Johnson v. Hooper et al

Filing 6

Memorandum Opinion and Order: For all the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. 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. Judge Sara Lioi on 10/29/2012. (H,KR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONTEZ JOHNSON,
PLAINTIFF,
vs.
K. HOOPER, et al,
DEFENDANTS.

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CASE NO. 4:12cv1668
JUDGE SARA LIOI

MEMORANDUM OF OPINION
AND ORDER

Pro se plaintiff Dontez Johnson (“plaintiff” filed this Bivens 1 action against the
Terre Haute United States Penitentiary (“USP Terre Haute”) Trust Fund Supervisor Mrs. K.
Hooper, USP Terre Haute Warden Charles Lockett, USP Terre Haute Captain T. Watson, USP
Deputy Captain C. Romaine, Butner Federal Medical Center (“FMC Butner”) Warden Angela
Dunbar, FMC Butner Unit Manager D. Willis, and FMC Butner Counselor Ms. Lassiter. In
complaint, the plaintiff alleges he is unable to obtain funds from his prison trust account. He
seeks monetary and injunctive relief.
I. BACKGROUND
The plaintiff, who is currently incarcerated in USP Terre Haute, contends he is
unable to access the funds in his prison trust account.. Prior to his transfer to USP Terre Haute,
he was incarcerated at FMC Butner, in North Carolina. He indicates that officials at FMC Butner
and USP Terre Haute have denied him the ability to use monies deposited in his prison trust
account to make purchases. He claims he is unable to buy basic hygiene items or pay court costs.
He indicates he is currently in protective custody at USP Terre Haute, which limits his access to
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Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

the law library and legal materials. He states that he borrowed an envelope from his cellmate to
mail the complaint. He indicates he cannot buy medications and other Abasic items.@ He further
claims he is being denied access to the courts, and asks the Court to order the prison to release
his trust account.
II. STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam), the district court is required to dismiss an in forma 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. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir.
1997). 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 v. Williams,
490 U.S. 319, 327 (1989).
A cause of action fails to state a claim upon which relief may be granted when it
lacks Aplausibility in the complaint.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a Ashort and plain statement of the claim showing that the pleader is
entitled to relief.@ Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009). The factual allegations in the
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. Plaintiff
is not required to include detailed factual allegations, but must provide more than Aan unadorned,
the-defendant-unlawfully-harmed-me accusation.@ Iqbal, 556 U.S. at 678. A pleading that offers
legal conclusions or a simple recitation of the elements of a cause of action will not meet this

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pleading standard. Id. In reviewing a complaint, the Court must construe the pleading in the light
most favorable to the plaintiff
III. ANALYSIS
As an initial matter, the Northern District of Ohio is not the proper venue for this
action. Review of the complaint indicates the specific events and omissions of which the plaintiff
complains occurred in Indiana and North Carolina. Furthermore, all of the defendants appear to
reside in Indiana and North Carolina. A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a
judicial district where any defendant resides, if all defendants reside in the same state; (2) a
judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred; or (3) a judicial district in which any Defendant may be found, if there is no district in
which the action may otherwise be brought. 28 U.S.C. ' 1391(b). As none of the defendants
reside in the State of Ohio and the events described in this action occurred in Indiana and North
Carolina, this Court is not the proper venue to assert these claims.
Title 28 U.S.C. ' 1406(a) provides that an improperly venued action shall be
dismissed unless it is "in the interest of justice" that it be transferred to a district or division in
which it could have been brought. For the reasons stated below, the Court finds that it would not
be in the interest of justice to transfer this matter, and that dismissal is appropriate.
The only legal claim the plaintiff asserts in his complaint is one for denial of
access to the courts. He asserts that because his account is frozen, he is unable to purchase the
envelopes, paper, and stamps he requires to file motions and legal actions. In addition, he claims

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he is in protective custody and has no access to the law library, which makes it difficult for him
to conduct research.
To state a claim for denial of access to the courts, the plaintiff must allege
particular actions of the defendants that prevented him from pursuing or caused the rejection of a
specific non-frivolous direct appeal, habeas corpus petition, or civil rights actions. Lewis v.
Casey, 518 U.S. 343, 351 (1996). The right of access to the courts is directly related to an
underlying claim, without which a plaintiff cannot have suffered injury by being shut out of
court.@ Christopher v. Harbury, 536 U.S. 403, 415 (2002). The plaintiff must therefore Aplead
and prove prejudice stemming from the asserted violation.@ Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996). In order words, he must demonstrate Aactual injury@ by showing that his
underlying claim was non-frivolous, and that it was frustrated or impeded by the defendants.
Lewis, 518 U.S. at 353. AIt follows that the underlying cause of action, whether anticipated or
lost, is an element that must be described in the complaint . . . .” Christopher, 536 U.S. at 415.
Here, the plaintiff alleges only in general terms that the law library in the prison is
inadequate and he cannot purchase supplies needed to draft and mail legal actions. These
allegations are insufficient to state a claim. An inmate cannot establish an actual injury simply by
stating his prison's law library or legal assistance program is sub-par in some theoretical sense,
nor can he state a claim by alleging in general terms that a prison=s policy makes it difficult for
him to litigate. Lewis, 518 U.S. at 351. The inmate must go one-step further and demonstrate that
the alleged shortcomings in the library or prison policy hindered his efforts to pursue an actual
non-frivolous legal claim in his direct appeal, habeas petition or civil rights action. Id. at 353.
The plaintiff has not alleged that defendants prevented him from pursuing a particular non-

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frivolous action or caused a pending action to be dismissed. Accordingly, his claim for denial of
access to the courts must be dismissed.
IV. CONCLUSION
For all the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. '
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.

IT IS SO ORDERED.

Dated: October 29, 2012
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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