Martin v. Mohr et al

Filing 4

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen L. Litkovitz. It is RECOMMENDED that: Plaintiff's claims against defendants Gary Mohr, Timothy Brunsman, Shay Harris, Tom Schweitzer, Lora Satterthwaite, Dan Hudson, Ben Dunn, Richard Hu ggins, and John Doe highway patrol investigator should 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 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 Brian Bendel, Casey Barr, J.T. Hall, and John Doe dentist as directed by plaintiff.( Objections to R&R due by 5/21/2012). Signed by Magistrate Judge Karen L. Litkovitz on 5/3/12. (lk) (Additional attachment(s) added on 5/3/2012: # 1 Certified Mail Receipt) (lk).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERT LEE MARTIN,
Plaintiff,
vs
GARY MOHR, et aI.,
Defendants.

Case No. 1:12-cv-281
Weber, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Plaintiff, an inmate currently incarcerated at the Lebanon Correctional Institution (LeCI),
brings this civil rights action pursuant to 42 U.S.C. § 1983 against defendants Gary Mohr,
Timothy Brunsman, Shay Harris, Tom Schweitzer, Casey Barr, J.T. Hall, Lora Satterthwaite, Dan
Hudson, Ben Dunn, Richard Huggins, Brian Bendel, and John Doe highway patrol investigator
and John Doe dentist. (Doc. 1). 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 plaintiffs 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. 28 U .S.C.
§ 1915(e)(2)(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
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. /d.; see 28
U.S.C. §§ 1915(e)(2)(B)(i). A complaint maybe dismissed as frivolous when the plaintiff cannot
make any claim with a rational or arguable basis in fact or law. Neitzke, 490 U.S. at 328-29; 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.
Congress has also authorized the dismissal of complaints which fail to state a claim upon
which relief may be granted or which seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915 (e)(2)(B)(ii-iii); 1915A(b)(l-2). In order to state a claim for relief
under 42 U.S.C. § 1983, plaintiff must allege that the persons engaging in the conduct
complained of were acting under color of state law and that this conduct deprived plaintiff of
some right secured by the Constitution or laws of the United States. Graham v. National

Collegiate Athletic Ass 'n, 804 F.2d 953,957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S.
527,535 (1981), overruled in part on other grounds). Plaintiff's complaint must "give the
defendant fair notice of what the ... claim is and the grounds upon which it rests," Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (citations omitted); Wysong v. Dow Chemical Co., 503 F.3d 441,
446 (6th Cir. 2007), and provide "enough facts to state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Plaintiffs complaint includes ten claims. In claim one, plaintiff alleges that he was
improperly placed under investigation security control status and local control disciplinary status
during an ongoing investigation. (Doc. I, Statement of Claim p. I). Plaintiff argues that he never
received a conduct report, appeared before the Rules Infraction Board, or was found guilty of
anything related to the investigation. !d. He contends that he "should have been left under [his]
original status of security control which is the proper status for inmates place in the hole under
investigation." Id. In claim two, plaintiff further contends that he has been denied monthly and
annual reviews of his security status. Id. at 2.
Claims three and seven pertain to the LeC} grievance process. Plaintiff alleges that he has
been denied his appellate rights, as he was not provided with a written decision on his appeal of
his local control status and that he has been denied full access to the inmate grievance procedure.
Id. at 2-3, 5-6. Plaintiff notes that informal complaint and notification of grievance forms are not
available to inmates in his block and that "the few times} did actually receive [notification of
grievance forms]} was past the timelines for filing them." Id. In claim ten, plaintiff also alleges
that he is being denied access to departmental policies. Id. at 8.
In claim four, plaintiff alleges that for the last seven months he has been forced to sleep on
a piece of foam that is worn out, stained, dirty, and missing its cover. Id. at 3. Despite having
brought the condition of the foam to defendants Harris, Dunn, and Mohr, plaintiff indicates that
defendants still have failed to provide him with a regular mattress. Id.
Plaintiff alleges that he is being denied proper dental care in claim five. According to
plaintiff, he saw a dentist in January of2012 after reporting that he had a tooth causing him pain.

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Id. at 3. The complaint indicates that the dentist infonned plaintiff that the tooth was "down to
the nerve and said this same tooth was suppose [d] to be fixed in 2008." Id. Plaintiff alleges that
he was called back to see the dentist two weeks later, but that the dentist only cleaned his teeth
and neglected to provide care for the ailing tooth. Id. at 3-4. Plaintiff contends that "[t]he dentist
named John Doe for now knew I had a tooth that was down to the nerve causing me pain and
knew this tooth was suppose[d] to be fixed in 2008 and has still failed to fix it along with my
other teeth that need[ to be] fixed." !d. at 4.
In claim six, plaintiff also alleges that institutional investigators and John Doe highway

patrol investigator are abusing their authority and investigative powers. Id. at 4. According to
plaintiff, an investigation relating to the discovery of drugs and other contraband in the LeeI
gymnasium has been ongoing for the last seven months. Plaintiff contends that despite another
inmate having confessed to the infraction, that defendants have failed to question the confessing
inmate. Id. at 4-5. Plaintiff claims that the investigators "are dragging this investigation out as a
way to punish me when there's really little or no investigation really going on." Id. at 5.
In claim eight, plaintiff alleges that defendant Bendel, the LeCI mail room supervisor, is
withholding his Newsweek magazine and puzzle book subscriptions from him. He contends that
since September 9, 2011, his subscriptions have been withheld without any reason provided. Id.
at 6-7.
Finally, in claim nine, plaintiff alleges that prison officials are "withholding some of my
outgoing mail and possibly incoming mail without cause or notice." Id. at 7. Plaintiff reports that
at least two letters to his family asking that they contact defendant director Mohr about plaintiff's
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status were not delivered. Plaintiff states that "[t]he only employees who could be withholding
my mails is Lt. Bendel the maiVvisit room supervisor or the institutional investigators Casey Barr
and J.T. Hall." Id.
Liberally construed, the complaint states a claim for deliberate indifference to plaintiff s
serious medical needs. See Flanory v. Bonn, 604 F 3d 249, 253-54 (6th Cir. 20 10) (holding that
"a cognizable claim regarding inadequate dental care ... is based on various factors, such as the
pain suffered by the plaintiff, the deterioration of the teeth due to a lack of treatment, or the
inability to engage in normal activities") (citation and internal quotation marks omitted).
Plaintiff's Eighth Amendment claim against John Doe dentist is deserving of further development
and may proceed at this juncture. See 28 U.S.C. § 1915(e)(2)(B). The complaint also states First
Amendment claims against defendants Brian Bendel, Casey Barr, and J.T. Hall for the
withholding of plaintiffs outgoing mail and magazine subscriptions. See Thornburgh v. Abbott,
490 U.S. 401, 407 (1989); Sheets v. Moore, 97 F.3d 164, 166 (6th Cir. 1996). These claims may
also proceed.
However, plaintiffs remaining claims must be dismissed for failure to state a claim upon
which relief may be granted.
To the extent that plaintiff alleges a due process violation in connection with his security
status, this claim should be dismissed because plaintiff fails to allege facts showing that any
defendant's actions had the effect of altering the term of his imprisonment or imposed restraints
which amounted to an "atypical and significant hardship on [plaintiff] in relation to the ordinary
incidents ofprison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). See Jones v. Baker, 155
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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 security
status 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. of

America,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, 111 F.3d at
463 (administrative confinement for 117 days for lack of bed space could not satisfy Sandin);

Collmar 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.
To the extent that plaintiff complains about the failure ofprison staff to provide him with
inmate grievance forms and other deficiencies in the inmate grievance procedure at LeCI, the
complaint fails to state a claim for which relief may be granted because plaintiff has no federal
constitutional right to an effective prison grievance procedure. See, e.g., Dearing v. Mahalma,
No. 1:11cv204, 2011 WL 3739029, at *7 (S.D. Ohio Aug. 24, 2011) (holding that the plaintiffs
allegations referring to "his dissatisfaction with the ... investigation of [an] allegedly mishandled
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letter" through the prison grievance process did not state an actionable claim under 42 U.S.C. §
1983); Williams v. Harris, No. 1:11-cv-362, 2011 WL 3667438, at *3 (S.D. Ohio June 15,2011)
(Report and Recommendation) (recommending dismissal of complaint against prison official
responsible for responding to institutional grievances because the plaintiff had "no constitutional
right to an effective grievance procedure"), adopted, 2011 WL 3667389 (S.D. Ohio Aug. 22,
2011) ; see also Walker v. Michigan Dep't ofCorr., 128 F. App'x 441, 445 (6th Cir. 2005) (per
curiam) (and cases cited therein); Argue v. Hofmeyer, 80 F. App'x 427, 430 (6th Cir. 2003) (and
cases cited therein); Overholt v. Unibase Data Entry, Inc., No. 98-3302,2000 WL 799760, at *3
(6th Cir. June 14,2000)). Accordingly, these claims must also be dismissed.
Plaintiffs claim regarding his mattress also fails to state a claim upon which relief may be
granted. Plaintiff fails to set forth facts showing the allegedly deficient conditions of his
confinement constitute a "serious deprivation of basic human needs" such as food, medical care,
or sanitation. Rhodes v. Chapman, 452 U.S. 337,347-48 (1981). Plaintiffs allegations simply do
not rise to the level of a constitutional violation. See e.g. Wells v. Jefferson County SheriffDept.,
159 F. Supp.2d 1002, 1011-1012 (S.D. Ohio 2001) ("having to sleep on a mattress on the floor or
being exposed to cold temperatures simply do not rise to the level of a constitutional violation")
(citations omitted); see also Daugherty v. Timmerman-Cooper, No.2: 1O-cv-1 069,2011 WL
3206844, at *3 (S.D. Ohio June 28, 2011) (Report and Recommendation) (collecting cases),
adopted, 2011 WL 3206844 (S.D. Ohio July 27,2011).
Finally, as to plaintiffs allegations regarding defendants' failure to investigate, plaintiff
has also failed to state a claim because "[t]here is no statutory or common law right, much less a
constitutional right, to an investigation." Mitchell v. McNeil, 487 F.3d 374,378 (6th Cir. 2007);

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see also Daniels v. Lisath, No. 2:1O-cv-968, 2011 WL 2710786, at *2 (S.D. Ohio July 13, 2011).
Accordingly, in sum, plaintiffs claims pertaining to his security status (Claims I & 2), the
grievance process (Claims 3, 7, & 10), prison conditions (Claim 4), and defendants' failure to
investigate (Claim 6) 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 a claim for deliberate
indifference to serious medical needs and for withholding plaintiffs outgoing mail and magazine
subscriptions, plaintiffs Eighth Amendment claim against John Doe dentist and First Amendment
claims against defendants Brian Bendel, Casey Barr, and J.T. Hall are deserving of further
development and may proceed.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiffs claims against defendants Gary Mohr, Timothy Brunsman, Shay Harris, Tom
Schweitzer, Lora Satterthwaite, Dan Hudson, Ben Dunn, Richard Huggins, and John Doe highway
patrol investigator should 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 Brian Bendel, Casey Barr, J.T. Hall, and John Doe dentist 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,
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upon defendants' attorney(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
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:

~;C~-~~

.s;/t !/?()/~

Karen L. Litkovitz
~~
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ROBERT LEE MARTIN,
Plaintiff,

Case No. 1:12-cv-281
Weber, J.
Litkovitz, MJ.

vs
GARY MOHR, 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 FOlTRTEEN (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 portion( s) 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. Am, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir.1981).

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