Bloodworth v. Doe et al

Filing 9

REPORT AND RECOMMENDATIONS: IT IS RECOMMENDED THAT the complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons a n appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Stephanie K. Bowman on 09/19/2017. (bjc)(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
PHILLIP J. BLOODWORTH,
Plaintiff,
vs
JOHN DOE, et al.,
Defendants.

Case No. 1:17-cv-450
Barrett, J.
Bowman, M.J.
REPORT AND
RECOMMENDATION

Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), has filed a pro se
civil rights complaint against defendants John Doe Chief Inspector, Warden Erdos, Inspector
Mahlman, Major Warren, ADA Coordinator Memmert, HCA Warren, Lt. Setty, Sgt.
McCroskey, C/O Cooper, Optometrist Shoemaker, and Doctor Eddy in their individual
capacities. (Doc. 6, Complaint at PageID 55). By separate Order, plaintiff has been granted
leave to proceed in forma pauperis. 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
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) and 1915A(b)(1). 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) and 1915A(b)(1). 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 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 wellpleaded 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

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(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 of a 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).
In the complaint, plaintiff alleges that his contact lenses were taken from him in the
course of moving cells. On May 31 or June 1, 2016, plaintiff claims he was moved out of his
cell. (Doc. 6 at PageID 56). Plaintiff claims that he tried to bring his belongings with him, but
that defendant Lt. Setty ordered him to put his belongings back in the cell. According to
plaintiff, later that same night, plaintiff requested his contact lenses from Nurse Hill, who
informed him that contacts were not allowed in SOCF. The next day Hill allegedly told him
that she checked plaintiff’s property but that the contact lenses were not there and instructed
him to file a theft/loss claim. On June 16, 2016, plaintiff indicates that his property was
returned to him without the contact lenses.
Plaintiff claims that he unsuccessfully filed informal complaints/grievances with
defendants Memmert, Warren, and Mahlman. (Id. at PageID 56, 58). Plaintiff further claims
that he filed an appeal of the grievance dispositions with defendant John Doe Chief Inspector.
Plaintiff claims the Chief Inspector indicated that “contacts were permitted but evidence shows
the Americans With Disabilities Act Coordinator Memmert and Major Warren both signed and
attested that ‘contacts are not permitted at SOCF.’” (Id. at 58). According to plaintiff, he also
complained to defendant Warden Erdos, but that Erdos took no action. Plaintiff alleges that he

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was told to sign up for a sick call and see defendant optometrist Shoemaker again. Plaintiff
indicates that Shoemaker subsequently prescribed plaintiff glasses due to the fact that plaintiff
did not have money to replace his contacts. According to plaintiff, defendant John Doe
determined that plaintiff would be responsible for the cost of replacement contact lenses.
For relief, plaintiff seeks replacement contact lenses, punitive damages, to make
defendant Memmert “take more of an active role in insuring SOCF security and medical staff
are adhering to ODRC policy and state law” with respect to prisoner health issues, and to hold
defendants “financially accountable in their individual capacit[ies].” (Id. at PageID 57).
Plaintiff’s complaint is subject to dismissal at the screening stage for failure to state a
claim upon which relief may be granted. First, to the extent plaintiff alleges he was deprived of
his contacts without due process of law, his allegations are insufficient to state an actionable §
1983 claim. In order to assert such a claim, plaintiff must first “plead . . . that state remedies for
redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir. 1983).
See also Hudson v. Palmer, 468 U.S. 517 (1984); Parratt, 451 U.S. 527 (1981). “If satisfactory
state procedures are provided in a procedural due process case, then no constitutional deprivation
has occurred despite the injury.” Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583,
587-88 (6th Cir. 2004). Accordingly, in order to state a procedural due process claim under
section 1983 “the plaintiff must attack the state’s corrective procedure as well as the substantive
wrong.” Meyers v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (quoting Vicory, 721
F.2d at 1066). A plaintiff “may not seek relief under Section 1983 without first pleading and
proving the inadequacy of state or administrative processes and remedies to redress [his] due
process violations.” Jefferson, 360 F.3d at 588.

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Plaintiff has not alleged any facts even remotely indicating that his remedies under Ohio
law to redress the wrong of which he complains are inadequate. Plaintiff’s complaint fails to
explain why a state tort remedy for conversion would not suffice to address his claim. See Fox v.
Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Therefore, he fails to state a due process
claim that is actionable in this § 1983 proceeding.
To the extent that plaintiff seeks to hold defendants liable for their failure to adequately
investigate his administrative grievances or for their role in the grievance process he also fails to
state a claim upon which relief may be granted. “There 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); see also Daniels v. Lisath, No. 2:10-cv-968, 2011 WL 2710786, at *2 (S.D. Ohio
July 13, 2011). Furthermore, to the extent that plaintiff claims that the grievance procedure
failed to produce the correct outcome, this cannot give rise to a § 1983 claim because “[p]rison
inmates do not have a constitutionally protected right to a grievance procedure.” Miller v.
Haines, No. 97–3416, 1998 WL 476247, at *1 (6th Cir. Aug.03, 1998) (citations omitted).
Prison officials whose only roles “involve their denial of administrative grievances and their
failure to remedy the alleged [unconstitutional] behavior’” cannot be liable under § 1983.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). Nor does a prison official’s alleged failure
to adequately investigate claims of misconduct rise to the level of “encouragement” that would
make the official liable for such misconduct. Knop v. Johnson, 977 F.2d 996, 1014 (6th Cir.
1992); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Finally, to the extent that plaintiff wishes to hold any of the defendants liable in their
supervisory capacity, it is well-settled that the doctrine of respondeat superior does not apply in
§ 1983 lawsuits to impute liability onto supervisory personnel. See, e.g., Wingo, 499 F. App’x at

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455 (citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)). “In order to find supervisory
personnel liable, a plaintiff must allege that the supervisors were somehow personally involved
in the unconstitutional activity of a subordinate, . . . or at least acquiesced in the alleged
unconstitutional activity of a subordinate.” Id. (citing Dunn v. Tennessee, 697 F.2d 121, 128 (6th
Cir. 1982); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); see also Colvin v. Caruso,
605 F.3d 282, 292 (6th Cir. 2010) (quoting Cardinal v. Metrish, 564 F.3d 794, 803 (6th Cir.
2009)) (to succeed on claim against supervisory state prison officials, the plaintiff must show the
officials “at least implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending officers”). Therefore, in the absence of any such
allegation, plaintiff’s claims brought against Warden Erdos or any other defendant in their
supervisory capacity are simply insufficient to give rise to an actionable § 1983 claim.
Accordingly, in sum, the complaint should be dismissed for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
IT IS THEREFORE RECOMMENDED THAT:
1.

The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b)(1).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).

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
PHILLIP J. BLOODWORTH,
Plaintiff,

Case No. 1:17-cv-450
Barrett, J.
Bowman, M.J.

vs
JOHN DOE, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. 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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