Enyart v. Karnes et al

Filing 148

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 1/12/12. (lvw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

FRANKLIN COUNTY, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process while detained in the Franklin County jail.
In a Report and Recommendation issued September 19, 2011, the United
States Magistrate Judge recommended that Defendant Mandy Miller’s
Motion to Dismiss, Doc. No. 114, be granted.
Recommendation, Doc. No. 130.

Report and

This matter is now before the Court on

plaintiff’s objections, Doc. No. 139, to that Report and
Recommendation which the Court will consider de novo.

28 U.S.C. §

636(b); Fed. R. Civ. P. 72(b).
Plaintiff first insists that defendant Mandy Miller violated his
rights under the United States Constitution because she “clearly and
intentionally attempted to block the plaintiff’s right of access to
courts.”

Doc. No. 139, p. 3.

However, plaintiff failed to assert

this claim in the Amended Complaint, Doc. No. 76.

To the extent that

plaintiff now asks for leave to further amend the Amended Complaint

in order to add a claim of denial of access to the courts, that
untimely request is not well-taken for the reasons detailed in the
Report and Recommendation, pp. 6-7.
Moreover, even if this Court were to consider the merits of his
request, leave to amend would still be denied.

In order to prevail

on a claim of denial of the right of access to the courts, a prisoner
must show, inter alia, actual prejudice to a nonfrivolous claim.
Hadix v. Johnson, 173 F.3d 958, 964 (6th Cir. 1999); Jackson v. Gill,
No. 03-5045, 92 Fed. Appx. 171, 173 (6th Cir. Feb. 3, 2004) (citing
Lewis v. Casey, 518 U.S. 343, 351 (1996)).

“Actual prejudice” may

include the dismissal of a case, an inability to file a complaint or
the failure to meet a court-imposed deadline.
at 173.

Jackson, 92 Fed. Appx.

See also Winburn v. Howe, No. 00-2243, 43 Fed. Appx. 731,

733 (6th Cir. Mar. 21, 2002) (“An ‘actual injury’ does not occur
‘without a showing that such a claim has been lost or rejected, or
that the presentation of such a claim is currently being
prevented.’”) (quoting Root v. Towers, 238 F.3d 423 (6th Cir. 2000)).
Assuming arguendo that defendant Miller acted intentionally in
an attempt to block plaintiff’s right to the courts, plaintiff
nevertheless fails to allege that defendant Miller actually blocked
his access to the courts.

Stated differently, plaintiff points to no

actual prejudice or disadvantage to him or to his claims as a result
of defendant Miller’s alleged actions.

Indeed, plaintiff timely

filed his complaint and this action and his ability to proceed with
this litigation is evidenced by the multiple motions and documents he
has filed.

Having failed to provide factual allegations identifying

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such prejudice, plaintiff’s present request for leave to amend to add
a claim of denial of access to the courts is futile and therefore
without merit.

See, e.g., Kottmyer v. Maas, 436 F.3d 684, 692 (6th

Cir. 2006) (“A district court may deny a plaintiff leave to amend his
or her complaint. . . when the proposed amendment would be futile.”).
Plaintiff next objects to the Magistrate Judge’s recommendation
that claims against defendant Miller in her individual capacity be
dismissed.

Doc. No. 139, pp. 4-6.

As set forth in the Report and

Recommendation, plaintiff alleges that defendant Miller supervised
defendant deputy Daniel Waldren, who allegedly announced to other
prisoners that plaintiff had molested children, and defendant deputy
Daniel Thacker, who was with deputy Waldren around the time plaintiff
was attacked following defendant Waldren’s comments.

Report and

Recommendation, pp. 1-2, 5 (citing Amended Complaint,1 ¶¶ 5, 13-16).
The Amended Complaint goes on to allege that after defendants Waldren
and Thacker brought plaintiff to the infirmary following the attack,
defendant Miller advised plaintiff of his rights:
Corporal Mandy Miller at the infirmary was visibly angry
at the two deputies [Waldren and Thacker]. She asked if I
wanted to go to the hospital and I said yes. . . .
Corporal Mandy Miller then informed me about protective
custody and said, “You should have been put there from the
start,” and asked if I wanted to go there after I returned
from the hospital. I said I did, and she told me the
specific wording to write as I filled out the form to
request protective custody. This included verbiage
releasing [Franklin County Corrections Center I] FCCC[I]
from liability from the assault, but I just wanted away
from the fifth floor; I would have agreed to anything at
that time as I was thoroughly intimidated and traumatized.

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Throughout his objection, plaintiff inexplicably cites to the original
Complaint, Doc. No. 2.

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Amended Complaint, ¶ 14.

The Court agrees with the Magistrate Judge

that, even accepting this allegations as true, they are insufficient
to establish active unconstitutional behavior on the part of this
defendant.
Plaintiff’s objections do not militate a different result.
Specifically, plaintiff contends that “[i]t is reasonable to conclude
that” defendant Miller was responsible for his classification or
housing assignment when he entered FCCCI, which placed him on the
fifth floor where, according to plaintiff, violent offenders are
kept.

Doc. No. 139, pp. 4-5.

However, this speculation raised in an

objection to the Report and Recommendation is insufficient to
overcome defendant Miller’s motion to dismiss.

See, e.g., Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations [in
the complaint] must be enough to raise a right to relief above the
speculative level[.]”).
Plaintiff further objects to the Magistrate Judge’s
recommendation that his claims against defendant Miller in her
official capacity be dismissed, contending that, inter alia,
defendant Miller “should not be subjected to the same standards” as
applied to previously dismissed defendants Sheriff Karnes and
Franklin County.

Doc. No. 139, pp. 6-8.

Nothing persuades the Court

that the Magistrate Judge’s recommendation as to the official
capacity claims was in error.
Finally, plaintiff complains that, despite several requests, the
Court has never appointed counsel to him.

However, as previously

explained to plaintiff, Opinion and Order, Doc. No. 112, pp. 2-3,

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there is no absolute right to the appointment of counsel in a civil
case.

See Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760

(6th Cir. 1985)(en banc)(“[I]n considering an application for
appointment of counsel, district courts should consider plaintiff’s
financial resources, the efforts of plaintiff to obtain counsel, and
whether plaintiff's claim appears to have any merit.”).
Having carefully reviewed the Report and Recommendation and
plaintiff’s objections, the Court therefore finds the objections to
the Report and Recommendation, Doc. No. 60, without merit and they
are therefore DENIED.

The Report and Recommendation is hereby

ADOPTED and AFFIRMED.

Mandy Miller is DISMISSED as a defendant.

In

light of this dismissal, plaintiff’s motion to compel discovery from
Mandy Miller, Doc. No. 145, is DENIED as moot.

s/George C. Smith
George C. Smith, Judge
United States District Court

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