Johnson v. Merlak
Filing
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Memorandum Opinion and Order: For all of the foregoing reasons, Johnson fails to state a claim upon which relief can be granted, and this action is dismissed pursuant to 28 U.S.C. Section 1915(e). The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Sara Lioi on 10/25/2018. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN JOHNSON,
PLAINTIFF,
vs.
WARDEN STEVEN MERLAK
DEFEDANT.
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CASE NO. 4:18-cv-1062
JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER
This matter is before the Court on the complaint of plaintiff John Johnson (“Johnson”)
pursuant to 42 U.S.C. § 1983 against Warden Steven Merlak (“Merlak”). (Doc. No. 1
[“Compl.”]). Johnson claims that Merlak has violated his constitutional right to equal protection
based upon Johnson’s status as a convicted sex offender. For the reasons that follow, this case is
dismissed.
A. Background
Johnson is a prisoner at the Elkton Federal Correctional Institution (“FCI Elkton”) in
Lisbon, Ohio. (Compl. at 1,1 ¶ 3.) Merlak is the Warden at FCI Elkton and, according to the
complaint, is acting under color of federal law and Federal Bureau of Prisons (“BOP”) program
statements and policies. (Id. ¶¶ 4–5.) Johnson is a convicted sex offender and, because he used
computers in the commission of his crimes, is prohibited by BOP program statements and
All page number references are to the page identification numbers generated by the Court’s electronic filing
system.
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policies from work assignments involving computers. As a consequence, Johnson claims that he
cannot be assigned to prison work that would provide better pay and job training for a career in
data entry. (Id. at 4–5, ¶¶ 15–19.) Johnson alleges that by prohibiting him from computer work
assignments at UNICOR,2 Merlak is violating his right to equal protection under the Fourteenth
Amendment because inmates convicted of drug offenses are not prohibited from prison computer
work even though those inmates used their cell phones to facilitate drug deals and cell phones are
classified as computers under federal law. (Id. at 5–6, ¶¶ 21, 25.) Johnson asks this Court to
declare BOP policies prohibiting sex offenders from prison work involving computers
unconstitutional, and order Merlak to allow him the same opportunity to work as a computer data
entry processor as other inmates at FCI Elkton. (Id. at 8, ¶¶ 34–36.) Johnson states that he has
grieved this issue through prison’s grievance procedure. (Id. at 6, ¶ 23.)
B. Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520,
92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam), the 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, 109 S.
Ct. 1827, 104 L. Ed. 2d 338 (1989); 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 upon an indisputably
meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at
327.
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UNICOR is a “trade name” used for Federal Prison Industries, whose mission is to provide work programs and
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The dismissal standard for Fed. R. Civ. P. 12(b)(6) articulated in Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556
U.S. 662, 677–78, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) governs dismissal for failure to
state a claim under § 1915(e)(2)(B)(ii). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). A
cause of action fails to state a claim upon which relief may be granted when it lacks plausibility
in the complaint. Twombly, 550 U.S. at 564.
A pleading must contain a short and plain statement of the claim showing that the pleader
is entitled to relief. Iqbal, 556 U.S. at 677–78. 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 an unadorned, the defendantunlawfully-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 does 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) (citing Sistrunk, 99 F.3d at 197).
C. Analysis
1.
Johnson fails to state a § 1983 claim upon which relief can be granted
In order to state a claim for relief upon which relief can be granted under 42 U.S.C. §
1983, Johnson must allege that a person acting under color of state law deprived him of his rights
secured by the Constitution and laws of the United States. West v. Atkins, 487 U.S. 42, 48, 108 S.
training opportunities for inmates confined in Federal Correctional facilities. 28 C.F.R. § 345.11(a).
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Ct. 2250, 101 L. Ed. 2d 40 (1988). “The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state law.’”
West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L.
Ed. 1368 (1941)).
Here, Johnson is a federal prisoner and Merlak is the warden at a federal prison. Johnson
claims that the alleged violation of his constitutional rights is the result of Merlak’s application
of the Federal Bureau of Prison’s policies and program statements. (See Compl. at 3–7, ¶¶ 10–
31.) Plaintiff cannot bring a § 1983 claim against a federal employee acting under color of
federal law rather than state law. See District of Columbia v. Carter, 409 U.S. 418, 424–25, 93 S.
Ct. 602, 34 L. Ed. 2d 613 (1973) (stating actions of the federal government and its officers and
employees are exempt from the proscriptions of § 1983); see also Ana Leon T. v. Fed. Reserve
Bank of Chi., 823 F.2d 928, 931 (6th Cir. 1987) (citing Broadway v. Block, 694 F.2d 979, 981
(5th Cir. 1982) (stating actions of federal officials taken under color of federal law cannot form
the basis of an action under § 1983)). Accordingly, Johnson fails to state a § 1983 claim against
Merlak upon which relief can be granted.
2.
Johnson fails to state a Bivens claim upon which relief can be granted
In light of Johnson’s pro se status, the Court will construe Johnson’s § 1983 claim as a
claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens, the Supreme Court held that federal
officials may be sued for violating a plaintiff’s constitutional rights. But even construing
Johnson’s allegations against Merlak as a Bivens claim, the complaint fails to state a claim upon
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which relief can be granted.
While the Supreme Court in Bivens created a limited private right of action for damages
against federal government officials who allegedly violate a person’s constitutional rights, there
is no implied damages remedy under the Constitution itself and such implied causes of action are
disfavored. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855–56, 198 L. Ed. 2d 290 (2017); Iqbal, 556
U.S. at 675. There are only three contexts in which the Supreme Court has permitted an implied
damages remedy for a constitutional violation against federal officials: (1) Fourth Amendment
deprivation claim in Bivens; (2) Fifth Amendment gender discrimination claim in Davis v.
Passman, 442 U.S. 228, 248–49, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); and (3) Eighth
Amendment cruel and unusual punishment claim in Carlson v. Green, 446 U.S. 14, 16–17, 100
S. Ct. 1468, 64 L. Ed. 2d 15 (1980). Johnson’s claim that Merlak is violating his right to equal
protection as a sex offender does not fall within the existing contexts for which the Supreme
Court has extended a Bivens remedy. Moreover, the Supreme Court reemphasized in Ziglar that
federal courts should refrain from extending Bivens actions beyond the three existing contexts
absent certain factors. Ziglar, 137 S. Ct. at 1857 (expressing the Bivens remedy as a “disfavored
activity”). Given the Supreme Court’s decision in Ziglar, the Court declines to extend a Bivens
remedy to the context of this case.
3.
Johnson fails to state an equal protection claim upon which relief can be
granted
Even if a Bivens remedy were extended to this context, Johnson’s complaint fails to state
a claim upon which relief can be granted. In order to state an equal protection claim, Johnson
must show that by denying him computer work assignments, Merlak: (1) burdened a
fundamental right, (2) targeted a suspect class, or (3) intentionally treated him differently from
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similarly situated individuals without any rational basis. See Johnson v. Bredesen, 624 F.3d 742,
746 (6th Cir. 2010). Johnson fails to establish any of these factors.
First, Johnson has failed to assert the existence of a constitutionally protected property or
liberty interest. Martin v. O’Brien, 207 F. App’x 587, 589 (6th Cir. 2006) (citing among
authority Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992)).
Johnson claims that his right to equal protection under the Constitution has been violated because
he is not permitted to work in a prison job involving computers due to his sex offender status.
But Johnson has no fundamental right to a computer job at UNICOR. “Prisoners have no
constitutional right to rehabilitation, education, or jobs.” Argue v. Hofmeyer, 80 F. App’x 427,
429 (6th Cir. 2003) (citing among authority Rhodes v. Chapman, 452 U.S. 337, 348, 101 S. Ct.
2392, 69 L. Ed. 2d 59 (1981)); Martin, 207 F. App’x at 590 (“[A] prisoner does not have a
constitutional right to prison employment or a particular prison job.” (citing Newsom v. Norris,
888 F.2d 371, 374 (6th Cir. 1989))).
Second, “[c]onvicted sex offenders are not a suspect class.” Cutshall v. Sundquist, 193
F.3d 466, 482 (6th Cir. 1999); see also Stauffer v. Gearhart, 741 F.3d 574, 587 (5th Cir. 2014)
(“‘A classification that categorizes inmates based on the type of criminal offenses for which they
have been convicted does not implicate a suspect class.’” (quoting Wottlin v. Fleming, 136 F.3d
1032, 1036 (5th Cir. 1998)).
Nor do the allegations in Johnson’s complaint show that he was treated differently from
similarly situated individuals without any rational basis with respect to Merlak’s application of
BOP policies concerning sex offender status and computer jobs at UNICOR. Plaintiff claims that
prisoners convicted of drug offenses are permitted to work involving computers at UNICOR
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even though “many of these inmates use cell phones to facilitate their drug deals which are
classified as computers [under] 18 USC 1030(e)(1),” but BOP policies prohibit him from that
work because he is a sex offender who used computers to commit his crimes. (Compl. at 5, ¶¶
21–22.) These allegations fail to allege, nor can the Court infer, that inmates convicted of drug
offenses are similarly situated to Johnson in all relevant circumstances for purposes of an equal
protection analysis. See Edington v. Warden of FCI Elkton, No. 4:14CV2397, 2015 WL
1843240, at *4 (N.D. Ohio Apr. 22, 2015) (“While Plaintiff [(a convicted sex offender who used
electronic messaging to solicit sex from a minor and is denied access to the prison’s email
system)] attempts to equate inmates convicted of other sex offenses and those convicted of using
the mail system to commit crimes with his situation, he has not alleged any facts to suggest that
all of their relevant circumstances are the same.”).
Even if inmates convicted of drug offenses who used cell phones to commit their crimes
were similarly situated to Johnson, the BOP’s policy prohibiting sex offenders who used
computers in the commission of their crimes from computer related work assignments “need
only be rationally related to a legitimated government goal to survive a constitutional challenge.”
Cutshall, 193 F.3d at 482 (citing Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919,
114 L. Ed. 2d 524 (1991)). A rational basis review “‘is not a license for courts to judge the
wisdom, fairness, or logic’” of the BOP’s policies. See Heller v. Doe by Doe, 509 U.S. 312, 319,
113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)). “[A] classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong presumption of
validity[,]” and will be “‘upheld against an equal protection challenge if there is any reasonably
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conceivable state of facts that could provide a rational basis for the classification.’” See id. at
319–20; Edington, 2015 WL 1843240, at *3 (finding the prisoner bears the burden of
overcoming the presumption that prison officials acted within their discretion in implementing
prison regulations); see also Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S. Ct. 1874, 104 L.
Ed. 2d 459 (1989) (holding that the exigencies of prison administration require only that a
subject regulation be reasonably related to a legitimate penological interest); Stauffer, 741 F.3d
at 587 (“[A]ny classification of convicted sex-offenders is only subject to a rational basis
review.”).
Courts considering the issue of computer-related restrictions for sex offenders have found
that there is a rational penological basis for such classifications and, therefore, no equal
protection violation. See Bell v. Woods, 382 F. App’x 391, 393 (5th Cir. 2010) (“Such a
restriction prevents sexual offenders from attempting to obtain and distribute sexually-explicit
material over the Internet and contact potential victims over the internet. Because the restriction
is rationally related to a legitimate penological interest, the district court did not err in dismissing
[plaintiff’s equal protection] claim.”); Isbell v. Merlak, No. 4:17-CV-00076, 2018 WL 4055612,
at *1 (N.D. Ohio June 25, 2018) (finding prisoner’s constitutional rights were not violated where
he was denied a job at UNICOR because he had been convicted of receiving child pornography
on a computer), report and recommendation adopted, No. 4:17CV0076, 2018 WL 4052164
(N.D. Ohio Aug. 24, 2018); Edington, 2015 WL 1843240, at *4 (finding the restrictions on
prisoner’s access to email is reasonably related to a legitimate penological objective because he
had used a computer and email to further his criminal activity of soliciting sex from a minor and
prisoner fails to state an equal protection claim); Deem v. Johnson, No. 17-CV-1190, 2017 WL
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9535208, at *3 (W.D. La. Dec. 29, 2017) (stating convicted sex offender failed to state a claim
for equal protection violation because “it is easy to discern a legitimate penological
interest/government objective in restricting email access for potentially predatory offenders”),
report and recommendation adopted, No. 17-CV-1190, 2018 WL 2990053 (W.D. La. June 14,
2018).
This Court reaches the same conclusion. The allegations in the complaint do not negate
“every conceivable basis” which might support the sex offender classification nor show that
Johnson’s sex offender (no computer) classification is “motivated by animus or ill-will.” See
Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (quoting Warren v.
City of Athens, 411 F.3d 697, 711 (6th Cir. 2005)). Given the nature of Johnson’s criminal
conviction, the Court finds that the BOP policy prohibiting Johnson from prison work using
computers has a legitimate penological interest and rational basis for barring Johnson (but not
convicted drug dealers who used cell phones to commit their crimes) from computer related
prison work.
Accordingly, Johnson fails to state a claim for a violation of his equal protection rights
upon which relief can be granted.
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D. Conclusion
For all of the foregoing reasons, Johnson fails to state a claim upon which relief can be
granted, and 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 25, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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