Swogger v. Yonak et al

Filing 17

ORDER ADOPTING the REPORT AND RECOMMENDATION 16 in that 9 Motion to Dismiss for Failure to State a Claim filed by Jarrod Robinson, Michelle Miller, Scott Yonak and Ohio Department of Rehabilitation and Correction is GRANTED; This action is hereby DISMISSED. Signed by Judge Gregory L Frost on 6/18/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
George H. Swogger,

:
Plaintiff

:
:

Sgt. Scott Yonak, et al.,
Defendants

Judge Frost

:

v.

Civil Action 2:11-cv-01051

Magistrate Judge Abel

:
ORDER

Plaintiff George H. Swogger brings this action alleging that defendants violated
his Fourth, Eighth and Fourteenth Amendment rights. This matter is before the Court
on Magistrate Judge Abel's May 22, 2012 Report and Recommendation that defendants'
unopposed January 17, 2012 motion to dismiss (doc. 9) be granted. No objections were
filed to the Report and Recommendation.
Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),
the Court ADOPTS the Report and Recommendation and GRANTS defendants'
unopposed January 17, 2012 motion to dismiss. (Doc. 9.)
As noted by the Magistrate Judge, the Prison Litigation Reform Act states in
pertinent part:
No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.

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42 U.S.C. § 1997e(e). The Sixth Circuit requires that a plaintiff seeking relief based on
emotional damages must show that he also suffered a physical injury that is more than
de minimis to state an Eighth Amendment claim. Here, plaintiff fails to allege that he
suffered any physical injury. Jarriett v. Wilson, 162 Fed. Appx. 394, 400 (6th Cir. 2005).
Because Swogger has not alleged that he suffered a physical injury as required by
section 1997e(e), his Eighth Amendment claim is dismissed.
Although the defendants’ motion to dismiss did not address plaintiff’s remaining
claims for violations of his Fourth and Fourteenth Amendment rights and for
negligence, gross negligence, and negligent infliction of emotional stress, the Magistrate
Judge properly considered whether these claims failed to stated a claim upon which
relief can be granted. See 42 U.S.C. 1997e(c)(1) (“The court shall on its own motion . . .
dismiss any action brought with respect to prison conditions under section 1983 of this
title, . . . by a prisoner confined in any jail, prison, or other correctional facility if the
court is satisfied that the action is frivolous, malicious, fails to state a claim upon which
relief can be granted. . . .”).
The Magistrate Judge properly concluded that plaintiff’s claims based on
negligence fail. The Supreme Court has held that the Due Process Clause is not
implicated by a negligent act of an official causing unintended loss of or injury to life,
liberty, or property. Daniels v. Williams, 474 U.S. 327, 328 (1986). “Negligence does not
suffice to state an access to the courts violation under § 1983.” Garrison v. Corr, 26 F.

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Appx 410, 411 (6th Cir.2001) (citing Collins v. Harker Heights, Tex., 503 U.S. 115, 127–30
(1992)).
Plaintiff’s claim based upon the Fourth Amendment also fails. The Supreme
Court has ruled that visual body cavity searches are constitutional. Bell v. Wolfish, 441
U.S. 520, 558-60 (1979).
For the reasons stated above, the Court ADOPTS the Magistrate Judge's Report
and Recommendation and GRANTS defendants' unopposed January 17, 2012 motion to
dismiss (doc. 9). This action is hereby DISMISSED.

/s/ Gregory L. Frost
Gregory L. Frost
United States District Judge

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