Cockshutt v. State of Ohio Department of Rehabilitation & Correction et al

Filing 117

OPINION AND ORDER GRANTING 103 Defendants' Motion for Judgment on the Pleadings; DENYING AS MOOT MOTIONS 83 , 99 , 100 , 105 , and 114 . Signed by Magistrate Judge Norah McCann King on 12/10/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN D. COCKSHUTT,
Plaintiff,
vs.

Civil Action 2:12-cv-532
Magistrate Judge King

STATE OF OHIO DEPARTMENT OF
REHABILITATION & CORRECTION,
et al.,
Defendants.
OPINION AND ORDER
I.

Background
Plaintiff John D. Cockshutt, a state prisoner, filed this civil

rights action on June 18, 2012, naming as defendants Trooper Schmutz
and twelve employees of the Ohio Department of Rehabilitation and
Correction (“ODRC”), the Madison Correctional Institution (“MaCI”),
and the Lebanon Correctional Institution (“LoCI”), and complaining
that his security level had been increased because of a false conduct
charge.

Plaintiff alleges that his rights to due process and to be

free from cruel and unusual punishment were thereby violated.
The Amended Complaint, Doc. No. 40, alleges that, while
incarcerated at MaCI, plaintiff was investigated for his alleged
involvement in a plot to smuggle a gun into MaCI so that he could
kidnap a nurse, escape from MaCI, and then murder the nurse.
p. 10.

Id. at

During this investigation, defendant Schmutz allegedly

interrogated plaintiff without identifying himself as an Ohio State
Trooper and without reading plaintiff his Miranda rights.

Id. at pp.

9-11.

The Amended Complaint also alleges that defendant Schmutz, and

nearly every other defendant, falsely informed plaintiff that one
Ronald May was the confidential informant who had provided information
about the alleged plot.

Id.

These actions, plaintiff alleges,

resulted in a “false conduct report” that has been included in
plaintiff’s institutional record.

Id. at pp. 10-11.

The conduct

report was allegedly drafted by defendant Scott Ackley, an MaCI
Investigator.

Id. at p. 2.

As a result of the allegedly false conduct report and other
allegedly false evidence, plaintiff was found guilty at a Rules
Infraction Board (“RIB”) hearing of attempting to escape and
attempting to convey firearms into the institution.
8, 11-12.

Id. at pp. 3-4,

Defendant Lt. Lambert, the RIB Chairperson, allegedly

prohibited plaintiff from calling Ronald May as a witness at the RIB
hearing.

Id. at p. 4.

Plaintiff appealed his RIB conviction, but

defendant Ernie Moore, the former Director of the ODRC and current
Warden of LoCI, and defendant Rod Johnson, the Warden of MaCI,
allegedly failed to investigate the actions of their employees and
denied plaintiff’s appeals.

Id. at p. 1.

Defendant Melody Haskins,

an MaCI Warden’s Administrative Assistant, also allegedly denied
plaintiff’s administrative appeals.

Id. at p. 6.

As a result of the allegedly false conduct report and his
conviction at the RIB hearing, plaintiff was “placed in isolation for
six months” and transferred to a higher security prison, which has
caused plaintiff “to have a mental breakdown” and has caused “serious
physical deterioration of” plaintiff’s health.

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Id. at pp. 11-12.

The

Amended Complaint further alleges that plaintiff’s chance of release
on parole has been “jeopardized” because “the inclusion of the false
conduct report in [plaintiff’s] institutional record will likely cause
his [p]arole to be denied.”1

Id. at p. 11.

On October 24, 2012, defendant Schmutz filed a motion to dismiss
for failure to state a claim, Doc. No. 31, and plaintiff thereafter
filed a motion to amend the complaint, Doc. No. 40.

On June 3, 2013,

the Court granted plaintiff leave to amend, but denied leave as to
defendant Schmutz on the basis of futility and granted defendant
Schmutz’s motion to dismiss.

Opinion and Order, Doc. No. 86.

This matter is now before the Court, with the consent of the
parties pursuant to 28 U.S.C. § 636(c), for consideration of
defendants’ motion for an extension of time, Doc. No. 101, and on
Defendants’ Motion for Leave to File Defendants’ Motion for Judgment
on the Pleadings Instanter, Doc. No. 102, in which defendants seek
leave to file a motion for judgment on the pleadings one day after the
deadline established in the Court’s August 9, 2013 Opinion and Order,
Doc. No. 98.

Defendants’ motions are unopposed, and the motions are

for that reason GRANTED.

See S.D. Ohio Civ. R. 7.2(a)(2).

Also before the Court is Defendants’ Motion for Judgment on the
Pleadings (“Defendants’ Motion”), Doc. No. 103, which was filed on
behalf of the twelve remaining defendants.

Plaintiff opposes

Defendants’ Motion, Plaintiff[’]s Response to Defendants[’] Motion for
Judgment on the Pleadings, Doc. No. 113.
reply, Doc. No. 115.
1

Defendants have filed a

For the reasons that follow, Defendants’ Motion

Plaintiff was in fact denied parole on May 28, 2013.

3

See Doc. No. 87.

is GRANTED.
II.

Standard
Defendants move for judgment on the pleadings pursuant to Fed. R.

Civ. P. 12(c).

A motion for judgment on the pleadings filed pursuant

to Rule 12(c) is evaluated by reference to the same standard as is a
motion to dismiss under Rule 12(b)(6).
603, 605 (6th Cir. 2011).

See Roth v. Guzman, 650 F.3d

In determining whether dismissal on this

basis is appropriate, an amended complaint must be construed in the
light most favorable to the plaintiff, and all well-pleaded facts must
be accepted as true.

See Bower v. Fed. Express Corp., 96 F.3d 200,

203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F. Supp. 734,
738 (S.D. Ohio 1994).

The United States Supreme Court has explained

that, “once a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the
complaint.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007).

However, a plaintiff’s claim for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.”

Id. at 555.

“Factual allegations must be enough

to raise a right to relief above the speculative level[.]”

Id.

Accordingly, an amended complaint must be dismissed if it does not
plead “enough facts to state a claim to relief that is plausible on
its face.”

Id. at 570.

III. Discussion
Plaintiff brings this action under 42 U.S.C. § 1983, which
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or

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the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law that
causes (2) the deprivation of a right secured by the Constitution or
laws of the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981)).

Section 1983 merely provides a vehicle for

enforcing individual rights established elsewhere and does not itself
establish any substantive rights.
273, 285 (2002).

See Gonzaga Univ. v. Doe, 536 U.S.

Moreover, liability based on a theory of respondeat

superior is not cognizable under § 1983.

See Turner v. City of

Taylor, 412 F.3d 629, 643 (6th Cir. 2005); Hays v. Jefferson Cnty.,
Ky., 668 F.2d 869, 874 (6th Cir. 1982).

In order to be held liable

under § 1983, a defendant with supervisory authority must have either
“encouraged the specific incident of misconduct or in some other way
directly participated in it.”

Turner, 412 F.3d at 643.

As noted supra, the Amended Complaint alleges that plaintiff’s
security level was increased because of a false conduct charge,
thereby denying him his rights to due process and to be free from
cruel and unusual punishment.

Plaintiff also complains that he did

not receive Miranda warnings prior to being interrogated at MaCI in
June 2010.

The Amended Complaint asserts claims against each

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defendant in his or her individual and official capacities.

See

Amended Complaint, pp. 1-9.
A.

Official Capacity Claims

Official capacity suits “‘generally represent only another way of
pleading an action against an entity of which an officer is an
agent.’”

Kentucky v. Graham, 473 U.S. 159, 165–66 (1985) (quoting

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).

“[A]n

official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.”
469 U.S. 464, 471-72 (1985)).

Id. (citing Brandon v. Holt,

In the present action, the remaining

defendants are all employees of ODRC, MaCI, or LoCI.

MaCI and LoCI

are both subdivisions of ODRC, which is a state agency, is immune from
suit in this Court by virtue of the Eleventh Amendment to the United
States Constitution.

See Beil v. Lake Erie Corr. Records Dept., 282

F. App’x 363 (6th Cir. 2008).

See also Regents of Univ. of Cal. v.

Doe, 519 U.S. 425, 429 (1997) (Eleventh Amendment sovereign immunity
applies not only to the states themselves but also to “state agents
and instrumentalities”).

The Eleventh Amendment does not, however,

preclude official capacity claims for prospective injunctive relief.
Ex parte Young, 209 U.S. 123 (1908).
In the case presently before the Court, the Amended Complaint
does not contain a demand for relief beyond asking that the Court
grant “relief.”

See Amended Complaint, p. 12.

The Complaint,

however, sought monetary damages and the expungement of the alleged
false conduct report.

Complaint, Doc. No. 4, p. 10.

requested expungement would be retroactive in nature.

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Plaintiff’s
See Belill v.

Hummel, 835 F.2d 877, 1987 WL 24114, at *5 (6th Cir. Dec. 1, 1987).
Because plaintiff seeks only retroactive relief and monetary damages,
defendants are entitled to Eleventh Amendment immunity on plaintiff’s
official capacity claims.
B.

Individual Capacity Claims

Plaintiff alleges that his due process rights were violated in
connection with his RIB hearing.

Specifically, plaintiff alleges that

he “could not take a properly conducted Voice-Stress Test, Polygraph
Test, or even [] call witnesses . . . at the RIB Hearing” and, after
having been found guilty at the RIB hearing, plaintiff’s security
status was increased and he “was placed in isolation for six months.”
Amended Complaint, pp. 11-12.

Plaintiff also alleges that defendants

“jeopardized his Liberty Interest with the Parole Board, because the
inclusion of the false conduct report in his institutional record will
likely cause his Parole to be denied, even though he is not guilty of
any of the false allegations made against him in that conduct report.”
Id.

The Amended Complaint fails to state a colorable due process

claim on any of these theories.
The Amended Complaint alleges that the inclusion of a false
conduct report in plaintiff’s institutional record and the increase in
plaintiff’s security status violates the due process clause because it
“will likely cause [plaintiff’s] [p]arole to be denied,” and thus,
will “jeopardize[]” his liberty interest in being released on parole.
Id. at pp. 10-11.

In order to establish a procedural due process

violation, a plaintiff “must show that the state deprived him or her
of a constitutionally protected interest in ̔life, liberty, or

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property’ without due process of law.”

Swihart v. Wilkinson, 209 F.

App’x 456, 458 (6th Cir. 2006) (quoting Zinermon v. Burch, 494 U.S.
113, 125 (1990)).
In the case presently before the Court, plaintiff has failed to
allege that he has been deprived of a constitutionally protected
liberty or property interest.

First, the Amended Complaint alleges

that plaintiff’s liberty interest in parole has been “jeopardized” in
that his parole “will likely” be denied.
11.

Amended Complaint, pp. 10-

These allegations are insufficient to state a due process claim

because the United States Constitution does not guarantee an inmate’s
release on parole, Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979); Swihart, 209 F. App’x at 458, and
“̔[t]he state of Ohio has not created a liberty interest in parole
eligibility, as it has a completely discretionary parole system.’”
Michael v. Ghee, 498 F.3d 372, 378 (6th Cir. 2007) (quoting Swihart,
209 F. App'x at 458-59).

See also Saunders v. Williams, 89 F. App’x

923, 924 (6th Cir. 2003); State ex rel. Hattie v. Goldhardt, 630
N.E.2d 696, 698 (Ohio 1994); O.R.C. § 2967.03 (providing that Ohio’s
adult parole authority “may” grant parole to a parole-eligible inmate
under certain circumstances).

Furthermore, plaintiff’s transfer to

LoCI does not implicate the due process clause because, ordinarily,
inmates have no constitutional right to be incarcerated in a
particular institution, Olim v. Wakinekona, 461 U.S. 238, 245 (1983);
Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Crosky v. Ohio Dept. of
Rehab. & Corr., No. 2:09-cv-400, 2012 WL 748408, at *9 (S.D. Ohio Mar.
8, 2012), “or to enjoy a particular security classification.”

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Crosky,

2012 WL 748408 at *9 (citing Montanye v. Haymes, 427 U.S. 236, 242
(1976)).
Plaintiff has also failed to allege that he has been deprived of
a constitutionally protected liberty or property interest with respect
to his six month “place[ment] in isolation.”

In Sandin v. Conner, 515

U.S. 472 (1995), the United States Supreme Court held that due process
liberty interests created by prison regulations are
generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its
own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.
Id. at 484 (internal citations omitted).

In other words, the due

process clause simply does not apply to a prison disciplinary
proceeding unless, as a result of the proceeding, an inmate suffers
some particularly unusual or serious punishment in relation to the
ordinary incidents of prison life.

See Bazzetta v. McGinnis, 430 F.3d

795, 803-04 (6th Cir. 2005) (“[T]he Constitution itself can create
protectible liberty interests, but only if corrections officials
impose restraints upon the prisoner which ‘exceed [the prisoner’s]
sentence in such an unexpected manner as to give rise to protection by
the Due Process Clause of its own force.’”); Crosky, 2012 WL 748408 at
*7; Bloodworth v. Timmerman-Cooper, 2:10-CV-926, 2010 WL 4384250, at
*2 (S.D. Ohio Oct. 26, 2010).

The transfer from one prison to another

and spending six months in “isolation” simply do not fall within the
category of punishments that courts have found to be unusual or
atypical.

See Bazzetta, 430 F.3d at 804 (no liberty interest in

transfer from one prison to another); Jones v. Baker, 155 F.3d 810,

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812 (6th Cir. 1998) (Finding that a two-and-one-half year stay in
administrative segregation did not “implicat[e] a protected liberty
interest”) (citing Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.
1995); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997)); Merchant v.
Hawk-Sawyer, 37 F. App’x 143, 145-46 (6th Cir. 2002).

Cf. Wilkinson

v. Austin, 545 U.S. 209 (2005)(inmates had a liberty interest
protected by the Fourteenth Amendment’s due process clause in avoiding
assignment to Ohio’s supermax prison); Vitek v. Jones, 445 U.S. 480,
489-90 (1980) (finding a liberty interest in not being involuntarily
committed to a mental hospital); Washington v. Harper, 494 U.S. 210
(1990) (finding a protectable liberty interest in not being
involuntarily subjected to psychotropic drugs).

In short, even if, as

plaintiff alleges, see Amended Complaint, p. 11, the RIB hearing was
premised on a “false conduct report” and even if plaintiff was denied
a “properly conducted Voice-Stress Test, Polygraph Test, or . . .
witnesses . . . at the RIB Hearing,” plaintiff’s due process rights
were not implicated by the RIB proceeding because those proceedings
did not subject plaintiff to a significant and atypical hardship. See
Sandin, 515 U.S. at 484; Williams v. Wilkinson, 51 F. App’x 553, 55758 (6th Cir. 2002) (Finding no liberty interest implicated where a
prisoner was not permitted to call witnesses at an RIB hearing because
the punishment received was not a “significant and atypical
hardship”).
Finally, to the extent that the Amended Complaint alleges a due
process violation with respect to defendants’ alleged failure to
provide Miranda warnings prior to plaintiff’s interrogation at MaCI in

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June 2010 regarding the alleged plot to convey a gun into MaCI, the
Amended Complaint fails to state a claim for relief.

Regardless of

whether Miranda warnings were required when plaintiff was investigated
in June 2010, see Howes v. Fields, -- U.S. --, 132 S.Ct. 1181 (2012),
plaintiff cannot assert an independent cause of action under § 1983
based solely on the failure to provide Miranda warnings; the proper
remedy for a Miranda violation is the exclusion of evidence in a
criminal proceeding.

McLoughlin v. Maxwell, 705 F.2d 456, 1982 U.S.

App. LEXIS 11837, at *2-3 (6th Cir. Aug. 3, 1982) (“Although the
failure to give Miranda warnings may result in the exclusion of a
statement from evidence in a criminal trial, it does not subject the
officer to liability for damages under the Civil Rights Act.”).

See

also Jones v. Cannon, 174 F.3d 1271, 1290-91 (11th Cir. 1999) (“̔The
reading of Miranda warnings is a procedural safeguard rather than a
right arising out of the fifth amendment itself. . . .

Thus, the

remedy for a Miranda violation is the exclusion from evidence of any
compelled self-incrimination, not a section 1983 action[.]’”) (quoting
Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th Cir. 1989)).
Plaintiff also alleges that his subjection to false allegations,
his placement in isolation for six months, and his transfer to LoCI
“constitute cruel and unusual punishment.”

Amended Complaint, p. 12.

The Eighth Amendment prohibits punishment that contravenes the
civilized standards of humanity and decency, or which involves the
unnecessary and wanton infliction of pain.
U.S. 97, 102–03 (1976) (citations omitted).

See Estelle v. Gamble, 429
To prove an Eighth

Amendment violation, an inmate must show that he has been deprived of

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the minimum civilized measures of life’s necessities.
Chapman, 452 U.S. 337, 347 (1981).

See Rhodes v.

However, “placement in segregation

is a routine discomfort that is a part of the penalty that criminal
offenders pay for their offenses against society [and] it is
insufficient to support an Eighth Amendment claim.”

Estep v. Million,

191 F.3d 451, 1999 U.S. App. LEXIS 23827, at *2-3 (6th Cir. Sept. 24,
1999) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)).

Moreover,

plaintiff makes no factual allegation about the actual conditions of
his confinement, nor does he allege the deprivation of life’s
necessities.

Accordingly, the Amended Complaint fails to state a

colorable Eighth Amendment claim.
In short, the allegations in the Amended Complaint, even taken as
true, fail to state a colorable claim for relief against defendants.
Accordingly, Defendants’ Motion for Judgment on the Pleadings, Doc.
No. 103, is GRANTED.
Based on the foregoing, plaintiff’s motion to compel, Doc. No.
83, which seeks, inter alia, information about the “prisoner witnesses
and confidential informants[]” who provided information to defendants
during May and June 2010, is now moot.

The parties’ related discovery

motions, Doc. Nos. 99, 100, 105, and defendants’ motion to vacate the
dispositive motions deadline, Doc. No. 114, are now also moot.
Nos. 83, 99, 100, 105, 114 are therefore DENIED as moot.
The Clerk is DIRECTED to enter FINAL JUDGMENT in favor of
defendants.
December 10, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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Doc.