Albiola v. Pugh et al

Filing 5

Memorandum of Opinion and Order For the reasons set forth herein, 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 Benita Y. Pearson on 4/27/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MONICO ALBIOLA,
Plaintiff,
v.
MICHAEL PUGH, Warden, et al.
Defendants.

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CASE NO. 4:14CV1645

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER

Pro Se Plaintiff Monico Albiola filed this Bivens1 action against Northeast Ohio
Correctional Center (“NEOCC”) Warden Michael Pugh, NEOCC Assistant Warden of
Operations and Security Dennis Johnson, NEOCC Chief of Security Jose Rodriguez, NEOCC
Assistant Chief of Security David Yemma, NEOCC Facility Grievance Officer Sean Daugherty,
NEOCC Special Investigative Services (“SIS”) Supervisor James Conroy, NEOCC SIS Officer
Mr. Macklin, NEOCC SIS Officer Mr. Gonzalez, NEOCC Special Housing Unit (“SHU”) Staff
Lieutenant Vogelberger, NEOCC SHU Staff Sergeant Kovacich, NEOCC SHU Officer Bender,
NEOCC SHU Officer Cashon, NEOCC SHU Officer Badger, NEOCC SHU Officer Sultez,
NEOCC SHU Officer Creatore, NEOCC Administrative Order Coordinator R. Lee, NEOCC
Delta Unit Manager Ms. Austin, NEOCC Case Manager Mr. McGowan, NEOCC Case Manager
Ms. Fox, NEOCC Counselor Ms. Payne, NEOCC Maintenance Officer Mr. Dolhart, NEOCC

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Under the Bivens doctrine, a plaintiff may allege a claim based on an injury of
his constitutional rights by a federal employee. See Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).

(4:14CV1645)
Warehouse Supervisor Ms. Smith, NEOCC SHU Sergeant V. Aikens, NEOCC Property Room
Supervisor Karen Guerriero, NEOCC SHU Sergeant Conley, NEOCC Corrections Officer
Brigham, and John Doe Officers of NEOCC. In the Verified Complaint (ECF No. 1), Plaintiff
alleges he was compelled to engage in sexual relations with a female corrections officer. He
seeks monetary relief.
I. Background
Plaintiff is a federal inmate who was incarcerated in NEOCC until he was transferred to
CI Rivers in North Carolina in April 2013. ECF No. 1 at PageID #: 29. He contends NEOCC
Property Room Supervisor Karen Gurriero began sexually harassing him in January 2012. ECF
No. 1 at PageID #: 21. Plaintiff indicates the harassment began with persistent and invasive pat
downs and groping (ECF No. 1 at PageID #: 21-22), and escalated to six incidents of oral sex in
May and June 2012 (ECF No. 1 at PageID #: 23-25). He was assigned to work in the property
room. ECF No. 1 at PageID #: 21 and 23. Plaintiff requested transfer to a new work assignment
to remove himself from the situation; however, he was not successful in obtaining full time work
in another department. ECF No. 1 at PageID #: 22 and 24. He claims the final incident of sexual
contact occurred in June 2012. ECF No. 1 at PageID #: 25.
An investigation into Plaintiff’s situation began in July 2012. Plaintiff claims Chief of
Security Jose Rodriguez and Assistant Chief of Security David Yemma came to the property
room on July 24, 2012 and escorted him to the visitation room where they were joined by SIS
Supervisor James Conroy. ECF No. 1 at PageID #: 25-26. Plaintiff was told he was not in
trouble, but that he would be placed in administrative segregation while the investigation was

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conducted. The investigation was completed in October 2012. No charges were filed against
Plaintiff; however, Rodriguez informed him he was recommending Plaintiff be transferred to
another institution due to the nature of the situation. ECF No. 1 at PageID #: 26.
Plaintiff believes NEOCC officers tampered with his food trays when he was in
segregation. He claims he found a large live insect in his food in September 2012. ECF No. 1 at
PageID #: 26. Four months later, on January 24, 2013, Plaintiff was taken to the medical
department complaining of severe abdominal pain, green stool, heart palpitations, shortness of
breath, body tremors, a chemical taste in his mouth, and a severe headache. He does not indicate
how long he was in the medical department. Plaintiff states he was released to the general
population on March 21, 2013. On that same day, he was taken back to segregation and charged
with disciplinary infractions. The charges were later dropped. Plaintiff states he became ill with
the same symptoms after eating breakfast on April 2, 2013. He contends Officers Cashon,
Bender, Creatore and others conspired to tamper with his food trays. ECF No. 1 at PageID #: 28.
Plaintiff was transferred from NEOCC on April 16, 2013. ECF No. 1 at PageID #: 29.
Plaintiff also complains about the conditions of his confinement in segregation. He
contends he was handcuffed multiple times. Plaintiff claims Officer Sultez made the handcuffs
too tight and caused bruises on his hands. He alleges the temperatures in his segregation cell
were very cold on January 4-6, 2013. ECF No. 1 at PageID #: 27. Plaintiff states the
temperatures in his cell were very cold on January 24, 2013 as well. ECF No. 1 at PageID #: 28.
Plaintiff asserts five claims for relief. First, he asserts Defendants deprived him of his
constitutional right to be free from sexual harassment. Second, Plaintiff claims he was denied

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due process when he was placed in segregation without a hearing. Third, he objects to the
conditions of confinement to which he was exposed in segregation, including serving him tainted
food, exposing him to a cold cell, delivering a meal with an insect on his tray, and denial of
appropriate medical care. Fourth, Plaintiff asserts Defendants have policies and procedures that
allowed him to be exposed to adverse conditions. Finally, he asserts a claim for intentional
infliction of emotional distress. Plaintiff seeks a total of two billion dollars in damages.
II. Standard for Dismissal
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 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. 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). An action has no arguable basis in law
when a defendant is immune from suit or when a 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 v. Hernandez, 504 U.S. 25, 33 (1992). See also Lawler, 898 F.2d at 1199.
When determining whether a plaintiff has stated a claim upon which relief can be granted,
the Court must construe the complaint in the light most favorable to the plaintiff, accept all
factual allegations as true, and determine whether the complaint contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007). The plaintiff’s obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at
555. Although a complaint need not contain detailed factual allegations, its “[f]actual allegations
must be enough to raise a right to relief above the speculative level . . . on the assumption that all
the allegations in the complaint are true.” Id. (citation omitted). The Court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986). The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), further explains
the “plausibility” requirement, stating that “[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.” Id. at 678. Furthermore, “[t]he plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). This determination is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
III. Law and Analysis
A. Sexual Harassment and Conditions of Confinement Claims
As an initial matter, Plaintiff cannot assert his claims for denial of his constitutional rights
against these Defendants. Because the Constitution does not directly provide for damages,
Plaintiff must proceed under legal authority that authorizes an award of damages for alleged
constitutional violations. Sanders v. Prentice-Hall Corp. Sys, No. 97-6138, 1999 WL 115517, at
*1 (6th Cir. Feb. 8, 1999). Plaintiff was a federal prisoner incarcerated in NEOCC, a private

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prison owned and operated by Corrections Corporation of America (“CCA”), a private for-profit
corporation. Bivens provides federal prisoners with a limited cause of action against individual
federal government officers acting under color of federal law who are alleged to have acted
unconstitutionally. Correctional Services Corporation v. Malesko, 534 U.S. 61, 70 (2001).
Bivens, however, does not provide relief in all situations. Bivens’s purpose is to deter
individual federal officers, not the agency, from committing constitutional violations. A Bivens
action therefore cannot be brought against an entity such as the federal prison, the Bureau of
Prisons, or the United States Government. Id. For these same reasons, Bivens claims cannot be
brought against a private prison corporation. Id. at 70-74.
The Supreme Court further declined to extend Bivens to the employees of a private prison
under certain circumstances. Minneci v. Pollard, 132 S.Ct. 617, 626 (2012). A federal prisoner
seeking damages from privately employed personnel working at a privately operated federal
prison for conduct that typically falls within the scope of traditional state tort law, must seek
relief under state tort law and cannot pursue the cause of action under Bivens, even if Plaintiff
states that the conduct violated his constitutional rights.
Here, Plaintiff asserts claims of constitutional violations against numerous employees of
NEOCC. To determine if Plaintiff has a federal cause of action under Bivens, the Court must
determine whether alternative remedies exist to redress the alleged violation of Plaintiff’s rights,
and whether those alternatives amount to a “convincing reason” to refrain from extending Bivens
here. Id.; Wilkie v. Robbins, 551 U.S. 537, 554 (2007). The alternatives need not provide
complete relief to preclude the Bivens remedy, see Schweiker v. Chilicky, 487 U.S. 412, 425

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(1988), and where Congress has created an “elaborate, comprehensive scheme” to address a
certain kind of constitutional violation, Bivens will generally be unavailable even if that scheme
leaves remedial holes. Bush v. Lucas, 462 U.S. 367, 385 (1983). Similarly, where the alternative
remedies arise under state law, they need not be “perfectly congruent” with the Bivens remedy.
The question is whether the alternatives “provide roughly similar incentives for potential
defendants to comply with [the constitutional requirements] while also providing roughly similar
compensation to victims of violations.” Minneci, 132 S.Ct. at 625. Mere “patchwork[s]” of
remedies arising from an array of different legal sources may be insufficient to foreclose a
remedy under Bivens. Wilkie, 551 U.S. at 554.
Plaintiff asserts claims for sexual harassment, tainted or infested food, exposure to very
cold temperatures on two occasions, and denial of appropriate medical care. Traditional state tort
law provides a remedy for placing another individual in harm’s way, if a duty is owed to that
individual by the defendant. Consequently, Plaintiff cannot proceed with these claims against the
employees of a private prison facility under Bivens.
Moreover, even if Plaintiff could proceed with his sexual harassment claim under Bivens,
the statute of limitations expired for this claim before Plaintiff filed this action. A Bivens action
is governed by the same personal injury statute of limitations that applies to a 42 U.S.C. § 1983
action. McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th Cir. 1987). In Ohio cases, the two-year
statute of limitations found in Ohio Rev. Code § 2305.10 governs. Browning v. Pendleton, 869
F.2d 989, 990 (6th Cir.1989) (en banc). Plaintiff alleges the incidents of sexual harassment

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occurred between January 2012 and June 2012. He filed this action on July 22, 2014,2 more than
two years after the last incident of sexual contact occurred. Therefore, even if he had a
recognized cause of action under Bivens, this claim would be untimely filed.
B. Due Process Claims
Plaintiff also asserts that he was placed in administrative segregation without a hearing.
The Court construes this claim as asserting a denial of procedural due process. Procedural due
process claims may not have a corresponding state tort law cause of action. To the extent it may
be cognizable against a private prison official under Bivens, it nevertheless fails to state a claim
upon which relief may be granted.
The Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law. . . .” U.S. CONST. AMEND. V. In addition to setting the
procedural minimum for deprivations of life, liberty, or property, the Due Process Clause bars
“certain government actions regardless of the fairness of the procedures used to implement
them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It does not prohibit every deprivation by
the government of a person’s life, liberty or property. Harris v. City of Akron, 20 F.3d 1396,
1401 (6th Cir. 1994). Only those deprivations which are conducted without due process are
subject to suit under 42 U.S.C. § 1983. Id.

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Under Sixth Circuit precedent, the complaint is deemed filed when handed to
prison authorities for mailing to the federal court. Shelton v. Edge, No. 00-5265, 2000
WL 1679432, at *1 (6th Cir. Oct. 31, 2000). Plaintiff dated his Verified Complaint (ECF
No. 1) on July 22, 2014. It was received by the Court on July 28, 2014.
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The Due Process Clause has a procedural component and a substantive one. The two
components are distinct from each other because each has different objectives, and each imposes
different constitutional limitations on government power. A procedural due process limitation,
unlike its substantive counterpart, does not require that the government refrain from making a
choice to infringe upon a person’s life, liberty, or property interest. It simply requires that the
government provide “due process” before making such a decision. Howard v. Grinage, 82 F.3d
1343, 1349-53 (6th Cir. 1996). The goal is to minimize the risk of erroneous deprivation, to
assure fairness in the decision-making process, and to assure that the individual affected has a
participatory role in the process. Id. Procedural due process requires that an individual be given
the opportunity to be heard “in a meaningful manner.” See Loudermill v. Cleveland Bd. of Educ.,
721 F.2d 550, 563 (6th Cir. 1983). Many procedural due process claims are grounded on
violations of state-created rights, or rights that do not enjoy constitutional standing. See id. The
rationale for granting procedural protection to an interest that does not rise to the level of a
fundamental right is to prevent the arbitrary use of government power. Howard, 82 F.3d at
1349. Procedural due process claims do not consider the egregiousness of the deprivation itself,
but only question whether the process accorded prior to the deprivation was constitutionally
sufficient. Id. at 1350. Although the existence of a protected liberty or property interest is the
threshold determination, the focus of this inquiry centers on the process provided, rather than on
the nature of the right.
Substantive due process, on the other hand, serves the goal of preventing “governmental
power from being used for purposes of oppression,” regardless of the fairness of the procedures

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used. See Daniels, 474 U.S. at 331. Substantive due process serves as a vehicle to limit various
aspects of potentially oppressive government action. Id. It serves as a check on legislation that
infringes on fundamental rights otherwise not explicitly protected by the Bill of Rights; or as a
check on official misconduct which infringes on a “fundamental right;” or as a limitation on
official misconduct, which although not infringing on a fundamental right, is so literally
“shocking to the conscience,” as to rise to the level of a constitutional violation. Howard, 82
F.3d at 1349.
Plaintiff claims he was placed in administrative segregation without due process.
Prisoners have narrower liberty and property interests than other citizens as “lawful incarceration
brings about the necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.” Sandin v. Conner, 515 U.S. 472,
485 (1995) (citation and internal quotation marks omitted). The question of what process is due
is answered only if the inmate establishes a deprivation of a constitutionally protected liberty or
property interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Due Process Clause,
standing alone, confers no liberty or property interest in freedom from government action taken
within the sentence imposed. Sandin, 515 U.S. at 480. “Discipline by prison officials in
response to a wide range of misconduct falls within the expected perimeters of the sentence
imposed by a court of law.” Id. at 485. “[T]he Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at
221.

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The Supreme Court in Sandin established the standard for determining when a
state-created right creates a federally cognizable liberty interest protected by the Due Process
Clause for a prisoner. According to the Sandin Court, a prisoner is entitled to the protections of
due process only when the sanction “will inevitably affect the duration of his sentence” Sandin,
515 U.S. at 487, or when a deprivation imposes an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. at 484. Generally, unless the
placement in segregation is accompanied by a withdrawal of good time credits or is for a
significant period of time that presents an unusual hardship on the inmate, no liberty or property
interest will be found in the case. Id. Assignment to a super-maximum security prison, for
example, triggers due process protections, Wilkinson, 545 U.S. at 224, while temporary
placement in segregation was considered to be “within the range of confinement to be normally
expected for one serving an indeterminate term of 30 years to life,” Sandin, 515 U.S. at 487.
In this case, good time credits were not at issue because Plaintiff was placed in
administrative segregation, not disciplinary segregation. The only remaining inquiry is whether
the length of time he spent in segregation constituted an atypical or significant hardship in
relation to ordinary incidents of prison life. He alleges he was initially placed in administrative
segregation in August 2012 while the investigation was conducted into his sexual contact with
Property Room Supervisor Guerriero. At the conclusion of the investigation in October 2012, he
was told he would be transferred due to the nature of the incident. He remained in segregation
until he was transferred in April 2013. He spent a total of 137 days in administrative segregation.
His placement was not indefinite, nor was it exceptionally long in duration. The Sixth Circuit

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has found no liberty interest in much longer periods of time in administrative segregation. See
Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (two years of segregation while inmate was
investigated for murder of prison guard in riot was not atypical or a significant hardship in
relation to prison life); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997) (finding no atypical or
significant hardship in inmate’s placement in segregation for one year after inmate was found
guilty of possession of illegal contraband and assault and when reclassification was delayed due
to prison crowding); Bradley v. Evans, No. 98-5861, 2000 WL 1277229, at *7 (6th Cir. Aug. 23,
2000) (and numerous cases cited therein in support of holding that placement for 14 months in
administrative segregation did not impose an atypical or significant hardship on the prisoner);
Collmar v. Wilkinson, No. 97-4374, 1999 WL 623708, at *3 (6th Cir. Aug.11, 1999) (30 days in
security control, 14 days in disciplinary control and six to eight months in administrative control
did not constitute an “atypical hardship” under Sandin ). Plaintiff’s placement in administrative
segregation pending an investigation and his transfer were not sufficient to trigger procedural due
process protections.
Plaintiff cannot assert substantive due process claims against employees of the private
prison under Bivens. His placement in administrative segregation did not violate a fundamental
right not specified in the Bill of Rights, and the action alone is not so egregious that it shocks the
conscience. He cannot assert that other actions of Defendants deprived him of substantive due
process. The allegations supporting those claims have remedies available under state tort law.
Minneci, 132 S.Ct. at 625.

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C. State Law Claim
Plaintiff also includes a claim arising under state law for intentional infliction of
emotional distress. The statute of limitations for filing this claim, however, has expired. The
statute of limitations which applies to the intentional infliction of emotional distress can vary
depending on the type of action giving rise to the claim. Generally, the applicable statute of
limitations for a claim of intentional infliction of emotional distress is four years. When the acts
underlying the claim would support another tort, however, the statute of limitations for that other
tort governs the claim for intentional infliction of emotional distress. Hambleton v. R.G. Barry
Corp., 12 Ohio St.3d 179, 183 (1984). In essence, an intentional infliction of emotional distress
claim is parasitic to another claim for purposes of the statute of limitations. Manin v. Diloreti, 94
Ohio App.3d 777, 779 (1994). That way, a plaintiff cannot obtain a longer statute of limitations
simply by recharacterizing the fundamental nature of his claim as one of intentional infliction of
emotional distress.
Here, Plaintiff’s intentional infliction of emotional distress claim is premised on the
“Defendants’ act of lacing Plaintiff’s food with chemicals and other hazardous substances.” He
also alleges he “was forced to perform sex acts on several occasions which deprived Plaintiff of
his rights to be free from Infliction of Emotional Distress.” ECF No. 1 at PageID #: 34. He also
contends he was subjected to “37 weeks of solitary confinement under freezing temperatures,
serv[ed] bug infected meals [and] poison food, . . . den[ied] adequate medical treatment”. . . and
endured “invasive pat-downs.” ECF No. 1 at PageID #: 35. Plaintiff’s claims best resemble
assault and battery. Ohio Rev. Code § 2305.111 specifies that a one-year statute of limitations

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applies to actions for assault and battery. His claim pertaining to confinement in solitary
confinement can also be construed as a claim for false imprisonment. The one-year statute of
limitations set out in Ohio Rev. Code § 2305.11 applies to a claim of false imprisonment. Mayes
v. City of Colombus, 105 Ohio App.3d 728, 746 (1995). The acts in question occurred between
January 2012 and April 16, 2013. He filed this action on July 22, 2014, beyond the expiration of
either statute of limitations period.
IV. Conclusion
Accordingly, 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.3

IT IS SO ORDERED.

April 27, 2015
Date

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/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

28 U.S.C. § 1915(a)(3) provides:

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