Bloodworth v. Timmerman-Cooper et al

Filing 51

REPORT AND RECOMMENDATION that re 39 MOTION to Dismiss be granted in part and denied in part. Objections to R&R due by 3/12/2012. Signed by Magistrate Judge Norah McCann King on 2/23/12. (rew)

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

RONALD BLOODWORTH,
Plaintiff,
vs.

Civil Action 2:10-CV-1122
Judge Marbley
Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,
WARDEN, et al.
Defendants.
REPORT AND RECOMMENDATION
Plaintiff,

formerly

an

inmate at the London Correctional

Institution [“LoCI”], brings this civil rights action under 42 U.S.C. §
1983.

Plaintiff sought and was granted leave to proceed

pauperis.

Order, Doc. No. 2.

in forma

This matter is before the Court on the

Motion of Defendants to Dismiss Plaintiff’s Third Amended Complaint
(Docs. 34, 34-1) , Doc. No. 39 (“ Motion to Dismiss”).

For the reasons

that follow, it is RECOMMENDED that the Motion to Dismiss, Doc. No. 39,
be GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND
Plaintiff has filed a number of complaint in this action, but all

parties agree that it is Doc. No. 34, which defendants refer to as the
Third Amended Complaint, is the operative pleading.1

In that pleading,

plaintiff alleges three categories of misconduct by employees at LoCI.
First,

plaintiff alleges that employees of LoCI engaged in secret

surveillance of his activities.

Id. (counts I, II, III).

Second, he

alleges that employees of LoCI improperly examined and tampered with his
1
This pleading is captioned First Amended Complaint, and plaintiff
objects to the referral to the pleading as the Third Amended Complaint.
However, the pleading is clearly not the first amended complaint filed by
plaintiff in this action. See Doc. Nos. 28, 32, which are also captioned
First Amended Complaint.

mail and communications.

Id. (counts IV, V, VI, VII, IX, X).

Third, he

alleges that employees of LoCI prohibited him from entering the dining
facility in retaliation for his filing of grievances.

Id. (count VIII).

Plaintiff advances his surveillance allegations as claims under the
Fourth Amendment (counts I, II) and the Eighth Amendment (count III).
In support of the surveillance claims, plaintiff alleges that his in-cell
activities corresponded to loud noises from prison officials:
[A]s plaintiff engaged in various activities, considered
personal [inside] of his cell, i.e., pick up a piece of paper,
write on a piece of paper, experienced flatulence, touched his
pencil, moved his eyeballs, and, touched a piece of paper,
simultaneous therewith, and not until, corrections officers
working segregation would either: open the block entrance/exit
door, slam what sounds like a door in the area outside the [CRange] where officers congregate, extremely loudly, speak in
an abrupt tone of voice to an inmate in a cell on the C-Range,
and slam the C-Range entrance door very loudly.
Id., ¶ 11.

Based on this and similar allegations, plaintiff concludes

that he was “being constantly watched by an unknown prison official, via
covert and/or overt video surveillance cameras/equipment.”

Id., ¶ 13.

Plaintiff advances his mail-related allegations as claims under the
First Amendment (counts V, VI, VII), Fourth Amendment (counts IV, IX),
and Eighth Amendment (count X).

In support of the mail-related claims,

plaintiff alleges that LoCI employees improperly interfered with his
communications on three occasions.

First, plaintiff alleges that certain

defendants marked incoming communications, which included an “informal
complaint” with masking tape.

Id., ¶¶ 24-25.

Second, plaintiff alleges

that certain defendants opened and failed to mail two informal grievances
written by plaintiff.
defendants

removed

Id., ¶ 47.

him

from

his

Third, plaintiff alleges that certain
cell,

“questioned

[him]

intensely

regarding the number of complaints he’s filed while in segregation,” and
at this time removed several “blank informal complaint resolutions forms”
from his cell.

Id., ¶¶ 64, 68.

2

Plaintiff advances his dining facility allegation as a claim of
retaliation under the First Amendment (count VIII). In support, plaintiff
alleges that certain defendants “denied plaintiff an opportunity to eat
on May 5, []2010, not as punishment for being late to chow but[] as
punishment in retaliation for plaintiff’s filing [of grievances] against
each defendant on prior occasions.”

Id., ¶ 150.

Plaintiff draws this

conclusion on the fact that these defendants allegedly “permitt[ed] the
inmate walking directly in front of plaintiff to eat without incident.”
Id., ¶ 150; see also id., ¶¶ 104-05.
II.

DISCUSSION
Defendants move to dismiss plaintiff’s claims for failure to state

a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).
Parties moving under Rule 12(b)(6) bear the burden of demonstrating that
dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).

DirecTV, Inc.

In resolving a motion to

dismiss, a court must “treat as true all of the well-pleaded allegations
of the complaint.”
Cir. 1996).

Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th

A plaintiff does not satisfy the pleading requirement by

advancing “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.”
544, 563 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

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.
A.

Surveillance Claims (Counts I, II, III)
Plaintiff advances three claims based on allegations that prison

employees engaged in a secret campaign of surveillance.
this Court to dismiss the claims as “fanciful.”

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Defendants ask

Under 28 U.S.C. § 1915(e)(2)(b)(i), “the court shall dismiss the
case at any time if the court determines that . . . the action . . . is
frivolous or malicious.”

A complaint filed

in forma pauperis will be

dismissed as “frivolous” if ”it lacks an arguable basis either in law or
in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint

is frivolous if it relies on “fanciful factual allegation[s].”
this action

survived

the initial

screen

of the original

Although
complaint

pursuant to 42 U.S.C. § 1915(e) and § 1915A, the Court has “inherent
power to reconsider interlocutory orders and reopen any part of a case
before entry of a final judgment.”
1282 (6th Cir. 1991).

Mallory v. Eyrich , 922 F.2d 1273,

The Northern District of Ohio dismissed similar

claims by plaintiff as “irrational and delusional” under 42 U.S.C.
§ 1915(e).

Bloodworth v. Konteh, No. 3:10-CV-1617, 2010 WL 4809037, *2

(N.D. Ohio Nov. 18, 2010) (“The claims that Defendants deliberately made
sounds when Plaintiff performed daily functions of dressing and changing,
even blinking his eyes or picking up pencils, are incredulous.”).
Because

the

factual

allegations in support of plaintiff’s

surveillance claims are clearly frivolous, the Court reconsiders its
initial review under 28 U.S.C. § 1915(e) and concludes that dismissal of
counts I, II and III is appropriate.
B.

Mail Misconduct Claims (Counts IV, V, VI, VII, IX, X)
Plaintiff advances six claims based on allegations that prison

employees interfered with certain communications.

Defendants challenge

the sufficiency of these claims.
(1)

Fourth Amendment Claims ()

Plaintiff advances two of his mail misconduct claims, i.e., counts
IV, IX, as Fourth Amendment claims.

Defendants object to count IV on the

ground that “Bloodworth bases that claim on no factual allegations” and

4

therefore contend that this claim must fail under Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937 (2009).

Motion to Dismiss, Doc. No. 39, p.4.

Defendants object to count IX on the grounds that (1) “[p]rison officials
are allowed to inspect an inmate’s personal mail,” (2) plaintiff’s
allegations regarding his legal mail “lack foundation,” (3) plaintiff
fails

to allege

that the relevant legal mail “involved privileged

information,” and (4) plaintiff fails “to allege that he was injured by
the inspection of his mail.”

Id., p.4.

Count IV alleges that the warden of LoCI
promulgate[d] an informal, unwritten, in-coming mail policy
applicable to the segregation unit regarding the re-opening,
re-inspecting and reading of all incoming U.S. Mail and all
institutional correspondence by segregation corrections
officers[] to deprive plaintiff, and all LOCI segregation
inmates of their clearly established federally protected
rights.
Third Amended Complaint, Doc. No. 34, ¶ 136.

It is true that plaintiff’s

official statement of the facts does not allege that all of his incoming
correspondence was opened or inspected while he was in segregation; it
is also true that the official statement of facts does not include any
allegation concerning the incoming correspondence of other inmates.
Nevertheless, it is clear that count IV is not simply a “[t]hreadbare
recital[] of the elements of a cause of action, supported by mere
conclusory statements.”

Iqbal, 556 U.S. 662, 129 S.Ct. at 1949.

Furthermore, it is well-established that a pro se complaint must “be
liberally construed.”

Estelle v. Gamble, 429 U.S. 97, 106 (1976).

Defendants’ objection to the sufficiency of count IV therefore fails.
Count IX alleges that certain defendants
opened plaintiff’s properly marked incoming, previously
inspected, purely personal letter from friends and family and
read it, outside plaintiff’s presence; opened plaintiff’s
properly marked incoming mail, removed the letter from its
envelope of origin, read it, and placed it in an “INMATE FREE
ENVELOPE”, outside of plaintiff’s presence; opened plaintiff’s

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properly marked incoming court mail and read it outside of his
presence.
Id., ¶ 154.

Defendants challenge the sufficient of count IX in four

respects. First, defendants argue that prison officials may, subject to
certain

conditions,

open an inmate’s

incoming

personal

mail.

See

Merriweather v. Zamora, 569 F.3d 307, 316-17 (6th Cir. 2009); Parrish v.
Johnson, 800 F.2d 600, 603-04 (6th Cir. 1986).

Although that proposition

is generally true, defendants’ statement of the law – which suggests that
defendants may search an inmate’s incoming personal mail at any time, in
any manner, and for any reason – sweeps too broadly.

See Parrish, 800

F.2d at 604 (noting that “arbitrary opening and reading of [inmate’s]
personal mail” formed the basis for a First Amendment claim).

Beyond

defendants’ over-broad statement of law, defendants make no attempt to
develop this argument.

Defendants’ first objection to count IX therefore

fails.
Second, defendants’ attempt to challenge count IX by citing Fed. R.
Evid. 602 and asserting a lack of foundation is clearly insufficient.
Under Fed. R. Evid. 602, “[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter.”

At the summary judgment stage,

a plaintiff’s personal knowledge of matters in the verified complaint may
be relevant.

See Totman v. Louisville Jefferson County Metro Gov’t, 391

F. App’x 454, 464 (6th Cir. 2010).

But for the purpose of a motion to

dismiss,

as

this

Court

must

“treat

allegations of the complaint.”

true

all

of

the

See Bower, 96 F.3d at 203.

well-pleaded
Defendants’

foundation argument is without merit.
Third, defendants cite no legal authority for their proposition that
a claim premised on interference with legal mail must specifically allege
that such mail “involved privileged information.”

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Motion to Dismiss ,

Doc. No. 39, p.5.

In addition, and defendants’ assertion to the contrary

notwithstanding, the Supreme Court’s decision in Wolff v. McDonnell, 418
U.S. 539, 576 (1974), does not stand for the principle that “the
restriction on inspection of inmate mail only applies to mail that is
protected by attorney client privilege.”

Defendants’ argument in this

regard therefore fails.
Fourth, defendants’ citations regarding prejudice to litigation are
irrelevant to plaintiff’s Fourth Amendment claims.

Both Lewis v. Casey,

518 U.S. 343, 350-53 (1996), and Baker v. Wells, 39 F. App’x 150, 152
(6th Cir. 2002), concern claims asserting a violation of a prisoner’s
First

Amendment

right

of

access

to

the

courts.

Such cases are

inapplicable to plaintiff’s claims under the Fourth Amendment.

See

Weatherspoon v. Ferguson, 302 F. App’x 231, 231-32 (5th Cir. 2008)
(holding that a court properly dismissed a right of access claim that
failed to allege injury, but distinguishing between Fourth Amendment
claims and right of access claims).

Plaintiff’s final objection to count

IX therefore fails.
(2)

First Amendment Retaliation Claims (Counts V, VI, VII)
Plaintiff advances three of his mail misconduct claims as First

Amendment retaliation claims.

Defendants challenge the sufficiency of

these claims, arguing that they are conclusory and “do[] not allege why
[plaintiff] believes any of this alleged conduct was done in retaliation
for his use of the grievance system.”

Motion to Dismiss, Doc. No. 39,

p.7.
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;

7

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.

Pack v. Martin, 174 Fed. App’x 256,

259 (6th Cir. 2006); 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).
Here, counts V, VI, and VII allege that defendants engaged in
misconduct specifically aimed at communications concerning the grievance
process.

Third Amended Complaint, Doc. No. 34, Count V (¶¶ 64-72, 137-

40), Count VI (¶¶ 24-28; 141-44), Count VII (¶¶ 64-72, 145-48).

Count

V alleges that a defendant “retriev[ed] . . . , open[ed] and discard[ed]
plaintiff’s out-going institutional grievances.”
id., ¶ 47.

Id., ¶ 138; see also

Count VI alleges that certain defendants “tap[ed] with

masking tape the outside of plaintiff’s incoming kite in its entirety on
June 26, 2009 . . . because of plaintiff’s protected conduct of utilizing
the inmate grievance procedure.”

Id., ¶ 142.

Plaintiff’s statement of

facts indicates that the communication at issue concerned an “informal
complaint.”

Id., ¶ 25.

Count VII alleges that certain defendants

searched plaintiff’s cell, and the corresponding factual allegations
assert that they did so during a meeting “regarding the number of
complaints [plaintiff has] filed” and seized “eight blank informal
complaint resolutions.”

Id., ¶¶ 64, 146; see also id. 64-72.

Because

plaintiff alleges specific facts in support of his claims that defendants

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targeted communications concerning the grievance procedure, defendants’
argument is without merit.
(3)

Eighth Amendment Claim (Count X)
Plaintiff advances his final mail misconduct claim as an Eighth

Amendment Claim.

Defendants object to count X on the grounds that

“[m]ere harassment, even if maliciously motivated, does not constitute
cruel and unusual punishment under the 8th Amendment” and that “[t]here
must be at least a ‘specific deprivation of a single human need.’”
Motion to Dismiss, Doc. No. 39, p.6 (citing Wilson v. Seiter, 501 U.S.
294, 305 (1991)).

The Court agrees that plaintiff’s allegations fail to

state a claim for a violation of the Eighth Amendment.

See Miller v.

Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004) (“The district court
properly concluded that one instance of deprivation of books, linens,
food trays, and mail did not violate the Eighth Amendment . . . .”); see
also Williams v. Delo , 49 F.3d 442, 444 (8th Cir. 1995)(dismissing an
Eighth Amendment claim based on the alleged denial, at various times, of
a requested tooth brush, tooth paste, deodorant, soap, sheets, blankets,
pillow cases, pillows, mattresses, legal mail and clothing).

Dismissal

of count X is therefore appropriate.
C.

Dining Facility Claim (Count VIII)
Plaintiff alleges an additional claim concerning his access to the

dining facility as a First Amendment retaliation claim.

Defendants

object to this claim on the grounds that it is conclusory and “does not
allege why [plaintiff] believes any of this alleged conduct was done in
retaliation for his use of the grievance system.”

Motion to Dismiss,

Doc. No. 39, p.7.
Here, defendants are correct that plaintiff fails to allege any
connection between his use of the grievance system and defendants’

9

alleged actions against him.

Plaintiff does not allege that defendants

engaged in the alleged actions soon after he filed a particular grievance
or that their behavior directly affected plaintiff’s actions in filing
grievances.

Instead, plaintiff bases his conclusion of retaliation on

the single allegation that these defendants “permitt[ed] the inmate
walking directly in front of plaintiff to eat without incident.”
¶ 150; see also id., ¶¶ 104-05.
the

unnamed

grievances.

inmate

was

Id.,

Plaintiff does not, however, assert that

allowed

to

eat

because

he

had

not

filed

In light of the conclusory nature of plaintiff’s

allegations, dismissal of count VIII is appropriate.
D.

Count XI
Because

count

XI

is

a

request

for

damages

unattached

to

an

independent claim, it is unnecessary to address count XI here. See Third
Amended Complaint, Doc. No. 34-1, ¶¶ 159-62.
E.

Qualified Immunity
Because defendants’ qualified immunity argument depends entirely on

their other arguments, see Motion to Dismiss, Doc. No. 39, pp. 9-10, it
is unnecessary to separately address that argument here.

It is therefore RECOMMENDED that the Motion to Dismiss, Doc. No. 39,
be GRANTED IN PART and DENIED IN PART.

It is specifically RECOMMENDED

that counts I, II, III, VIII, and X be DISMISSED but that all other
claims remain for resolution.
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.

10

28 U.S.C.

§636(b)(1); F.R. Civ. P. 72(b).

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 McCann King
United States Magistrate Judge
February 23, 2012

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