Clark v. Kasich et al

Filing 8

Memorandum of Opinion and Order For the reasons set forth herein, this action is dismissed pursuant to 28 U.S.C. §1915(e). Plaintiff's "Motion for Preliminary Injunction & TRO and Expedited Screening of Original and Supplemental Complaints" (ECF No. 6 ) is denied as moot. 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 2/28/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID E. CLARK,
Plaintiff,
v.
GOVERNOR JOHN KASICH, et al.,
Defendants.

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CASE NO. 4:16CV2430

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 6]

Pro Se Plaintiff David E. Clark filed this action under 42 U.S.C. § 1983 against Ohio
Gov. John Kasich, Ohio Department of Rehabilitation and Correction (“ODRC”) Director Gary
Mohr, Ohio Attorney General Mike DeWine, John Doe Toledo Correctional Institution (“ToCI”)
Administrators, Grafton Correctional Institution (“GCI”) Case Manager Vandersommen, GCI
Warden Bennie Kelly, GCI Unit Manager Weishar, GCI Warden’s Assistant Armbruster, and
GCI Capt. Coleman. In the Complaint (ECF No. 1), Plaintiff alleges his security classification
was improperly raised after his arrival at GCI in September 2014. ECF No. 1 at PageID #: 3, ¶
17. He contends this action was orchestrated by ToCI administrators to harass and retaliate
against him. ECF No. 1 at PageID #: 5, ¶¶ 41-43. Plaintiff asks the Court to declare “[t]he Ohio
state statutes and practices indemnifying state employees and officials from 28 U.S.C. § 1983
(sic) damage awards violates the Supremacy Clause of the United States Constitution, as it
eliminates or significantly diminished the federal statutes (sic) intended deterrent effect.” ECF
No. 1 at PageID #: 5.

(4:16CV2430)
On January 12, 2017, the Court received and filed a Supplemental Complaint (ECF No.
5) naming new party defendants based on entirely unrelated events. Plaintiff seeks to add as
defendants Trumbull Correctional Institution (“TCI”) Corrections Officers Ostling and Mandato,
Inmate Roby, and Unit Manager Lowery, claiming they conspired to have him moved from the
“wellness unit” of TCI on a contraband charge. ECF No. 5 at PageID #: 12, ¶ 4. In addition,
Plaintiff includes claims in the Supplemental Complaint (ECF No. 5) against TCI Deputy
Warden of Special Services Davis, Maj. Harris, Lt. Devieste, Investigator Booth, TCI Warden
Charmaine Bracy, Sgt. Green, Dr. Coe, Corrections Officers Emeric and Lukas, Lt. Squibbs, and
Deputy Warden Bower. He complains about events that occurred in 2016 in which he ordered an
airbrush but was not permitted to keep it. ECF No. 5 at PageID #: 13-14, ¶¶ 6, 10-13. Plaintiff
also alleges he was brought up on false conduct charges to retaliate against him for past lawsuits
and grievances. ECF No. 5 at PageID #: 14-16, ¶ 14-17, 20. He seeks monetary damages.
I. Background
Plaintiff indicates his security level was reduced from Level 3A to 2A in June 2014. ECF
No. 1 at PageID #: 2, ¶ 15. He was transferred to GCI on September 23, 2014. ECF No. 1 at
PageID #: 3, ¶ 16. Plaintiff was in general population for six days when officers came to his cell
and informed him that they were taking him to segregation because he was a Level 3 inmate.
ECF No. 1 at PageID #: 3, ¶ 17. He attempted to prove that his security classification had been
lowered, but the officers would not listen to him. ECF No. 1 at PageID #: 3, ¶ 18-19. Plaintiff
states he was not permitted to pack up his own belongings, which resulted in the officers
throwing his personal items into a locker-box. ECF No. 1 at PageID #: 3, ¶ 20-21. He received a

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conduct ticket for having contraband, which he contends consisted of his legal work and art
materials for which he had not yet attained the authorizing paperwork. ECF No. 1 at PageID #:
3, ¶ 21. Plaintiff states that while he was in segregation, Warden Kelly, Unit Manager Weishar
and the Inspector of Institutional Services confirmed the attention he was receiving was a result
of calls from ToCI staff. ECF No. 1 at PageID #: 3, ¶ 22.
Plaintiff alleges that on September 30, 2014, Case Manager Vandersommen conducted a
“security review.” ECF No. 1 at PageID #: 3, ¶ 23. The decision apparently was not favorable to
Plaintiff because he indicates he filled out an appeal form and sent it to Armbruster, the
Warden’s designee. ECF No. 1 at PageID #: 4, ¶ 31. Armbruster told Mr. Fulton, Plaintiff’s
Case Manager at TCI, he would give him a copy of the appeal, but did not provide one to him.
ECF No. 1 at PageID #: 4, ¶¶ 36, 38. Capt. Coleman came to Plaintiff’s cell to transfer him to
another prison. Plaintiff claims he told the captain that he had property in the office vault. ECF
No. 1 at PageID #: 4-5, ¶ 39. He does not state if he received his property. Plaintiff also does not
specify the prison to which he was transferred. Although, it appears he was transferred to TCI.
In the Supplemental Complaint (ECF No. 5), Plaintiff alleges TCI Corrections Officers
Ostling and Mandato, Inmate Roby, and Unit Manager Lowery conspired to have him moved out
of the “wellness unit” for playing music from a DVD which was classified as contraband. ECF
No. 5 at PageID #: 12, ¶ 4. He suggests, without explanation, that the action was taken in
retaliation for exercising his right of access to the courts and filing grievances against ToCI and
TCI staff. Plaintiff contends this conspiracy began upon his arrived at TCI in October 2013 and
was prompted by personnel at ToCI. ECF No. 5 at PageID #: 12-13, ¶ 5.

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In addition, Plaintiff alleges that prior to September 2016, he received permission from
Unit Manager Holland to order an airbrush for a community service art program. He contends
Lt. Devieste had assured Holland that the lieutenant was going to get the airbrush to Plaintiff.
ECF No. 5 at PageID #: 13, ¶ 6. Plaintiff states Maj. Harris called him to the administrative
offices on December 20, 2016 to speak to him about a photo he had emailed over the ODRC’s
JPay email system. ECF No. 5 at PageID #: 13, ¶¶ 7-8. He inquired about his airbrush and Maj.
Harris indicated he was aware of the airbrush and the staff had a plan for it. ECF No. 5 at
PageID #: 13, ¶ 10. Soon after that conversation, Plaintiff encountered Holland who informed
him that the prison staff would only allow him to have the airbrush if he signed over ownership
of it to the institution. ECF No. 5 at PageID #: 13-14, ¶ 11. Plaintiff states he sent a complaint
to Maj. Harris objecting to the decision and indicating he wanted his property. ECF No. 5 at
PageID #: 14, ¶ 12. Warden Bracy and Maj. Harris were making rounds in Plaintiff’s housing
unit on December 27, 2016 when Plaintiff confronted the major about the airbrush. He claims
Maj. Harris treated him rudely and disrespectfully. ECF No. 5 at PageID #: 14, ¶ 13. Plaintiff
does not state whether he was permitted to keep the airbrush.
Plaintiff alleges that on December 30, 2016, Sgt. Green presented him with a conduct
ticket issued by Deputy Warden Davis on December 23, 2016 pertaining to a telephone call in
which Plaintiff was deemed to have been conducting business operations without express written
permission from the warden. ECF No. 5 at PageID #: 14, ¶¶ 14-15. Rules Infraction Board
Members Squibbs and Lukas found him guilty of the charges despite Plaintiff’s protestations of
innocence. Plaintiff claims he was moved from the merit block of the prison to the block in the

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prison with the most gang-related activity. ECF No. 5 at PageID #: 14-15, ¶ 16. He informed
Officer Emeric that he needed to go on suicide watch. Plaintiff claims Emeric and Sgt. Green
conspired to have him moved to segregation instead of suicide watch, by indicating Plaintiff was
refusing the move. ECF No. 5 at PageID #: 15, ¶ 18. Nevertheless, Plaintiff was placed on
suicide watch for four days. He complains that while on suicide watch he was nearly naked in a
cold cell. Plaintiff also indicates he was on a hunger strike. ECF No. 5 at PageID #: 15, ¶ 19.
He asserts these actions were taken against him because of the general conspiracy to retaliate
against him for lawsuits he filed in the past and complaints he recently filed concerning the
airbrush. ECF No. 5 at PageID #: 15-16, ¶ 20.
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.

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(4:16CV2430)
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
(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.

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III. Law and Analysis
A.
As an initial matter, Plaintiff names Gov. Kasich, Director Mohr, Investigator Booth, Dr.
Coe, and Deputy Warden Bower as Defendants, but does not include any allegations against
them in the Complaint (ECF No. 1) and Supplemental Complaint (ECF No. 5). Plaintiff cannot
establish the individual liability of any Defendant absent a clear showing that the Defendant was
personally involved in the activities which form the basis of the alleged unconstitutional
behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186, 1995
WL 559381 (6th Cir. Sept. 20, 1995). Plaintiff simply does not allege facts to reasonably
associate these Defendants to any of the claims set forth in the Complaint (ECF No. 1) and
Supplemental Complaint (ECF No. 5). Plaintiff’s claims against them in their individual
capacities are dismissed.
To the extent these Defendants are sued in their official capacities, they are immune from
damages. A suit against a public servant in his official capacity imposes liability on the office he
represents. Brandon v. Holt, 469 U.S. 464, 471 (1985). The entity represented by these
Defendants is the State of Ohio. The Eleventh Amendment is an absolute bar to the imposition
of liability upon States and State agencies. Latham v. Office of Atty. Gen. of State of Ohio, 395
F.3d 261, 270 (6th Cir. 2005).
B.
Similarly, Plaintiff does not specify a legal cause of action against Case Manager
Vandersommen, Warden Kelly, Unit Manager Weishar, Warden’s Assistant Armbruster, Capt.

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Coleman, Lt. Devieste and Warden Bracy and the facts he alleges in the Complaint (ECF No. 1)
and Supplemental Complaint (ECF No. 5) do not readily suggest one he may be attempting to
assert. To satisfy basic notice pleading requirements, the Complaint (ECF No. 1) and
Supplemental Complaint (ECF No. 5) must give Defendants fair notice of what the Plaintiff’s
claims are and the grounds upon which they rest. Bassett v. National Collegiate Athletic Ass’n,
528 F.3d 426, 437 (6th Cir. 2008). Plaintiff states Vandersommen conducted a “security
review.” ECF No. 1 at PageID #: 3, ¶ 23. He alleges Kelly and Weishar confirmed the security
issue was being raised by staff at ToCI. ECF No. 1 at PageID #: 3, ¶ 22. Plaintiff states
Armbruster, as the Warden’s Assistant, accepted his appeal but did not provide him with a
photocopy of it. ECF No. 1 at PageID #: 4, ¶¶ 36, 38. He indicates Coleman came to get him for
his transfer. ECF No. 1 at PageID #: 4-5, ¶ 39. Plaintiff states Holland told him Lt. Devieste
approved the purchase of the airbrush and Bracy was with Maj. Harris when Harris was rude to
him. ECF No. 5 at PageID #: 13, ¶ 6; 14, ¶ 13. Plaintiff does not specify a legal claim or claims
against these Defendants and none is apparent on the face of the Complaint (ECF No. 1) and
Supplemental Complaint (ECF No. 5). He fails to satisfy the basic pleading requirements of Fed.
R. Civ. P. 8 with respect to these Defendants.
C.
In addition, Plaintiff includes at least three conspiracy claims which are stated solely as
legal conclusions without supporting facts. Conspiracy claims must be pled with some degree of
specificity and vague and conclusory allegations unsupported by material facts will not be
sufficient to state such a claim under § 1983. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.

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1987). A civil conspiracy under § 1983 is “an agreement between two or more persons to injure
another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). To prevail
on a civil conspiracy claim, a plaintiff must allege that a single plan existed, the defendants
shared in the general conspiratorial objective to deprive plaintiff of his constitutional rights, and
“an overt act was committed in furtherance of the conspiracy that caused injury” to the plaintiff.
Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (citing Hooks v. Hooks, 771 F.2d
935, 944 (6th Cir. 1985)). Plaintiff alleges in very general terms that ToCI Administrators are
contacting other prisons and conspiring against him in retaliation for complaints and grievances
he has filed. ECF No. 1 at PageID #: 5, ¶¶ 41-43. He also alleges, without further explanation,
that Corrections Officers Ostling and Mandato, Inmate Roby, and Unit Manager Lowery
conspired to have him moved out of the “wellness unit.” ECF No. 5 at PageID #: 12, ¶ 4.
Finally, he alleges Sgt. Green and Officer Emeric conspired to keep him off of suicide watch.
ECF No. 5 at PageID #: 15, ¶ 18. Plaintiff, however, spent four days on suicide watch. ECF No.
5 at PageID #: 15, ¶ 19. None of these alleged conspiracies is pled with any specificity. All are
stated as legal conclusions. With respect to the last two alleged conspiracies, Plaintiff fails to
suggest which constitutional right Defendants were conspiring to violate. Plaintiff fails to state a
claim for relief against ToCI Administrators, Ostling, Mandato, Roby, Lowery, Emeric and
Green.
Plaintiff also includes vague allegations of retaliation in connection with complaints and
grievances he filed in the past. ECF No. 1 at PageID #: 5, ¶¶ 41-43. These allegations are stated
in terms of being a long term battle with ToCI Administrative personnel. Retaliation, though it is

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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). The elements of a claim for retaliation prohibited by the First Amendment are that:
1) plaintiff 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) a causal
connection exists between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999). Although filing complaints and grievances against prison officials is conduct
protected by the First Amendment, Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010), Plaintiff
provides no factual allegations suggesting how his negative interactions with prison officials in
GCI and TCI connected to unidentified staff members at ToCI. Plaintiff does not even specify
when, if ever, he was housed at ToCI, what occurred at ToCI to motivate retaliation, or how the
Defendants are connected to those actions. The claim is stated solely as a legal conclusion,
which is not sufficient to state a claim.
D.
This leaves two potential causes of action Plaintiff may be asserting. The first is a claim
against Maj. Harris for deprivation of property with respect to the airbrush. The second is a
claim pertaining to the finding of guilt on the conduct charges, which Plaintiff disputes as false.
The second claim is asserted against TCI Deputy Warden of Special Services Davis, who wrote
the ticket, and Corrections Officer Lukas and Lt. Squibbs, who found him guilty of the charges.
For the reasons that follow, neither of these causes of action states a claim upon which relief may
be granted.

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1.
Plaintiff first claims he was permitted to order an airbrush for a community art project,
but Maj. Harris and other prison officials would not let him have it unless he signed it over to the
institution. ECF No. 5 at PageID #: 13-14, ¶ 11. This could be liberally construed as a claim for
deprivation of a property interest without due process. To prevail on a procedural due process
claim, a plaintiff must plead and prove either that the defendant deprived him of his property as a
result of an established state procedure that itself violates due process rights; or that the
defendant deprived him of his property pursuant to a random and unauthorized act and 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). Plaintiff
does not challenge an established state procedure, statute or local ordinance. Instead, Plaintiff
claims he was deprived of the airbrush due to unauthorized acts of Maj. Harris and other
unnamed prison officials.
To state a procedural due process claim based upon alleged unauthorized acts of the
defendants, a plaintiff must also plead and prove that state remedies for redressing the wrong are
inadequate. Macene, 951 F.2d at 706; Vicory, 721 F.2d at 1064. A remedy is available in the
Ohio Court of Claims to assert claims for deprivations of property by prison officials. See
Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). Plaintiff has not indicated that he
pursued this remedy nor does he give any indication that the state remedy available to him would
be inadequate. His claim for deprivation of property against Maj. Harris is dismissed.

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2.
Finally, although he disputes his guilt on the conduct charges, Plaintiff fails to state a
claim upon which relief may be granted. False accusations of misconduct filed against an inmate
do not constitute a deprivation of constitutional rights where the charges are adjudicated in a fair
hearing. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986); see also Jackson v. Madery,
158 Fed.Appx. 656, 662 (6th Cir. 2005); Jackson v. Hamlin, 61 Fed.Appx. 131, 132 (6th Cir.
2003); Munson v. Burson, No. 98-2075, 2000 WL 377038, at *3-4 (6th Cir. April 7, 2000).
Plaintiff received a disciplinary hearing; however, he provides no information about it. Plaintiff
fails to allege he was not provided with due process in connection with the disciplinary hearing.
Moreover, a prisoner found guilty in a prison disciplinary hearing cannot use § 1983 to
collaterally attack the hearing or the conduct underlying the disciplinary conviction. See Huey v.
Stine, 230 F.3d 226, 230-31 (6th Cir. 2000), overruled in part on other grounds by Muhammad v.
Close, 540 U.S. 749, 754-55 (2004); see also, Lewis v. Pendell, 90 Fed.Appx. 882, 883 (6th Cir.
2004) (finding that prisoner was precluded from collaterally attacking prison misconduct hearing
or conduct underlying disciplinary conviction by alleging retaliation under § 1983, where
favorable ruling on his retaliation claim would imply invalidity of disciplinary conviction).
Because a favorable ruling on Plaintiff’s claim would imply the invalidity of his disciplinary
conviction, this claim is not cognizable. Edwards v. Balisok, 520 U.S. 641, 648 (1997); Huey,
230 F.3d at 230.

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IV. Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). Plaintiff’s “Motion
for Preliminary Injunction & TRO and Expedited Screening of Original and Supplemental
Complaints” (ECF No. 6) is denied as moot. 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.

February 28, 2017
Date

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

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