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

Filing 86

OPINION AND ORDER Plaintiffs motion to amend, Doc. No. 40 is granted in part and denied in part. Defendant Schmutzs motion to dismiss, Doc. No. 31 is granted. Signed by Magistrate Judge Norah McCann King on 6/03/13. (rew)

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

JOHN D. COCKSHUTT,
Plaintiff,
vs.

Case No. 2:12-cv-532
Magistrate Judge King

STATE OF OHIO, DEPARTMENT OF
REHABILITATION & CORRECTION,
et al.,
Defendants.

OPINION AND ORDER
Plaintiff John D. Cockshutt, a state prisoner, filed this action
on June 18, 2012, against 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”), alleging that his 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.

This

matter is now before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of Defendant
Sergeant Bo Schmutz’s Motion to Dismiss (“Motion to Dismiss”), Doc.
No. 31, Plaintiff’s Response to Defendant Sargeant Bo Schutz’s Motion
to Dismiss (“Plaintiff’s Response to Motion to Dismiss”), Doc. No. 38,
and defendant Schmutz’s reply, Doc. No. 41. Without first seeking
leave to do so, plaintiff has also filed a sur-reply, Doc. No. 50.
Also before the Court is plaintiff’s motion for leave to amend
the Complaint, Motion to Take Leave to Amend Pleadings (“Plaintiff’s

Motion to Amend”), Doc. No. 40.

Defendant Schmutz opposes Plaintiff’s

Motion to Amend on the basis that amendment would be futile.
Memorandum in Opposition of Defendant Bo Schmutz to Plaintiff’s Motion
for Leave to Amend His Complaint (“Schmutz’s Response”), Doc. No. 52.
Some of the remaining individual defendants have filed a notice of
intent not to oppose Plaintiff’s Motion to Amend,

see Doc. No. 51,

and other defendants, Mr. Pierce and Ernie Moore,1 have not filed a
response.

Plaintiff has filed a reply, Plaintiff’s Surreply Brief,

Doc. No. 57.

For the reasons that follow, Plaintiff’s Motion to

Amend, Doc. No. 40, is GRANTED in part and DENIED in part.

Defendant

Schmutz’s Motion to Dismiss, Doc. No. 31, is GRANTED.
I.

Background
The proposed amended complaint2 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.
Amend, p. 10.

Plaintiff’s Motion to

During this investigation, defendant Schmutz allegedly

interrogated plaintiff without identifying himself as an Ohio State
Trooper and without reading plaintiff his Miranda rights.
9-11.

Id. at pp.

The proposed amended complaint also alleges that defendant

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

Id.

1

These actions, plaintiff

Defendant Ernie Moore was served with process on May 13, 2013. See Doc. No.
80.
2
The proposed amended complaint is attached to Plaintiff’s Motion to Amend as
the Memorandum of Support.

2

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

Id. at pp. 10-11.

As a result of the alleged 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,

Plaintiff was also “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.

Id. at pp. 11-12.

The proposed 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.”

Id. at p. 11.

According to the proposed amended complaint, had defendant Schmutz
identified himself as an Ohio State Trooper during the investigation,
plaintiff would have called defendant Schmutz as a witness at the RIB
hearing and he would have likely not been found guilty.
II.

Standard
Whether or not to grant leave to amend a pleading under Fed. R.

Civ. P. 15(a)(2) falls within the district court’s discretion.
General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir.
1990).

In exercising that discretion, the trial court may consider

such factors as “undue delay, bad faith or dilatory motive on the part
of a movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of

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allowance of the amendment [and] futility of the amendment.”

Foman v.

Davis, 371 U.S. 178, 182 (1962).
“A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”

Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing
Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83
(6th Cir. 1993)).

A motion to dismiss under Rule 12(b)(6) attacks the

legal sufficiency of the complaint.

See Roth Steel Prods. v. Sharon

Steel Co., 705 F.2d 134, 155 (6th Cir. 1983).

In determining whether

dismissal on this basis is appropriate, a 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.”
(2007).

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

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, a complaint must be dismissed – and a

motion for leave to amend a complaint must be denied – if the
complaint or proposed amended complaint does not plead “enough facts
to state a claim to relief that is plausible on its face.”
570.

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Id. at

III. Discussion
As noted supra, plaintiff’s proposed amended complaint alleges
that his security level was increased based on a false conduct charge,
thereby denying him his rights to due process and to be free from
cruel and unusual punishment.

Plaintiff also alleges that he did not

receive Miranda warnings prior to being interrogated at MaCI in June
2010.
As an initial matter, plaintiff concedes that the proposed
amended complaint asserts no new substantive allegations against
defendant Schmutz.

See Plaintiff’s Reply, p. 1 (“First, it should be

noted that the leave to amend being sought does not in any way affect
this Defendant.”).

The Court notes, however, that the proposed

amended complaint now asserts claims against defendant Schmutz in his
official capacity.

See Plaintiff’s Motion to Amend, p. 9.

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 instant action, defendant

Schmutz is an officer of the Ohio State Highway Patrol.

This 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

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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 proposed amended
complaint does not contain a demand for relief beyond asking that the
Court grant “relief.”

See Plaintiff’s Motion to Amend, p. 12.

The

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

Complaint, p. 10.

Plaintiff’s

requested expungement would be retroactive in nature.

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,
defendant Schmutz is entitled to Eleventh Amendment immunity on
plaintiff’s official capacity claims.
Plaintiff’s due process claims against defendant Schmutz are
premised on (1) defendant Schmutz’s alleged failure to identify
himself as a state trooper and to provide Miranda warnings prior to
interrogating plaintiff at MaCI in June 2010 about the alleged plot to
convey a gun into MaCI and (2) jeopardizing plaintiff’s chances of
release on parole by including a false conduct report in his
institutional record.
pp. 5-6.

See Plaintiff’s Response to Motion to Dismiss,

The proposed amended complaint fails to state a claim

against defendant Schmutz on either theory.
First, 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 state a cause of action

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under § 1983 based solely on the failure to give 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)).
Accordingly, plaintiff has failed to state a colorable due process
claim based on defendant Schmutz’s alleged failure to provide Miranda
warnings.
As to the second alleged due process violation, the proposed
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 release on parole.
Motion to Amend, pp. 10-11.

Plaintiff’s

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
property’ without due process of law.”

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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 proposed amended complaint

alleges that plaintiff’s liberty interest in parole has been
“jeopardized” in that his parole “will likely” be denied.
Motion to Amend, pp. 10-11.

Plaintiff’s

These allegations are insufficient to

state a due process claim because they are based on mere specultaiton.
Second, 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).
To the extent that plaintiff alleges that his transfer to LoCI
violates the due process clause, plaintiff has failed to state a
colorable claim for relief.

An inmate has 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

8

748408, at *9 (S.D. Ohio Mar. 8, 2012), “or to enjoy a particular
security classification.”

Crosky, 2012 WL 748408 at *9 (citing

Montanye v. Haymes, 427 U.S. 236, 242 (1976)).

Plaintiff has also

failed to allege that defendant Schultz had any involvement in the RIB
hearing, in filing the alleged false conduct charge, or in the
decision to transfer plaintiff to LoCI.
Finally, plaintiff alleges that the false allegations made
against him, being “placed in isolation for six months,” and being
transferred to LoCI “constitute cruel and unusual punishment.”
Plaintiff’s Motion to Amend, 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.

See Estelle v. Gamble, 429 U.S. 97, 102–03 (1976) (citations

omitted).

To prove an Eighth Amendment violation, an inmate must show

that he has been deprived of the minimum civilized measures of life’s
necessities.

See Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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 allegations about the actual conditions of his confinement,
nor does he allege that the RIB proceedings resulted in the
lengthening of his prison sentence, the withdrawal of good-time
credits, or the deprivation of any necessities of life.

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Accordingly

the proposed amended complaint fails to state a colorable Eighth
Amendment claim as to defendant Schmutz.
In sum, the allegations in the proposed amended complaint, even
taken as true, fail to state a colorable claim for relief against
defendant Schmutz.

Accordingly, as to defendant Schmutz, Plaintiff’s

Motion to Amend, Doc. No. 40, is futile and, thus, it is DENIED.

As

to the claims against the remaining defendants, Plaintiff’s Motion to
Amend is GRANTED.
Plaintiff’s Motion to Amend indicates that the proposed amended
complaint is attached to the Motion to Amend as the Memorandum of
Support.

The Clerk is therefore DIRECTED to indicate on the docket

that Doc. No. 40 is both the Amended Complaint and a Motion to Amend
the Complaint.
Plaintiff concedes that there are no substantive differences, as
to defendant Schmutz, between the Amended Complaint and the Complaint.3
See Plaintiff’s Reply, p. 1.

The Complaint therefore also fails to

state a colorable claim against defendant Schmutz.

Accordingly,

defendant Schmutz’s Motion to Dismiss, Doc. No. 31, is GRANTED.

June 3, 2013

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

3

The proposed amended complaint actually asserts new claims against defendant
Schmutz in his official capacity. However, as discussed supra, plaintiff’s
official capacity claims cannot proceed.

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