Bloodworth v. Timmerman-Cooper et al

Filing 72

ORDER REPORT AND RECOMMENDATIONS: It is RECOMMENDED that 58 MOTION to Dismiss be granted in part and denied in part. It is specifically recommended that plaintiff's claims against Debora Timmerman-Cooper, plaintiff's remaining equal protection claims (Counts V, VII, VIII, X and XIV), the retaliation claim in count XVI, and plaintiff's request for injunctive relief demanding his return to London Correctional Institution be DISMISSED. Plaintiff's 33 MOTION for Exten sion of Time to serve the unidentified defendant & 34 MOTION to Stay are DENIED. Plaintiff's 35 MOTION for Leave to Conduct Limited Discovery is GRANTED. Discovery is to be completed no later than 6/30/2012 & dispositive motions may be filed no later than 7/31/2012. Objections to due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 1/18/2012. (kk2)

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

RONALD BLOODWORTH,
Plaintiff,
vs.

Civil Action 2:10-CV-1121
Judge Marbley
Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,
WARDEN, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATION
This matter is before the Court on defendants’ motion to dismiss the
First Amended Complaint or, in the alternative, to stay the case pending
payment of the costs or full filing fees in connection with a previous
case filed by plaintiff.

Motion of the State of Ohio and of Defendants

Timmerman-Cooper, Carson, Boohier, Mason, Shandale, Willis, Jewell Sr.
to Dismiss the Amended Complaint (Doc. 49), or Alternatively to Stay the
Case Pending Payment of Full Filing Fees on Case No. 2:10-cv-926, Doc.
No. 58 (“Motion to Dismiss”).

For the reasons that follow, it is

RECOMMENDED that defendants’ Motion to Dismiss, Doc. No. 58, be GRANTED
IN PART and DENIED IN PART.

In light of this recommendation, certain

other motions, Doc. Nos. 33, 34, 35, are also addressed.
I.

BACKGROUND
On June 6, 2011, plaintiff, now an inmate at the Toledo Correctional

Institution [“ToCI”], filed the First Amended Complaint in this matter.
Doc. No. 49.

All of the counts allege claims of either Fourteenth

Amendment equal protection violations (Counts III, V, VII, VIII, X, and

XIV) or First Amendment retaliation (Counts I, II, IV, VI, IX, XII, XIII,
XV, XVI, and XVII) by employees of the London Correctional Institution
[“LoCI”].

Id. ¶¶ 57-93.1

In support of these claims, plaintiff advances

factual allegations related to six conduct reports that he received while
an inmate at LoCI.

Id.

Plaintiff later voluntarily dismissed one of the

equal protection claims (Count III) and two of the retaliation claims
(Counts I and II).

Plaintiff’s Notice of Voluntary Dismissal Without

Prejudice, Doc. 36; Notice of Stipulation of Dismissal (Count II), Doc.
No. 46; Notice of Voluntary Dismissal with Prejudice, Doc. No. 53;
Response of Defendants and the State of Ohio in Support of Plaintiff’s
Notice of Voluntary Dismissal with Prejudice (Counts I and III) (Doc.
53), Doc. No. 54.

Defendants later filed the instant Motion to Dismiss.

Doc. No. 58.
II.

DISCUSSION
Defendants have the burden of demonstrating that dismissal under

Fed. R. Civ. P. 12(b)(6) is appropriate.
F.3d 471, 476 (6th Cir. 2007).

DirecTV, Inc. v. Treesh, 487

For the purpose of a motion to dismiss,

we “treat as true all of the well-pleaded allegations of the complaint.”
Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996).

A

plaintiff may not satisfy the pleading requirement by advancing “labels
and conclusions” or “a formulaic recitation of the elements of a cause
of action.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007).

A court must dismiss a complaint that does not plead “enough facts to
state a claim to relief that is plausible on its face.”

Id. at 570.

Defendants advance overlapping arguments in support of their motion

1

The First Amended Complaint does not include a Count XI.

2

to dismiss the First Amended Complaint for failure to state a claim upon
which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).

This

Court will address each argument in turn.
A.

Motion to Dismiss Defendant Timmerman-Cooper
Defendants argue that, because defendant Debora Timmerman-Cooper “is

not the subject of any count” contained in the First Amended Complaint,
she must be dismissed as a defendant.

This Court agrees that the First

Amended Complaint includes no allegation regarding defendant TimmermanCooper.

Plaintiff has therefore failed to state a claim against this

defendant, and her dismissal from this lawsuit is appropriate.
B.

Motion to Dismiss Equal Protection Claims
Defendants also argue that none of the remaining equal protection

claims (Counts V, VII, VIII, X, and XIV) allege the elements necessary
to such claims.
A

Fourteenth

Amendment

equal

protection

claim

must

allege

“discrimination by government which either burdens a fundamental right,
targets a suspect class, or intentionally treats one differently than
others similarly situated without any rational basis for the difference.”
TriHealth, Inc. v. Bd. of Comm’rs, Hamilton County, Ohio, 430 F.3d 783,
788 (6th Cir. 2005).

Here, plaintiff does not allege that defendants’

actions have burdened a fundamental right or that he is the member of a
suspect class.

Instead, plaintiff’s equal protection claims rest upon

a “class of one” theory.

To succeed under this theory, a plaintiff must

show that he was treated differently than others similarly situated and
either that “the challenged action was motivated by animus or ill-will”
or that “the differential treatment [he was] subjected to is so unrelated
to the achievement of any combination of legitimate purposes that the
3

court can only conclude that the [defendants’] actions were irrational.”
Id.
Nowhere does the First Amended Complaint identify an individual who
is similarly situated to plaintiff. Instead, plaintiff advances a series
of conclusory allegations about his similarity to broad, ill-defined
groups: (1) In connection with Counts V, VIII, and X, which are related
to the second, third and fourth conduct reports issued to plaintiff,
plaintiff

alleges

that

a

defendant

“refused

to

review

exculpatory

evidence (video surveillance) in connection with disciplinary proceedings
unlike other inmates who request review of video surveillance evidence
. . . in support of their accusations of wrongdoing committed against
them by other inmate(s).”

Id. ¶ 66 (emphasis added); see also id. ¶¶ 72

(advancing a similar claim regarding the third conduct report), 76
(advancing a similar claim regarding the fourth conduct report).

(2) In

connection with Count VII, which is related to the third conduct report
issued to plaintiff, plaintiff alleges that a defendant “confiscated
plaintiff[’]s legal material . . . but never confiscated any other
inmates[’] personal effects” even though plaintiff’s legal materials were
“situated in his cubicle in a manner identical to that of other A-1
inmates.”

Id. ¶ 70 (emphasis added).

(3) In connection with Count XIV,

which is related to the fifth conduct report issued to plaintiff,
plaintiff alleges that he was “attack[ed]” and that “no other inmate has
been attacked upon orders of defendant under similar circumstances.” Id.
¶ 84 (emphasis added).
Plaintiff’s broad, nonspecific statements regarding large groups of
inmates are insufficient to satisfy the pleading requirement.

See

Bertovich v. Village of Valley View, Ohio, 431 F. App’x 455, 458 (6th
4

Cir. 2011) (holding that dismissal of an equal protection claim was
appropriate under Fed. R. Civ. P. 12(b)(6) where plaintiff’s complaint
“does not point to any individual who was treated differently”); see also
Tyson v. Nixon, No. 4:10-CV-1051, 2010 WL 3488614, *2 (E.D. Mo. Aug. 31,
2010) (holding that equal protection allegations were conclusory where
“plaintiff does not cite to any particular female prisoner who was
subjected to different treatment than plaintiff or any other male sex
offender”); Adams v. Thompson, No. 3:07-3884, 2008 WL 8099780, *4 (D.S.C.
Dec. 19, 2008) (noting that a plaintiff could not allege an equal
protection

violation

simply

by

“claim[ing]

that

other

inmates

who

committed greater disciplinary offenses improved their custody status
sooner than he did” where plaintiff “has not provided the names of
inmates

that

he

believes

were

treated

more

favorably

or

provided

sufficient information to show that they were similarly-situated to
him").

Dismissal of plaintiff’s equal protection claims is therefore

appropriate.
C.

Motion to Dismiss Retaliation Claims
Defendants also argue that the eight remaining retaliation claims

fail because (1) in seven of the claims (Counts IV, VI, IX, XII, XIII,
XV, and XVI), plaintiff’s behavior violated prison regulations and
therefore was not “protected conduct”; (2) in six of the claims (Counts
VI, XII, XIII, XV, XVI, XVII), plaintiff’s conclusory allegations are
fatally deficient.
The elements of a First Amendment retaliation claim are “(1) the
plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from
continuing

to

engage

in

that

conduct;
5

and

(3)

there

is

a

causal

connection between elements one and two--that is, the adverse action was
motivated at least in part by the plaintiff’s protected conduct.”
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

It is not

enough to state, without supporting factual allegations, that prison
officials engaged in retaliation.
259 (6th Cir. 2006).

Pack v. Martin, 174 Fed. App’x 256,

Moreover, a prisoner’s conduct is not protected if

he “violates a legitimate prison regulation.”

Lockett v. Suardini, 526

F.3d 866, 874 (6th Cir. 2008) (quoting Thaddeus-X, 175 F.3d at 394).
Defendants’ argument regarding the violation of prison regulations
fails.

First, plaintiff does not admit in the First Amended Complaint

that he violated prison regulations.

In fact, he specifically denies in

all the relevant counts that he violated prison regulations.

First

Amended Complaint, Doc. No. 49, ¶¶ 64 (Count IV), 21 (Count VI), 74
(Count IX), 78 (Count XII), 88 (Count XVI), 48 (Counts XIII and XV).

In

light of this Court’s obligation to “treat as true all of the wellpleaded allegations of the complaint,” Bower, 96 F.3d at 203, this Court
cannot dismiss these counts for failure to state a claim.

Second,

defendants themselves make no effort to demonstrate that the behavior
alleged in the First Amended Complaint amounts to a violation of prison
regulations.

Instead of identifying specific regulations purportedly

violated

plaintiff,

by

defendants

assert

generally

that

“all

of

[defendant’s conduct] violates prison rules” and cites to a provision in
the

Ohio

Administrative

disciplinary violations.
Ohio

Admin.

Code

§

Code

that

lists

more

than

sixty

possible

Motion to Dismiss, Doc. No. 58, p.8 (citing

5120-9-06(C)).

Defendants

therefore

have

not

satisfied their burden of demonstrating that dismissal on this basis is
appropriate.
6

Defendants’ argument regarding the “conclusory” nature of six of the
retaliation claims also fails in connection with all but one claim.
Focusing on the causation element of a retaliation claim, defendants
argue that plaintiff must “allege plausibly . . . that ‘the adverse
action was motivated at least in part by the plaintiff’s protected
conduct.’”

Motion to Dismiss, Doc. No. 58, p.10.

In particular,

defendants argue that plaintiff must “allege why he suspects” that
defendants

engaged

in

retaliation.

Id.,

p.9.

However,

by

even

defendants’ own standard, plaintiffs’ allegations in Counts VI, XII,
XIII, XV, and XVI are not conclusory.
In Count VI, plaintiff alleges that a defendant confiscated certain
materials and “issued him a Conduct Report that was false” in retaliation
for plaintiff’s litigation activities. First Amended Complaint, Doc. No.
49, ¶ 68.

In support, plaintiff alleges that “only plaintiff’s legal

work and typewriter” were confiscated. Id.; see also id. ¶ 22 (alleging
that defendant did not confiscate other personal items despite the fact
that they were “on the floor directly next to plaintiff’s legal work and
typewriter”).
defendants

In Counts XII, XIII, XV, and XVI, plaintiff alleges that

engaged

in

retaliatory

allegedly protected activity.

conduct

soon

after

plaintiff’s

Id. ¶¶ 56(a)-(d) (Count XII), 43 (Count

XIII), 86 (Count XV), 88 (Count XVI).

In fact, plaintiff alleges that,

in some instances, it was his protected activity that served as the basis
for discipline by defendants. Id. Plaintiffs’ allegations in Counts VI,
XII, XIII, XV, and XVI are therefore not conclusory.
In Count XVII, however, plaintiff’s allegations do not satisfy the
pleading requirements.

Plaintiff alleges that a defendant recommended

an increase in plaintiff’s security status “as punishment in retaliation
7

for plaintiff filing grievances against defendant.”
not enough to satisfy the pleading standard.

Id. ¶ 90.

This is

See Figel v. Overton, 121

F. App’x 642, 648 (6th Cir. 2005) (“In his complaint, [plaintiff] asserts
that Defendants' confiscation of his religious texts was retaliation for
his filing of complaints, grievances, and litigation against them.
However, he alleges no facts in support of his claim of a retaliatory
motive.”); Shavers v. McKee, No. 2:07-cv-105, 2010 WL 3734011, *1 (W.D.
Mich. Aug. 27, 2010).

Dismissal is therefore appropriate as to Count

XVII.
D.

Motion to Dismiss Requests for Injunctive Relief
Defendants also argue that, because plaintiff was transferred from

LoCI to ToCI, his claims for injunctive relief as against LoCI employees
are moot.
The

First

Amended

Complaint

requests

the

following

types

of

injunctive relief: (1) a preliminary injunction “to prevent plaintiff’s
continued confinement at a level three prison . . . [and] immediately
return plaintiff to his security level two status. . . ;” (2) an
injunction “ordering expungement of all Conduct Reports giving rise to
this civil action from plaintiff’s institution disciplinary record;” and
(3) an injunction “ordering preservation of all video evidence associated
with the claims giving rise to this civil action, for in camera review.”
First Amended Complaint, Doc. No. 49, at pp. 40-41.
Defendants are correct that this Court may not order defendants, who
no longer have control over plaintiff, to return plaintiff to LoCI.

See

Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Wilson v.
Wilkinson, No. 98-3713, 1999 WL 777634, *1 (6th Cir. Sept. 17, 1999)
(holding that the district court properly dismissed plaintiff’s equal
8

protection claim, which concerned the increase in plaintiff’s security
classification and his transfer to a maximum security prison) (“To the
extent that [plaintiff] requested injunctive relief from the Lebanon
Correctional Institution defendants, that request is moot because of his
transfer [from Lebanon Correctional Institution].”). But defendants fail
to explain why plaintiff’s second and third requests for injunctive
relief–-demanding expungement of his records and the preservation of
certain materials–-are moot.

Dismissal is therefore appropriate as to

plaintiff’s request for a preliminary injunction "to prevent plaintiff's
continued confinement at a level three prison . . . [and] immediately
return

plaintiff

to

his

security

level

three

status

at

london

correctional [sic]," but defendants have not satisfied their burden of
demonstrating that dismissal is appropriate under Rule 12(b)(6) for the
other two requests for injunctive relief.
E.

Defendants’ “Independently Actionable” Argument
Defendants argue, with little elaboration, that “[m]uch of the

conduct alleged in Bloodworth’s amended complaint is not independently
actionable.”
defendants

Motion to Dismiss, Doc. No. 58, p.10.

argue

that “mere

verbal

In particular,

harassment and threats

are not

unconstitutional” and that “[n]either . . . [is] filing false conduct
reports.”

Id.

But plaintiff does not allege that defendants’ verbal

harassment

and

filing

unconstitutional.

of

false

conduct

reports

are

by

themselves

Compare First Amended Complaint, Doc. No. 49, pp. 26-

39, with Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (cited in
Motion to Dismiss, Doc. No. 58, p.10).

Instead, plaintiff challenges

defendants’ behavior in the context of is First Amendment retaliation
claims.

See Payne v. Axelrod, 871 F.Supp. 1551, 1556 (N.D.N.Y. 1995)
9

(distinguishing Freeman).

Defendants’ argument in this regard therefore

fails.
F.

Defendants’ Qualified Immunity Argument
Because defendants’ qualified immunity argument depends entirely on

their other arguments, see Motion to Dismiss, Doc. No. 58, p.12, it is
unnecessary to separately address that argument here.
G.

Defendants’ Alternative Request Under Fed. R. Civ. P. 41(d)
Because defendants do not demonstrate that they incurred costs in

connection with a previous action, it is unnecessary for the Court to
exercise its discretionary authority and order payment of costs under
Fed. R. Civ. P. 41(d

For the foregoing reasons, it is RECOMMENDED that defendants’ motion
to dismiss, Doc. No. 58, be granted in part and denied in part.

It is

specifically RECOMMENDED that plaintiff’s claims against defendant Debora
Timmerman-Cooper, plaintiff’s remaining equal protection claims (Counts
V, VII, VIII, X, and XIV), the retaliation claim in Count XVI, and
plaintiff’s request for injunctive relief demanding his return to the
London Correctional Institution be DISMISSED but that all other claims
remain for resolution.
In light of plaintiff’s dismissal of Count I and the recommended
dismissal of Count V, plaintiff’s motion for an extension of time to
serve the unidentified defendant referred to in those counts, Doc. No.
33, is DENIED.

Plaintiff’s motion to stay the action pending resolution

of the motion to dismiss and service on the unidentified defendants, Doc.
No. 34, is for the same reason DENIED. Plaintiff’s motion for leave to

10

conduct limited discovery, Doc. No. 35, is GRANTED.
It is hereby ORDERED that all discovery be completed no later than
June 30, 2012.

Depositions of incarcerated persons may proceed on such

terms and conditions as the institution shall impose.

Dispositive

motions may be filed, if at all, no later than July 31, 2012.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto.
§636(b)(1); F.R. Civ. P. 72(b).

28 U.S.C.

Response to objections must be filed

within fourteen (14) days after being served with a copy thereof.

F.R.

Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
the District Court adopting the Report and Recommendation.

See Thomas

v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers,
Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters,
638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah Mc Cann King
United States Magistrate Judge
January 18, 2012

11