Boston v. Mohr et al
Filing
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Memorandum Opinion and Order dismissing this action. An appeal from this decision could not be taken in good faith. Judge John R. Adams on 11/30/15. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAMAR BOSTON ,
Plaintiff,
v.
GARY MOHR, et al.,
Defendants.
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CASE NO. 4:15 CV 1701
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
AND ORDER
Pro se Plaintiff Lamar Boston filed this action in the United States District Court for the
Southern District of Ohio under 42 U.S.C. § 1983 against Ohio Department of Rehabilitation and
Correction (“ODRC”) Director Gary Mohr, Legal Services, Ohio State Penitentiary (“OSP”) Warden
Jay Forshey, OSP Employee Laura Gardner, OSP Deputy Warden Chairman Bracy, OSP Institutional
Inspector Mark Thomas, OSP Lieutenant Debborah Drummond, OSP Shift Supervisor Glenn Brown,
OSP Lieutenant Linda Bowen, OSP Corrections Officer Randell Kish, OSP Corrections Officer
Traceye Titus, and Fox Laboratory for Chemical Munitions. In the Complaint, Plaintiff alleges he
was harassed and physically abused by corrections officers, and was injured by a defective canister
of pepper spray. He seeks monetary damages and an order enjoining the Defendants from keeping
him in Local Control.
The Southern District of Ohio conducted an initial review of Plaintiff’s Complaint under 28
U.S.C. § 1915(e), and dismissed the claims against ODRC Director Gary Mohr, and Legal Services,
the entity responsible for overseeing disciplinary proceedings, as barred by the Eleventh
Amendment. The Ohio Southern District Court determined that the remaining claims were against
Defendants located in the Northern District of Ohio and venue therefore was proper in the Northern
District of Ohio. The case was transferred to this Court.
I.
Background
The incident in question occurred on February 13, 2015 at the Ohio State Penitentiary, which
is Ohio’s supermax prison. At the time of the incident, Plaintiff was in local control placement
within that facility, having been designated to local control in December 2014 upon referral by Rules
Infraction Board (“RIB”) Hearing Officer Lieutenant Drummond. Plaintiff had received nine RIB
convictions within a 90 day period, which prison personnel determined demonstrated a chronic
inability to adjust to the general population, even in that restrictive environment.
Plaintiff claims that on the morning of February 13, 2015, Officers Kish and Titus were
harassing him by banging on his door and asking him to uncover his window. He indicates he
complied and Kish made a racially charged comment to him. He contends he began to yell but Titus
cut him off, saying Plaintiff could complain but Plaintiff would have to come out of his cell
sometime, and they would harass him one way or the other.
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Lunch was delivered at 11:00 a.m. and at 11:30 a.m., Plaintiff put his hands in the cuff port
which he contends is a signal for a Lieutenant to be summoned. Lieutenant Bowen arrived at his cell
and Plaintiff advised her he did not feel safe. He asked to be moved to another location. She told
him he was overreacting and to ignore the officers’ taunts. He told her again he did not feel safe and
refused to remove his hands from the cuff port. Bowen issued several direct orders to close the cuff
port but Plaintiff refused. Bowen left the area to summon the shift supervisor, Captain Brown.
While she was gone, Plaintiff broke the outer cuff lexan, causing corrections officers to
scramble to pick up the broken pieces. Plaintiff also broke the showerhead in his cell, believing he
would be moved so that repairs could be made. Bowen returned with a negotiator who went to talk
to Plaintiff. When negotiations failed, Bowen ordered Plaintiff to “cuff up.” He refused. Bowen
sprayed pepper spray into the cuff port and again ordered Plaintiff to “cuff up.” Plaintiff again
refused. Bowen gave a second blast of pepper spray into the port. Plaintiff then tried to use his body
to block the port. Titus and Kish used a clearing device and Bowen gave a third blast of pepper
spray into the port. Plaintiff still refused the directive to “cuff up.” Bowen delivered a fourth burst
of pepper spray upon which Plaintiff finally agreed to be handcuffed and removed from his cell.
Officers Titus and Kish escorted him to the leg iron bench and Plaintiff became aggressive
toward them. He was secured on the floor and Officer Burns secured leg irons to Plaintiff. He was
then taken to a receiving room “strip cage.” During the walk to that unit, he became aggressive once
more toward the officers, clamping down on the arm of one of the officers. He was asked to stop
and Officer Karl administered another burst of pepper spray. Plaintiff’s cell was then searched, and
packed up. He possessed three books over the limit, one altered pair of pants and one altered sheet.
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Plaintiff states that once he was in the receiving room, he noticed a severe burn on his right
arm. He states he notified the officers present but he was not provided with medical treatment. In
the response to his grievances, the Institutional Inspector indicates he refused treatment but Plaintiff
denies this.
Plaintiff received a conduct report for physical resistence to a direct order, disobedience to
a direct order, destruction or alteration of property, and possession of contraband. He was served
with this report on February 17, 2015. He was found guilty at a Rules Infraction Board Hearing. He
filed grievances pertaining to the incident and the grievances were denied.
Plaintiff claims he was subjected to cruel and unusual punishment and his right to due
process was violated. He indicates Kish and Titus subjected him to cruel and unusual punishment
by creating a situation that caused harm to him. He contends Brown and Bowen when advised of
their duties, knowingly neglected to protect the integrity of the institution and to ensure his safety.
He states Bracy and Thomas approved his placement in local control in December 2014, and refused
to properly investigate the incident when ruling on his grievances. He asserts Forshey, Gardner, and
Drummond denied him due process by placing him in Local Control. He claims a facility like OSP
does not have general population but only maximum and supermaximum designations. Finally, he
claims Fox Chemical Munitions violated his rights to health and safety by manufacturing and
distributing defective products.
II.
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 district court is required to
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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). 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 of the claim showing that the pleader
is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (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. 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 of the 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).
III.
Analysis
Plaintiff includes two basic claims in his Complaint. First he claims he was denied due
process when he was placed in local control in December 2014. Second, he claims he was subjected
to cruel and unusual punishment on February 13, 2015.
A.
Due Process
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The Fourteenth Amendment provides that a state may not “deprive any person of life, liberty,
or property, without due process of law.” U.S. CONST. amend. XIV.) 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.
Procedural due process 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
-1353 (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. Howard, 82 F.3d at 1350.
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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.
Plaintiff claims he was sanctioned with placement in segregation and loss of property
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). 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.
Generally, unless the disciplinary action 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. Sandin, 515 U.S. at 484. Where good time credits are
at stake, or where the conditions of confinement present an atypical or significant hardship in relation
to ordinary prison life, due process requires only that a prisoner receive: 1) written notice of the
hearing at least twenty-four hours in advance; 2) an opportunity, when consistent with institutional
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safety and correctional goals, to call witnesses and present documentary evidence in his defense; and
3) a written statement by the factfinder of the evidence relied on and the reason for the disciplinary
action. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). Further, some evidence must exist to
support the disciplinary action. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56
(1985).
Plaintiff does not provide much information in his Complaint about the disciplinary hearings
that preceded his placement in local control in December 2014. The local control decision indicates
he had nine disciplinary convictions within a 90 day period within the supermax prison. He does
not dispute the veracity of the factual allegations in the conduct reports, but claims he could not be
placed in local control in a supermax prison because the prison already has restrictive confinement.
Plaintiff received a hearing on local control and was permitted to appeal that decision. The Hearing
Officer’s decision was supported by some evidence that Plaintiff demonstrated a chronic inability
to adjust to the General Population, and his procedural due process rights were not violated.
Plaintiff’s due process claims against Bracy, Thomas, Forshey, Gardner, and Drummond are
dismissed.
B.
Eighth Amendment
Plaintiff also claims his Eighth Amendment rights were violated. The Eighth Amendment
imposes a constitutional limitation on the power of the states to punish those convicted of crimes.
Punishment may not be “barbarous” nor may it contravene society’s “evolving standards of
decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). In Farmer v. Brennan, 511 U.S. 825
(1994), the Supreme Court remarked that “having stripped [inmates] of virtually every means of self-
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protection and foreclosed their access to outside aid, the government and its officials are not free to
let the state of nature take its course.” Id. at 833. 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 of the inmates.’ ” Id. at 832
(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). Prisoners are not
entitled to unfettered access to the medical treatment of their choice, see Hudson v. McMillian, 503
U.S. 1, 9 (1992), nor can they “expect the amenities, conveniences and services of a good hotel.”
Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir.1988); see Thaddeus-X v. Blatter,175 F.3d 378, 405
(6th Cir. 1999). In sum, 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, 503 U.S. at 9-10 (requiring extreme or grave deprivation).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework for
courts to use when deciding whether certain conditions of confinement constitute cruel and unusual
punishment prohibited by the Eighth Amendment. A Plaintiff must first plead facts which, if true,
establish that a sufficiently serious deprivation has occurred. Id. Seriousness is measured in
response to “contemporary standards of decency.” Hudson, 503 U.S. at 8. Routine discomforts of
prison life do not suffice. Id. Only deliberate indifference to serious medical needs or extreme
deprivations regarding the conditions of confinement will implicate the protections of the Eighth
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Amendment. Id. at 9. A Plaintiff must also establish a subjective element showing the prison
officials acted with a sufficiently culpable state of mind. Id. Deliberate indifference is characterized
by obduracy or wantonness, not inadvertence or good faith error. Whitley v. Albers, 475 U.S. 312,
319 (1986). Liability cannot be predicated solely on negligence. Id. A prison official violates the
Eighth Amendment only when both the objective and subjective requirements are met. Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
Plaintiff’s first claim is against Kish and Titus. This claim fails to satisfy the objective
criteria. He claims the two corrections officers harassed and taunted him, creating a situation where
actions had to be taken to physical restrain him. Verbal abuse and offensive comments by prison
guards, however, do not state an Eighth Amendment claim. See Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir.1987); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987).
Next, Plaintiff claims Brown and Bowen, when advised of the taunting and harassment,
knowingly failed to ensure his safety by moving him to a different cell. This claim fails to meet the
objective or subjective criteria. First, Plaintiff fails to allege facts to suggest that the taunts and
harassment posed any significant risk of serious harm to him. Moreover, to satisfy the subjective
component, Plaintiff is required to show these prison officials knew of, and acted with deliberate
indifference to, his health or safety. Wilson, 501 U.S. at 302-03. Deliberate indifference “entails
something more than mere negligence.” Farmer, 511 U.S. at 835. This standard is met if “the
official knows of and disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Brown v. Bargery, 207 F.3d 863, 867 (6th
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Cir.2000)(quoting Farmer, 511 U.S. at 837). Plaintiff fails to allege facts to suggest either Brown
or Bowen perceived a there was a serious risk of harm from the officers’ taunts.
Plaintiff also alleges Bowen sprayed him four times with pepper spray. Corrections officers
do not violate a prisoner’s Eighth Amendment rights when they apply force “in a good-faith effort
to maintain or restore discipline.” Roberson v. Torres, 770 F.3d 398, 406-07 (6th Cir. 2014). See
Jennings v. Mitchell, 93 Fed.Appx. 723, 725 (6th Cir. 2004)(finding no Eighth Amendment violation
where a prisoner was sprayed with pepper spray after repeatedly disobeying orders to exit the
shower. Indeed, in numerous other cases we have likewise concluded that “the use of ... chemical
agents against recalcitrant prisoners” does not violate the Eighth Amendment. Caldwell v. Moore,
968 F.2d 595, 600 (6th Cir.1992) (collecting cases). On the other hand, “when prison officials
maliciously and sadistically use force to cause harm, contemporary standards of decency are always
violated.” Hudson v. McMillian, 503 U.S. 1, 9, (1992). See Williams v. Curtin, 631 F.3d 380, 384
(6th Cir. 2011)(finding that a prisoner stated a valid excessive-force claim when he “allege[d] that,
when instructed to ‘pack up,’ he inquired, ‘What for, sir?,’ at which point an ‘assault team’ entered
the cell and used a chemical agent on him.”).
In this case, several attempts were made to defuse the situation before chemical agents were
applied. Bowen issued several direct orders to close the cuff port but Plaintiff refused. Bowen left
the area to summon the shift supervisor, Captain Brown. While she was gone, Plaintiff broke the
outer cuff lexan, causing corrections officers to scramble to pick up the broken pieces, and also broke
the showerhead in his cell. Bowen was notified and returned with a negotiator who went to talk to
Plaintiff. When negotiations failed, Bowen ordered Plaintiff to “cuff up.” He refused. Bowen
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sprayed pepper spray into the cuff port and again ordered Plaintiff to “cuff up.” Plaintiff again
refused. Bowen gave a second blast of pepper spray into the port. Plaintiff then tried to use his body
to block the port. Titus and Kish used a clearing device and Bowen gave a third blast of pepper
spray into the port. Plaintiff still refused the directive to “cuff up.” Bowen delivered a fourth burst
of pepper spray upon which Plaintiff finally agreed to cuff and be removed from his cell. The facts
as alleged do not suggest a force applied maliciously, or sadistically to cause harm but instead
suggest a good faith effort to restore discipline. His excessive force claim is denied.
Plaintiff’s Eighth Amendment claims against Bracy and Thomas are based on their responses
to the grievances he filed as a result of this incident. Responding to a grievance or otherwise
participating in the grievance procedure is insufficient to trigger liability under 42 U.S.C. § 1983.
Shehee v. Luttrell, 199 F.3d. 295, 300 (6th Cir. 1999).
C.
Claims against Fox Laboratory
Finally, Plaintiff asserts claims against Fox Laboratory. It is not clear from the Complaint
what type of claim he is attempting to assert. To the extent Plaintiff is asserting an Eighth
Amendment claim against his Defendant, the claim must be dismissed. To establish a prima facie
case under 42 U.S.C. § 1983, Plaintiff must assert that a person acting under color of state law
deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United
States. Parratt v. Taylor, 451 U.S. 527, 535 (1981). Generally to be considered to have acted
“under color of state law,” the person must be a state or local government official or employee. Fox
Laboratory is a private party, not a government entity. A private party may be found to have acted
under color of state law to establish the first element of this cause of action only when the party
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“acted together with or ... obtained significant aid from state officials” and did so to such a degree
that its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she exercises
powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974). There is no suggestion in the Complaint that Fox Laboratory could be considered a state
actor to support a civil rights claim under § 1983.
To the extent Plaintiff is attempting to bring a products liability claim against this Defendant,
it would arise, if at all, under state tort law. Supplemental jurisdiction exists whenever state law and
federal law claims derive from the same nucleus of operative facts and when considerations of
judicial economy dictate having a single trial. United Mine Workers of America v. Gibbs, 383 U.S.
715, 724 (1966). The Court, however, may exercise discretion in hearing state law matters. Id. at
726. In cases where the federal law claims are dismissed before trial, the state law claims should
also be dismissed. Id. As the federal law claims in this case were dismissed, the Court declines to
exercise supplemental jurisdiction over the state law claims against this Defendant.
Plaintiff lists Fox Laboratory as a Michigan company. Even if this is correct, and the
company is not incorporated in Ohio, diversity jurisdiction still would not be established because the
amount in controversy requirement was not met. Plaintiff states he is seeking $15,000 from Fox
Laboratory in compensatory damages and $10,000.00 in punitive damages. His request for damages
does not reach the jurisdictional limit.
IV.
Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies,
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pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good
faith.1
IT IS SO ORDERED.
Date: November 30, 2015
/s/ John R. Adams
JOHN R. ADAMS
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 that it is
not taken in good faith.
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