Heller v. Chambers-Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

JESSE HELLER, CASE NO. 3:24 CV 1194

Plaintiff,

v. JUDGE JAMES R. KNEPP II

ANNETTE CHAMBERS-SMITH, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Currently pending in this 42 U.S.C. § 1983 civil rights case is Defendants Annette-

Chambers-Smith, Jeff Mustard, Michael Swartz, Penny Abbott, and Interested Party State of

Ohio’s (“State Defendants”) Motion to Dismiss pro se Plaintiff Jesse Heller’s Complaint against

them. (Doc. 8).1 Plaintiff opposes (Doc. 14), and State Defendants reply (Doc. 16). Jurisdiction is

proper under 28 U.S.C. § 1331. For the reasons discussed below, State Defendants’ Motion is

granted.

BACKGROUND

According to the Complaint, Plaintiff brings “at least three failure to protect claims,” two

of which occurred at the Northeast Ohio Correctional Center (“NEOCC”) in September 2023 and

a third which occurred at Toledo Correctional Institution (“ToCI”) on May 16, 2024. (Doc. 1, at ¶

1).

1. The State of Ohio indicates Plaintiff has yet to perfect service on John and Jane Does 6-10. It

appears as an interested party pursuant to Ohio Revised Code § 109.361 and notes that it does not

waive personal service or any other defenses on behalf of the unserved Defendants.

Plaintiff identifies Chambers-Smith as the Director of Ohio Department of Rehabilitation

and Correction (“ODRC”); Mustard as Chief of the Bureau of Classification and Reception at

ODRC; Swartz as the Warden at ToCI; Abbott as the Unit Manager in charge of the Protective

Control Units at ToCI; and John/Jane Doe Defendants as prison officials at ToCI “who were

Protective Control Committee Members and/or otherwise responsible for the safe housing of

inmates[.]” Id. at ¶¶ 6-7, 12-14.

According to the Complaint, Plaintiff “was involved in a drug deal gone bad” in May 2002

that resulted in the death of a Blood gang member. Id. at ¶ 17. He was convicted of aggravated

murder and sentenced to 23 years to life in prison beginning in 2019. Id. at ¶¶ 17, 19. As a result

of this conviction, Plaintiff asserts the gang placed a “hit” on him. Id. at ¶ 18.

Since arriving at ODRC facilities, Plaintiff states he has been assaulted “over twenty times”

by Blood gang members or others acting on their behalf; “many” of these assaults have resulted in

hospitalization and “all” have resulted in serious injury. Id. at ¶¶ 20-22. “The measures taken by

ODRC in response to most of said assaults has been to transfer Plaintiff to a different prison in lieu

of placing him in a Protective Control Unit, and Plaintiff has been transferred to virtually every

security level 3 prison in the state[.]” Id. at ¶ 23.

In December 2022, Plaintiff “was transferred for a second time to the NEOCC, even though

he suffered assaults and extortion during his first stay at that prison” and on September 2, 2023,

Plaintiff “was attacked by members of the BLOOD gang and taken by ambulance to the hospital[.]”

Id. at ¶¶ 25-26.

Following this September 2, 2023, assault and a subsequent one on September 13, 2023, at

NEOCC, Plaintiff “was placed in the hole where he remained until the remaining stages of

placement in a Protective Control Unit at [ToCI] was approved, which took about a month, and

then it took several additional months before Plaintiff was finally transported to [ToCI].” Id. at ¶

34. During his transport to ToCI, Plaintiff “was in a van with Roshawn Atkins”; “because Atkins

was a BLOOD gang member, and because Atkins was a security level 4 and Plaintiff was a level

3, the two were placed in separate cages in the transport van.” Id. at ¶ 35. Both were then housed

in the same Protective Control Unit at ToCI. Id. at ¶ 36. Plaintiff asserts Atkins “began extorting

Plaintiff” shortly after they arrived at ToCI. Id. at 37.

On May 16, 2024, Atkins attacked Plaintiff “resulting in partial vision loss in Plaintiff’s

left eye, as well as other serious physical, emotional, and psychological injuries.” Id. at ¶ 38.

Plaintiff filed a grievance “about being put in a Protective Control Unit with a level 4 BLOOD

gang member despite this being the very reason he was placed in Protective Control”; thereafter,

“Plaintiff was moved to a different block[.]” Id. at ¶ 39. He complains that he was required to

move, rather than requiring Atkins to move, and the block he was moved to “has forced double

celling, whereas the block where he was assaulted was single celled.” Id. at ¶ 40.

Plaintiff further asserts that “in the three Protective Control Units that exist in Ohio (all of

which are at [ToCI]), there clearly is no separation of violent inmates from mentally ill[,] from

gang members[,] from informants[,] from transgender[,] from homosexual[,] from those under

disciplinary action[,] from those who are vulnerable to extortion, rape, and assault.” Id. at ¶ 41.

Count One of the Complaint addresses the September 2, 2023, assault. Id. at ¶¶ 43-50.

Therein, Plaintiff alleges “Defendants Chambers-Smith, Mustard, [Doug] Fender, and John or Jane

Does 1-5 violated Plaintiff’s Eighth Amendment right to be free from cruel and unusual

punishment, as well as his Fourteenth Amendment right to due process, when their policies,

procedures, practices, and decisions resulted in the failure to protect Plaintiff from serious

physical, emotional, and psychological harm on September 2, 2023.” Id. at ¶ 44. Count Two

addresses the September 13, 2023, assault and does not contain claims against the moving State

Defendants. Id. at ¶¶ 51-52.

Count Three of Plaintiff’s Complaint addresses the claims related to the May 2024 assault.

See id. at ¶¶ 53-54. It states, in its entirety:

53. Plaintiff incorporates paragraphs 1 through 52 as if all were fully rewritten

herein.

54. Defendants Swartz, Abbott, and John or Jane Does 6-10 violated Plaintiff’s

Eighth Amendment right to be free from cruel and unusual punishment, as well as

his Fourteenth Amendment right to due process, when they placed Plaintiff in a

Protective Control Unit with a BLOOD gang member who was transported from

NEOCC with Plaintiff, was a security level 4 violent prisoner on disciplinary action

(and Plaintiff was a level 3), which resulted in said BLOOD gang member carrying

out yet another “hit” on Plaintiff – this time within a protective Control Unit where

he as specifically placed for his protection from BLOOD gang members.

Id. Plaintiff seeks damages, as well as injunctive and declaratory relief. Id. at 12-13.

STANDARD OF REVIEW

When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the function of the

Court is to test the legal sufficiency of the Complaint. In scrutinizing the Complaint, this Court

accepts the allegations stated within as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984),

while viewing the Complaint in a light most favorable to Plaintiff, see Scheuer v. Rhodes, 416 U.S.

232, 236 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). Although the Complaint

need not contain “detailed factual allegations,” it does require more than “labels and conclusions”

or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). Thus, the Complaint survives a motion to dismiss if it “contain[s] 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 Twombly, 550 U.S. at 570). And “[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.” Hensley Mfg. v. ProPride, Inc.,

579 F.3d 603, 609 (6th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).

Further, although pro se complaints are entitled to liberal construction, Erickson v. Pardus,

551 U.S. 89, 94 (2007), even pro se plaintiffs must satisfy basic pleading requirements and courts

are not required to “conjure allegations” or construct claims on their behalf, Erwin v. Edwards, 22

F. App’x 579, 580 (6th Cir. 2001).

DISCUSSION

The State Defendants move to dismiss, arguing: (1) Plaintiff fails to set forth specific facts

to put the State Defendants on notice of a constitutional violation; (2) respondeat superior is not a

basis to hold State Defendants liable under § 1983; (3) Plaintiff has not plausibly alleged an Eighth

Amendment failure to protect claim against them; and (4) the State Defendants are entitled to

qualified immunity. (Doc. 8). Plaintiff responds, contending: (1) State Defendants’ Motion should

be construed as only attacking Count Three of his Complaint; (2) because his Complaint passed

the screening process, dismissal is inappropriate; and (3) his Complaint states a claim upon which

relief can be granted. (Doc. 14). State Defendants reply. (Doc. 16).

The Court addresses Plaintiff’s procedural arguments first, and then turns to whether the

State Defendants have demonstrated their entitlement to dismissal.

Chambers-Smith / Mustard

Plaintiff first contends the Court should construe the Motion to Dismiss as only attacking

Count Three of the Complaint. (Doc. 14, at 1). This is so, he contends “because a notice of

appearance has been filed by a different attorney who is representing Defendants related to Counts

One and Two, which involve the events occurring at [NEOCC].” Id. He therefore contends

dismissal as to Chambers-Smith and Mustard is “not appropriate here because they are not being

alleged to be involved in the constitutional violations related to Count Three.” Id.

Plaintiff, however, is incorrect. Attorneys represent individuals, not certain claims.

Counsel for the State Defendants represents Chambers-Smith and Mustard and the motion to

dismiss argues for dismissal of the claims against those Defendants. See, e.g., Doc. 8, at 1, 4, 6.

PLRA Screening

Plaintiff next argues that the State Defendants’ motion to dismiss “fails to acknowledge”

the Prison Litigation Reform Act (“PLRA”) screening process and asserts that “[b]ecause service

of process has been ordered (and completed), Defendants’ motion to dismiss for failure to state a

claim must therefore be without merit.” (Doc. 14, at 2).

Under the PLRA, a district court “shall dismiss” a complaint filed in forma pauperis “any

time if the court determines that . . . the action . . . fails to state a claim on which relief may be

granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The same standard applies to a dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii) as to a dismissal under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Hill

v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Fed. R. Civ. P. 12(b)(6) standards to

review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Nevertheless, while the same standard

applies, a complaint that passes a screening does not necessarily pass a motion to dismiss. Instead,

“the sua sponte screening and dismissal procedure is cumulative of, not a substitute for, any

subsequent Rule 12(b)(6) motion that the defendant may choose to bring.” Teahan v. Wilhelm, 481

F. Supp. 2d 1115, 1119 (S.D. Cal. 2007); see also Garewal v. Sliz, 611 F. App’x 926, 931 (10th

Cir. 2015) (“Simply put, the fact that a district court does not dismiss a complaint under § 1915A

does not mean that the complaint will necessarily withstand a defendant’s challenge to its

plausibility under Rule 12(b)(6).”)

The Court therefore rejects Plaintiff’s argument that the motion should be summarily

denied for this reason and turns to the State Defendants’ substantive arguments.

Personal Involvement / Respondeat Superior Liability

The State Defendants argue Plaintiff has not plausibly pled their personal involvement as

required for liability, and that respondeat superior, or supervisory liability, is not a proper basis

for liability under § 1983. The Court agrees.

In order to plead a cause of action under § 1983, a plaintiff must plead two elements: “(1)

deprivation of a right secured by the Constitution or laws of the United States (2) caused by a

person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d

529, 534 (6th Cir. 2008). To sufficiently plead the second element, a plaintiff must allege “personal

involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted); see also

Iqbal, 556 U.S. at 676 (“a plaintiff must plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution”).

Further, § 1983 liability cannot be premised solely on a theory of respondeat superior.

Hays v. Jefferson Cnty., 668 F.2d 869, 872 (6th Cir. 1982). Supervisory officials are not liable in

their individual capacities unless they “either encouraged the specific incident of misconduct or in

some other way directly participated in it. At a minimum a plaintiff must show that the official at

least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of

the offending officers.” Id. at 874. A supervisor cannot be held liable “simply because he or she

was charged with overseeing a subordinate who violated the constitutional rights of another” and

“a mere failure to act will not suffice to establish supervisory liability.” Peatross v. City of

Memphis, 818 F.3d 233, 241 (6th Cir. 2018); see also Essex v. Cnty. of Livingston, 518 F. App’x

351, 355 (6th Cir. 2013) (“There must be some conduct on the supervisor’s part to which a plaintiff

can point that is directly correlated with the plaintiff’s injury.”). Supervisory liability requires some

“active unconstitutional behavior” on the part of the supervisor. Bass v. Robinson, 167 F.3d 1041,

1048 (6th Cir. 1999); see also Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015) (“To

establish a § 1983 . . . claim against a public official in his personal capacity, a plaintiff must show

that the official either actively participated in the alleged unconstitutional conduct or implicitly

authorized, approved or knowingly acquiesced in the alleged unconstitutional conduct of an

offending subordinate.”) (internal quotation and citation omitted).

Here, as to the State Defendants, Plaintiff simply identifies them by name in the caption of

his Complaint (Doc. 1, at 1-2), lists their job titles and duties (id. at ¶¶ 6-7, 12-14), and summarily

asserts they violated his rights (id. at ¶¶ 44, 54). This is not sufficient to plausibly plead a claim.

Specifically, as to Chambers-Smith and Mustard, Plaintiff merely contends “their policies,

procedures, practices, and decisions resulted in the failure to protect Plaintiff from serious

physical, emotional, and psychological harm on September 2, 2023.” Id. at ¶ 44. This conclusory

assertion is generalized and does not connect any specific conduct by either Chambers-Smith or

Mustard to the factual allegations involving the assault suffered on September 2, 2023. By even

the most generous reading of the Complaint, Plaintiff seeks to hold Chambers-Smith or Mustard

responsible based on their positions of authority within ODRC, but this is not sufficient to state a

claim for relief. Hays, 668 F.2d at 872; Bass, 167 F.3d at 1048. As such, the Court finds Chambers-

Smith and Mustard are entitled to dismissal. See Frazier v. Michigan, 41 F. App’x 762, 764 (6th

Cir. 2002) (affirming dismissal of complaint that did not allege with any degree of specificity

which of the named defendants were personally involved in or responsible for each alleged

violation of federal rights); Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011)

(“This Court has consistently held that damage 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.”) (quoting Lanman v. Hinson,

529 F.3d 673, 684 (6th Cir. 2008)); Marcilis v. Twp. of Redford, 693 F.3d 589 (6th Cir. 2013) (“By

lumping all the defendants together in each claim and providing no factual basis to distinguish

their conduct, [plaintiff’s] complaint failed to satisfy this minimum [Federal Civil Rule 8 pleading]

standard.”) (quoting Atuahene v. City of Hartford, 10 F. App’x 33, 34 (3d Cir. 2001)) (first

alteration in original); Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004)

(holding where a person is named as a defendant in a case without an allegation of specific conduct,

a complaint is subject to dismissal even under the liberal construction afforded to pro se pleadings).

As to the remaining State Defendants, Plaintiff asserts Swartz, Abbott, and John or Jane

Does 6-10 violated his Eighth and Fourteenth Amendment rights “when they placed Plaintiff in a

Protective Control Unit with a BLOOD gang member who was transported from NEOCC with

Plaintiff, was a security level 4 violent prisoner on disciplinary action (and Plaintiff was a level 3),

which resulted in said BLOOD gang member carrying out yet another ‘hit’ on Plaintiff – this time

within a Protective Control Unit where he was specifically placed for his protection from BLOOD

gang members.” Doc. 1, at ¶ 54.

Again, Plaintiff fails to attribute any specific action to any particular one of these named

Defendants. He simply asserts without elaboration that “they” collectively placed him in the

Protective Control Unit where he suffered an assault. Id. Because Plaintiff does not allege

individual actions of each State Defendant to demonstrate any constitutional violation, Plaintiff

fails to sufficiently allege claims against each of these Defendants. See Heyne, 655 F.3d at 564.

Failure to Protect / Qualified Immunity

Even if Plaintiff could overcome the above hurdle of alleging facts to show personal

involvement, the State Defendants contend Plaintiff has not plausibly pled his Eighth Amendment

failure to protect claim. As such, they assert they are entitled to qualified immunity and dismissal.2

Again, the Court agrees.

The Eighth Amendment requires prison officials to “take reasonable measures to guarantee

the safety of . . . inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). A prison official is

liable under the Eighth Amendment for failure to protect an inmate when: (1) the deprivation

alleged is, objectively, sufficiently serious, and (2) the official is, subjectively, deliberately

indifferent to the inmate’s safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). For the objective

prong, a plaintiff must demonstrate that “he is incarcerated under conditions posing a substantial

risk of serious harm.” Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (quoting Farmer, 511

U.S. at 833). For the subjective prong, a plaintiff must show that a prison official “kn[ew] of and

disregard[ed]” that risk. Farmer, 511 U.S. at 837; see also Curry v. Scott, 249 F.3d 493, 506 (6th

Cir. 2001). Deliberate indifference “entails something more than mere negligence.” Farmer, 511

U.S. at 835. The defendants’ “conduct must . . . be ‘obdurate’ or ‘wanton’—exhibiting recklessness

or callous neglect.” Nelson v. Overberg, 999 F.2d 162, 165 (6th Cir. 1993) (quoting Whitley v.

Albers, 475 U.S. 312, 318 (1986)). Essentially, to establish a violation of the Eighth Amendment,

Plaintiff must show that Defendants “actually knew” that he “face[d] a substantial risk of serious

2. It is unclear if Plaintiff intends to bring claims other than a failure to protect claim under the

Eighth Amendment. The State Defendants correctly note than an inmate has no constitutional right

to placement in a particular institution, or to a particular security level classification. Chappell v.

Morgan, 2016 WL 9943213, at *2 (6th Cir.) (citing Olim v. Wakinekona, 461 U.S. 238, 245 (1983);

Montanye v. Haymes, 427 U.S. 236, 242-43 (1976); Harbin–Bey v. Rutter, 420 F.3d 571, 576 (6th

Cir. 2005)). Further, as to Plaintiff’s complaint that he, rather than his attacker, was required to

move to a different cell block involving double cells rather than single cells following the assault,

the Court finds this does not state a constitutional violation. See Hudson v. McMillian, 503 U.S. 1,

9 (1992) (“Extreme deprivations are required to make out a conditions-of-confinement claim”

under the Eighth Amendment). Moreover, as above, Plaintiff does not even attribute this action to

a particular individual.

harm and disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer, 511

U.S. at 847.

As to the assertion of qualified immunity, “if the complaint fails to allege facts plausibly

showing the violation of a constitutional right (regardless of whether that right was clearly

established), granting qualified immunity is appropriate on the pleadings.” Myers v. City of

Centerville, 41 F.4th 746, 759 (6th Cir. 2022).

The State Defendants focus their argument on the second prong of the deliberate

indifference test, contending Plaintiff has not pled facts to suggest any of them subjectively knew

of a risk to his safety and disregarded it. Again, specifically as to the State Defendants, the only

facts pled in the Complaint are each State Defendant’s role and duties (Doc. 1, at ¶¶ 6-7, 12-14).

As set forth above, there are no specific facts connecting these State Defendants individually to

the assaults suffered by Plaintiff. And, most importantly as to pleading a deliberate indifference

claim, there are no facts pled regarding what any State Defendant knew about any particular risk

or threat to Plaintiff. Nor has he pled any facts from which the Court can extrapolate that any

particular State Defendant both subjectively perceived a risk of serious harm and took action to

disregard it in a way that rises above negligence and into “‘obdurate’ or ‘wanton’” conduct. Nelson,

999 F.2d at 165. Although Plaintiff alleges he had been repeatedly assaulted in custody as a result

of his conviction for the murder of a gang member (Doc. 1, at ¶¶ 19-22), and that he was later

transferred and housed in the same Protective Control Unit with a member of that gang and

subsequently assaulted (id. at ¶ 23), he fails to connect these facts to any State Defendant’s

subjective knowledge or action. That is, there are no facts from which the Court can plausibly infer

that any particular State Defendant knew of and failed to take reasonable measures to abate any

risk.

As such, even if the Court could find Plaintiff plausibly pled personal involvement by any

one of the State Defendants, said Defendants would still be entitled to qualified immunity and

dismissal because Plaintiff has not plausibly pled an Eighth Amendment deliberate indifference

claim against any of them. See Myers, 41 F.4th at 759.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants Annette-Chambers-Smith, Jeff Mustard, Michael Swartz,

Penny Abbott, and Interested Party State of Ohio’s Motion to Dismiss (Doc. 8) be, and the same

hereby is, GRANTED; and the Court

FURTHER CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be taken in good faith.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: June 2, 2025