UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
ALGERNON FRANKLIN, Case No. 1:20-cv-225 Plaintiff, Barrett, J. vs. Bowman, M.J.
GARY MOHR, et al., REPORT AND Defendants. RECOMMENDATION
Plaintiff, an inmate at the Toledo Correctional Institution, brings this action under 42 U.S.C. § 1983 against defendants Gary Mohr, Linnea Mahlman, Officer Distel, Officer Kyle, Officer Carter, Administrative Captain John Doe, and Captain John Doe. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 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). 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 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). In the complaint, plaintiff alleges that on April 19, 2018, while at the Southern Ohio Correctional Facility, he was stopped and searched because his state issued pants had a rip in the front. (Doc. 1, Complaint at PageID 2). After being strip searched, plaintiff alleges that he was forced to walk back to his cell in only his thermal underwear and state issued shirt. According to plaintiff, various unidentified officers and inmates “made sexual comments regarding Plaintiff’s sexual preference after seeing Plaintiff partially exposed.” (Id.). Plaintiff claims that he requested to speak with mental health staff and the PREA coordinator following the incident and
experiencing severe anxiety and stress. Plaintiff claims he was put on suicide watch for no reason. Plaintiff further alleges that defendant John Doe Captain later attempted to coerce him into dismissing his complaint regarding this incident during an interview. (Id. at PageID 2–3). Plaintiff alleges that he was also subjected to further verbal harassment by defendant Officer Distel on October 31, 2018. (Id. at PageID 3). Plaintiff claims he unsuccessfully filed an administrative grievance concerning the incident. As relief, plaintiff seeks declaratory relief and monetary damages. (Id. at PageID 3–4). Plaintiff’s complaint is subject to dismissal at the screening stage. As an initial matter, the complaint should be dismissed as to defendants Mohr, Mahlman, Officer Kyle, Officer Carter, and Administrative Captain John Doe.1 The complaint includes no factual allegations against these defendants. The complaint should also be dismissed to the extent that plaintiff seeks to hold defendant Distel or any other defendant liable for the use of threats, slurs, or other insults. Plaintiff fails to state a viable claim under § 1983, which requires a showing of a deprivation of
“a right secured by the United States Constitution or a federal statute.” See Spadafore v.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
ALGERNON FRANKLIN, Case No. 1:20-cv-225 Plaintiff, Barrett, J. vs. Bowman, M.J.
GARY MOHR, et al., REPORT AND Defendants. RECOMMENDATION
Plaintiff, an inmate at the Toledo Correctional Institution, brings this action under 42 U.S.C. § 1983 against defendants Gary Mohr, Linnea Mahlman, Officer Distel, Officer Kyle, Officer Carter, Administrative Captain John Doe, and Captain John Doe. By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 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). 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 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). In the complaint, plaintiff alleges that on April 19, 2018, while at the Southern Ohio Correctional Facility, he was stopped and searched because his state issued pants had a rip in the front. (Doc. 1, Complaint at PageID 2). After being strip searched, plaintiff alleges that he was forced to walk back to his cell in only his thermal underwear and state issued shirt. According to plaintiff, various unidentified officers and inmates “made sexual comments regarding Plaintiff’s sexual preference after seeing Plaintiff partially exposed.” (Id.). Plaintiff claims that he requested to speak with mental health staff and the PREA coordinator following the incident and
experiencing severe anxiety and stress. Plaintiff claims he was put on suicide watch for no reason. Plaintiff further alleges that defendant John Doe Captain later attempted to coerce him into dismissing his complaint regarding this incident during an interview. (Id. at PageID 2–3). Plaintiff alleges that he was also subjected to further verbal harassment by defendant Officer Distel on October 31, 2018. (Id. at PageID 3). Plaintiff claims he unsuccessfully filed an administrative grievance concerning the incident. As relief, plaintiff seeks declaratory relief and monetary damages. (Id. at PageID 3–4). Plaintiff’s complaint is subject to dismissal at the screening stage. As an initial matter, the complaint should be dismissed as to defendants Mohr, Mahlman, Officer Kyle, Officer Carter, and Administrative Captain John Doe.1 The complaint includes no factual allegations against these defendants. The complaint should also be dismissed to the extent that plaintiff seeks to hold defendant Distel or any other defendant liable for the use of threats, slurs, or other insults. Plaintiff fails to state a viable claim under § 1983, which requires a showing of a deprivation of
“a right secured by the United States Constitution or a federal statute.” See Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir. 2003). It is well-settled that “[v]erbal harassment or idle threats by a state actor do not create a constitutional violation and are insufficient to support a section 1983 claim for relief.” Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam) (citing Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)); see also Chilcott v. Erie Cnty. Domestic Relations, 283 F. App’x 8, 11 (3rd Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases cited therein). Additionally, while prison officials should not use degrading or racist language when interacting with inmates, the use of such language does not rise to the level of a constitutional violation. See Hursey v. Anderson, No. 16-1146, 2017 WL
3528206, at *4 (6th Cir. Mar. 31, 2017). A prison official’s use of racial slurs and other insults, “although unprofessional and reprehensible, does not rise to the level of constitutional magnitude” and is insufficient to support a constitutional claim for relief. Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (citing Torres v. Oakland County, 758 F.2d 147, 152
1 A Disposition of Grievance form attached to the complaint indicates that defendants Carter and Kyle were the officers who strip searched plaintiff and returned him to his cell “wearing . . . long underwear and a blue state shirt.” (Doc. 1 at PageID 5). The disposition of grievance was granted due to the officer’s violation of AR 5120-9-04, which governs appropriate supervision, discrimination and racial issues. However, even considering the allegations in the attached grievance, the undersigned finds that plaintiff’s factual allegations against these defendants do not rise to the level of a constitutional violation. Defendants Mahlman and Administrative Captain John Doe are apparently named as defendants in connection with the grievance process; however, as noted below these claims should be dismissed for failure to state a claim upon which relief may be granted. (6th Cir. 1985)); see also Ivey, 832 F.2d at 954. Cf. Johnson v. Unknown Dellatifa, 357 F.3d 539, 545-46 (6th Cir. 2004). The complaint should also be dismissed to the extent that plaintiff seeks to hold any defendant liable in connection with the grievance process or investigation of his claims. Plaintiff apparently names defendants Mahlman and Administrative Captain John Doe in connection with
the grievance process. However, “[t]here is no statutory or common law right, much less a constitutional right, to an investigation.” Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007); see also Daniels v. Lisath, No. 2:10-cv-968, 2011 WL 2710786, at *2 (S.D. Ohio July 13, 2011). Furthermore, to the extent that plaintiff claims that the grievance procedure failed to produce the correct outcome, this cannot give rise to a § 1983 claim because “[p]rison 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 official’s 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 brought in connection with the grievance process should be dismissed for failure to state a claim upon which relief may be granted. Finally, the complaint should be dismissed against defendant John Doe Captain. Without factual elaboration, plaintiff alleges that John Doe Captain attempted to coerce him into dismissing his complaint regarding this incident. (Id. at PageID 2–3). Plaintiff’s conclusory allegation is subject to dismissal. Plaintiff has not alleged any specific action taken by defendant, much less that any such action would deter a person of ordinary firmness from engaging in protected conduct. See 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)). Accordingly, the complaint should be dismissed as to defendant John Doe Captain. Accordingly, in sum, the complaint should be dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) because plaintiff has failed to state a claim upon which relief may be granted. IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
s/Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
ALGERNON FRANKLIN, Case No. 1:20-cv-225 Plaintiff, Barrett, J. vs. Bowman, M.J.
GARY MOHR, et al., Defendants.
NOTICE
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 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).