Cody v. Slusher et al

Filing 15

Opinion & Order signed by Judge James S. Gwin on 1/30/19. Plaintiff's motion to amend complaint is denied. The Court dismisses claims as set forth in this entry and certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. This case shall proceed solely on the retaliation claims identified by the Sixth Circuit Court of Appeals and listed in this Order, and the replevin/conversion claims asserted against the defendants l isted. While the Court is in possession of the Marshal forms and summonses for service on the remaining defendants, plaintiff did not provide copies of the complaint and all of its attachments for each of the defendants. Plaintiff is ordered to provide to the Court a copy of the original complaint and all attachments for the defendants listed within 30 days of the date of this order along with a Notice of Compliance. (Related Doc. 14 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JOHN CODY, aka
: CASE NO. 1:17-CV-00132
BOBBY THOMPSON,
:
:
Plaintiff,
:
:
vs.
: OPINION & ORDER
: [Resolving Doc. No. 14]
KAREN SLUSHER, et al.,
:
:
Defendants.
:
:
------------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff moves to amend his Complaint.1 This case was originally filed in January 2017
with a 479-page Complaint against fifteen Defendants. That Complaint was divided into twelve
counts, describing multiple incidents and including multiple causes of action, including denial
of access to courts, retaliation, denial of due process, denial of equal protection, unlawful search
and seizure of property, subjection to cruel and unusual punishment, violations of the ADA, and
numerous state law claims.
On June 13, 2017, this Court dismissed all claims under 28 U.S.C. § 1915(e). Plaintiff
appealed that decision. The United States Sixth Circuit Court of Appeals affirmed the Court’s
decision on all claims except the following retaliation claims:

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Doc. No. 14.

1. Nurse Megan’s alleged refusal to provide him with prescribed
mouthwash and threats to withhold future medication in retaliation
for filing grievances and lawsuits.
2. ADA Assistant Coordinator Jordan’s alleged threat to withhold medical
care if he continued to file grievances against her.
3. Warden Bradshaw’s alleged order for subordinates to close the law
library in retaliation for filing grievances and lawsuits.
4. Corrections Officer Slusher’s alleged order for him to the leave the
library prematurely in retaliation for filing grievances and lawsuits.
5. Deputy Warden Milligan’s alleged imposition of limitations on
Plaintiff’s ability to make photocopies for court in retaliation for
filing grievances and lawsuits.
6. Institutional Inspector Rose’s alleged ignoring of grievances in
retaliation for filing grievances and lawsuits.
7. Lieutenant Spears alleged ordering of unidentified individuals to
confiscate his legal materials and copy cards during a search of the
dormitory in retaliation for filing grievances and lawsuits.
8. Corrections Officers France and Carpenter’s alleged confiscation of
copy cards to delete balances in retaliation for filing grievances
and lawsuits.
The Circuit reversed the dismissal of those claims and remanded the case for this Court to
consider those claims. In addition, this Court also dismissed Plaintiff’s state law claims because
they were before the Court on supplemental jurisdiction. As the specified retaliation claims
were remanded, supplemental jurisdiction is now possible, and the Circuit vacated that dismissal
to allow the merits consideration of those state law claims.
1. Motion to Amend Complaint
Plaintiff has now filed a Motion to Amend his Complaint and attached his proposed 373page Amended Complaint. This lengthy pleading is rambling, disjointed and difficult to
decipher. After in-depth scrutiny of the proposed pleading, it appears he is seeking to

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recharacterize as retaliation claims all of the claims which dismissed by this Court and affirmed
by the Sixth Circuit in an attempt to litigate them under a new legal theory.
Generally, pro se pleadings are given a liberal construction and not held to the standards
expected of attorneys. Plaintiff, however, contends he is a Harvard Law School graduate and a
former criminal practice attorney. The Sixth Circuit instructed that because Plaintiff was an
attorney, he is not entitled to liberal construction of his pleadings and motions.
The Court denies the Motion to Amend his Complaint. Plaintiff is barred by the doctrine
of res judicata from relitigating claims that were already considered on the merits and affirmed,
either under the legal theories presented in his original Complaint or under new legal theories to
avoid the finality of the previous judgment. The only claims which are still before the Court
after the appeal are those specific retaliation claims listed above, and the state law claims
identified in the original Complaint.
II. Screening of State Law Claims
As mentioned above, the Court did not screen the state law claims under 28 U.S.C. §
1915(e) in its original Memorandum of Opinion because it declined supplemental jurisdiction
when the federal law claims were dismissed. The Court must now screen the state law claims
and dismiss any claim that lacks an arguable basis in law or fact or fails to state a claim upon
which relief can be granted.2

2

Haines v. Kerner, 404 U.S. 519, 520 (1972); Neitzke v. Williams, 490 U.S. 319 (1989); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990).

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Breach of Contract
Plaintiff asserts a claim for breach of contract in Count I of his Complaint. He contends
Slusher closed the law library for other inmate programming when it should have been kept
open for research. He contends Milligan limited the number of copy machines available for
inmates and limited the number of copies inmates could make at one time to 800. He also states
Milligan allowed his prison account to be garnished for other costs, leaving less money in his
account to make copies. None of these allegations suggest the Defendants entered into a
contract, express or implied, with Plaintiff.
Intentional Infliction of Emotional Distress
Plaintiff asserts claims for intentional infliction of emotional distress in Counts I through
XI. In order to establish a claim for intentional infliction of emotional distress, Plaintiff must
prove “(1) that the Defendant intended to cause the Plaintiff serious emotional distress, (2) that
the Defendant’s conduct was extreme and outrageous, and (3) that the Defendant’s conduct was
the proximate cause of Plaintiff’s serious emotional distress.”3
The issue of whether conduct “rises to the level of ‘extreme and outrageous' conduct
constitutes a question of law.”4 In order to recover for a claim of intentional infliction of
emotional distress under Ohio law, “it is not enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by malice, or a degree of aggravation that would entitle
the Plaintiff to punitive damages for another tort.”5 Instead, the Defendant’s conduct must be

3
4
5

Phung v. Waste Mgt., 71 Ohio St.3d 408, 410 (1994).
Meminger v. Ohio State Univ., 102 N.E.3d 642, 642–48 (Ohio Ct. App. 2017)
Mendlovic v. Life Line Screening of Am., Ltd., 173 Ohio App. 3d 46, 47 (Ohio Ct. App. 8th Dist. 2007).

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“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized community.”6
The conduct that Plaintiff complains about – closing or preventing access to the law
library, limiting the number of photocopies, confiscating copy cards, taking folders with legal
materials, denying grievances on procedural ground or on the merits, refusing to give
prescription mouthwash, and engaging in an unspecified campaign of harassment – do not
suggest conduct that is regarded as atrocious and utterly intolerable in a civilized society.
Negligent Infliction of Emotional Distress
Plaintiff also includes claims for Negligent Infliction of Emotional Distress. In Ohio,
recovery for negligent infliction of emotion distress is limited to situations in which the Plaintiff
was a bystander to an accident or was in fear of actual and personal physical peril.7 Moreover,
the Plaintiff must also have suffered “serious emotional distress,” which “may be found where a
reasonable person, normally constituted, would be unable to cope adequately with the mental
distress engendered by the circumstances of the case.”8 Again, the conduct of which Plaintiff
complains, listed above, provides no suggestion that Plaintiff was in actual fear of physical peril
or that any of those situations would render a reasonable person unable to cope adequately with
the mental distress resulting from that situation.

6

Id.
Audia v. Rossi Bros. Funeral Home, 140 Ohio App. 3d 589, 590–95 (2000).
8
Thomas v. United States, No. 1:14 CV 2184, 2016 WL 6902357, at *4–9 (N.D. Ohio Sept. 26,
2016)(citing Paugh v. Hanks, 451 N.E.2d 759 (Ohio 1983)), rev’d on other grounds, Gallimore v. Children's Hosp.
Med. Ctr., 617 N.E.2d 1052 (Ohio 1993).
7

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Negligence
Plaintiff asserts general negligence claims in Counts I, III, V, VI, VII, VIII, X, and XI.
Although Plaintiff includes a negligence claim in Counts II and XI, he does not allege facts to
suggest that the named Defendants engaged in behavior which could be construed to be
negligent.
To recover on a claim for negligence, Plaintiff must prove the existence of a duty, a
breach of that duty, and an injury proximately caused by the breach.9 In the context of a
custodial relationship between the state and its prisoners, the state owes a common law duty of
reasonable care and protection from unreasonable risks. “Reasonable care is that degree of
caution and foresight an ordinarily prudent person would employ in similar circumstances, and
includes the duty to exercise reasonable care to prevent an inmate from being injured by a
dangerous condition about which the state knows or should know.”10 A prison therefore must
exercise the degree of caution and foresight that an ordinarily reasonable and prudent person
would use under the same or similar circumstances.11 A prison, however, is not an insurer of the
safety of its inmates.12 “The inmate also bears a responsibility ‘to use reasonable care to ensure
his own safety.’ ”13
Plaintiff contends the following behavior was negligent:
1. Slusher closed the library, sometimes for other inmate programming
when it should have been open for him.

9
10
11
12
13

Lloyd v. Ohio Dep't of Rehab. & Correction, 91 N.E.3d 134, 137-38 (Ohio Ct. App. 2017).
Id.
Mussivand v. David, 45 Ohio St.3d 314, 318 (1989).
Id.
Id.

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2. Slusher did not prevent other younger, stronger inmates from getting in
line first for copies, or computer time.
3. Milligan limited the number of copies and the number of copy cards an
inmate could carry or purchase at one time.
4. Milligan allowed funds to be garnished from his prisoner account for
other purposes which limited funds available for purchasing
copies.
5. Eslick and Allenbaugh took his legal materials, envelope and reference
book.
6. Doe seized copy cards and over-the-counter medication.
7. Rose did not favorably rule on his grievances.
8. France and Carpenter seized copy cards and depleted them.
9. Bradshaw would not facilitate or finance a trip to Florida to defend an
action to seize property in payment of a judgment.
10. Jordan told him he could not have the painkillers he requested for a
chronic leg injury because the medication was not on the approved
list. Jordan did not think it necessary to refer him to the doctor.
Jordan told him his health request forms were too long and not
specific enough.
11. Granson did not examine him but questioned his use of a cane. He
approved the cane, but told Plaintiff he would be required to
demonstrate annually that he still needed the cane. Grandson
denied his request for orthopedic shoes.
These negligence claims meet the basic pleading requirements to survive initial
screening under 28 U.S.C. § 1915(e).
Replevin and Conversion
Plaintiff lists causes of action for replevin and conversion in Counts II, III, V, VI, VIII,
and X. A replevin action is filed by a Plaintiff who is entitled to possession of certain property
against the person or entity that has possession and control of it at the time the lawsuit is filed.14

14

Tewarson v. Simon, 141 Ohio App.3d 103, 117 (2001).

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It is based on an unlawful detention, regardless of whether an unlawful taking has occurred.15
In a replevin action, the judgment awards possession of the property. If delivery of the property
cannot be made, the action may proceed as a claim for conversion. Although listed as a cause of
action in Counts II, VIII, and X, none of these counts contain allegations pertaining to taking of
property. Those claims are dismissed. He contends in Count III that Eslick and Allenbaugh
took legal materials. In Count V, he alleges Doe seized copy cards and over-the-counter
medication. In Count VI, Plaintiff alleges France and Carpenter took copy cards and depleted
copies from the cards they returned. These claims meet the minimal pleading requirements
needed to survive initial review under 28 U.S.C. § 1915(e).
Ohio Revised Code § 2923.32 (Ohio’s version of RICO)
Finally, Plaintiff includes general allegations that the Defendants violated Ohio’s version
of the Racketeer Influenced Corrupt Organization Act (“RICO”). In order to allege a state
RICO violation, the following elements must be pled with specificity: (1) that conduct of the
Defendant involves the commission of two or more specifically prohibited state or federal
criminal offenses, (2) that the prohibited criminal conduct of the Defendant constitutes a pattern
of corrupt activity, and (3) that the Defendant has participated in the affairs of an enterprise or
has acquired and maintained an interest in or control of an enterprise.16 Plaintiff first fails to
allege facts suggest any of the Defendants engaged in two or more specific state or federal
offenses. Moreover, he fails to allege they participated in the affairs of an enterprise. Plaintiff
contends each Defendant is his or her own enterprise.

15

Id
Kondrat v. Morris, 118 Ohio App. 3d 198, 209 (1997)(citing Universal Coach, Inc. v. New York City
Transit Auth., Inc., 90 Ohio App.3d 284, 291(1993)).
16

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Under Ohio’s RICO statute, an “ ‘[e]nterprise’ includes any individual, * * *
corporation, * * * or other legal entity, or any organization, association, or group of persons
associated in fact although not a legal entity. ‘Enterprise’ includes illicit as well as licit
enterprises.”17 Because “persons,” not “enterprises,” are liable under the statute, the person and
the enterprise must be separate entities.18 Furthermore, although a corporation or entity may be
a member of an enterprise, the enterprise may not simply be composed of a corporation and its
officers or employees.19 “In short, an organization cannot join with its own members to do that
which it normally does and thereby form an enterprise separate and apart from itself.”20
Plaintiff has not pled facts sufficient to suggest the existence on an enterprise separate and apart
from the individual or the prison for which they all work.
IV. Conclusion
Accordingly, Plaintiff’s Motion to Amend Complaint21 is denied. Plaintiff’s state law
claims for breach of contract, intentional infliction of emotional distress, negligent infliction of
emotional distress, Ohio RICO (Ohio Rev. Code § 2923.32) are dismissed under 28 U.S.C.
§1915(e). His replevin and conversion claims in counts II, VIII, and X, and his negligence
claims in counts II and XI are also dismissed under §1915(e). The Court certifies, pursuant to
28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.22

17

Ohio Rev. Code § 2923.31(C).
United States Demolition & Contracting, Inc. v. O'Rourke Constr. Co., 94 Ohio App.3d 75, 85
(1994)(citing Universal Coach, 90 Ohio App.3d at 291).
19
Flanagan v. Eden, No. 85252, 2005 WL 1484038, at *3 (Ohio Ct. App. June 23, 2005)(citing Parker &
Parsley Petroleum v. Dresser Industries, 972 F.2d 580, 583(5th Cir. 1992); Bd. of Cty. Commrs. v. Liberty Group,
965 F.2d 879, 885(10th Cir. 1992)).
20
Id.
21
Doc. No. 14.
22
28 U.S.C. § 1915(a)(3) provides:
18

An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in
good faith.

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This case shall proceed solely on the retaliation claims identified by the Sixth Circuit Court of
Appeals and listed in this Order, and the replevin/conversion claims asserted against Eslick,
Allenbaugh, Doe, France and Carpenter, and negligence claims asserted against Slusher,
Milligan, Eslick, Allenbaugh, Doe, Rose, France, Carpenter, Bradshaw, Jordan and Granson.
While the Court is in possession of the Marshal Forms and Summonses for service on
the remaining Defendants, Plaintiff did not provide copies of the Complaint and all of its
attachments for each of the Defendants. Consequently, the Court is unable to forward
documents to the United States Marshals for service on the remaining Defendants. Plaintiff is
therefore ordered to provide to the Court a copy of the original Complaint and all of its
attachments for Defendants Slusher, Bradshaw, Milligan, Rose, Spears, France, Carpenter,
Eslick, Allenbaugh, Doe, Granson, Nurse Megan and Jordan within thirty days of the date of
this Order. Plaintiff is further ordered to send a “Notice of Compliance,” with an appropriate
case caption for filing, with the copies of the Complaint and attachments.
IT IS SO ORDERED.

Dated: January 30, 2019

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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