Golson v. Ohio Department of Rehabilitation and Corrections et al

Filing 18

REPORT AND RECOMMENDATIONS re 7 Complaint: The Magistrate Judge RECOMMENDS that Plaintiff's claims against Defendants Mohr and Dennis McHugh be DISMISSED for failure to state a claim. Plaintiff may proceed with his claims against Defendant Lisa Crain. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/19/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD GOLSON,
Plaintiff,
Civil Action 2:13-cv-373
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

GARY C. MOHR,
DIRECTOR, O.D.R.C., et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, an Ohio inmate proceeding without the assistance of counsel, brings this action
against Gary Mohr, Director of the Ohio Department of Rehabilitation and Corrections
(“ODRC”), as well as two prison officials, alleging retaliation in violation of the First
Amendment. This matter is before the Court for a screen of Plaintiff’s Complaint pursuant to 42
U.S.C. § 1915(e)(2). This matter is also before the Court for consideration of correspondence
the Court received on August 14, 2013. (ECF No. 17.) For the reasons that follow, it is
RECOMMENDED that Plaintiff’s claims against Defendants Mohr and Dennis McHugh be
DISMISSED for failure to state a claim pursuant to § 1915(e)(2). Plaintiff may proceed with his
claims against Defendant Lisa Crain. The Court concludes that no action is necessary in
response to Plaintiff’s correspondence.
I.
Plaintiff filed this action on April 19, 2013, alleging that Defendant Lisa Crain issued an
inmate conduct report against him in retaliation for filing an informal complaint against a

corrections officer. (Compl. 3, ECF No. 7.) Plaintiff represents that he suffered unwarranted
disciplinary action as a result. Plaintiff further alleges that he informed Defendant McHugh
about Defendant Crain’s purported retaliatory conduct, but that Defendant McHugh failed to
take action. Id. at 4. Finally, Plaintiff contends that Mohr, “rendered an unfavorable decision
pertaining to the prisoner informal complaint resolution process.” Id. at 3.
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii) (emphasis added); Denton, 504 U.S. at 31. Thus, § 1915(e)
requires sua sponte dismissal of an action or a claim upon the Court’s determination that it is

Formerly 28 U.S.C. § 1915(d).

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frivolous or malicious, or upon determination that the action fails to state a claim upon which
relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630
F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards
to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard
does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient.
Ashcroft v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at
557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
Facial plausibility is established “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In
addition, the Court holds pro se complaints “‘to less stringent standards than formal pleadings
drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010 WL
1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
III.
As a preliminary matter, the Court acknowledges receipt of correspondence from an
individual on behalf of Plaintiff. (ECF No. 17.) The Court concludes that no action is necessary

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in response to the correspondence. The circumstances set forth in the letter are matters that are
subject to discovery in this case and, with appropriate supporting evidence, will be considered by
the Court at the appropriate stage.
IV.
In addition, the Undersigned concludes that Plaintiff’s claims against Defendants Mohr
and McHugh must be dismissed for failure to state a claim.
First, state prisoners do not have a constitutionally protected right to prison grievance
procedures. Walker v. Michigan Dept. of Corr., 128 F. App’x 441, 445 (6th Cir. 2005); see also
Young v. Gundy, 30 F. App’x 568, 569-70 (6th Cir. 2002) (“[T]here is no inherent constitutional
right to an effective prison grievance procedure.”); Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996) (“[A] state’s inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.”). Nor are prison officials obligated to respond to an
inmate’s grievance in a way that satisfies the inmate. Overhold v. Unibase Data Entry, Inc., 221
F.3d 1335, *3 (6th Cir. 2000). Consequently, Plaintiff’s allegations that Mohr failed to
investigate or satisfactorily resolve his grievance fails to state a claim, and his claim against this
Defendant must be dismissed.
Second, a supervisor, such as Defendant McHugh, cannot be held liable for a
subordinate’s actions under 42 U.S.C. § 1983. To plead a cause of action under § 1983, a
plaintiff must plead two elements: (1) deprivation of a right secured by the Constitution or laws
of the United States (2) caused by a person acting under color of state law. Hunt v. Sycamore
Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). To plead the second element
sufficiently, a plaintiff must allege “personal involvement” of the person sought to be held liable.

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Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted). This requirement arises
because “§ 1983 liability cannot be imposed under a theory of respondeat superior.” Id.
(citation omitted). “A supervisor is not liable under § 1983 for failing to train unless the
supervisor either encouraged the specific incident of misconduct or in some other way directly
participated in it.” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009) (internal quotation
omitted). Put another way, to hold a supervisor liable under § 1983, a plaintiff “must show that
the official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct . . . .” Id. Here, Plaintiff has not alleged personal involvement on the
part of Defendant McHugh. Rather, he seeks to hold Defendant McHugh liable for failing to
take action with respect to Defendant Crain’s alleged retaliation. Under these circumstances,
Plaintiff has failed to state a claim against Defendant McHugh, and his purported claim against
this Defendant must be dismissed. Accordingly, it is RECOMMENDED that Plaintiff’s claims
against Defendants Mohr and McHugh be DISMISSED pursuant to § 1915(e)(2).
V.
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

IT IS SO ORDERED.
Date: August 19, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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