Johnson v. Ohio Department of Rehabilitation and Corrections et al

Filing 5

ORDER, REPORT AND RECOMMENDATION : It is RECOMMENDED that the claims against defendants Mohr, Willingham, Ackley and Chamberlain be DISMISSED re 4 Complaint. The United States Marshal Service is DIRECTED to effect service of process on this defendant, who shall have forty-five (45) days. re 4 Complaint. Objections to R&R due by 7/8/2013. Signed by Magistrate Judge Norah McCann King on 6/20/13. (rew)

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

LEROY JOHNSON, JR.,
Plaintiff,
Civil Action 2:13-cv-583
Judge Economus
Magistrate Judge King

vs.
CORRECTIONAL OFFICER HERREN, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION

Plaintiff,

an

inmate

at

the

Madison

Correctional

Institution

(“MaCI”), brings this action under 42 U.S.C. § 1983 in connection with
an alleged attack by defendant Correctional Officer Herren.

This

matter is now before the Court for the initial screen of the Complaint
required by 28 U.S.C. §§ 1915(e), 1915A.
Named as defendants in the Complaint are defendant Herren as well
as

the

Director

of

the

Ohio

Department

of

Rehabilitation

and

Correction (“ODRC”), a shift captain and lieutenant at MaCI and an
MaCI case manager. Plaintiff alleges that defendant Herren “attacked
[plaintiff]

in

an

unnecessarily,

aggressive

manner.”

Id.,

p.

3.

Plaintiff complains that defendant Willingham, the shift supervisor of
defendant Herren, failed to view videotape footage of the alleged
incident in connection with plaintiff’s informal complaint, and that
defendants

Ackley

and

Chamberlain

–

members

of

the

use

of

force

committee charged with reviewing the alleged incident - “rendered a

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biased and truly unfounded disposition. . . .” Id., p. 4.

Finally,

plaintiff alleges that the defendant Director of the ODRC “failed to
discipline” the other defendants.

Id.

A prison inmate does not have an inherent constitutional right to
an effective prison grievance procedure. Young v. Gundy, 30 Fed.Appx.
568, 569–70 (6th Cir. 2002), citing Antonelli v. Sheahan, 81 F.3d
1422, 1430–31 (7th Cir. 1996). See also Hewitt v. Helms, 459 U.S. 460,
467 (1983); Argue v. Hofmeyer, 80 Fed.Appx. 427, 430 (6th Cir. 2003);
Keenan v. Marker, 23 Fed.Appx. 405, 407 (6th Cir. 2001); Mays v.
Wilkinson, 181 F.3d 102 at *1 (6th Cir. 1999). Prison officials are
not obligated to respond to an inmate's grievances in a way
satisfactory to the inmate. Overholt v. Unibase Data Entry, Inc., 221
F.3d 1335, *3 (6th Cir. 2000). Plaintiff's allegations that defendants
Willingham, Ackley and Chamberlain failed to properly investigate or
resolve plaintiff’s grievance or a use of force inquiry do not, as a
matter of law, state a claim under 42 U.S.C. § 1983.

The claims

against these defendants must therefore be dismissed.
The Court likewise concludes that the claim asserted against the
defendant Director of the ODRC must be dismissed.

A supervisory

official may not be held liable under 42 U.S.C. §1983 for the alleged
misconduct of subordinates unless “the plaintiff demonstrates that
‘the supervisor encouraged the specific incident of misconduct or in
some other way directly participated in it.’” Combs v. Wilkinson, 315
F.3f 548, 554 (6th Cir. 2002) quoting Bellamy v. Bradley, 729 F.2d 416,
421 (6th Cir. 1984). “‘At a minimum a plaintiff must show that the

2

official at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending
officers.’”

Id., quoting Hays v. Jefferson County, 668 F.2d 869, 874

(6th Cir. 1982).

Liability on the part of a supervisor must be based

on “active unconstitutional behavior.”
167 F.3d 1041, 1048 (6th Cir. 1999).

Id., citing Bass v. Robinson,

Plaintiff’s allegation that

defendant Mohr “failed to discipline” the other defendants does not
meet this standard.
The Court concludes that, at this juncture, the claim against
defendant Herren may proceed.

The United States Marshal Service is

DIRECTED to effect service of process on this defendant, who shall
have forty-five (45) days after service of process to respond to the
Complaint.
It is RECOMMENDED that the claims against defendants Mohr,
Willingham, Ackley and Chamberlain be DISMISSED.

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

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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

DATE: June 20, 2013

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