Cook v. Woodard et al

Filing 15

ORDER AND REPORT AND RECOMMENDATION signed by Magistrate Judge Stephanie K. Bowman on 11/30/2017. Plaintiffs 6 Motion to Amend/Correct is hereby GRANTED. IT IS RECOMMENDED THAT: 1. The complaint, as amended, be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of the following claims, which may proceed: Eighth Amendment claim of excessive force against defendant Ryan Woodard, as stated in the original complaint and plaintiffs retal iation claim against defendant Cool, as stated in the amended complaint 2. Defendants 11 moion to dismiss the amended complaint as to defendant Woodard be DENIED. IT IS ORDERED THAT: The United States Marshal shall serve a copy of the original an d amended/corrected complaints (Doc. 3, 10), summons, the Order granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon defendants Woodard and Cool as directed by plaintiff, with costs of service to be advanced by the United States. (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
JOHNNIE D. COOK,
Plaintiff,
vs.
RYAN WOODARD, et al,
Defendants.

Case No. 1:17-cv-532
Black, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), filed a pro se civil
rights complaint in this Court against defendants Ryan Woodard, William Cool, and Roger
Weaks. (Doc. 3). On September 11, 2017, the undersigned issued an Order and Report and
Recommendation, finding that plaintiff should be permitted to proceed with his Eighth
Amendment claim against defendant Woodard, but that the remaining claims should be
dismissed for failure to state a claim upon which relief may be granted. (Doc. 4).
Plaintiff subsequently filed a motion to amend/correct his complaint and an amended
complaint, adding defendant Larry Greene and setting forth additional factual allegations against
defendant Cool. (Doc. 6, 10). The Court construes plaintiff’s motion to amend/correct as a
motion to supplement his original complaint, rather than as a motion to file an amended
complaint supplanting the original complaint. Plaintiff’s motion amend/correct the complaint
(Doc. 6) is hereby GRANTED.
Also before the Court is defendant Woodard’s motion to dismiss the amended complaint
as to defendant Woodard on the ground that the amended complaint does not contain any factual
allegations against him. (Doc. 11). Although Woodard correctly argues that the amended
complaint does not contain factual allegations against him, the Court has construed the filing as

being a supplement to the original complaint. The undersigned therefore recommends that the
motion to dismiss the amended complaint be denied.
This matter is now before the Court for a sua sponte review of the complaint, as
amended/corrected, 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).

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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
(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).

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In the amended complaint, plaintiff first brings a claim of retaliation against defendant
William Cool. Plaintiff claims that during the discovery phase of a prior lawsuit filed in this
Court, 1 he sent three subpoenas to Warden Ron Erdos, Medical Administrator Mrs. Warren, and
defendant Cool. According to plaintiff, Cool retaliated against him by writing a false conduct
report stating that plaintiff had forged the subpoenas. In preparation for contesting the conduct
report before the Rules Infraction Board, plaintiff claims that he requested Cool, Erdos, and
Warren as witnesses. However, on July 7, 2017, he claims he was told that Erdos and Warren
would not be called as witnesses and that “I needed to dismiss my civil action or suffer
consequences even possibly lose my life.” (Id. at PageID 52). During the hearing, plaintiff
claims that Cool told the RIB chairperson “to find me guilty to show me who’s in charge and that
I have no rights at all.” (Id. at PageID 54). Plaintiff was ultimately found guilty by the RIB and
sentenced to twenty days in disciplinary control. (Id. at PageID 54).
Plaintiff unsuccessfully appealed the result of the RIB hearing to defendant Larry Greene
on the ground that his procedural due process rights were violated and that he presented
sufficient evidence to overturn the RIB’s decision. (Id. at PageID 55).
Next plaintiff complains that his television was broken during the course of a cell search
on July 6, 2017. Plaintiff claims that he requested the name of the responsible prison official
from Mrs. Tackett but was not provided with the information. Plaintiff alleges that he submitted
an informal complaint to Sgt. Terry and a grievance to the institutional inspector. Plaintiff
claims that Sgt. Brabson showed him an email stating that if plaintiff wished to receive
1

On March 13, 2017, plaintiff filed a complaint in this Court in Case No. 1:17-cv-161 (Dlott, J.; Bowman, M.J.),
raising the same factual allegations as in the original complaint filed in this case. By Order issued April 10, 2017,
the undersigned ordered service on the named defendant Claude Woodard. On July 3, 2017, plaintiff filed a motion
to voluntarily dismiss the case “so that he can file his civil action against the correct person responsible for his
injuries.” (Doc. 15). Plaintiff subsequently filed a “motion to dismiss case due to retaliation from prison official.”
(Doc. 16). On September 12, 2017—after initiating this action against Ryan Woodard—the undersigned issued a
Report and Recommendation to grant plaintiff’s voluntarily motion to dismiss filed in case number 1:17-cv-161.

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reimbursement for his television, he would need to turn it in to Brabson. According to plaintiff,
he turned in the television but never received a replacement or reimbursement. Plaintiff
unsuccessfully submitted an appeal to the Chief Inspector. 2
Finally, plaintiff claims that while working as a porter “a prison official” made a
comment about his civil suit against his co-worker. (Id. at PageID 56). Plaintiff claims that the
prison official falsely accused him of having sexual conduct with another inmate. Plaintiff
further claims that the accusation was used to fire him from his position as a porter, which he
claims was done in retaliation for filing a civil action against the prison official’s co-worker.
According to plaintiff he was reclassified by case manager Mr. Anderson “as a porter 5 known as
‘no job allowed, restricted to cell.’” (Id. at PageID 56). 3 With respect to his allegations
regarding his television and job as a porter, plaintiff claims “prison officials violated my
Fourteenth Amendment rights to be free from cruel and unusual punishment in the form of
campaign harassment.” (Id. at PageID 56).
For relief, plaintiff seeks a declaratory judgment and monetary damages. (Id. at PageID
53).
At this stage in the proceedings, without the benefit of briefing by the parties to this
action, the undersigned concludes that plaintiff may proceed with his retaliation claim against
defendant William Cool, as stated in the amended complaint. As ordered in the Court’s
September 11, 2017 Order and Report and Recommendation, plaintiff may also proceed in this
action with his Eighth Amendment claim of excessive force against defendant Woodard as set
forth in his original complaint. (See Doc. 4). However, plaintiff’s remaining claims should be
dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
2

3

Plaintiff does not name Mrs. Tacket, Sgt. Brabson, or the Chief Inspector as defendants to this action.
Mr. Anderson is not named as a party to this action.

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Larry Greene should be dismissed as a party to this action for plaintiff’s failure to state a
claim upon which relief may be granted against him. Plaintiff seeks to hold Greene liable in
connection with his RIB appeal. Plaintiff claims that Greene violated his Fourteenth
Amendment rights when he acted in bad faith and “approved the unconstitutional conduct of the
Rule[s] Infraction Board.” (Doc. 10, Amended Complaint at PageID 54). However, plaintiff
fails to state a viable constitutional claim under the Fourteenth Amendment because the
challenged disciplinary action did not amount to a deprivation of a constitutionally protected
liberty interest.
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that the Fourteenth
Amendment confers on prisoners only a “limited” liberty interest “to freedom from restraint
which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life,” or which “will inevitably affect the duration of his sentence.” Sandin,
515 U.S. at 484, 487; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Williams v.
Wilkinson, 51 F. App’x 553, 556 (6th Cir. 2002). The Sixth Circuit has held that confinement in
segregation generally does not rise to the level of an “atypical and significant” hardship
implicating a liberty interest except in “extreme circumstances, such as when the prisoner’s
complaint alleged that he is subject to an indefinite administrative segregation” or that such
confinement was excessively long in duration. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir.
2010) (citing Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008)) (emphasis in original);
see also Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir.) (holding that the prisoner’s 8-year
confinement in segregation was of “atypical duration” and thus “created a liberty interest that
triggered his right to due process”), cert. denied, 133 S.Ct. 429 (2012). Cf. Wilkinson v. Austin,
545 U.S. 209, 223-24 (2005) (ruling that an inmate’s transfer to Ohio’s “supermax” prison

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“imposes an atypical and significant hardship” given the 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).
Here, plaintiff has not alleged that the challenged disciplinary proceeding resulted in the
lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any
necessities of life. Moreover, plaintiff has not alleged any facts to suggest that he was subjected
to a lengthy disciplinary placement amounting to an atypical or significant hardship that would
trigger constitutional concerns. Accordingly, because plaintiff does not have a protected liberty
interest under the circumstances alleged herein, any claim against the named defendants for their
conduct in the disciplinary proceedings fails to state a cognizable federal claim under the
Fourteenth Amendment’s Due Process Clause. 4
To the extent that plaintiff claims that Greene acted in retaliation his claim is
conclusory and subject to dismissal. “[N]ot every claim of retaliation by a disciplined prisoner,
who either has had contact with, or has filed a lawsuit against prison officials, will state a cause
of action for retaliatory treatment. Rather, the prisoner must allege a chronology of events
from which retaliation may plausibly be inferred.” Cain v. Lane, 847 F.2d 1139, 1143 n.6 (7th
Cir. 1988) (citing Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985) (noting that “alleging
merely the ultimate fact of retaliation is insufficient”)). In this case, plaintiff has failed to
allege a chronology of events from which the Court could reasonably infer retaliation on the
part of defendant Greene. For example, plaintiff fails to allege that Greene was aware of the
lawsuit or any other fact suggesting he was motivated by it. Plaintiff’s conclusory allegation
that Greene denied his appeal in retaliation without any “further factual enhancement” is
4

The undersigned’s recommendation is not altered by plaintiff’s conclusory allegation that Greene deprived him of
a liberty interest “created by statutory language in the policy which directs a mandatory duty to comply with and not
discretionary authority.” (Id. at PageID 54).

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simply insufficient to state an actionable claim for relief. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555–57 (2007). Cf. Brow v. Carpenter, 889 F.Supp. 1028, 1034 (W.D. Tenn.
1995) (“A plaintiff cannot bootstrap a frivolous complaint with a conclusory allegation of
retaliation.”). Accordingly, defendant Greene should be dismissed as a party to this action.
To the extent that plaintiff seeks to hold defendants Greene or Cool liable based on their
supervisory capacity these claims must also be dismissed. In the relief section of the complaint,
plaintiff seeks monetary damages against these defendants in their individual and supervisory
capacities. (See Doc. 10 at PageID 53). However, it is well-settled that the doctrine of
respondeat superior does not apply in § 1983 lawsuits to impute liability onto supervisory
personnel. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Monell v. Dep’t of Social Servs., 436
U.S. 658 (1978); Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992). 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).
Plaintiff’s claims regarding the destruction of his television should also be dismissed. To
the extent plaintiff alleges he was deprived of his television 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

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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.
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.
Finally, plaintiff claims regarding the false allegations leading to his termination from
his job as a porter should be dismissed. As noted above, plaintiff alleges that he was fired and
reclassified in retaliation for having filed a lawsuit. He also generally alleges that “prison
officials” are subjecting him to cruel and unusual punishment in the form of campaign
harassment. However, plaintiff makes no allegations against the named defendants in
connection with his termination. Plaintiff further fails to name the prison officials who made
the allegation or otherwise retaliated against him and only includes allegations against
individuals who are not defendants to this action. Plaintiff’s claims relating to his television
and job termination should therefore be dismissed.

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Accordingly, in sum, plaintiff may proceed with his Eighth Amendment claim of
excessive force against defendant Ryan Woodard, as stated in the original complaint and his
retaliation claim against defendant Cool set forth in the amended complaint. See 28 U.S.C. §§
1915(e)(2)(B) & 1915A(b).
Having found that plaintiff’s remaining claims fail to state a claim upon which relief may
be granted, these claims should be dismissed.
IT IS THEREFORE RECOMMENDED THAT:
1. The complaint, as amended, be DISMISSED with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of the following claims, which may
proceed: Eighth Amendment claim of excessive force against defendant Ryan Woodard, as
stated in the original complaint and plaintiff’s retaliation claim against defendant Cool, as stated
in the amended complaint. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
2. Defendant’s motion to dismiss the amended complaint as to defendant Woodard
(Doc. 11) be DENIED.
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the original and amended/corrected
complaints (Doc. 3, 10), summons, the Order granting plaintiff in forma pauperis status, and this
Order and Report and Recommendation upon defendants Woodard and Cool as directed by
plaintiff, with costs of service to be advanced by the United States.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,
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

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to defendants or defendants’ 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.

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
JOHNNIE D. COOK,
Plaintiff,

Case No. 1:17-cv-532
Black, J.
Bowman, M.J.

vs.
RYAN WOODARD, 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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