Gilbert v. Department of Rehabilitation and Correction et al.

Filing 7

Memorandum Opinion and Order. For the foregoing reasons, Plaintiff's motions for discovery are denied, and his Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). 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. Related documents 5 , Motion to compel discovery, 3 Motion for Photos, 4 Motion for Camera Footage. Signed by Judge Solomon Oliver, Jr. on 9/24/2024. (R,Sh)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BOBBY DEAN GILBERT, Pro Se,
Plaintiff
v.
DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,

Defendants

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Case No.: 1: 24 CV 1038

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION
AND ORDER

Background
Pro Se Plaintiff Bobby Dean Gilbert, an Ohio inmate, has filed an in forma pauperis civil
rights complaint in this case under 42 U.S.C. § 1983 against the Ohio Department of Rehabilitation
and Correction (“ODRC”); Richland Correctional Institution (“RCI”) Warden Kenneth Black;
Corrections Officer Kisner; and “Auto-Cad Teacher” Lisa Poff. (Doc. No. 1.)
Plaintiff, who is now incarcerated in the Chillicothe Correctional Institution, challenges
prison discipline imposed upon him while he was incarcerated at RCI. In his Complaint, he contends
he was wrongly written up and found guilty by the Rules Infraction Board of rule violations
pertaining to contraband and disrespecting an officer, staff member, or other inmate. He appears to
contend the unjustified discipline caused him to “be denied going home to his family at the Parole
Board on March 6, 2024.” (Id. at 3.) For relief, he seeks $44 million in damages. He has also filed

various motions for various discovery (Doc. Nos. 3, 4, 5.)
Standard of Review and Discussion
Federal district courts are expressly required to review all in forma pauperis complaints filed
in federal court, and to dismiss before service any such action that the Court determines is frivolous
or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against
a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Hill v. Lappin, 630 F.3d
468, 470 (6th Cir. 2010). A complaint fails to state a claim on which relief may be granted when it
lacks “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. at 470-71 (holding that the dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S.
662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals for failure
to state a claim under § 1915(e)(2)(B)).
Upon review, the Court finds that Plaintiff’s Complaint must be dismissed in accordance
with § 1915(e)(2)(B).
Plaintiff has already sued the same Defendants (and others) in a prior lawsuit on the basis the
disciplinary charges and determinations made against him at RCI were unjustified and violated his
rights. See Gilbert v. Ohio Department of Rehabilitation and Correction, et al., No. 1: 22 cv 1318,
2022 WL 13980699 (N.D. Ohio Oct. 24, 2022). In his prior case, Plaintiff challenged the same
discipline and contended it resulted in an increase in his security classification and prevented him
from finding a job within the prison.
Judge Calabrese dismissed Plaintiff’s prior complaint on the merits pursuant to §
1915(e)(2)(B), finding that the discipline imposed on Plaintiff did not implicate a liberty interest
triggering constitutional due process protection. See id. at *2 (quoting Sandin v. Connor, 515 U.S.
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472, 484 (1995) (“A prison disciplinary action does not implicate a liberty interest requiring
due-process safeguards unless the punishment imposed will inevitably affect the duration of an
inmate’s sentence, such as loss of good time credit, or inflict an ‘atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.’”)
In that Judge Calabrese has already determined that the rule violations for which Plaintiff was
charged and found guilty did not violate his rights, Plaintiff’s duplicative Complaint here, seeking
relief against the same Defendants on the basis of the same discipline, is barred by the broad doctrine
of res judicata, which provides that a final judgment on the merits bars any and all claims by the
parties or their privies based on the same cause of action as to every matter actually litigated as well
as every theory of recovery that could have been presented. See Smith v. Morgan, 75 Fed. Appx.
505, 506–07, 2003 WL 22177221, at *1 (6th Cir. 2003).
Even to the extent Plaintiff’s Complaint may not be barred by res judicata on the basis he
purports to claim a different adverse impact from the discipline than he claimed in his prior
complaint, i.e, the denial of his release on parole in 2024, his Complaint still fails to state a plausible
claim. In Ohio, a prisoner has no constitutionally-protected liberty interest in release on parole
before the expiration of a valid sentence. Inmates of Orient Correctional Institute v. Ohio State
Adult Parole Authority, 929 F.2d 233, 235 (6th Cir. 1991). Accordingly, like his prior Complaint,
Plaintiff’s Complaint in this case alleges no plausible constitutional due process claim upon which
he may be granted relief under § 1983.
Further, his Complaint is also subject to dismissal because it fails to set forth facts indicating
how each of the named individual Defendants was personally involved in the wrongful conduct he
alleges. Where, as here, individuals are named as defendants without allegations of specific conduct

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in the body of the Complaint, the Complaint is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Gilmore v. Corr. Corp. of Am., 92 F. App'x 188, 190
(6th Cir. 2004) (dismissing complaint where plaintiff failed to allege how any named defendant was
involved in the violation of his rights); Frazier v. Michigan, 41 F. App'x 762, 764 (6th Cir. 2002)
(dismissing 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 each alleged violation of
rights). Individuals may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior, and the ODRC is not subject to suit under § 1983. Honzu v.
Warden, Ross Correctional Institution, 2 :22-cv-292, 2022 WL 3018095, at *4 (S.D. Ohio July 29,
2022).
Conclusion
For the foregoing reasons, Plaintiff’s motions for discovery are denied, and his Complaint
is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). 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.
IT IS SO ORDERED.

/s/ SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE

September 24, 2024

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