Smith v. Oppy

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

DAVID M. SMITH, : Case No. 2:24-cv-681

:

Plaintiff, :

: District Judge James L. Graham

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

MR. J. OPPY, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATION

Plaintiff, an inmate currently housed at the Mansfield Correctional Institution (MaCI), in

Mansfield, Ohio, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 against officials

of the Ohio Department of Rehabilitation and Correction (ODRC), the Inspector at MaCI, and

personnel at the Southern Ohio Correctional Facility (SOCF), where he was housed prior to MaCI.

Plaintiff alleges retaliatory interference with his property, including his legal documents.1 By

separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915.

This matter is now before the Court for a sua sponte review of the complaint to determine

whether the complaint or any portion of it should be dismissed because it is frivolous, malicious,

fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant

who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. §

1More specifically, plaintiff names as defendants ODRC Assistant Chief Inspector K. Morrow, ODRC Chief Inspector

C. Lambert, MaCI Inspector D. Blankenship, SOCF Acting Deputy Warden/U.M.C. J. Oppy, SOCF Sergeant Chinn

(alternatively spelled “Chann” in the complaint), and SOCF Inspector Parker. (Doc. 1-1, at PageID 9, 12, 15-17).

1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

Screening of Complaint

A. Legal Standard

In enacting the original in forma pauperis statute, Congress recognized that a “litigant

whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an

economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v.

Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To

prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma

pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28

U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when

the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.

Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th

Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or

when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S.

at 327. An action has no arguable factual basis when the allegations are delusional or rise to the

level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199.

The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing

a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,

490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent

2

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,

the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal

standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under §§

1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded

factual allegations as true, but need not “accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Although a complaint need not contain “detailed factual allegations,” it must provide “more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does

a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.

at 557. The complaint must “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. Plaintiff’s Allegations

Plaintiff alleges that he was transported to SOCF on May 28, 2023, and “placed into [a]

Level 5” security classification. (Doc. 1-1, at PageID 13). On August 17, 2023, plaintiff’s

3

security classification was allegedly decreased to a Level 3, and he was taken to the Receiving and

Discharging Office (“R and D”) to retrieve his property, apparently in preparation for his move to

MaCI. (Id.). Plaintiff alleges, however, that not all of his property was there and he was told

that he could return to “R and D” later. (Id.). Plaintiff asserts that when he returned to “R and

D” later the same day, he again indicated that not all of his property was there. (Id.). But,

according to plaintiff, most of his legal documents were there. (Id.). At some time later, also on

the same day, plaintiff was allegedly called into defendant Chinn’s office, where there was a big

tub of plaintiff’s legal documents. (Id.). When plaintiff asked about the rest of his property,

defendant Chinn allegedly told plaintiff that if he was given all of his property he would be over

the “2.4” limit. (Id.). Plaintiff alleges that the box in Chinn’s office contained transcripts, some

briefs, and some affidavits, but was missing other important legal materials for an “active” case

that was pending in the Sixth Circuit and in which plaintiff had been granted a Certificate of

Appealability. (Id., at PageID 13-14). Defendant Chinn stated he would get back to plaintiff the

following week. (Id., at PageID 14).

Plaintiff alleges that the following week he was called back into Chinn’s office and they

went back to “R and D” to go over plaintiff’s property. (Id.). Plaintiff states that Chinn asked

him to sign the property slip but he refused because “if you sign then you’[v]e admitted that all

your property is there.” (Id., at PageID 15). Plaintiff alleges that on August 25, 2023, Chinn

asked him to sign a cash slip to mail out contraband “per [defendant] Jeremy A. Oppy.” (Id.).

Plaintiff alleges that the next day his account indicated that $69.50 had been withdrawn to send

out two boxes of “legal material and whatever else.” (Id.). According to plaintiff, the two boxes

were sent to the wrong address and returned to sender. (Id.). Plaintiff also alleges that the

4

“official [D]eputy Warden” had told Oppy several times to give plaintiff his legal materials but

Oppy refused. (Id.). Additionally, plaintiff asserts that Chinn was told to file a “theft loss report”

but refused the order. (Id., at PageID 16).

Plaintiff alleges that on August 28, 2023, SOCF sent 4 boxes of property to MaCI. (Id.).

Defendant Blankenship allegedly falsely claimed to have sent the boxes back to SOCF but kept

the property in her office. (Id.). On October 25, 2023, after filing several grievances that were

allegedly affirmed by the Chief Inspector, plaintiff was called into Blankenship’s office and given

back his TV, fan, book-lamp, “contraband” game, and liners. (Id.). Plaintiff states that he was

told, without any paperwork to explain why, that the Chief Inspector had determined that plaintiff’s

legal materials and the rest of his property were contraband. (Id.). Plaintiff asserts that his

property was labeled contraband in retaliation “for the paperwork that was filed in this case” and

that all the defendants “were part of this.” (Id.).

Plaintiff further alleges that defendant SOCF Inspector Parker “tried to cover up” for

defendant Chinn and conferred with the Chief Inspector and defendant Blankenship “about what

to do with the legal material(s).” (Id., at PageID 16). Plaintiff alleges that defendant ODRC

Assistant Chief Inspector Morrow “threatened to punish” plaintiff if he “wrote any more informal

[sic] or grievances” and told defendant Blankenship to “destroy . . . [or] at least withhold” his legal

materials from him. (Id., at PageID 17). Plaintiff alleges that defendant Blankenship claimed to

have destroyed his legal materials. (Id., at PageID 16).

Plaintiff alleges that as a result of defendants’ actions “he had to pay [his] lawyer an extra

$15,000 to fully take the case over” and that he lost “8 years of legal materials, affidavits of people

who are now deceased, affidavits of witnesses, letters from lawyers, . . . transcripts, briefs, and law

5

books.” (Id. at PageID 18).

Based on the above allegations, plaintiff brings the following claims: (1) defendant Oppy

violated his right of access to the courts; (2) defendant Chinn violated his right of access to the

courts and retaliated against him; (3) defendant Parker violated his right of access to the courts and

retaliated against him; (4) defendant Blankenship violated his right of access to the courts; (5)

defendant Morrow violated his right of access to the courts and retaliated against him; and (6)

defendant Lambert violated his right of access to the courts. (Id., at PageID 15-18).

Plaintiff seeks solely monetary damages for relief. (Id., at PageID 18-19).

C. Analysis of the Complaint

For the reasons set forth below, plaintiff’s complaint is subject to dismissal in its entirety.

Official Capacity Claims

As an initial matter, all of the claims against defendants in their official capacities require

dismissal. Absent an express waiver, a state is immune from damage suits under the Eleventh

Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144 (1993);

Edelman v. Jordan, 415 U.S. 651, 673 (1974). The State of Ohio has not constitutionally nor

statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme

Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes,

694 F.2d 449, 460-62 (6th Cir. 1982). The Eleventh Amendment bar extends to actions where

the state is not a named party, but where the action is essentially one for the recovery of money

from the state. Edelman, 415 U.S. at 663; Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459,

464 (1945), overruled on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S.

613 (2002). A suit against defendants in their official capacities would, in reality, be a way of

6

pleading the action against the entity of which defendants are agents. Monell v. Dep’t of Social

Servs., 436 U.S. 658, 690 (1978). Thus, actions against state officials in their official capacities

are included in this bar. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). See

also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d

334, 344 (6th Cir. 2009)) (“[A]n official-capacity suit against a state official is deemed to be a suit

against the state and is thus barred by the Eleventh Amendment, absent a waiver.” (citation and

ellipsis omitted)). Therefore, defendants are immune from suit in their official capacities as

plaintiff seeks only monetary relief in this action.

Retaliation Claims

Next, plaintiff’s retaliation claims against defendants should be dismissed. A prisoner’s

claim of retaliation for engaging in protected conduct is grounded in the First Amendment. Jones

v. Caruso, 421 F. App’x 550, 553 (6th Cir. 2011) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 388

(6th Cir. 1999) (en banc)). A retaliation claim has three elements: (1) the prisoner engaged in

protected conduct; (2) an adverse action was taken against the prisoner that “‘would deter a

[prisoner] of ordinary firmness from continuing to engage in that conduct’”; and (3) the prisoner’s

protected conduct, at least in part, motivated the adverse action. Id. (quoting Thomas v. Eby, 481

F.3d 434, 440 (6th Cir. 2007), in turn quoting Thaddeus-X, 175 F.3d at 394).

Here, without factual elaboration, plaintiff claims that defendants interfered with his

property in retaliation for “the paperwork that was filed in this case.” (Doc. 1-1, at PageID 15).

Plaintiff also alleges that defendant Morrow “threatened to punish” him if he wrote any more

grievances. (Id., at PageID 17).

To the extent that plaintiff alleges that defendants retaliated against him for “the paperwork

7

that was filed in this case,” the complaint does not contain any factual allegations that plausibly

suggest that defendants took any action in regard to plaintiff’s property in response to protected

conduct under the First Amendment. To the contrary, plaintiff asserts that the allegedly improper

handling of his property began while he was at SOCF—before he commenced this lawsuit. (See

id., at PageID 13-15).

In any event, “conclusory allegations of retaliatory motive ‘unsupported by material facts

will not be sufficient to state . . . a claim under § 1983.’” Harbin v. Rutter, 420 F.3d 571, 580

(6th Cir. 2005) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538–39 (6th Cir. 1987)). “[N]ot

every claim of retaliation by a disciplined prisoner, who either has had contact with, or has filed a

lawsuit against prison officials, will state a cause of action for retaliatory treatment. Rather, the

prisoner must allege a chronology of events from which retaliation may plausibly be inferred.”

Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988) (citations omitted). See also Whiteside v.

Collins, No. 2:08-cv-875, 2009 WL 4281443, at *9 (S.D. Ohio Nov. 24, 2009) (finding the

plaintiff’s retaliation claim was subject to dismissal, noting that “conclusory allegations of

retaliatory motive and temporal proximity alone are insufficient to establish his retaliation claim”)

(Report and Recommendation), adopted, 2010 WL 1032424 (S.D. Ohio Mar. 17, 2010); Holt v.

Bright, No. 4:19CV01438, 2020 WL 224575, at *3 (N.D. Ohio Jan. 15, 2020) (“Plaintiff’s

conclusory allegation that communication and privileges restrictions are related to the filing or

threatened filing of this lawsuit are, without more, insufficient to state a claim for retaliation.”).

Nor has plaintiff supported his allegation that defendant Morrow threatened to punish him

if he filed any more grievances with any facts. Courts have found these types of conclusory

allegations insufficient to support a retaliation claim. See, e.g., Sherrill v. Strand, No. 2:21-CV-

8

00244-RMP, 2022 WL 325459, at *4 (E.D. Wash. Feb. 2, 2022) (dismissing retaliation claim and

explaining, “[t]o the extent Plaintiff claims that he was ‘punished’ for filing grievances, he did not

support this conclusory assertion with any facts.”); Dean v. Grimes, No. 2:06-CV-0216, 2007 WL

273698, at *3 (N.D. Tex. Jan. 31, 2007) (finding the plaintiff’s claim that “‘Sgt. MAES is believed

to had [sic] conspired with several named ranking officials to punish the plaintiff’ for filing

grievances against the defendants” insufficient to state a retaliation claim).

Accordingly, plaintiff’s retaliation claims against defendants should be dismissed.

Access-to-Courts Claims

Plaintiff’s access-to-courts claims are also subject to dismissal. In order to state a First

Amendment claim for a denial of access to the courts, plaintiff must allege facts indicating he was

actually impeded in an existing or contemplated non-frivolous legal proceeding. Lewis v. Casey,

518 U.S. 343, 351–53 (1996); Hadix v. Johnson, 182 F.3d 400, 406 (6th Cir.1999). “Examples

of actual prejudice to pending or contemplated litigation include having a case dismissed, being

unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey v. Rutter, 420

F.3d 571, 578 (6th Cir. 2005). Plaintiff has not alleged any of these types of prejudice.2 Rather,

plaintiff alleges that he is represented by counsel in the matter at issue and that the matter is still

pending in the Sixth Circuit Court of Appeals.3 (See Doc. 1-1, at PageID 14, 18). Under these

2Plaintiff does allege that he incurred additional attorneys’ fees as a result of the alleged improper handling of his legal

documents. These allegations, however, are insufficient to state an access-to-courts claim. See Harbin-Bey, 420 F.3d

at 578. See also Davi v. Young, No. 4:14-CV-04184, 2015 WL 6157917, at *16 (D.S.D. Oct. 20, 2015) (in the absence

of allegations that a nonfrivolous legal claim was frustrated or impeded, assertions that the plaintiff’s friends and

relatives were “inconvenienced or put to extra expense” were insufficient to support access-to-courts claim); Stockdale

v. Dwyer, No. 1:06-CV-25 CAS, 2007 WL 2994316, at *12 (E.D. Mo. Oct. 11, 2007) (allegations of increased legal

expenses in the absence of allegations of obstructed legal matters were insufficient to state an access-to-courts claim).

3A look at this Sixth Circuit docket reflects that plaintiff is in fact represented by counsel in the matter and that the

case remains pending. See David Smith v. Cynthia Davis, Case No. 23-3604 (6th Cir) (docket report). “Federal courts

may take judicial notice of proceedings in other courts of record.” Rodic v. Thistledown Racing Club, Inc., 615 F.2d

9

circumstances, plaintiff’s access-to-courts claim is at best premature. See, e.g., Lamon v.

Stephens, No. 14-CV-01051, 2014 WL 5488381, at *2 (S.D. Ill. Oct. 30, 2014) (“because the

underlying case is still pending, [the plaintiff] has yet to suffer any actionable harm.”); Longval v.

Maloney, No. CIV.A. 01-11458, 2002 WL 1729542, at *2 (D. Mass. July 24, 2002) (“Since [the

plaintiff’s] state suit is still pending, he has not yet been deprived of his property right in a potential

damages award in that case, nor is there any certainty that he will be.”); Delew v. Wagner, 143

F.3d 1219, 1222–23 (9th Cir. 1998) (“However, because the [plaintiffs’] wrongful death action

remains pending in state court, it is impossible to determine whether [a violation of their right of

access to the courts] has in fact occurred.”). Therefore, plaintiff’s access-to-courts claim “should

be dismissed, without leave to amend but without prejudice to raising in a new action.” Windham

v. Franklin, No. CV 13-3004-SVW JEM, 2014 WL 7740262, at *11 (C.D. Cal. Aug. 29, 2014),

report and recommendation adopted, No. CV 13-3004-SVW JEM, 2015 WL 500500 (C.D. Cal.

Feb. 2, 2015).

Conspiracy Claims

To the extent that plaintiff contends that any of the defendants conspired against him, such

a claim is also subject to dismissal. It is well-settled in the Sixth Circuit that conspiracy claims

must be pleaded with “with some degree of specificity, and vague and conclusory allegations

unsupported by material facts are not sufficient to state a claim.” Hamilton v. City of Romulus,

409 F. App'x 826, 835 (6th Cir. 2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395

(6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of

courts may take judicial notice of proceedings in other courts of record.” Rodic v. Thistledown Racing Club, Inc.,

615 F.2d 736, 738 (6th Cir.1980) (quoting Granader v. Public Bank, 417 F.2d 75, 82–83 (6th Cir.1969)); see also

Nat’l Union Fire Ins. Co. v. VP Bldgs., Inc., 606 F.3d 835, 839 n. 2 (6th Cir.2010); Lyons v. Stovall, 188 F.3d 327,

333 n. 3 (6th Cir.1999).

10

conspiracy claims under 42 U.S.C. § 1983 because the plaintiff failed to plead the claims with the

“requisite specificity”). Here, plaintiff’s factual allegations are insufficient to plausibly suggest

that the defendants shared a conspiratorial objective or otherwise planned together to deprive him

of a constitutionally protected right.

Failure to Take Corrective Action

Finally, the complaint should be dismissed to the extent plaintiff alleges that any of the

defendants failed to take corrective action. (See Doc. 1-1, at PageID 18 (alleging “[t]he

defendants . . . failed to alleviate the interference with my access to courts claim”). “Prison

inmates do not have a constitutionally protected right to a grievance procedure.” Miller v. Haines,

No. 97–3416, 1998 WL 476247, at *1 (6th Cir. Aug.03, 1998) (citations omitted). Prison officials

whose only roles “involve their denial of administrative grievances and their failure to remedy the

alleged [unconstitutional] behavior’” cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999). Nor does a prison officials alleged failure to adequately investigate

claims of misconduct rise to the level of “encouragement” that would make the official liable for

such misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley, 729

F.2d 416, 421 (6th Cir. 1984). Therefore, plaintiff’s claims that any defendant failed to

investigate his complaints or take corrective action should be dismissed for failure to state a claim

upon which relief may be granted.

Accordingly, in sum, the undersigned RECOMMENDS that the Court DISMISS

plaintiff’s access-to-courts claims without prejudice as premature and DISMISS the remainder

of the complaint with prejudice for failure to state a claim upon which relief can be granted. 28

U.S.C. §§ 1915(e)(2)(B); 1915A(b).

11

IT IS THEREFORE RECOMMENDED THAT:

1. The Court DISMISS plaintiff’s access-to-courts claims without prejudice as

premature. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).

2. The Court DISMISS the remainder of the Complaint with prejudice for failure to

state a claim upon which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).

3. The Court certify pursuant to 28 U.S.C. § 1915(e)(2)(B) that for the foregoing

reasons an appeal of any Order adopting this Report and Recommendation would not be taken in

good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other

grounds, Jones v. Bock, 549 U.S. 199, 203 (2007).

PROCEDURE ON OBJECTIONS:

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the proposed

findings and recommendations. This period may be extended further by the Court on timely

motion for an extension. 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 on the 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 14 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

12

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

March 14, 2024 s/Peter B. Silvain, Jr.

PETER B. SILVAIN, JR.

United States Magistrate Judge

13