Dearing v. Weaks et al

Filing 20

REPORT AND RECOMMENDATIONS re 12 Defendants' Motion to Dismiss for Failure to State a Claim. IT IS RECOMMENDED THAT Defendants' Motion to Dismiss 12 be GRANTED and this matter be CLOSED. Objections to R&R due by 7/30/2018. Signed by Magistrate Judge Stephanie K. Bowman on 7/16/2018. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARVIN DEARING,

Civil Action No. 1:17-cv-425

Plaintiff,

Black, J.
Bowman, M.J

vs.
MR. WEAKS, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff Marvin Dearing, an inmate proceeding pro se and in forma pauperis,
brought the instant civil action under 42 U.S.C. §1983. This matter is now before the
Court on Defendants’ motion to dismiss Plaintiff’s complaint pursuant to Fed. R. Civ. P.
12(b)(6) and the parties’ responsive memoranda. (Docs.12, 15).
I.

Background and Facts

In his complaint, Plaintiff alleges that in April 2016, he requested a copy of his
birth certificate from the Bureau of Vital Statistics in an attempt to effectuate a name
change. In this regard, Plaintiff claims that the Bureau of Vital Statistics informed him
on November 11, 2016 that a copy of Plaintiff’s birth certificate was mailed on May 28,
2016.1 (Doc. 1, Ex. A). Thereafter, on November 13, 2016, Plaintiff filed an informal
complaint with prison officials stating that the mailroom was unjustifiably holding his
birth certificate. (Doc. 1). After receiving a response on November 21, 2016, Plaintiff
appealed the result on December 8, 2016. (Doc. 1, Ex. B). His appeal was denied as
untimely and because there was no allegation of a violation of rule or policy. (Doc. 1,

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Defendants point out that November 11 is Veteran’s Day and the Bureau of Vital Statistics was closed
that day.

Ex. C). Plaintiff was also informed that his birth certificate was being held by the
Cashier’s Office per Ohio Department of Rehabilitation and Correction (“ODRC”) policy.
Id. Subsequently, Plaintiff appealed this decision to the Office of the Chief Inspector.
However, the Chief Inspector affirmed the decision as untimely and not in violation of
any institutional rule or policy. (Doc. 1, Exs. D-E).
In light of the foregoing, Plaintiff filed the instant action against the Defendants
for alleged violations of his First and Fourteenth Amendment rights.

Upon initial

screening of the complaint pursuant to the Prison Litigation Reform Act of 1995 § 804,
28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b), Plaintiff’s due process claims
were dismissed. Plaintiff’s first amendment claim was permitted to proceed. (Doc. 8).
Defendants now seek to dismiss Plaintiff’s First Amendment claim. Specifically,
Defendants contend that Plaintiff’s claim fails as a matter of law because he failed to
exhaust his administrative remedies and his claim is not protected by the First
Amendment. Defendants further assert that they are entitled to qualified immunity.
I.

Analysis

A.

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of
the claims. The court is required to construe the complaint in the light most favorable
to the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business
Services, 135 F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept
conclusions of law or unwarranted inferences which are presented as factual
allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint

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must contain either direct or reasonable inferential allegations that support all material
elements necessary to sustain a recovery under some viable legal theory. Lewis v.
ACB, 135 F.3d at 405 (internal citations omitted). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted);
Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548
(6th Cir. 2007). Even though 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 (even if doubtful
in fact).” Id. (citations omitted).
B. Exhaustion under PLRA
Pursuant to the PLRA, prisoners are required to fully exhaust available
institutional remedies prior to filing suit in federal court. See 42 U.S.C. § 1997e (“No
action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”). In Porter v.
Nussle, the Supreme Court held that the “PLRA's exhaustion requirement applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Id., 534 U.S.
516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (citing Wilson v. Seiter, 501 U.S. 294,
299, n. 1, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). It has become well-established that

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“exhaustion is mandatory under the PLRA and unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 201, 204 (2007).
The PLRA requires “proper exhaustion of all administrative remedies,” meaning
all applicable procedures and deadlines must be followed. Woodford v. Ngo, 548 U.S.
81, 88–90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2002). The exhaustion requirement's
goals can be achieved “only if the prison grievance system is given a fair opportunity to
consider the grievance. That cannot happen unless the grievant complies with the
system's critical procedural rules.” Id. at 82. If a prisoner fails to exhaust available
administrative remedies before filing a complaint in federal court, or only partially
exhausts them, dismissal of the complaint is appropriate. Hopkins v. Ohio Dep't of
Corr., 84 Fed. Appx. 526, 527 (6th Cir. 2003) (citing 42 U.S.C. § 1997e(a)); see
also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997).
“Exhaustion may not be completed after a federal complaint has been
filed.” Hopkins, 84 Fed. Appx. at 527 (citing Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999)). “In a claim by a prisoner, failure to exhaust administrative remedies under
the PLRA is an affirmative defense that must be established by the defendants.” Napier
v. Laurel County, Ky., 636 F.3d 218, 225 (6th Cir. 2011) (citing Jones v. Bock, 549 U.S.
at 204).
The Ohio Department of Rehabilitation and Correction (“ODRC”) offers a threestep grievance system to every inmate at each of its institutions. Ohio Admin. Code
5120–9–31(K) (2013) (West). All inmates and staff members receive a written
explanation of the grievance system and instructions for its use. § 5120–9–31(C).
The first step of the grievance procedure allows inmates to submit an informal complaint

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to the supervisor of the department or staff member directly responsible for the issue
concerning the inmate, but requires any such complaint or grievance to be submitted
no later than fourteen days from the date of the event giving rise to the grievance. OAC
§ 5120–9–31(K)(1).
Inmates dissatisfied with the results of step one may proceed to step two by
obtaining a Notification of Grievance form from the Inspector of Institutional Services,
and filing a formal grievance at the prison where the inmate is confined. § 5120–9–
31(K)(2). Formal grievances must be submitted within fourteen days from the date an
inmate receives a response to his informal complaint at step one. OAC § 5120–9–
31(K)(2).
If dissatisfied with the results of his formal complaint at step two, the inmate may
proceed to step three of the grievance process by requesting an appeal form from the
Office of the Inspector of Institutional Services, and submitting an appeal to the Office
of the Chief Inspector at ODRC. OAC § 5120–9–31(K)(3). The step three appeal must
be filed within fourteen days of the inmate receiving a disposition to his formal
complaint. OAC § 5120–9–31(K)(3). The Chief Inspector is to provide a written
response within thirty calendar days of receiving an appeal, unless he extends the time
frame for good cause and notifies the inmate. OAC § 5120–9–31(K) (3). Decisions of
the Chief Inspector are final—meaning the Ohio Administrative Code provides no
further means for appeal. OAC § 5120–9–31(K)(3). Here, Defendants argue that
Plaintiff's complaint should be dismissed based upon an alleged failure to exhaust his
administrative remedies.
Here, the record indicates that Plaintiff filed his informal complaint on November

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13, 2016. (Doc 1, Ex. A). Plaintiff’s informal complaint states, in toto, “On 5-28-16, The
Cleveland Ohio Bureau of Vital Statistics Informed Me They Sent Me a copy of My Birth
Certificate.” Id. This informal complaint was denied as untimely due to the supervisor’s
interpretation of the complaint that Plaintiff learned of the mailing on May 28. This is
an understandable interpretation based on how the complaint was written. Plaintiff then
filed his Notification of Grievance with the Institutional Inspector, it was denied as
untimely but also on the merits. (Doc. 1, Exs. B-C). Plaintiff then proceeded to the third
step of the procedure and filed an appeal to the Office of the Chief Inspector. (Doc. 1,
Ex. D).
In light of the foregoing, Defendants contend that Plaintiff failed to properly
exhaust his administrative remedies. Notably, Plaintiff filed his informal complaint on
November 13, 20162; the response was written on November 21, 2016. On November
22, Plaintiff requested a grievance form. Plaintiff filed his Notification of Grievance on
December 8, 2016, the day he received the form, a total of seventeen (17) days after
the informal complaint response. Defendant responded on December 14, 2016 again
finding the grievance untimely but also informing Plaintiff his birth certificate was being
held in the cashier’s office pursuant to prison policy. Plaintiff filed an appeal on
December 17, 2016. The Chief Inspector affirmed the decision on January 31, 2017
as untimely but also addressed the merits of Plaintiff’s complaint. Defendants’ contend
that Plaintiff he did not comply with the applicable deadlines, and therefore, Plaintiff
failed to properly exhaust his administrative remedies. Defendants’ contention is not

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Plaintiff alleges in the complaint to this Court that on November 11 he learned that his birth certificate was
mailed on May 28. Had the informal complaint been clear as to when he learned of this mailing, the
Defendants’ response regarding the timeliness of the complaint may have been different.

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well-taken.
Here, assuming Plaintiff’s allegations are true, Plaintiff filed his informal
complaint the day after he received notice that the Bureau of Statistics previously sent
him his birth certificate. In addition, Plaintiff alleges that he did not timely receive the
Notification of Grievance Form from the Inspector and it was this delay that caused his
grievance to be filed 17 days after the response to the informal complaint. Furthermore,
the Chief Inspector did not timely respond to Plaintiff’s grievance. Notably, the Chief
Inspector is to rule within 30 days. He failed to do so. In light of the foregoing, the
undersigned declines to determine that Plaintiff failed to exhaust his administrative
remedies. Accordingly, Plaintiff’s claims will be addressed on the merits.
C. Violation of First Amendment Rights
To establish a claim under § 1983, two elements are required: (1) conduct
committed by a person acting under the color of state law that (2) deprives a plaintiff of
rights, privileges, or immunities secured by the Constitution or the laws of the United
States. Gomez v. Toledo, 446 U.S. 635 (1980); Sargi v. Kent City Board of Educ., 70
F.3d 907, 913 (6th Cir.1995).
Here, Plaintiff contends that the “Defendants’ failure” to provide him with his birth
certificate violates his right to receive incoming mail as protected by the First
Amendment. Plaintiff’s contention fails as a matter of law.
As noted by Defendants, the Supreme Court previously held that “a prison
inmate retains those First Amendment rights that are not inconsistent with his status as
a prisoner or with the legitimate penological objectives of the corrections system.” Pell
v. Procunier, 417 U.S. 817, 822 (1974). Additionally, the Court held that prison

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restrictions that allegedly inhibit First Amendment interests must be analyzed in terms
of the legitimate policies and goals of the corrections system. Id. “Thus, it is well
established that “[c]ourts owe ‘substantial deference to the professional judgment of
prison administrators.’” Beard v. Banks, 548 U.S. 521, 528 (2006) (citing Overton v.
Bazzetta, 539 U.S. 126, 132 (2003)).
Here, in compliance with Ohio Revised Code 5120.01, ODRC policy 61-PRP-01
establishes policy and procedures regarding authorized personal property items for
inmates. The policy specifically states:
Inmates shall be required to send their personal property, such as birth
certificate, driver’s license/state identification, social security card etc.,
outside the institution unless s/he has sixty (60) days or less to serve. In
such instances, the property shall be held in the cashier’s office until the
inmate’s release.
ODRC Policy 61-PRP-01(VI)(A)(9).
Plaintiff appears to contend that this policy violates his rights under the First
Amendment and/or somehow impedes on his access to the Court. Plaintiff, however,
fails to elaborate on this assertion; and more importantly, fails to allege how he has
been injured by this alleged unconstitutional policy. Alleging such an injury is required
to withstand a motion to dismiss. Notably, it is well established that prisoners have a
constitutional right of access to the courts under the First and Fourteenth Amendments
of the Constitution. Bounds v. Smith, 430 U.S. 817, 821 (1977). However, to state a
claim, an inmate must show that any barrier that impeded his access to the courts
caused actual injury in his pursuit of a legal claim. Lewis v. Casey, 518 U.S. 343, 351
(1996). An inmate must make a specific claim that he was adversely affected or that
the litigation was prejudiced. Vandiver v. Niemi, No. 94-1642, 1994 U.S. App. LEXIS

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34257, 1994 WL 677685, at *1 (6th Cir. Dec. 2, 1994). Plaintiff failed to do this.
Here, other than stating that his First Amendment rights have been violated,
Plaintiff has not alleged that he has suffered any injury based upon this prison policy.
The court does sympathize with Plaintiff’s frustration that he was not informed that the
birth certificate had arrived and was being held by the Cashier. However, this lack of
information does not rise to the level of a First Amendment violation.
As noted by the Defendants, the filing of a name change is a voluntary action
permitted by Ohio Revised Code 2717.01. Name change proceedings do not have a
statute of limitations and Plaintiff is not prevented from changing his name now or at a
later date. As Plaintiff correctly pointed out he is serving more than 60 days and as
such, Plaintiff should be required to send his birth certificate outside the institution. In
fact, there is no reason Plaintiff could not direct the cashier to send his birth certificate
directly to the probate court.

In light of the foregoing, the undersigned finds that

Plaintiff’s complaint fails to state a claim for relief under section 1983 because he fails
to sufficiently allege a violation of his constitutional rights.
Last, Defendants contend that they are entitled to qualified immunity. The
doctrine of qualified immunity “shields governmental officials from monetary damages
as long as ‘their actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Sumpter v. Wayne Cty, 2017
FED App. 0187P, No. 16-2102, 2017 U.S. App. LEXIS 15649, 2017 WL 3568607, *6
(6th Cir. Aug. 18, 2017) (quoting Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009)). Defendants contend that they are entitled to qualified immunity because
an inmate has no clearly established constitutional right to possess his birth certificate.

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Defendants further contend that inmates do not have an unfettered right to receive all
incoming mail. The undersigned agrees. See Pearson v. Callahan, 129 S.Ct. 808
(2009) (A governmental official is entitled to immunity if the facts alleged do not make
out a violation of a constitutional right, or if the alleged constitutional right was
not clearly established at the time of the defendant's alleged misconduct).
II.

Conclusion

In light of the foregoing, the Court RECOMMENDS that Defendants’ Motion to
Dismiss (Doc. 12) be GRANTED and this matter be CLOSED.
s/ Stephanie K. Bowman
.
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARVIN DEARING,

Civil Action No. 1:17-cv-425

Plaintiff,

Black, J.
Bowman, M.J

vs.
MR. WEAKS, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. 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
(14) 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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