Myers v. Blackwell

Filing 41

REPORT AND RECOMMENDATION It is recommended that re 23 & 38 Motion to dismiss be granted. Objections to R&R due by 12/31/2012. Signed by Magistrate Judge Norah McCann King on 12/13/12. (rew)

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

MARVIN E. MYERS,
Plaintiff,
v.

Civil Action 2:12-cv-255
Judge Graham
Magistrate Judge King

DeCARLO BLACKWELL, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state inmate, brings this civil rights action under
42 U.S.C. § 1983, claiming a denial of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution in connection
with the alleged loss of plaintiff’s television and size 20 shower
shoes.

This matter is now before the Court on defendants’ motions to

dismiss, Doc. Nos. 23, 38.
The Amended Complaint alleges that, following his transfer from
the Chillicothe Correctional Institution to the London Correctional
Institution {“LoCI”], plaintiff discovered that his RCA color TV and
shower shoes were not included in his property.
Doc. No. 12, PAGEID #102.
at

LoCI,

allegedly

Amended Complaint,

Defendant Blackwell, a corrections officer

failed

to

properly

investigate

plaintiff’s

complaint but instead charged plaintiff with a rule infraction.

Id.

Plaintiff also alleges that, without shower shoes, he is “subjected to
the possibilities of contracting staph” when he showers in communal

1

showers.
of

the

LoCI’s

Id., PAGEID #106. Also named as defendants are the Director
Ohio

Department

warden

and

of

deputy

Rehabilitation
warden,

LoCI’s

and

Correction

institutional

[“ODRC”],
inspector,

ODRC’s chief inspector and assistant chief inspector, a Major at LoCI,
LoCI’s Health & Safety Director and LoCI’s Health Care Administrator.
The

Amended

Complaint

seeks

declaratory,

injunctive

and

monetary

relief.
All defendants have moved to dismiss for failure to state a claim
upon which relief can be granted.

A complaint may be dismissed for

failure to state a claim if “‘it fails to give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.’“
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46(1957)). Although a complaint need
not contain detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions. Twombly, 550 U.S. at
555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements,

do

not

suffice”).

A

court

must

determine

whether

the

complaint contains “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft, 556 U.S. at 678. Although the
plausibility

standard

is

not

equivalent

to

a

“‘probability

requirement,’ ... it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at

2

556). “[W]here the well-pleaded facts do not permit the court to infer
more

than

the

mere

possibility

of

misconduct,

the

complaint

has

alleged -- but it has not ‘show[n]’ -- that the pleader is entitled to
relief.”

Id. at 679 (quoting Fed. R. Civ. P. 8(a) (2)).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege
the violation of a right secured by the federal Constitution or laws
and must show that the deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988);
Street

v.

Corr.

Corp.

of

Am.,

102

F.3d

810,

814

(6th

Cir.1996).

Because § 1983 is a method for vindicating federal rights, not itself
a source of substantive rights, the first step in an action under §
1983

is

to

identify

the

specific

constitutional

right

allegedly

infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiff does not allege that any of the named defendants stole
his

property;

rather,

plaintiff

appears

to

allege

that,

by

their

failure to properly investigate the loss of plaintiff’s property and
to replace that property, defendants have subjected plaintiff to a
denial of his right to due process under the Fourteenth Amendment and
have been deliberately indifferent to his welfare in contravention of
the Eighth Amendment.
Procedural Due Process
To the extent that plaintiff intends to assert a claim of denial
of property without procedural due process of law, that claim cannot
proceed.
the

Plaintiff does not allege that the loss of his property was

result

of

the

execution

of

an

3

official

governmental

policy.

However,

the

actionable

random,

under

deprivation

§

remedy

unauthorized

1983
to

deprivation

if

the

state

cure

the

claimed

of

provides

property

an

is

adequate,

deprivation.

not

post-

Garrison

v.

Walters, 18 Fed.Appx. 329, *332 (6th Cir. Aug. 24, 2001) (citing Hudson
v. Palmer, 468 U.S. 517, 533-36 (1984)).

See also Parratt v. Taylor,

451 U.S. 527, 543-44 (1981), overruled in part by Daniels v. Wiliams,
474 U.S. 327 (1986).

Defendants contend that the Ohio Court of Claims

offers just such a remedy.

See Lillie v. McGraw, 132 F.3d 33 33, *2

(6th Cir. Dec. 12. 1997); Buerger v. Ohio Dept. of Rehabilitation and
Correction, 762 F.2d 1006, *1 (6th Cir. March 18, 1985).
Plaintiff in fact pursued claims based on the loss of his shower
shoes and television in the Ohio Court of Claims.
to Complaint, Doc. No. 3.

Exhibits, attached

However, plaintiff contends that the Ohio

Court of Claims does not offer an adequate remedy. In connection with
plaintiff’s claims involving the loss of his shower shoes, that court
held that plaintiff’s claim under the Ohio Administrative Code failed
to state a claim upon which relief can be granted, that plaintiff’s
claim against the State of Ohio under § 1983 failed to state a claim
because the state is not a “person” within the meaning of § 1983 and
that that court lacks jurisdiction over constitutional claims under §
1983.

Id. at PAGEID #55-57.

In connection with plaintiff’s claims

involving the loss of his television, that court held, in addition,
that plaintiff had failed to establish ownership of a television.

Id.

at PAGEID #59-61.
This Court concludes that the Ohio Court of Claims offers an
adequate

post-deprivation

remedy

sufficient

4

to

cure

the

claimed

deprivation of plaintiff’s property interests.

The fact that the Ohio

Court

actually

of

Claims

concluded

that

the

claims

asserted

by

plaintiff were not valid or had not been established by him does not
render

the

remedy

offered

by

that

court

inadequate.1

The

Court

therefore concludes that plaintiff has failed to state a claim based
on a denial of procedural due process.
Deliberate Indifference
Plaintiff also alleges that, in failing to provide him shower
shoes, defendants have been deliberately indifferent to his welfare
and

safety.

Plaintiff

specifically

argues

that,

because

he

must

shower in communal showers without shower shoes, he is at risk of
infection and falling.
Prison officials have a duty to provide humane conditions of
confinement:

“[O]fficials must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v. Brennan,
511 U.S. 825, 832 (1994)(quoting Hudson v. Palmer, 468 U.S. 517, 52627 (1984)).

In order to establish a claim under the Eighth Amendment,

a

must

prisoner

serious;

“a

first

prison

allege

official’s

a

deprivation

act

or

omission

that
must

is

objectively

result

in

denial of the minimal civilized measure of life’s necessities.”

the
Id.

at 834.

Second, the inmate must allege facts tending to show that the

prison

official’s

“state

of

mind

1

[was]

one

of

‘deliberate

Moreover, plaintiff’s pursuit of claims in the Ohio Court of Claims likely
resulted in a waiver of his right to pursue his claims under § 1983 in this

5

indifference’ to inmate health or safety.”

Id. (quoting Wilson v.

Seiter, 501 U.S. 294, 302-03 (1991)).
This Court concludes that, as it relates to plaintiff’s lack of
shower shoes, the Amended Complaint fails to allege a deprivation that
is of such objective seriousness as to give rise to a constitutional
claim.

See Chambers v. Simonet, 1995 WL 330903, *1 (10th Cir. May 25,

2005)(jail’s failure to issue shower shoes does not violate the Eighth
Amendment);

Clarke v. Collins, 1993 WL 391362, ** 1-2 (5th Cir. Sept.

20, 1993)(allegation that deprivation of shower shoes caused exposure
to disease amounted to negligence, which is not actionable under §
1983); Puranda v. Kellett, 2011 WL 674298, *4 (E.D. Va. Dec. 22,
2011)(“Shower shoes are not a basic human need”); Brown v. Goodman,
2010 WL 2202515, *6 (S.D. Ala. Apr. 19, 2010)(denial of shower shoes
does not constitute the deprivation of a basic human need); Hodges v.
Briley, 2005 WL 241466, *2 (N.D. Ill Feb. 1, 2005)(use of prison
showers without shower shoes does not give rise to Eighth Amendment
violation).
July

26,

But see Gonzalez v. Mullen, 2011 WL 3099101, *1 (9th Cir.

2011)(claim

of

exposure

to

infection

because

of

shower shoes states a claim under the Eighth Amendment).

lack

of

Because

plaintiff has failed to allege an objectively serious deprivation, the
Court concludes that the Amended Complaint fails to state a colorable
claim of deliberate indifference under the Eighth Amendment.
It is therefore RECOMMENDED that defendants’ motions to dismiss,
Doc. Nos. 23, 38, be granted.

Court. See Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities,
825 F.2d 946, 952 (6th Cir. 1987)(en banc).

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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.
U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections must

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

Fed. 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 Fed’n 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
December 13, 2012
(Date)

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