Lovett v. Evans

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

KELVIN LOVETT, : Case No. 2:24-cv-4081

:

Plaintiff, :

: Judge James L. Graham

vs. :

Chief Magistrate Judge Stephanie Bowman

:

EVANS, et al., :

:

Defendants. :

:

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, an Ohio inmate who is proceeding without the assistance of counsel, brings this

civil rights action pursuant to 42 U.S.C. § 1983. Because Plaintiff has paid the full filing fee, his

motion to proceed in forma pauperis is DENIED as moot. (Doc. 6).

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

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

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

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

U.S.C. § 1915 (e)(2)(B); § 805, 28 U.S.C. § 1915A(b). This matter is also before the Court on

Plaintiff’s motions for a preliminary injunction (Doc. 2) and for the appointment of counsel

(Doc. 5).

For the reasons set forth below, the Undersigned RECOMMENDS that all of Plaintiff’s

claims be DISMISSED for failure to state a claim upon which relief may be granted. Plaintiff’s

separately tendered motions for a preliminary injunction (Doc. 2) and for the appointment of

counsel (Doc. 5) are DENIED.

I. Background

Plaintiff is an Ohio inmate who currently resides at Trumbull Correctional Institution but

was previously housed at Ross Correctional Institution (RCI). Plaintiff brings this action against

several employees of RCI in both their individual and official capacities, alleging violations of

his constitutional rights. Plaintiff primarily challenges the conditions of his confinement and the

alleged “inhumane living conditions” he experienced while housed in segregation at RCI from

approximately July 29, 2024, until August 7, 2024. (Doc. 1, at PAGEID # 6, 9). As Defendants,

Plaintiff names Unit Manager Evans, Corrections Officers Scott and Buckler, Sergeant Mayes,

Captain Yates, Lieutenant Williams, Case Manager Ware, Warden Cool, and Captain Crabtree,

who all appear to have been employees of RCI at the times relevant to the claims brought against

them. (Id. at PAGEID # 4). Plaintiff seeks money damages and declaratory relief. (Id. at

PAGEID # 29-30).

II. Screening of the Amended Complaint

A. Legal Standard

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 a 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 v. Hernandez, 504 U.S. 25, 33 (1992); 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). A complaint filed by a

pro se plaintiff must be “liberally construed” and “held to less stringent 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. Allegations in the Complaint

Many of the allegations in the Complaint are conclusory in nature and lack a factual

basis. Plaintiff alleges the named Defendants “have and continue to exhibit deliberate

indifference, dereliction of duty, conspiracy to commit criminal acts, and cover up criminal

acts.” (Doc. 1 at PAGEID # 6). Plaintiff accuses Defendants of engaging in fraud, racketeering,

corruption, retaliation and subjecting him to cruel and unusual punishment. (Id.)

Primarily, Plaintiff alleges he was subjected to inhumane living conditions in violation of

the Eighth and Fourteenth Amendments while housed in segregation at RCI. (Doc. 1, at

PAGEID # 6). To begin, Plaintiff alleges an unnamed corrections officer gave him a “nasty”

mattress that “smelled of urine, sweat, and feet” with no protective cover. (Id. at PAGEID # 7).

Plaintiff further alleges his cell window was “screwed shut” providing “zero access,” the cell

window and vents were covered in “[a] thick layer of dust, dirt, pollutants, molds and many other

unknowns,” and he was not given cleaning supplies. (Id. at PAGEID # 11). Plaintiff asserts

these conditions caused him to suffer a sore throat, nasal congestion, and he “stumble[d] for

words during light conversation.” (Id. at PAGEID # 12). Plaintiff contends that other vents

within the segregation unit (which he observed when walking to the shower) were covered with

dust, dirt, pollen, and mold, and the air was “thick with the smell of burning paper, feces being

thrown and cooked, and the OC spray (mace).” (Id. at PAGEID # 16-17). Plaintiff notes that a

stainless steel stool and table were located next to his bed, and he speculates that if he had fallen

out of bed “for an unknown medical emergency,” he would have “sustain[ed] a real true serious

injury.” (Id. at PAGEID # 24). Finally, Plaintiff claims he was denied access to envelopes,

paper, soft backed books, address books, and his legal work while in segregation. (Id. at

PAGEID # 21).

Plaintiff filed informal complaints concerning the living conditions within segregation.

Without factual elaboration, Plaintiff claims that Defendant Evans ignored his complaints,

combined them with other ICR’s or turned them into kites, and attempted to cover up the

conduct of other officers. (Id. at PAGEID # 27). Plaintiff concludes that the level of cruel and

unusual punishment and corruption at RCI rivels “levels only seen in the mafia” and constitutes a

racketeering enterprise. (Id. at PAGEID # 6).

C. Analysis of the Complaint

1. Official capacity claims for money damages

As an initial matter, Plaintiff’s claims against Defendants in their official capacities must

be dismissed to the extent Plaintiff seeks monetary damages. 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 (1993); Edelman v. Jordan, 415 U.S. 651 (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 (6th Cir. 1985); State of Ohio

v. Madeline Marie Nursing Homes, 694 F.2d 449 (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

recovery of money from the state. Edelman, 415 U.S. at 663; Ford Motor Company v. Dept. of

Treasury, 323 U.S. 459, 464 (1945). And a suit against defendants in their official capacities

would, in reality, be a way of pleading the action against the entity of which defendants are

agents. Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 690 (1978). Thus,

actions against state officials in their official capacities are included in this bar. Will v. Michigan

Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). 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.”)). On this

basis, the Undersigned finds that Defendants are immune from suit in their official capacities and

hereby RECOMMENDS that all official-capacity claims for monetary damages be

DISMISSED.

2. Claims regarding informal complaints and grievance procedures (claim F)

Plaintiff’s claim regarding the handling of his informal complaints should be dismissed.

In claim F, Plaintiff alleges that he filed five different informal complaints and only two were

answered by Defendant Evans. (Doc. 1, at PAGEID # 27). Plaintiff asserts that Defendant

Evans combined certain informal complaints and converted others to kites. (Id.) Plaintiff

accuses Defendant Evans and other unnamed individuals of playing “electrical musical chairs” to

ignore, combine or transform his ICR’s into kites in order to cover up the poor living conditions

within the segregation unit and to “keep funds rolling in.” (Id. at PAGEID # 28). However,

Plaintiff fails to state a claim for relief under § 1983 where his only allegation is that his

grievances were denied or mishandled.

“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. 3, 1998) (citations

omitted). See also Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (finding the “denial of

administrative grievances or the failure to act by prison officials does not subject supervisors to

liability under § 1983”). 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). Thus, Plaintiff cannot hold

any Defendant liable simply for failing to correct the violations of others, at the grievance stage

or otherwise. See also Pounds v. Myers, 76 F. App’x 630 (6th Cir. 2003) (finding defendant

“could not be held liable merely on the basis that they failed to remedy a grievance”).

To the extent Plaintiff also attempts to bring a separate civil conspiracy claim against

Defendant Evans or others based on their handling of his informal complaints, Plaintiff’s “vague

and conclusory allegations of a conspiracy” are insufficient to state a claim for relief. Anderson

v. Cnty. Of Hamilton, 780 F.Supp.2d 635, 652 (S.D. Ohio 2011). “An alleged ‘conspiracy’ to

unfairly deny inmate grievances would not state a conspiracy to deny any constitutional right,

since the ‘mere denial of a prisoner’s grievance states no claim of constitutional dimension.’”

Jeter v. Ahmed, No. C-1-13-244, 2013 WL 6157991, *3 (Nov. 25, 2013) (citing Alder v.

Correctional Medical Servs., 73 F. App’x 839, 841 (6th Cir. 2003)).

For the foregoing reasons, the Undersigned RECOMMENDS that claim F be

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

3. Conditions of Confinement

In claims A through C and claim E, Plaintiff alleges the conditions of his confinement

during the ten days he spent in segregation at RCI violated the Eighth and Fourteenth

Amendments.

The Eighth Amendment’s prohibition against cruel and unusual punishment requires

prison officials to “provide humane conditions of confinement” and “ensure that inmates receive

adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832

(1994). However, “[t]he Constitution does not mandate comfortable prisons,” Rhodes v.

Chapman, 452 U.S. 337, 349 (1981), and “[n]ot every unpleasant experience a prisoner might

endure while incarcerated constitutes cruel and unusual punishment within the meaning of the

Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Instead, “extreme

deprivations are required to make out a conditions-of-confinement claim . . . [b]ecause routine

discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.’”

Hudson v. McMillan, 503 U.S. 1, 9 (1992) (quoting Rhodes, 452 U.S. at 347).

An Eighth Amendment conditions of confinement claim includes both objective and

subjective components. The objective component requires a plaintiff to show that the alleged

harm was “objectively, sufficiently serious” and denied him “the minimal civilized measure of

life’s necessities.” Farmer, 511 U.S. at 834 (internal quotations and citation omitted). Stated

another way, a plaintiff must allege and prove facts that establish an objectively intolerable risk

of serious harm. Id. at 842, 846 n.9. The subjective component requires proof that defendants

acted with “deliberate indifference” to a substantial risk to an inmate’s health or safety. Estelle

v. Gamble, 429 U.S. 97, 104 (1976). That is, the prison official must “know[] of and disregard[]

an excessive risk to inmate health or safety; the official must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference.” Farmer, 511 U.S. at 837. This standard requires a state of mind that is “more

blameworthy than negligence.” Id. at 835.

Finally, conditions-of-confinement claims “are highly fact-specific” and “the length of

exposure to the conditions is often paramount.” Lamb v. Howe, 677 F. App’x 204 (6th Cir.

2017). Therefore, the Court should “consider the interrelationship between the severe conditions

and their duration” when evaluating the merits of a conditions of confinement claim. Francis v.

Altiere, 491 F. App’x 539, 543 (6th Cir. 2012).

The unsanitary conditions that Plaintiff describes are unpleasant. But the presence of

some unsanitary conditions in a cell does not sufficiently state an Eighth Amendment claim

unless the conditions or duration of exposure are extreme. And here, Plaintiff has not alleged a

sufficient factual basis for this Court to plausibly infer that he could be entitled to relief.

a. Unhygienic mattress (claim A)

In claim A, Plaintiff alleges that when placed in segregation, he told an unnamed

corrections officer that he did not have a mattress, the officer then provided Plaintiff with a

“nasty” mattress that “smelled of urine, sweat, and feet” and had no protective cover, and the

officer informed Plaintiff that all the mattresses in segregation were in the same condition. (Doc.

1, at PAGEID # 7). Plaintiff concludes the condition of the mattress constitutes cruel and

unusual punishment in violation of the Eighth Amendment. (Id.)

Claim A should be dismissed because Plaintiff has not alleged the existence of an

objectively intolerable risk of serious harm in violation of the Eighth Amendment. Although

Plaintiff characterizes the mattress as “dangerous”, any temporary or minor discomforts resulting

from unsanitary conditions are unlikely to meet the objective component of an Eighth

Amendment claim. See e.g., Brown v. Mahlman, No. 1:22-cv-239, 2022 WL 17817615, *3 (S.D.

Ohio Dec. 19, 2022) (Marbley, D.J.) (“Courts have typically found that temporary exposure to

feces does not meet the objective component of the Eighth Amendment conditions of

confinement test”). Additionally, the Sixth Circuit has held that being completely deprived of

any mattress for a 14-day period does not violate the Eighth Amendment. Jones v. Toombs, 77

F. 3d 482 (6th Cir. 1996). See also Richmond v. Settles, 450 F. App’x 448, 455 (6th Cir. 2011)

(“In the absence of evidence that a prisoner suffered a physical injury, the deprivation of a

mattress and bedding for a fixed period of time does not violate the Eighth Amendment.”). Here,

the Complaint lacks sufficient allegations to plausibly infer that the mattress conditions posed an

objectively serious risk of harm under the Eighth Amendment, nor does Plaintiff allege any

injury resulting from the unhygienic mattress.

Plaintiff also does not allege sufficient facts from which the Court could plausibly infer

that any named Defendant was deliberately indifferent to an excessive risk to his health or safety

posed by the mattress. In fact, Plaintiff does not allege that any named Defendant was personally

aware of the condition of his mattress. Although Plaintiff alleges that Defendants Scott and

Buckler routinely handle and pass out unhygienic mattresses (and create unhygienic conditions

by tearing the protective covers during searches), Plaintiff does not allege that either Defendant

was responsible for giving him the specific mattress he received or that they were responsible for

the condition of that mattress. To the contrary, Plaintiff claims he received his mattress from an

unidentified corrections officer who is not named as a defendant in the Complaint. Because the

unnamed officer is not named as a defendant and is not a party to this case, the Court declines to

analyze Plaintiff’s statements with respect to this non-defendant. See Wood v. Reynolds, No.

3:22-cv-351, 2023 WL 5310094, at *6 (S.D. Ohio Aug. 17, 2023), report and recommendation

adopted, No. 3:22-cv-351, 2024 WL 2060813 (S.D. Ohio May 8, 2024) (declining to analyze

allegations against individuals discussed in the complaint but not named as defendants) (citing

Shipp v. CoreCivic, No. 16-2891, 2018 WL 4265259, at *5 (W.D. Tenn. Sept. 6, 2018)).

Plaintiff generally asserts that Warden Cool and others “had to be aware” of the condition

of the mattresses in segregation. Plaintiff alleges the Warden is “responsible for all functions

within the prison,” and that the Warden entered into the area of segregation on August 2, 2024,

or August 3, 2024. (Doc. 1, at PAGEID # 8). Plaintiff asserts that Defendants Mayes, Evans,

Ware, Williams, Yates and Crabtree all either have an office near segregation and/or routinely

walk through the area, and that each of these defendants has a “duty” to ensure inmate needs are

addressed but they have “turned a blind eye.” (Id. at PAGEID 9-11).

To the extent Plaintiff seeks to hold the Warden or any other defendant responsible based

on their supervisory position in the prison, respondeat superior does not apply to § 1983 claims

and may not serve as the basis for liability. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009);

Monell v. Dep’t of School Servs., 436 U.S. 658 (1978); Hill v. Marshall, 962 F.2d 1209, 1213

(6th Cir. 1992). “[Section] 1983 liability of supervisory personnel must be based on more than

the right to control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

Plaintiff also fails to allege sufficient personal action by the Warden or Defendants Scott,

Buckler, Mayes, Evans, Ware, Williams, Yates and Crabtree. Section 1983 liability is premised

on active unconstitutional behavior and not a mere failure to act. Greene v. Barber, 310 F.3d

889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “Where a person

is named as a defendant without an allegation of specific conduct, the complaint is subject to

dismissal, even under the liberal construction afforded to pro se complaints.” King v. Aramark

Correctional Services, No. 2:23-cv-156, 2025 WL 81214, at *5 (S.D. Ohio Jan. 13, 2025), report

and recommendation adopted, No. 23-cv-156, 2025 WL 815760 (S.D. Ohio Mar. 14, 2025)

(citing Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (dismissing the plaintiff’s

claims where the complaint did not allege with any degree of specificity which of the named

defendants were personally involved in or responsible for violations of plaintiff’s rights)).

Here, Plaintiff has not attributed active unconstitutional behavior regarding his mattress

condition to any of the named Defendants. Plaintiff does not allege that the Warden or any other

Defendant personally observed the condition of his mattress, or had a role in the selection of his

mattress. Although Plaintiff characterizes the Defendants as “lazy and liable” and the mattress

situation “likely purposeful,” (Doc. 1, at PAGEID # 7), he has not asserted sufficient facts to

plausibly infer that any Defendant acted with deliberate indifference to his health or safety.

Therefore, the Undersigned RECOMMENDS that claim A be DISMISSED for failure to state a

claim upon which relief can be granted.

b. Presence of stainless steel table and stool (claim E)

In claim E, Plaintiff alleges that upon entering segregation, he “recognized a hazardous

situation . . . whereby there [w]as a stainless steel table and a stainless steel stool right directly

next to the bed.” (Doc. 1, at PAGEID # 24). Plaintiff speculates that if he or any other inmate

had fallen out of bed “for an unknown medical emergency,” he would have “absolutely

sustain[ed] a real true serious injury. This is cruel and unusual punishment.” (Id.)

Plaintiff’s allegations are insufficient to state an Eighth Amendment claim. Plaintiff was

not injured by the stool or table, and Plaintiff’s contention about the risk of future harm posed by

the furniture is speculative and conclusory. Moreover, since the filing of this Complaint,

Plaintiff has been transferred to another facility and any speculative or hypothetical threat of

future injury has ended. The Undersigned RECOMMENDS that claim E be DISMISSED.

c. Presence of dust, dirt, mold and pollutants (claims B and C)

In claims B and C, plaintiff alleges his cell window was screwed shut with no access, and

the window, as well as the vents in segregation, were covered in a thick layer of dust, dirt,

pollutants and molds which impeded proper air flow. (Doc. 1, at PAGEID # 11). Plaintiff states

his cell was “overall filthy” and he was not offered cleaning supplies. (Id.) Plaintiff notes that

he observed similar amounts of dirt, dust, pollutants and mold while walking to the shower and

the air quality was poor.

Although it is possible that in severe cases exposure to mold and pollutants might be

sufficiently serious to satisfy the objective requirement of an Eighth Amendment claim, simply

alleging the presence of these issues is not enough. Courts have looked to several factors to

determine if the presence of mold constitutes a risk of serious harm, including whether the

plaintiff suffered a physical injury, length and severity of the exposure, and whether the mold

was airborne. See, e.g., Henderson v. Parin, No. 3:22-cv-228, 2023 WL 369954, at *3 (S.D.

Ohio Jan. 24, 2023) (recommending dismissal “because plaintiffs have failed to allege that they

suffered a physical injury that was caused by exposure to black mold”); Rogers v. MacClaren,

No. 1:20-cv-263, 2020 WL 3481541, at *8 (W.D. Mich. June 26, 2020) (dismissing claim where

plaintiff “does not suggest that the mold is airborne, and he does not allege that the presence

of mold caused him a health problem or created a substantial risk to his health”).

Here, Plaintiff’s allegations about the presence of dust, mold and pollutants do not

demonstrate the existence of a sufficiently serious risk of harm to his health. Plaintiff generally

states he experienced allergy like symptoms and some difficulty with speech, but Plaintiff does

not indicate the severity or duration of these symptoms. Moreover, Plaintiff has not alleged the

mold was toxic or airborne. Regarding the mold he observed outside of his cell on the way to the

showers, Plaintiff does not allege the frequency in which he encountered this area or how long he

was exposed to this area during his short stay in segregation.

But even if Plaintiff’s allegations of a congested nose, sore throat and possible speech

disruption was sufficient to satisfy the objective standard at this early stage, Plaintiff still fails to

state a claim for relief because Plaintiff does not allege any personal action or involvement

suggesting the individual defendants were deliberately indifferent within the meaning of the

Eighth Amendment. That is, Plaintiff does not allege sufficient facts (beyond his own

conclusions) that any of the named defendants were actually aware of the mold and pollutants

and then consciously disregarded a serious risk posed to Plaintiff. And Plaintiff does not allege

that he made any personal complaints to the Warden or the other defendants about these issues,

or informed them of his physical symptoms. Finally, although Plaintiff alleges he was not given

cleaning supplies, Plaintiff does not allege he requested supplies.

For the foregoing reasons, the Undersigned RECOMMENDS that claims B and C be

DISMISSED for failure to state a claim upon which relief can be granted.

4. Access to the courts (claim D)

In claim D, Plaintiff alleges that during his “property pack-up”, an unidentified

corrections officer informed him that he could not have “envelopes, paper, soft backed books, or

address books” and he “was also denied all legal work.” (Doc. 1, at PAGEID # 21). Plaintiff

claims this policy “[e]ffectively cut[] every inmate off from the world, family, friends, lawyers

and the court system.” (Id.) Plaintiff acknowledges that Unit Manager Evans informed him that

“legal work on active open cases is permitted.” (Id.) Plaintiff notes that he was drafting a letter

to a law professor regarding reopening one of his court cases that he was unable to access.

Plaintiff also argues that he is “allowed to start a legal action at any time.” (Id. at 22).

The Undersigned construes claim D as an attempt to state a claim for denial of access to

the courts. Under the First Amendment, prisoners have a fundamental right of access to

the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). In Bounds v. Smith, 430 U.S. 817 (1977),

the Supreme Court noted that in addition to law libraries or alternative sources of legal

knowledge, states must provide indigent inmates with “paper and pen to draft legal documents,

notarial services to authenticate them, and with stamps to mail them.” Id. at 824-25. But an

indigent prisoner’s constitutional right to legal resources and materials is not without limit. In

order to state a viable claim for interference with access to the courts, a plaintiff must show

“actual injury.” Lewis, 518 U.S. at 349; see also Talley-Bey v. Knebl, 168 F.3d 884, 886 (6th

Cir. 1999). “In other words, an inmate who claims that his access to courts was denied fails to

state a claim ‘without any showing of prejudice to his litigation.’” Winburn v. Howe, 43 F.

App’x 731, 733 (6th Cir. 2002). And, “a prisoner’s right to access the courts extends to direct

appeals, habeas corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175

F.3d 378, 391 (6th Cir. 1999) (en banc). To that end, “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 415.

Here, Plaintiff does not reference any connection between his lack of writing materials

and a direct appeal, habeas corpus petition, or civil rights claim. Plaintiff only vaguely refers to

a letter he was writing to a law professor about reopening his “case.” (Doc. 1, at PAGEID # 22).

Plaintiff also has not alleged any facts showing he suffered actual injury as a result of his

stationary restriction while in segregation, such as showing he was (and is) unable to file court

pleadings, missed court deadlines, or had a case dismissed in any nonfrivolous legal proceeding

based on the denial of writing materials. Without an allegation of actual injury, the Complaint

fails to state a claim for denial of access to the courts under the First Amendment. For these

reasons, the Undersigned RECOMMENDS claim D be DISMISSED.

III. Motion to Appoint Counsel

Regarding Plaintiff’s request for the appointment of counsel, (Doc. 5), it is well settled

that indigent parties in civil cases have no constitutional right to a court-appointed attorney.

Abdur-Rahman v. Mich. Dep’t of Corr., 65 F.3d 489, 492 (6th Cir. 1995); Lavado v. Keohane,

992 F.2d 601, 604-05 (6th Cir. 1993). The Court may, however, appoint counsel in the Court’s

own discretion. Abdur-Rahman, 65 F.3d at 492; Lavado, 992 F.2d at 604–05; see Mallard v.

U.S. Dist. Ct., 490 U.S. 296 (1989). But the appointment of counsel is a privilege that is justified

only in exceptional circumstances. In determining whether to exercise its discretion, the Court

should consider the complexity of the issues, the procedural posture of the case, and Plaintiff’s

apparent ability to prosecute the case without the help of counsel. See Lavado, 992 F.2d at 606.

The Court has carefully considered whether exceptional circumstances exist here and

finds that the appointment of counsel is not warranted. Therefore, the Court DENIES without

prejudice Plaintiff’s motion to appoint counsel (Doc. 5).

IV. Motion for Preliminary Injunction

At the time the Complaint was filed, Plaintiff separately filed a motion for a preliminary

injunction seeking to be transferred to another institution. (Doc. 2). Plaintiff claims an

injunction is necessary due to feared retaliation by Defendants. Specifically, Plaintiff states “I

fear that once this lawsuit is filed and the defendants are served a massive target will be on my

back.” (Id. at PAGEID # 34).

The Court notes that Plaintiff was previously housed at RCI and that is where the events

described in this Complaint occurred. Plaintiff has since been transferred to Trumbull

Correctional Institution (TCI). (Doc. 8). The Sixth Circuit has held that transfer to another

correctional facility moots a prisoner’s injunctive claims. See Kensu v. Haigh, 87 F.3d 172, 175

(6th Cir. 1996) (holding that a prisoner-plaintiff’s claims for injunctive and declaratory relief

became moot when the prisoner was transferred from the prison about which he complained).

Accordingly, Plaintiff’s motion for a preliminary injunction (Doc. 2) is DENIED.

IT IS THEREFORE RECOMMENDED THAT:

The Court DISMISS Plaintiff’s Complaint for failure to state a claim upon which relief

can be granted. 28 U.S.C. § 1915(e)(2)(B).

IT IS THEREFORE ORDERED THAT:

Plaintiff’s motion to proceed in forma pauperis is DENIED as moot. (Doc. 6).

Plaintiff’s motions for a preliminary injunction (Doc. 2) and for the appointment of counsel

(Doc. 5) are DENIED.

PROCEDURE ON OBJECTIONS

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

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

IT IS SO ORDERED.

May 27, 2025 s/Stephanie K. Bowman

STEPHANIE K. BOWMAN

Chief United States Magistrate Judge