc) (internal citation omitted).

As set forth above, the Eighth Amendment deliberate indifference framework requires that

a plaintiff demonstrate that he faced conditions posing a substantial risk of serious harm, but also

that prison officials knew of and disregarded an excessive risk. Smith, 476 F. Supp 3d at 661. In

this case, Defendants do not deny that a routine strip-search occurred but, instead, point out that

there are no facts or evidence showing that the search was conducted with a sufficiently culpable

state of mind. (Doc. #152, PageID #2550).

Defendants’ argument is well-taken. Plaintiff clearly cannot satisfy the subjective prong of

the Eighth Amendment deliberate indifference framework. Indeed, Plaintiff has failed to allege the

name of the corrections officer performing the search, let alone facts suggesting that he acted with

a sufficiently culpable state of mind. Even accepting Plaintiff’s allegations as true, the unknown

officer’s statements that he could not see, causing Plaintiff to hurt himself, do not indicate a

“sufficiently culpable state of mind.” Wilson, 501 U.S. at 300. At most, Plaintiff claims that the

unknown officer was negligent in conducting the strip-search. Allegations of negligence fall short

of the deliberate indifference required to state an Eighth Amendment claim. See Farmer, 511 U.S.

at 835 (holding that an Eighth Amendment violation requires a “state of mind more blameworthy

than negligence”).

Thus, viewing the record as a whole, a rational trier of fact could not conclude that

Defendants acted with the requisite intent when performing a routine strip search. Consequently,

Plaintiff’s request for summary judgment on this issue should be denied. Further, Plaintiff’s failure

to allege facts sufficient to state a claim under the Eighth Amendment leads the undersigned to

also recommend dismissal of this claim.

Label as a Sovereign Citizen

In his motion for summary judgment, Plaintiff argues that his Eighth Amendment rights

were violated by virtue of Defendants labeling him as a sovereign citizen. (Doc. #155, PageID #s

2604-05). According to Plaintiff, being labeled as a sovereign citizen has exposed him to

“unreasonable risk of serious harm to be attacked by corrections officers, law enforcement, and

Governmental agencies[.]” Id. at 2605. In support of these claims, Plaintiff asserts that the “Patriot

Act allows law enforcement to go after Sovereign Citizens, domestic terrorist.” Id.10

To establish liability under the Eighth Amendment for a claim based on a failure to prevent

harm to a prisoner, Plaintiff must show that the prison officials acted with “deliberate indifference”

to a substantial risk. Farmer, 511 U.S. at 834; Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir.

1997); Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001). “Lack of due care for a prisoner’s safety

by prison officials is insufficient to support a claim of an Eighth Amendment violation.” Gibson

v. Foltz, 963 F .2d 851, 853 (6th Cir. 1992).

Based on the foregoing, Plaintiff’s Eighth Amendment claim is without merit. Plaintiff has

failed to raise a genuine issue of fact demonstrating that Defendants’ statements that he was a

“sovereign citizen” exposed him to a substantial risk of serious harm or that Defendants knew of

that risk. See Farmer, 511 U.S. at 834, 837. Instead, Plaintiff mistakenly posits that his label as a

“sovereign citizen” permits law enforcement “to go after [him]” under the “Patriot Act.”

Contrary to Plaintiff’s allegations, the Patriot Act limits the definition of “domestic

terrorism” to conduct that (1) “involve[s] acts dangerous to human life that are a violation of the

criminal laws of the United States or of any State;” and (2) “appear[s] to be intended” (a) “to

10 The undersigned understands Plaintiff’s reference to the “Patriot Act” to refer to the Uniting and Strengthening

America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,

115 Stat. 272 (Oct. 26, 2001). For consistency, the undersigned will likewise refer to this legislation as the Patriot Act.

intimidate or coerce a civilian population;” (b) “to influence government policy by intimidation or

coercion;” or (c) “to affect government conduct by mass destruction, assassination, or

kidnapping;” and (3) “occur[s] primarily within the territorial jurisdiction of the United States[.]”

18 U.S.C. § 2331(5). Thus, by the very terms of the Patriot Act, only Plaintiff’s own conduct, not

labels or statements made by others—could subject him to investigation for domestic terrorism.

Further, to state a claim for deliberate indifference under the Eighth Amendment, there

must be some resulting harm stemming from a prison official’s statements about a prisoner. See

Thompson v. Mich. Dep’t of Corr., 25 F. App’x 357, 359 (6th Cir. 2002) (affirming district court’s

dismissal where “[plaintiff’s] claim that he was endangered by being labeled a snitch was

unsupported by any allegation of resultant harm”); Gibbs v. Ball, No. 07–CV–15462–DT, 2009

WL 331604, at *4 (E.D. Mich. Feb. 11, 2009) (no Eighth Amendment violation where plaintiff

was labeled a “rat,” but did not show actual physical injury). Again, although Plaintiff asserts that

he now faces an “unreasonable risk of serious harm[,]” he does not allege, and the record does not

show, that he has actually suffered any harm as a result of this label. As a result, Plaintiff’s claim

that Defendants’ act of labeling him as a sovereign citizen violated his Eighth Amendment rights

fails as a matter of law.

For these reasons, the undersigned RECOMMENDS that the Court DENY Plaintiff’s

request for summary judgment on his Eighth Amendment claims, GRANT Defendants’ motion

for summary judgment on Plaintiff’s Eighth Amendment claims, and further DISMISS the claims

for failure to state a claim upon which relief may be granted.11

11 Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental

entity,” and is proceeding in forma pauperis, the Court must, at any time, dismiss the Complaint, or any portion of it,

that 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). Accordingly, the undersigned also uses his

authority to dismiss these allegations for failing to state a claim upon which relief may be granted. Id.

G. Slavery under the Thirteenth Amendment

Defendants also moves for summary judgment on Plaintiff’s claim under the Thirteenth

Amendment. (Doc. #152, PageID #2550). In his Complaint, Plaintiff alleges that the Defendants

violated the Thirteenth Amendment’s prohibition against slavery and involuntary servitude when

he was sentenced to 90 days of confinement in LPH. (Doc. #4, PageID #177). The Thirteenth

Amendment of the United States Constitution provides:

Neither slavery nor involuntary servitude except as a punishment for crime,

whereof the party shall have been duly convicted, shall exist within the United

States, nor any place subject to their jurisdiction.

The undisputed evidence establishes that Plaintiff’s confinement in prison occurred as the

result of his state court conviction and that his confinement in LPH occurred as the result of an

RIB proceeding finding him guilty of Rule 17. In both instances, Plaintiff was duly convicted.

Moreover, Plaintiff fails to allege facts showing that he was forced into anything constituting

involuntary servitude. Thus, pursuant to the express language of the Thirteenth Amendment,

Plaintiff’s claim fails as a matter of law.

Therefore, because Plaintiff has failed not only to establish that he is entitled to judgment

as a matter of law but has also failed to allege a claim for which relief can be granted, the

undersigned RECOMMENDS that Defendants’ motion for summary judgment on his Thirteenth

Amendment claim be GRANTED and this claim further be DISMISSED pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.12

12 Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental

entity,” and is proceeding in forma pauperis, the Court must, at any time, dismiss the Complaint, or any portion of it,

that 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). Accordingly, the undersigned also uses its

authority to dismiss these allegations for failing to state a claim upon which relief may be granted. Id.

H. Due Process under the Fourteenth Amendment

Both Plaintiff and Defendants also move for summary judgment on Plaintiff’s due process

claims. (Doc. #152, PageID #s 2544-47; Doc. #155, PageID #2602). In his Complaint, Plaintiff

alleges multiple due process violations associated with the RIB proceedings that were held in

connection to the conduct reports discussed above. In particular, Plaintiff alleges that his

procedural due process rights were violated by the fact that he was not provided with an appeal

process for his grievance; the failure to list the names and titles of documents individually; the lack

of adequate notice and lack of receiving 24-hour notice of a hearing; RIB’s proceeding without

jurisdiction; and the failure to allow witnesses to be called. See Doc. #4, PageID #s 149-58.

Plaintiff’s Complaint can also be liberally construed as alleging due process violations in

connection with his 90-day sentence to LPH, the strip search conducted in preparation for his

transfer, and the confiscation of his property in the pack-up. See id. at 153-54, 158-60. Lastly,

Plaintiff moves for summary judgment on his “stigma plus” claim, alleging that Defendants

violated his due process rights when they labeled him as a “sovereign citizen.” (Doc. #155, PageID

#2606).13 Each of these claims will be addressed in turn.

The Fourteenth Amendment prohibits a state from depriving any person of life, liberty, or

property without due process of law. U.S. Const. amend. XIV, § 1. To prevail on a due process

claim, a plaintiff must first prove that his life, liberty, or property interests were at stake. Wilkinson,

545 U.S. at 221. Prisoners have limited liberty interests because “lawful incarceration brings about

the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the

13 Plaintiff also alleges that his due process rights were violated by convicting him of his rule violation when previously

exonerated by the FBI/BCI. (Doc. #155, PageID #2602). However, as set forth in the Preliminary Matters section

above, this claim fails for two reasons. First, this was not a due process claim alleged in his Complaint. See Doc. #4.

Second, this Court has already determined that no documents were withheld by Defendants or their counsel and that

no external investigation ever occurred. (Doc. #147).

considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293

(1995). “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, an inmate’s only liberty interest protected by the Due Process Clause is

“freedom from restraint which ... imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. “To determine whether

changed conditions are ‘atypical and significant,’ a reviewing court considers both the duration

and the nature of the more restrictive confinement relative to ‘prison norms and to the terms of the

individual’s sentence.’” Id. (quoting Harden–Bey v. Rutter, 524 F.3d 789, 792–93 (6th Cir. 2008)).

RIB Proceedings

As set forth above, the due process claims set forth in Plaintiff’s Complaint largely center

around his dissatisfaction with the RIB proceedings. Specifically, Plaintiff argues that he was not

afforded procedural due process in the course of the RIB proceedings as demonstrated by the lack

of an appeal process for his grievance; the failure to list the names and titles of documents

individually; the lack of adequate notice and lack of receiving 24-hour notice of a hearing; RIB’s

proceeding without jurisdiction; and the failure to allow witnesses to be called. See Doc. #4,

PageID #s 148-154.

In alleging these purported procedural deficiencies, however, Plaintiff has failed to identify

a constitutionally protected liberty interest that the prison disciplinary proceedings implicated.

Indeed, it is well-settled that a plaintiff cannot premise a § 1983 claim on allegations that an

institution’s grievance procedure was inadequate and/or unresponsive because there is no inherent

constitutional right to an effective grievance procedure in the first place. See Hewitt v. Helms, 459

U.S. 460, 467, 103 S.Ct. 864, (1983) (overruled in part on other grounds by Sandin, 515 U.S. 472);

Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.

1994); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). Accordingly, to the extent that Plaintiff’s

due process claims are premised on inadequate procedures during his RIB proceedings, his claims

fail.

LPH Transfer and Strip Search

Additionally, Plaintiff’s subsequent transfer to LPH is insufficient to implicate a

constitutional liberty interest. As a general matter, an inmate’s change in confinement conditions

does not constitute a deprivation of liberty. See e.g., Wilkinson, 545 U.S. at 222–23 (“[T]he

Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse

conditions of confinement.”), Sandin, 515 U.S. at 484-87 (“[D]iscipline in segregated confinement

[does] not present the type of atypical, significant deprivation in which a State might conceivably

create a liberty interest”). Instead, the only circumstances under which being placed in segregation

implicates a liberty interest is when the confinement is an “atypical and significant hardship” in

“extreme circumstances,” such as when the placement in segregation is of indefinite duration or is

excessively long. 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)).

Here, Plaintiff was placed in LPH for 90 days, which is not an indefinite or excessively

long period of time. See Bradley v. Evans, No. 985861, 2000 WL 1277229, at *5–7 (6th Cir. Aug.

23, 2000) (holding that fourteen months in administrative segregation did not constitute an atypical

and significant hardship); see also Perry v. Erdos, No. 1:22-cv-178, 2022 WL 2256901, at *3 (S.D.

Ohio June 22, 2022), report and recommendation adopted, 2022 WL 3083522 (S.D. Ohio Aug. 3,

2022) (citations omitted) (“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”).

Further, Plaintiff’s contention that he suffered an “atypical and significant hardship”

because he was subject to a routine strip search prior to his transfer to LPH is without merit. See

Drummer v. Luttrell, 75 F. Supp. 2d 796 (W.D. Tenn. 1999) (strip search of inmate as part of

disciplinary procedure did not support inmate’s Section 1983 action against corrections officials

alleging due process violations, since officials’ actions did not impose atypical and significant

hardship upon inmate), aff’d, 234 F.3d 1268 (6th Cir. 2000); Fatir v. Phelps, No. CV 18-933-CFC,

2019 WL 2162720, at *8 (D. Del. May 17, 2019) (“a strip search does not, as a matter of law,

impose an atypical and significant hardship in relation to the ordinary incidents of prison life as

required under Sandin in order to constitute a ‘liberty interest’”) (internal citations omitted).

In short, Plaintiff has not identified any “atypical or significant hardships” arising from his

placement within the prison’s LPH sufficient to create a liberty interest. Plaintiff’s Complaint fails

allege that the RIB proceedings resulted in the lengthening of his prison sentence, the withdrawal

of good-time credits, or the deprivation of any necessities of life. In the absence of such

allegations, Plaintiff’s disciplinary sentence to 90 days in LPH is also insufficient to implicate

federal due process concerns.

Confiscation of Property

Similarly, Plaintiff’s claim that his property was taken from him without due process is

without merit. While the Due Process Clause of the Fourteenth Amendment protects against the

unlawful taking of a person’s property by public officers, “[i]f 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 § 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 v. Walton, 721 F.2d 1062, 1066 (6th

Cir. 1983)). 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.

In this case, Plaintiff fails set forth any explanation as to why such state remedies are

inadequate. Instead, Plaintiff simply states that “Post Deprivation Remedies not available” and

affirmatively pleads state law claims related to the deprivation of his property, including theft,

larceny, conversion, and extortion, thus suggesting that he believes such remedies to be adequate

to address his claims. (Doc. #4; PageID #s 159, 176; see also Doc. #155, PageID #2602); see also

Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999) (citing Hudson, 468 U.S. at 534-36)

(“State tort remedies generally satisfy the post[-]deprivation process requirement of the Due

Process Clauses.”). Therefore, Plaintiff’s property claim also fails as a matter of law.

Stigma Plus

Finally, Plaintiff also alleges his rights were violated when he was “ridiculed, slandered,

and defamed by [correction officers] and including the case manager in the LPH/hole who

requested [Plaintiff] to certify his transfer based on a security review.” (Doc. #4, PageID #154).

According to Plaintiff, these correction officers defamed him by referring to him as a “sovereign

citizen….” Id. As stated, Plaintiff’s Complaint appears to only plead a state law claim for

defamation. See id. However, in his motion for summary judgment, Plaintiff argues that these

allegations also support a “stigma plus” claim under the Due Process Clause of the Fourteenth

Amendment. See Doc. #155, PageID #2606. Thus, in liberally construing Plaintiff’s Complaint,

the undersigned will also address Plaintiff’s claim that labeling him as a “sovereign citizen” injured

his reputation in violation of the Due Process Clause.

In Paul v. Davis, the Supreme Court made clear that reputation, standing alone, is not a

constitutionally protected liberty or property interest. 424 U.S. 693, 701, 96 S.Ct. 1155 (1976). In

so finding, the Supreme Court explained:

While we have in a number of our prior cases pointed out the frequently drastic

effect of the “stigma” which may result from defamation by the government in a

variety of contexts, this line of cases does not establish the proposition that

reputation alone, apart from some more tangible interests such as employment, is

either “liberty” or “property” by itself sufficient to invoke the procedural protection

of the Due Process Clause.

Thus, the stigma alleged by plaintiffs does not, without more, impute a liberty

interest sufficient to trigger due process protections. See also Mertik v. Blalock, 983

F.2d 1353, 1362 (6th Cir.1993) (stating “[i]njury to reputation, standing alone, is

not a liberty interest protected by the Fourteenth Amendment”).

Id.

Therefore, consistent with Paul v. Davis, the Sixth Circuit requires that a plaintiff alleging

a stigma plus claim “show that the state’s action both damaged his or her reputation (the stigma)

and that it ‘deprived [him] of a right previously held under state law’ (the plus).” Doe v. Michigan

Dep’t of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (citing Paul, 424 U.S. at 704-05); see also

Dean v. McWherter, 70 F.3d 43, 45 (6th Cir.1995) (The stigma from being labelled mentally ill

“does not, without more, impute a liberty interest sufficient to trigger due process protections.”).

Thus, no matter how derogatory, a statement alone is insufficient to invoke due process concerns.

See e.g., Mertik v. Blalock, 983 F.2d 1353, 1362 (6th Cir. 1993) (“Defamatory publications,

standing alone, do not rise to the level of a constitutional claim, no matter how serious the harm to

reputation.”) (citing Paul, 424 U.S. at 712); Reyes v. Supervisor of DEA, 834 F.2d 1093, 1098 (1st

Cir. 1987) (“The Supreme Court has clearly held that the interest in a good name or good reputation

does not trigger the Due Process Clause, in spite of the fact that branding someone a criminal (or

a terrorist…) entails substantial disadvantages.”) (citing Paul, 424 U.S. at 711–12).

In this case, Plaintiff has failed to sufficiently plead a claim for stigma plus. Nowhere in

his Complaint does Plaintiff allege that Defendants’ labeling him as a “sovereign citizen” resulted

in him being “deprived… of a right previously held under state law.” Doe, 490 F.3d at 502; see

also Zherka v. Amicone, 634 F.3d 642, 645-46 (2d Cir. 2011) (“Hurt feelings or a bruised ego are

not by themselves the stuff of constitutional tort.”). In sum, since Plaintiff does not allege that

Defendants labeling him as a “sovereign citizen” resulted in a deprivation of any liberty or property

protected by due process, he does not state a stigma plus claim for a violation of his due process

rights.

Therefore, because Plaintiff has failed not only to establish that he is entitled to judgment

as a matter of law but has also failed to allege a claim for which relief can be granted, the

undersigned RECOMMENDS that Plaintiff’s motion for summary judgment on his due process

claims be DENIED and Defendants’ motion for summary judgment on Plaintiff’s due process

claims be GRANTED. Additionally, the undersigned RECOMMENDS that these claims be

DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which

relief may be granted.14

I. Qualified Immunity

Defendants also contend that they are entitled to summary judgment on the issue of

qualified immunity for the claims Plaintiff asserts against them in their individual capacities. (Doc.

14 Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental

entity,” and is proceeding in forma pauperis, the Court must, at any time, dismiss the Complaint, or any portion of it,

that 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). Accordingly, the undersigned also uses his

authority to dismiss these allegations for failing to state a claim upon which relief may be granted. Id.

#152, PageID #s 2550-52). Plaintiff does not address these arguments in his summary judgment

briefings, except to note that he had “offered Defendants immunity… but the Defendants refused.”

(Doc. #173, PageID #2980).

Qualified immunity protects government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727

(1982). In so doing, “qualified immunity balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231, 129 S.Ct. 808 (2009).

A governmental official is entitled to immunity if the facts alleged do not make out a

violation of a constitutional right, or if the alleged constitutional right was not clearly established

at the time of the defendant’s alleged misconduct. Id. Additionally, while a defendant bears the

initial burden of pleading the defense of qualified immunity, it is the plaintiff who “bears the

ultimate burden of proof to show that [government officials] are not entitled to qualified

immunity.” Cockrell v. City of Cincinnati, 468 F. App’x 491, 494 (6th Cir. 2012) (quoting

Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005)).

Defendants maintain that they are entitled to qualified immunity on Plaintiff’s claims.

(Doc. #152, PageID #s 2550-52). Thus, the burden shifts to Plaintiff to establish that Defendants

are not entitled to this defense. However, as explained above, Plaintiff has failed to demonstrate

that his constitutional rights have been violated, even when viewed in the light most favorable to

him. As such, Plaintiff is unable to carry his burden of to show that Defendants are not entitled to

qualified immunity.

Accordingly, the undersigned RECOMMENDS that the Court find that Defendants are

immune from Plaintiff’s claims and are entitled to summary judgment in their favor as a matter of

law.

J. Plaintiff’s State Law Claims

Finally, Plaintiff moves for summary judgment on his state law claim of defamation. (Doc.

#155, PageID #s 2602-04). In response, Defendants contend that “Plaintiff has offered no evidence

which demonstrates that the publication of his status as a sovereign citizen damages his reputation,

exposed him to public hatred, contempt, ridicule, shame or disgrace, or affecting his trade, business

or profession.” (Doc. #156, PageID #2833) (citing Jackson v. City of Columbus, 117 Ohio St. 3d

328, 331). Alternatively, Defendants request that all of Plaintiff’s state law claims be dismissed

for lack of subject matter jurisdiction. (Doc. #152, PageID #2552; Doc. #156, PageID #s 2832-

33).

Defendants’ argument is well-taken. As set forth above, Plaintiff has failed to establish that

any of his constitutional rights have been violated. Accordingly, if the Court accepts the foregoing

recommendations, the undersigned RECOMMENDS that the Court also decline to exercise

supplemental jurisdiction over Plaintiff’s state law claims. Harper v. AutoAlliance Int’l, Inc., 392

F.3d 195, 210 (6th Cir. 2004) (although the exercise of supplemental jurisdiction under 28 U.S.C.

§ 1367 is a matter of discretion, when a court dismisses all federal claims before trial, it generally

should dismiss the state law claims as well); Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d

Cir. 1986) (“federal courts, absent exceptional circumstances, should abstain from exercising

[supplemental] jurisdiction when federal claims in a case can be disposed of by summary

judgment.”).

IV. CONCLUSION

For all the foregoing reasons, the undersigned RECOMMENDS that Defendants’ motion

for summary judgment be GRANTED for failure to exhaust administrative remedies under the

PLRA. However, even if the Court does not accept this recommendation, the undersigned further

RECOMMENDS that the Defendants’ motion for summary judgment be GRANTED on all

remaining claims and that Plaintiff’s motion for summary judgment on all claims arising under the

United States Constitution be DENIED. Accordingly, it is RECOMMENDED that:

1. Defendants’ Motion for Summary Judgment (Doc. #152) be

GRANTED in its entirety.

2. Plaintiff’s Motion for Summary Judgment (Doc. #155) be

DENIED on all of Plaintiff’s claims arising under the United

States Constitution;

3. The Court decline to exercise supplemental jurisdiction over

Plaintiff’s remaining state law claims; and

4. This case be TERMINATED on the Court’s docket.

January 31, 2024 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendations. Such objections shall specify the portions of the Report

objected to and shall be accompanied by a memorandum of law in support of the objections. If

the Report and Recommendation is based in whole or in part upon matters occurring of record at

an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless

the assigned District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

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, 949-50 (6th Cir.

1981).