Abdulraman v. Burke et al

Filing 19

ORDER AND REPORT AND RECOMMENDATION re 1 Complaint filed by Abdul Abdulraman by Magistrate Judge Karen L. Litkovtiz. It is therefore RECOMMENDED that: Plaintiff's claims against defendants State of Ohio, Rules Infraction Board,Warden Don nie Morgan, and Larry Greene be DISMISSED on the ground that they fail to state a claim upon which relief may be granted under 42 U.S.C. § 1983. It is therefore ORDERED that: 1. The United States Marshal shall serve a copy of the Complaint , summons, the separate Order granting prisoner in forma pauperis status, and this Order and Report and Recommendation upon defendants Davis, Bell, Dillon, Workman, Holsinger, Jackson, Oppy, Southworth, York, Payne, Stunnabeck, Voorhies, Burke, Mohr and Prise, as directed by plaintiff.( Objections to R&R due by 6/4/2012). Signed by Magistrate Judge Karen L. Litkovitz on 5/16/12. (lk)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ABDUL ABDULRAMAN,
Plaintiff
vs.
DR. BURKE, et aI.,
Defendants.

Case No.1: 12-cv-209
Spiegel, J.
Litkovitz, M.J.

ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, an inmate incarcerated at the Southern Ohio Correctional Facility (SOCF),
brings this civil rights action pursuant to 42 U .S.C. § 1983 against defendants Dr. Burke, Dirk
Prise, Gary C. Mohr, Edwin Voorhies, Warden Donnie Morgan, Rules Infraction Board, Larry
Greene, State of Ohio, Cynthia Davis, Ms. Holsinger, Lt. Dillon, Lt. Workman, Chaplin York,
Correctional Officer Southworth, Warden Wanza Jackson, Deputy Warden Oppy, Mathew
Stunnabeck, Captain Harold Bell, and Correctional Officer Payne.! By separate Order, plaintiff
has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter
is before the Court for a sua sponte review of the complaint to determine whether the complaint,
or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim
upon which relief may be granted or seeks monetary relief from a defendant who is immune from
such relief. See Prison Litigation Reform Act of 1995 § 804,28 U.S.C. § 1915(e)(2)(B); § 805,
28 U.S.C. § 1915A(b).

In enacting the original in forma pauperis statute, Congress recognized that a "litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an

1 By prior order, Abdulraman v. Davis, Case No. 1:12-cv-220 (S.D. Ohio March 16,2012) (Spiegel J.; Litkovitz

economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma
pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28
U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot
make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S.
319,328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An
action has no arguable legal basis when the defendant is immune from suit or when 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, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court
need not accept as true factual allegations that are "fantastic or delusional" in reviewing a
complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,
490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed by a
pro se plaintiff must be "liberally construed" and "held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97,106 (1976)). By the same token, however, the complaint "must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its

M.J.), has been consolidated with the instant case. (See Doc. 11).

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face.'" Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 ("dismissal standard articulated in Iqbal
and Twombly governs dismissals for failure to state a claim" under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii)).
"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."

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well­
pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a
factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265,286
(1986)). Although a complaint need not contain "detailed factual allegations," it must provide
"more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a
formulaic recitation of the elements ofa cause of action will not do." Twombly, 550 U.S. at 555.
Nor does a complaint suffice if it tenders "naked assertion [s]" devoid of "further factual
enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the ...
claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff, who is proceeding pro se, brings this action against various SOCF officers and
staff, alleging that he was harassed and discriminated against on the basis of being a Sunni
Muslim. Plaintiff indicates that he obtained a religious accommodation approval for his hair,
which he grew long according to his religious beliefs. Abdulraman v. Davis, Case No. 1:12-cv­
220 (S.D. Ohio March 13,2012) (Spiegel, l; Litkovitz, M.l) (Doc. 1, Complaint p. 3). In
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December of 20 11, however, plaintiff alleges that he was removed from the general population on
mUltiple occasions by defendant Bell based on purported hair infractions. Id. In January of2012,
plaintiff alleges the Rules Infraction Board conspired to increase his security grade, apparently in
response to his hair-related infractions. Id Plaintiff indicates that he informed defendant Deputy
Warden Oppy that he had a religious accommodation for his hair. According to plaintiff, Oppy
stated that he told the staff to leave plaintiff alone, that he was in possession of plaintiff s
religious approval forms, and that it would take three months to release him from isolation. Id
Plaintiff also alleges that he informed defendant director Edward Voorhies and unit manager
Stunnabeck that he was improperly held in isolation in light of his religious accommodation and
requested that they "control the[irJ employees and don't let them cut [his] hair." Id. at 4-5.
According to plaintiff, Oppy and Voorhies assured him not to worry, that the staff could not cut
his hair and that "they will make sure to handle it." Id at 5. Plaintiff alleges that defendant
Jackson is the "Religious Administrator responsible for keeping raj current exemption list so each
prison has a record of all approved hair exemption[s] and [to] make sure employees don't
discriminate and violate prisoner[s'] religious constitutional rights." Id. Plaintiff also alleges that
Chaplin York was responsible for keeping a current list of religious accommodations and that he
failed to include plaintiff on the list. Id at 6.
On January 30, 2012, plaintiff alleges that defendant Cynthia Davis filed a false conduct
report stating that plaintiff did not have a religious accommodation exemption. Id. at 3-4. On
February 1,2012, defendant Officer Southworth allegedly refused to send plaintiff to see the

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Rules Infraction Board and instead informed the board that he refused to attend. Id at 4.
According to plaintiff, Southworth told plaintiff that he had to go to the infirmary hospital, where
he alleges that he was "ambushed at the barber shop by barber shop supervisor Ms. Holsinger, Lt.
Dillon and Lt. Workman. They got [a] large can of Fox Chemical Mace pointed at my face and
sa[id] cut your hair or else." Id. Plaintiff indicates that he was forcefully held down by
defendants Payne, Workman, and Dillon while his hair was involuntarily cut. Id Plaintiff states
that he began to pray as his hair was being cut and alleges that defendants Dillon and Workman
made comments disrespecting his religion throughout the incident. Id
Plaintiff claims that defendants Davis, Bell, Dillon, Workman, Holsinger, Jackson, Oppy,
Southworth, York, Payne, Stunnabeck, and Voorhies acted with "deliberate indifference to [his]
religious constitutional rights, conspiracy to commit harm, failure to protect, failure to act,
negligent supervision and religious discrimination." Id at 6-7. He further alleges that defendants
Southworth, Davis, Bell, Dillon and Workman "engaged in a conspiracy [to] violate [his]
constitutional rights protected by the Religious Land Use of Incarcerated Person Act and
Religious Freedom Act." Id. at 7. Plaintiff also alleges discrimination based on being denied
halal meals and being separated from other Muslims during prayer. Id at 8.
Plaintiff also alleges that defendants Burke, Mohr, Voorhies, Prise, Morgan, and Green
were deliberately indifferent to his serious medical needs because they denied him mental health
treatment. (Doc. 1, p. 5). Plaintiff contends that defendants Burke, Prise, Mohr and Voorhies
have ignored his requests for mental health treatment despite having informed them that he is

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suicidal. fd. Plaintiff alleges that these defendants use isolation in lieu of providing treatment.
fd. He further contends that he was "denied mental health staff assistance by [the] Rules

Infraction Board [in] violation of due process" and names defendants Larry Greene and Donnie
Morgan, apparently for the denial of due process on appeal. fd. Finally, plaintiff alleges that
defendant Mohr recently initiated "a new 3 step process lock down." fd. As best the Court can
discern, it appears that plaintiff alleges that the lockdown involves mixing recreational and non­
mental health inmates with handcuffed mental health inmates. See id. Plaintiff asserts that the
lockdown process amounts to deliberate indifference to safety. fd. Plaintiff seeks monetary
damages, declatory relief and injunctive relief. fd. at 6.
Liberally construed, plaintiffs complaint states a claim for relief under the First
Amendment against defendants Davis, Bell, Dillon, Workman, Holsinger, Jackson, Oppy,
Southworth, York, Payne, Stunnabeck, and Voorhies. Flagner v. Wilkinson, 241 F.3d 475 (6th
Cir.2001). See also

o 'Lone v. Estate a/Shabazz, 482 U.S. 342 (1987); Cruz v. Beta, 405 U.S.

319 (1972). Plaintiff s claims against these defendants are deserving of further development and
mayproceedatthisjuncture. See 28 U.S.C. § 1915(e)(2)(B).
Plaintiff also alleges sufficient facts for a claim of deliberate indifference to serious
medical needs against defendants Burke, Voorhies, Mohr and Prise. In addition, at this juncture,
it appears that plaintiffs allegations sufficiently state a claim of deliberate indifference to safety
against defendant Mohr. See Farmer v. Brennan, 511 U.S. 825,845-46 (1994). The Court
therefore concludes that plaintiffs Eighth Amendment claims against these defendants may

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proceed.
However, plaintiffs remaining claims must be dismissed for failure to state a claim upon
which relief may be granted.
Although plaintiff does not specify the basis upon which he names the State of Ohio as a
defendant, any such claim must be dismissed because the State of Ohio is immune under the
Eleventh Amendment to the United States Constitution. Absent an express waiver, the Eleventh
Amendment to the United States Constitution bars suit against a State or one of its agencies or
departments in federal court regardless of the nature of the relief sought. Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89,
100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651,663
(1974). The exceptions to the Eleventh Amendment bar of suits in federal court against a state do
not appear to apply in this case. The State of Ohio has neither constitutionally nor statutorily
waived its Eleventh Amendment rights. See Mixon v. State ofOhio, 193 F.3d 389,397 (6th Cir.
1999); State ofOhio v. Madeline Marie Nursing Homes, 694 F.2d 449,460 (6th Cir. 1982); Ohio
Inns, Inc. v. Nye, 542 F.2d 673,681 (6th Cir. 1976); see also Will v. Michigan Dept. ofState
Police, 491 U.S. 58 (1989). Nor has plaintiff sued a state official seeking prospective relief for
future constitutional violations. Ex Parte Young, 209 U.S. 123 (1908). Therefore, plaintiffs
claims against the State of Ohio should be dismissed.
Plaintiff s complaint also fails to state a claim for relief for a denial of due process against
the Rules Infraction Board (RIB), Warden Donnie Morgan, or Larry Greene. As noted above,
plaintiff bases his claims against these defendants on their alleged denial of his due process rights

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in connection with the RIB proceedings and subsequent appeal. However, plaintiff fails to allege
facts showing that defendants' actions had the effect of altering the term of his imprisonment or
imposed restraints which amounted to an "atypical and significant hardship on [plaintiffJ in
relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472,484 (1995).

See Jones v. Baker, 155 F.3d 810,812 (6th Cir. 1998); Mackey v. Dyke, 111 F.3d 460 (6th Cir.
1997); Rimmer-Bey v. Brown, 62 F.3d 789, 791 (6th Cir. 1995). Plaintiff does not allege facts
showing that his RIB proceeding resulted in the lengthening of his prison sentence, the withdrawal
of good-time credits, or the deprivation of any necessities oflife. Sandin, 515 U.S. at 486; Smith
v. Corrections Corp. ofAmerica,S F. App'x. 443, 444 (6th Cir. 2001) (thirty days of disciplinary
segregation does not rise to level of atypical and significant hardship). See also Jones, 155 F.3d at
812 (6th Cir. 1998) (administrative segregation for two and a half years did not satisfy Sandin);

Mackey v. Dyke, 111 F.3d 460,463 (6th Cir. 1997) (administrative confinement for 117 days for
lack of bed space could not satisfy Sandin); Col/mar v. Wilkinson, No. 97-4374, 1999 WL
623708, at *3 (30 days in Security Control, 14 days in Disciplinary Control and six to eight
months in Administrative Control were not atypical hardship under Sandin). Cf Wilkinson v.

Austin, 545 U.S. 209, 223-24 (2005) (holding that transfer to Ohio's "supermax" prison "imposes
an atypical and significant hardship" given combination of extreme isolation of inmates,
prohibition of almost all human contact, indefinite duration of assignment, and disqualification for
parole consideration of otherwise eligible inmates). Because plaintiff does not have a protected
liberty interest under the circumstances alleged, his complaint fails to state a due process claim
against these defendants.
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Accordingly, in sum, plaintiff's claims against defendants State of Ohio, Rules Infraction
Board ,Warden Donnie Morgan, and Larry Greene should be dismissed for failure to state a claim
upon which relief may be granted. Having found that plaintiff has alleged sufficient facts to state
First Amendment claims against defendants Davis, Bell, Dillon, Workman, Holsinger, Jackson,
Oppy, Southworth, York, Payne, Stunnabeck, and Voorhies and Eighth Amendment claims
against defendants Burke, Voorhies, Mohr and Prise, these claims are deserving of further
development and may proceed.

IT IS THEREFORE RECOMMENDED THAT:
Plaintiff's claims against defendants State of Ohio, Rules Infraction Board,Warden Donnie
Morgan, and Larry Greene be DISMISSED on the ground that they fail to state a claim upon
which relief may be granted under 42 U.S.C. § 1983. See 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b).

IT IS THEREFORE ORDERED THAT:
1.

The United States Marshal shall serve a copy of the Complaint, summons, the

separate Order granting prisoner in forma pauperis status, and this Order and Report and
Recommendation upon defendants Davis, Bell, Dillon, Workman, Holsinger, Jackson, Oppy,
Southworth, York, Payne, Stunnabeck, Voorhies, Burke, Mohr and Prise, as directed by plaintiff.
All costs of service shall be advanced by the United States.
2.

Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,

upon defendants' attomey(s), a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed with the

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Clerk of Court a certificate stating the date a true and correct copy of any document was mailed to
defendants or their counsel. Any paper received by a district judge or magistrate judge which has
not been filed with the clerk or which fails to include a certificate of service will be disregarded by
the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may
occur during the pendency of this lawsuit.

~~

Date:

Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Case No.1: 12-cv-209

ABDUL ABDULRAMAN,
Plaintiff

Spiegel, J.
Litkovitz, MJ.

vs.
DR. BURKE, et aI.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after being served
with a copy thereof. That period may be extended further by the Court on timely motion by either
side for an extension of time. All objections shall specify the portiones) of the R&R objected to,
and shall be accompanied by a memorandum of law in support of the objections. A party shall
respond to an opponent's objections within FOURTEEN DAYS after being served with a copy of
those objections. Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).

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