Bullocks v. Mummert et al

Filing 5

ORDER AND REPORT AND RECOMMENDATIONS: Plaintiffs motion to amend/correct 2 is hereby GRANTED. IT IS 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 plaintiffs First Amendment retaliation claim against defendant Mummert. 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 a nd Recommendation upon defendant Mummert as directed by plaintiff, with costs of service to be advanced by the United States. 2. Plaintiff shall serve upon defendant or, if appearance has been entered by counsel, upon defendants attorney, a copy of every further 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 ( Objections to R&R due by 2/20/2018). Signed by Magistrate Judge Stephanie K. Bowman on 02/06/2018. (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
GERALD BULLOCKS,
Plaintiff,
vs.
AARON MUMMERT, et al.,
Defendants.

Case No. 1:18-cv-023
Dlott, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, a prisoner at the Southern Ohio Correctional Facility, filed a pro se civil rights
complaint and motion to amend/correct complaint in this Court against defendants Aaron
Mummert and Linnea Mahlman. By separate Order, plaintiff has been granted leave to proceed
in forma pauperis.
Plaintiff’s motion to amend/correct (Doc. 2) is hereby GRANTED. This matter is before
the Court for a sua sponte review of the complaint, as amended, 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

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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).
In the complaint, plaintiff alleges that on or about February 12, 2017, he filed an informal
complaint resolution concerning his being denied recreation on several occasions and “Rec. staff
purposely placing him and other inmates from J3-Block outside in very cold weather more
frequently than inside rec.” (Doc. 1-2, Complaint at PageID 15). Plaintiff claims he was
subsequently retaliated against by defendant Mummert. According to plaintiff, Mummert issued
a conduct report against him for utilizing the grievance process that resulted in his being placed
on recreation restriction for two weeks. (Id.).
Plaintiff indicates that he filed a grievance to defendant Linnea Mahlman, the
institutional inspector concerning the retaliation from Mummert and issues regarding recreation.
According to plaintiff, Mahlman failed in her duty to investigate the claims of retaliation. (See
Doc. 2 at PageID 26).
Plaintiff claims that the chief inspector subsequently found that Mahlman had in fact
failed to investigate his retaliation claim and that the conduct report written by Mummert was
issued as a result of utilizing the grievance procedure. (Doc. 1-2, Complaint at PageID 17).
Plaintiff has attached to his complaint a memorandum order from the Ohio Court of Claims,

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which appears to draw the same conclusion regarding the investigation and conduct report issued
by Mummert. (Id. at PageID 19).
For relief, plaintiff seeks monetary damages and a transfer. (Id. at PageID 16).
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 First Amendment
retaliation claim against defendants Mummert. See Thomas v. Eby, 481 F.3d 434 (6th Cir.
2006). However, plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§
1915(e)(2)(B) & 1915A(b).
The complaint should be dismissed as to defendant Mahlman. As noted a above, plaintiff
claims that Mahlman neglected to conduct an investigation of his grievance. However, “[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); see also Daniels v. Lisath, No. 2:10-cv968, 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).

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Plaintiff’s claim that Mahlman’s failure to investigate his grievance was a result of a
conspiracy should also be dismissed. It is well-settled in the Sixth Circuit that conspiracy claims
must be pleaded with “with some degree of specificity, and vague and conclusory allegations
unsupported by material facts are not sufficient to state a claim.” Hamilton v. City of Romulus,
409 F. App’x 826, 835 (6th Cir. 2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395
(6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of
conspiracy claims under 42 U.S.C. § 1983 because the plaintiff failed to plead the claims with
the “requisite specificity”). Here, construing the complaint liberally, plaintiff’s factual
allegations are insufficient to suggest that the defendants shared a conspiratorial objective or
otherwise planned together to deprive him of a constitutionally-protected right. Therefore,
plaintiff’s conclusory retaliation claim based on a conspiracy theory lacks the requisite
specificity to state a cognizable claim under 42 U.S.C. § 1983.
Accordingly, in sum, plaintiff may proceed with his First Amendment claim against
defendant Mummert. 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 First Amendment retaliation claim against
defendant Mummert.
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

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upon defendant Mummert as directed by plaintiff, with costs of service to be advanced by the
United States.
2. Plaintiff shall serve upon defendant or, if appearance has been entered by counsel,
upon defendant’s attorney, 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 defendant or defendant’s 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

GERALD BULLOCKS,
Plaintiff,

Case No. 1:18-cv-023
Dlott, J.
Bowman, M.J.

vs.
AARON MUMMERT, 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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