Shoulders v. Cherryholmes et al

Filing 6

ORDER and REPORT AND RECOMMENDATION - IT IS ORDERED THAT: 1. The United States Marshal shall serve a copy of the complaint, summons, the Order granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon defendants C herryholmes and Rutherford 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 furth er pleading or other document submitted for consideration 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. IT IS RECOMMENDED THAT: The complaint be DISMISS ED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiffs Eighth Amendment failure to protect claims against defendants Cherryholmes and Rutherford, and his First Amendment and excessive forc e claims against Cherryholmes. ( Objections to R&R due by 12/26/2017) signed by Magistrate Judge Stephanie K. Bowman on 12/12/2017. (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
EMANUEL SHOULDERS,
Plaintiff,
vs.
Z. CHERRYHOLMES, et al.,
Defendants.

Case No. 1:17-cv-703
Barrett, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, a prisoner at the Lebanon Correctional Institution, filed a pro se civil rights
complaint in this Court against defendants Z. Cherryholmes, Gary Mohr, Tom Schwietzer, and
Ms. Rutherford. 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 on or about August 1, 2016, defendant Correctional
Officer Z. Cherryholmes began to write false conduct reports against him as a means to punish
him. (Doc. 1-1, Complaint at PageID 21–22). Plaintiff claims that he sought assistance from
other staff members, who told him that “C/O. Cherryholmes does not like you and that staff will
talk to him.” (Id. at PageID 22).
On or about January 14, 2017, plaintiff claims he began to have trouble with his cellmate,
inmate Hope, who plaintiff claims was bullying him. According to plaintiff, Hope attempted to
throw all his belongings out of the cell. Plaintiff claims that he reported the issue to defendant
Unit Manager Rutherford and, although she was aware of the bullying, refused to move or
otherwise assist plaintiff.
On January 25, 2017, plaintiff claims that Cherryholmes ordered him out of his cell for a
cell search. During this time, plaintiff alleges that Cherryholmes read an informal complaint that
plaintiff wrote requesting that he be moved from his cell due to his being bullied. Plaintiff
further alleges that Cherryholmes informed inmate Hope about the informal complaint. As a
result, plaintiff claims that Hope subsequently returned to their cell, stated that Cherryholmes
told him that plaintiff “wrote a[n] Informal Complaint on [him],” and punched plaintiff “in a

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violent rage.” (Id. at PageID 23). Plaintiff claims that he exited the cell, yelling for help.
However, according to plaintiff, Cherryholmes ordered him to return to his cell despite the attack
and then sprayed him with pepper spray. Plaintiff alleges that he was denied medical care and
taken directly to segregation with the mace still in his eyes and on his skin. As a result of the
incident, plaintiff claims he has suffered permanent eye damage, a hole in his left ear, and mental
and emotional damages. (Id. at PageID 24).
Plaintiff unsuccessfully sought relief through the prison grievance system. Plaintiff
claims defendant Warden Schweitzer refused to resolve the matter and “appears to condone such
illegal acts of his staff such as beating on the inmates he supervises.” (Id. at PageID 25).
Plaintiff generally alleges that the prison staff refused to investigate his complaints or
satisfactorily respond to his grievances.
Plaintiff seeks declaratory, injunctive, and monetary relief. (Id. at PageID 19).
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 Eighth Amendment failure
to protect claims against defendants Cherryholmes and Rutherford. Plaintiff may also proceed
with his First Amendment and excessive force claims against Cherryholmes. However,
plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).
Plaintiff’s allegations that defendant Cherryholmes wrote false conduct reports against
him are also subject to dismissal for failure to state a claim upon which relief may be granted.
Erroneous or even fabricated allegations of misconduct by an inmate, standing alone, do not
constitute a deprivation of a constitutional right. See, e.g., Reeves v. Mohr, No. 4:11cv2062,
2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012) (and cases cited therein) (holding that the
prisoner failed to state a claim upon which relief may be granted to the extent that he claimed he

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had “a constitutional right to be free from false accusations”). “A constitutional violation may
occur, if as a result of an accusation, the Plaintiff was deprived of a liberty interest without due
process.” Reeves, supra, 2012 WL 275166, at *2 (citing Sandin v. Conner, 515 U.S. 472, 485
(1995)). However, plaintiff’s allegations are insufficient to trigger constitutional concerns
because he has not alleged any facts even remotely suggesting that he was deprived of a
protected liberty interest.
The complaint should be dismissed against defendants Warden Thomas Schweitzer and
Gary Mohr. Plaintiff’s sole allegation against defendant Mohr is that as Director of the Ohio
Department of Corrections, “he is legally responsible for the overall operation of the Department
and each institution under its jurisdiction, including Lebanon Correctional Institution where
plaintiff is confined.” (Doc. 1-1, Complaint at PageID 21). Plaintiff similarly seeks to hold
Warden Schweitzer liable for his responsibility for operations at Lebanon Correctional
Institution. However, to the extent plaintiff seeks to hold these defendants liable because of their
supervisory positions, 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). With respect to Schweitzer, plaintiff also alleges that he
appeared to condone the behavior of his subordinates in responding to plaintiff’s kite and
generally alleges that prison officials failed to conduct an adequate investigation. Nevertheless,
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

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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).
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).
Accordingly, in sum, plaintiff may proceed with his First and Eighth Amendment claims
against defendants Cherryholmes and Rutherford. 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:
The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b)(1), with the exception of plaintiff’s Eighth Amendment failure to protect claims
against defendants Cherryholmes and Rutherford, and his First Amendment and excessive force
claims against Cherryholmes.
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, the Order
granting plaintiff in forma pauperis status, and this Order and Report and Recommendation
upon defendants Cherryholmes and Rutherford as directed by plaintiff, with costs of service to
be advanced by the United States.

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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
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
EMANUEL SHOULDERS,
Plaintiff,

Case No. 1:17-cv-703
Barrett, J.
Bowman, M.J.

vs.
Z. CHERRYHOLMES, 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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