King v. Fender et al

Filing 6

Memorandum of Opinion. Plaintiff's Fourth, and Fifth Amendment claims are dismissed against all Defendants pursuant to 28 U.S.C. §1915(e). His Eighth Amendment claims are dismissed against Fender, King and Ortiz. His First Amendment retaliation claim was asserted only against Ortiz. To the extent Plaintiff intended to assert that claim against Fender, King, or Padilla, he failed to do so and those claims are dismissed. 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. This action shall proceed solely on Plaintiff's retaliation claim against Ortiz and his Eighth Amendment excessive force claim against Padilla. The Clerks' Office shall include a copy of this Order with the documents to be served on these two Defendants. IT IS SO ORDERED. Judge Donald C. Nugent on 11/18/2022. re 1 . (M,S)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TODD A. KING,

CASE NO. 1:22 CV 1372

Plaintiff,

JUDGE DONALD C. NUGENT

V.

MEMORANDUM OF OPINION

WARDEN FENDER,et aL,
Defendants.

Pro se Plaintiff Todd A. King filed this action under 42 U.S.C. § 1983 against Lake Erie
Correctional Institution Warden Fender, Assistant Warden Ms. King, Unit Manager Padilla, and
C.C. Ortiz. In the Complaint, he contends the Defendants harassed him by repeatedly searching
his cell, confiscated his property, sprayed him with mace,denied him medical treatment, and

failed to inform him of a death in his immediate family. He asserts violations of his Fourth, Fifth
and Eight Amendment rights. He does not specify in his Complaint the relief he seeks. He
indicates on his Civil Cover Sheet that he is seeking $ 20,000.00 in damages.
Factual and Procedural Background
Plaintiff alleges his cell was searched on May 18,2022. He contends Ortiz ordered the

block officer to search his cell again on May 19,2022, knowing that his cell had just been
searched the previous night. Plaintiff claims the search was conducted in retaliation for
grievances Plaintiff filed against Ortiz's fiiend which resulted in the termination ofthe fiiend's
employment. He states that after the block officer completed the cell search, he sent a

communication to the Warden claiming Ortiz was harassing him. He claims Ortiz came back

thirty minutes after the block officer completed his search and told him to step out of his cell so
that it could be searched for a third time. Plaintiff indicates he refused to leave and asked to

speak with a captain. Instead of a captain, Unit Manager Padilla came to his cell and yelled at
Plaintiffto leave the area. He repeated his request to see a captain.

Plaintiff alleges he saw Captain Foster walking toward his cell. Plaintiff claims he left
his cell and proceeded toward Foster intending to speak with him. He contends Padilla grabbed
his wrist to stop him but and he pulled it away from Padilla. He states that Padilla then sprayed
mace in his face. He alleges that others also sprayed him with mace but he could not determine

their identity because he was temporarily blinded by the chemicals. He claims they took him to a
holding cell in the segregation unit and refused to allow him to shower to remove the mace for
over two hours. He contends that Foster eventually came into his cell and asked why he had two
knives in his shoe. Plaintiff denied possessing any knives.
Plaintiff further contends that his personal property was taken and not returned. It

appears that his property was packed up by corrections officers after he was moved to
segregation. He claims he was told that some ofthat property was placed in the captain's vault

because it exceeded the amount of property he could have in segregation. He indicates that some
ofthat property was missing when he was transferred. He also contends that property was taken
from him during the cell searches. He claims none ofthe property taken during the searches was
in the captain's vault. Plaintiff alleges Assistant Warden Ms. King came into his call and tried to
get him to sign a statement that he was on a hunger strike because he could not produce receipts
for his property. He states he provided King with an accounting statement that listed his

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financial transactions in the prison but King did not accept that in place ofreceipts. He claims

she told him she wanted to get him out ofthe prison and took pictures of him with her cellular
telephone. Plaintiff claims Ortiz stole his personal items to retaliate against him.
Finally, Plaintiff alleges that King did not inform him that his mother died and did not

allow him to speak with family members who called to deliver the news to him. His family
members reported that they spoke to King. He claims he learned about her death from the
Chaplain at the Warren Correctional Institution after his transfer.

Plaintiff lists his legal claims as violations of his Fourth, Fifth, and Eighth Amendment

rights. He provides no other description of his claims and does not specify the relief he seeks.
Standard of Review

Although pro se pleadings are liberally construed,Boag v. MacDougall,454 U.S. 364,
365(1982)(per curiam); Haines v. Kerner,404 U.S. 519,520(1972),the Court is required to
dismiss an informa pauperis action under 28 U.S.C. § 1915(e)if it fails to state a claim upon
which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319(1989); Lawler v. Marshall,898 F.2d 1196(6th Cir. 1990); Sistrunk v. City of

Strongsville, 99 F.3d 194,197(6th Cir. 1996). A claim lacks an arguable basis in law or fact
when it is premised on an indisputably meritless legal theory or when the factual contentions are
clearly baseless. Neitzke,490 U.S. at 327.

A cause of action fails to state a claim upon which relief may be granted when it lacks

"plausibility in the Complaint." Bell Atl. Corp. v. Twombly,550 U.S. 544,564(2007). A

pleading must contain a "short and plain statement ofthe claim showing that the pleader is
entitled to relief." Ashcroft v. Iqbal,556 U.S.662,677-78(2009). The factual allegations in the
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pleading must be sufficient to raise the right to relief above the speculative level on the

assumption that all the allegations in the Complaint are true. Twombly, 550 U.S. at 555. The
Plaintiff is not required to include detailed factual allegations, but must provide more than "an
unadorned, the Defendant unlawfully harmed me accusation." Iqbal, 556 U.S. at 678. A

pleading that offers legal conclusions or a simple recitation ofthe elements of a cause of action
will not meet this pleading standard. Id. In reviewing a Complaint,the Court must construe the
pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151
F.3d 559,561 (6th Cir. 1998)
Discussion

Cell Searches and Confiscated Property

Plaintiff first objects to the repeated cell searches and the taking of his personal property.
He asserts claims under the Fourth, Fifth and Eighth Amendments. He also asserts that the

actions were ordered by Ortiz in retaliation for filing grievances against her friend which resulted
in the termination of her friend's employment in the prison. Retaliation claims arise under the
First Amendment.

The Fourth Amendment does not provide Plaintiff with a plausible cause of action. The

Fourth Amendment prohibition against unreasonable searches and seizures does not apply within
the confines ofthe prison cell. Hudson v. Palmer,468 U.S. 517,525 (1984). Society is not

prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might
have in his prison cell. Id.
Plaintiff also fails to state a claim imder the Fifth Amendment. The Fifth Amendment

provides that"no person shall be deprived of life, liberty, or property, without due process of
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law." U.S. Const, amend. V. The Due Process Clause does not prohibit every deprivation by

the government of a person's life, liberty or property. Harris v. City ofAkron,20 F.3d 1396,
1401 (6th Cir. 1994). It prohibits only those deprivations which are conducted without providing
for adequate pre or post deprivation procedures. Id. Therefore, before a Plaintiff can claim that
he was denied due process, he must plead and prove that state remedies for redressing the wrong

are inadequate. In other words,the Plaintiff must attack the state's corrective procedures as well
as the substantive wrong. Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 587-88(6th
Cir. 2004). To do this. Plaintiff can either demonstrate that his property was taken as a result of
an established state procedure that itself violates due process rights; or he must demonstrate that
the Defendants deprived him of property pursuant to a random and unauthorized act and the
available state remedies would not be adequate to redress the deprivation. Macene v. MJW, Inc.,

951 F.2d 700,706(6th Cir 1991); see Vicory v. Walton, 721 F.2d 1062,1064(6th Cir. 1983).
In this case. Plaintiff does not challenge an established state procedure as a denial of due

process. Instead, he claims Ortiz and the block officer took his property through an unauthorized
act. He therefore must also allege and demonstrate that his state remedies would be inadequate
to redress the situation. A remedy is available in the Ohio Court of Claims. See Haynes v.

Marshall, 887 F.2d 700, 704(6th Cir.1989). Plaintiff has not alleged facts suggesting that it

would not be adequate to address the deprivation. He fails to state a claim for denial of due
process.

In addition. Plaintiffs allegation that his cell was searched repeated to harass him does
not rise to the level of an Eighth Amendment claim. The Eighth Amendment imposes a
constitutional limitation on the power ofthe states to pxmish those convicted of crimes.

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Punishment may not be "barbarous" nor may it contravene society's "evolving standards of
decency." Rhodes v. Chapman,452 U.S. 337, 346(1981). The Eighth Amendment protects
inmates by requiring that "prison officials ... ensure that inmates receive adequate food, clothing,
shelter, and medical care, and ... 'take reasonable measures to guarantee the safety ofthe

inmates.'"Farmer v. Brennan,511 U.S. 825,833(1994)(quoting Hudson v. Palmer,468 U.S.

517, 526-27(1984)). This, however, does not mandate that a prisoner be free from discomfort or
inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d 950,954(6th Cir. 1987)
(per curiam)(quoting Rhodes,452 U.S. at 346). The Eighth Amendment affords the

constitutional minimum protection against conditions of confinement which constitute health
threats, but does address those conditions which cause the prisoner to feel merely uncomfortable

or which cause aggravation or annoyance. Hudson v. McMillian, 503 U.S. 1,9-10(1992)

(requiring extreme or grave deprivation). Frequent cell searches alone, while perhaps annoying,
do not present a danger to the inmate's health or safety and do not implicate the Eighth
Amendment.

The last claim Plaintiff raises with respect to the frequent cell searches and confiscation

of property is one for retaliation by Ortiz. Retaliation, though it is not expressly referred to in the
Constitution, is actionable because retaliatory actions may tend to chill an individual's exercise
of First Amendment rights. Perry v. Sindermann,408 U.S. 593,597(1972). To state a/?n/wa

facie case for retaliation prohibited by the First Amendment,Plaintiff must establish: 1)he

engaged in protected conduct; 2)an adverse action was taken against him that would deter a

person of ordinary firmness from continuing to engage in that conduct; and 3)that a causal
connection exists between the first two elements. Thaddeus-Xv. Blatter, 175 F.3d 378,394(6th

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Cir. 1999). Plaintiff alleges that he filed grievances against Ortiz's friend. Filing a non-

ffivolous grievance against prison officials is conduct protected by the First Amendment. Hill v.

Lappin,630 F.3d 468,472(6th Cir. 2010); Herron v. Harrison, 203 F.3d 410,415 (6th Cir.
2000). Plaintiff claims that Ortiz ordered the repetitive cell searches. Frequent cell searches
could be sufficient to deter a person of ordinary firmness from filing future grievances. Finally,
Plaintiff alleges that Ortiz was motivated to order the cell searches by his filing of grievances
against her friend. On the face ofthe Complaint, Plaintiff alleged sufficient facts to suggest a
plausible claim of retaliation against Ortiz that survives summary dismissal.
Excessive Force

Plaintiff also includes claims for use ofexcessive force against Unit Manager Padilla. He

contends Padilla grabbed his wrist, sprayed mace in his face and denied him a shower for over
two hours to wash the mace from his body. Whenever prison officials are accused of using

excessive physical force in violation ofthe Eighth Amendment,the core determination is
whether the force was applied in a good-faith effort to maintain or restore discipline, or whether
is was applied maliciously and sadistically to cause harm. Hudson,503 U.S. at 6-7. The
Plaintiff is not required to show a serious injury, although the extent of his injuries may be
considered in determining whether the use offorce was wanton and unnecessary. Id. at 7. Other

factors include "the need for application offorce, the relationship between that need and the
amount offorce used, the threat 'reasonably perceived by the responsible officials,' and 'any

efforts made to temper the severity of a forceful response.'"Id.(quoting Whitley v. Albers, 475

U.S. 312, 321 (1986)). Here, assuming the truth ofthe allegations for purposes of screening.

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Plaintiff alleges sufficient facts to state a plausible claim for relief that survives summary
dismissal.

Claims against Warden and Assistant Warden

Finally, Plaintiff lists Warden Fender and Assistant Warden King as Defendants. His

only allegation pertaining to Fender is that he sent a communication to Fender regarding cell
searches. He does not state a particular claim against Fender and none is apparent on the face of

the Complaint based on this one sentence in the pleading. Similarly, Plaintiff alleges that King
attempted to have him sign a statement regarding a hunger strike, refused to accept his trust
account statement as property receipts. He again does not identify a cause of action for these
actions and none is apparent to the Court.

Plaintiff also alleges that King refused to allow him to speak with family members when
his mother died and did not inform him of her passing. While this may be perceived to be

insensitive, it does not rise to the level of an Eighth Amendment violation. No other cause of
action listed by Plaintiff in his Complaint seems applicable to these actions.
Conclusion

Accordingly,Plaintiffs Fourth, and Fifth Amendment claims are dismissed against all
Defendants pursuant to 28 U.S.C. §1915(e). His Eighth Amendment claims are dismissed

against Fender, King and Ortiz. His First Amendment retaliation claim was asserted only against
Ortiz. To the extent Plaintiff intended to assert that claim against Fender, King,or Padilla, he
failed to do so and those claims are dismissed. The Court certifies, pursuant to 28 U.S.C. §

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1915(a)(3), that an appeal from this decision could not be taken in good faith.' This action shall
proceed solely on Plaintiffs retaliation claim against Ortiz and his Eighth Amendment excessive
force claim against Padilla. The Clerks' Office shall include a copy of this Order with the
documents to be served on these two Defendants.
IT IS SO ORDERED.

DONALD C. NUGEN'

UNITED STATES DI

RICT JUDGE

Dated

28 U.S.C. § 1915(a)(3) provides:

An appeal may not be taken informa pauperis ifthe trial court certifies that it is not
taken in good faith.
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