Russo v. Ohio Department of Rehabilitation & Corrections 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)(2)(B) and 1915A. 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. Judge Benita Y. Pearson on 4/28/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VINCENT DAVID RUSSO,
Plaintiff,
v.
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION,
et al.,
Defendants.

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CASE NO. 4:17CV0284

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER

Pro se Plaintiff Vincent David Russo, a state prisoner incarcerated in the Ohio State
Penitentiary, has filed this in forma pauperis federal civil rights action under 42 U.S.C. §1983
against the Ohio Department of Rehabilitation and Corrections (“ODRC”), Institutional Inspector
Wolfe, and Lieutenant Brown. ECF No. 1. Plaintiff complains of due process violations caused
by the implementation of a new mail policy at the ODRC. Id. at PageID #: 4-5. For the alleged
due process violations, Plaintiff asks the Court for “financial” damages and “to investigate and
relieve the ODCR of enforcing this [mail] policy.” Id. at PageID #: 6.
I.

Background

Plaintiff alleges that, under a new mail policy released by the ODRC, colored envelopes,
papers, and cards, embossed envelopes, and laminated stickers are all considered prohibited
items. Id. at PageID #: 4. Plaintiff complains that if an inmate is sent a prohibited item, it is

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photocopied, sent to the inmate on a blank white piece of paper, and the original item is thrown
away. Id.
Under the new policy, Plaintiff alleges that the property of inmates is being improperly
handled and destroyed without due process because mail room staff are throwing away mail
items determined to be prohibited without offering inmates an opportunity to decide whether to
send the mail home at their own expense or to have it destroyed. Id. at PageID #: 4-5. Plaintiff
also alleges that the ODRC policy provides forms for this purpose, but the form is not being used
because “mailroom staff deem it ‘too much work’” Id. Plaintiff states that he complained about
the practice, and the Institutional Inspector “found no[thing] wrong with mailroom staff throwing
away” inmate mail. Id. at PageID #: 4.
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 dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it is frivolous or
malicious, fails to state a claim on which relief may be granted, or if it seeks monetary relief
against a defendant who is immune from such relief. Federal district courts are expressly
required, under 28 U.S.C. §1915A, to review any complaint in a civil action in which a prisoner
seeks redress from a governmental entity, officer, or employee, and to dismiss before service any
such complaint that the district court determines is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §1915A.
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In order to state a claim on which relief may be granted, a pro se complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
See Hill v. Lappin,, 470-71 (6th Cir. 2010) (holding that the dismissal standard articulated in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),
governs dismissals for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)). The factual
allegations in the pleading "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 (even if doubtful in fact)."
Twombly, 550 U.S. at 555.
III. Discussion
Upon review, the Court finds that Plaintiff’s Complaint (ECF No. 1) must be dismissed
pursuant to §1915A. The Supreme Court has held that where adequate remedies are provided by
state law, the negligent or intentional loss or destruction of personal property does not state a
§1983 claim under the Due Process Clause of the Fourteenth Amendment. Hudson v. Palmer,
468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), rev'd on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986). In order to assert a claim for deprivation of
property without due process pursuant to §1983, a plaintiff must allege that the state
post-deprivation procedures are inadequate to remedy the deprivation. Parratt, 451 U.S. at
543-44. See also Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983) (“in [§]1983 damage
suits claiming the deprivation of a property interest without procedural due process of law, the
plaintiff must plead and prove that state remedies for redressing the wrong are inadequate”).

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There is no indication from the Complaint that Plaintiff has sought relief from the Ohio
courts regarding his property. Accordingly, the Complaint does not state a cognizable
constitutional due process claim.
IV. Conclusion
For the reasons stated above, this action is dismissed pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A. 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.

April 28, 2017
Date

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

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