Lloyd v. Mohr et al

Filing 11

ORDER finding as moot 2 Motion to Appoint Counsel ; adopting Report and Recommendations re 5 Report and Recommendations. Signed by Judge James L Graham on 3/10/14. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Damon Shawn Lloyd,
Plaintiff,
v.

Case No. 2:13-cv-1158

Gary Mohr, et al.,
Defendants.
ORDER
This is an action under 42 U.S.C. §1983 brought by Damon Shawn
Lloyd, a state inmate incarcerated at the Chillicothe Correctional
Institution, alleging constitutional violations stemming from the
handling of his legal mail.

Named as defendants are Gary Mohr,

Director of the Ohio Department of Rehabilitation and Correction
(“ODRC”); Robin Knabb, South Regional Director of the ODRC; Norm
Robinson,

Warden

of

the

Chillicothe

Correctional

Institution

(“CCI”); Corby Free, Institutional Inspector at CCI; G. Craft,
Chief Inspector of the ODRC; Lieutenant Ball, Supervisor of the
mail room at CCI; Tondra Ogier, Cashier at CCI; and Susan Pierce,
Cashier Supervisor at CCI.
Plaintiff alleges in his complaint that on November 21, 2012,
he submitted mail (including a notice of appeal) to the prison mail
room relating to his appeal to the Ohio Twelfth District Court of
Appeals of the state trial court’s denial of his motion for a new
trial.

Complaint, ¶ 6.

He completed a cash withdrawal slip in the

amount of $6.80, which is attached to the complaint as Exhibit B.
It is not dated, but bears a “RECEIVED” stamp bearing the date of
November 21, 2012. The stamp itself does not indicate which office
received the mail on that date, but plaintiff alleges that he

submitted his mail to the mail room on November 21, 2012, see
Complaint, ¶ 6, and also stated in a grievance, Exhibit C, that the
slip was stamped by the mail room supervisor.
The facts alleged in the complaint and attached documents
indicate that when an inmate tenders mail at the mail room and
completes a cash slip, the mail room then sends the slip to the
cashier’s office, where the cost of postage can be deducted from
the inmate’s prison account.

After the cash slip is processed by

the cashier, it is placed in an outgoing box for pickup by the mail
room. The mail room then sends the mail out via the postal system.
Plaintiff alleges that his cash slip was not processed by the
cashier until November 26, 2012.

Complaint, ¶ 6.

Plaintiff

further alleges that his notice of appeal was due thirty days from
October 24, 2012, i.e., November 23, 2012.

His outgoing mail

containing the notice of appeal was postmarked November 27, 2012.
It was received by the clerk’s office of the Warren County Common
Pleas Court in Lebanon, Ohio, on November 29, 2012.
his appeal was dismissed as untimely.

As a result,

Complaint, ¶ 9; Exs. G, H.

Plaintiff submitted an informal complaint resolution against
the cashier’s office and mail room personnel to Cashier Ogier on
December 30, 2012.

See Complaint, Ex. A.

Ogier responded that

because plaintiff had not dated his cash slip, she did not know
when plaintiff turned it into the mail room.

She further stated

that the cashiers received the cash slip from the mail room on
November 26, 2012, and they processed it and put it in the outgoing
mailbox for the mail room to pick up.

She noted that November 22,

2012, was a holiday (Thanksgiving), and November 24th and 25th fell
on a weekend, so no mail moved on those days.

2

Ex. A.

Plaintiff further alleges that he filed a notification of
grievance dated January 5, 2013, complaining about the handling of
his legal mail.

Complaint, Ex. C.

On January 23, 2013, Inspector

Free responded to the grievance, noting that plaintiff had not
dated his cash slip.

Free stated that according to Business

Administrator J. McAfee, the cashier’s office has three to five
days to process cash slips. Free noted that, assuming the slip was
turned in on November 21st as plaintiff alleged, it was processed
and mailed by the fourth business day after plaintiff submitted it.
He advised plaintiff to “be aware in the future there might be more
time needed for your mail to be processed around weekends and
holidays.”
slips

and

He concluded, “All parties involved assured all cash
mail

are

handled

grievance has been denied.”

in

an

expeditious

manner.

Your

Complaint, Ex. D.

Plaintiff appealed this decision to the office of Chief
Inspector Craft, which conducted a review.

The decision, dated

March 22, 2013, noted that a cash slip in the amount of $6.80 was
received by the cashier’s office on November 26, 2012.
Ex. E.

Complaint,

The decision further stated that due to the lack of a date

on the cash slip, “there cannot be a determination that your legal
mail was held beyond time allowed.”

Ex. E.

The decision further

concluded that based upon the date the cash slip was received and
processed by the cashier’s office, his legal mail was delivered
within a reasonable time frame.

Plaintiff was advised that “[t]o

avoid concerns in the future relative to you legal mail meeting
deadlines, you should ensure your outgoing mail is processed well
in advance of due dates.”
was affirmed.

Ex. E.

Ex. E.

3

The decision of Inspector Free

Plaintiff subsequently filed the instant action, alleging that
he was denied his constitutional right of access to the courts
because of defendants’ “mishandling, purposefully or negligently,
of his legal mail.”
injunctive

Complaint, ¶ 5.

relief.

Complaint,

¶

He seeks monetary damages and
14.

He

alleges

that

his

constitutional rights to due process and equal protection were
violated, and asks this court to order the Ohio state courts to
recognize the prison mailbox rule and to allow his appeal as being
timely filed.

Complaint, ¶¶ 12, 14-15.

He also requests this

court to enjoin the defendants from retaliating against him for
filing the instant action.

Complaint, ¶ 16.

On January 10, 2014, the magistrate judge filed a report and
recommendation on the initial screen of plaintiff’s complaint
pursuant to 28 U.S.C. §1915A, which requires the court, “in a civil
action in which a prisoner seeks redress from a governmental entity
or officer or employee of a governmental entity,” to dismiss a
complaint that fails to state a claim upon which relief may be
granted.

28

U.S.C.

§1915A(a)-(b)(1).

The

magistrate

judge

concluded that plaintiff’s complaint fails to state a claim upon
which relief can be granted, and recommended that this action be
dismissed.
This

See Doc. 5, p. 8.
matter

is

before

the

court

for

consideration

of

plaintiff’s objections (Doc. 9)1 to the magistrate judge’s report
and recommendation. If a party objects within the allotted time to
a report and recommendation, the court “shall make a de novo
determination of those portions of the report or specified proposed

1

The court notes that the document entitled “PLAINTIFF’S OBJECTIONS AND
MEMORANDUM OF LAW TO MAGISTRATE’S REPORT AND RECOMMENDATION DATED JANUARY 10,
2014" filed as Docket Entry No. 10 is a duplicate copy of Docket Entry No. 9.

4

findings or recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court
“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”

28 U.S.C.

§636(b)(1).
I. Standards of Review
As

the

magistrate

judge

correctly

explained,

28

U.S.C.

§1915(e) requires sua sponte dismissal of an action upon the
court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon
which relief may be granted.
(6th Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572

Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard.

See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.
12(b)(6)

standards

to

a

review

under

28

U.S.C.

§§1915A

and

1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
allegations

or

legal

conclusions

5

masquerading

Conclusory
as

factual

allegations will not suffice.

Id.

While the complaint need not

contain detailed factual allegations, the “[f]actual allegations
must be enough to raise the claimed right to relief above the
speculative level” and “state a claim that to relief that is
plausible on its face.”
544, 555, 570 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.
Where the facts pleaded do not permit the

court to infer more than the mere possibility of misconduct, the
complaint has not shown that the pleader is entitled to relief as
required under Federal Rule of Civil Procedure 8(a)(2).

Id.

II. Plaintiffs’ Claims
A. Violation of Right of Access to Courts Claim
Plaintiff alleges that the failure of the prison mail room and
the cashier’s office to process his legal mail in a timely manner
infringed his First Amendment right to access to courts.

As a

general rule, a plaintiff proceeding under §1983 must allege that
the deprivation of his rights was intentional or at least the
result of gross negligence.

Davidson v. Cannon, 474 U.S. 344, 348

(1986). Mere negligence is not actionable under §1983. Chesney v.
Hill, 813 F.2d 754, 755 (6th Cir. 1987).
Prisoners have a constitutional right of meaningful access to
the courts to attack their sentences or challenge conditions of
confinement.

Jackson v. Gill, 92 F.App’x 171, 173 (6th Cir.

2004)(citing Lewis v. Casey, 518 U.S. 343, 355 (1996)).

In order

to state a claim for interference with access to courts, plaintiff
must show actual injury, such as having a case dismissed, being
unable to file a complaint, or missing a court-imposed deadline.
Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). The Sixth
Circuit has stated in an unreported decision that “a prisoner must

6

prove that the violation was intentional, not merely negligent.”
Wojnicz v. Davis, 80 F.App’x 382, 384 (6th Cir. 2003).
later

Sixth

Circuit

decision,

also

unreported,

However, a

suggests

that

allegations of recklessness supported by facts might also be
sufficient.

See Sims v. Landrum, 170 F.App’x 954, 957 (6th Cir.

2006)(noting that “merely alleging recklessness without alleging
facts to support the assertion [cannot] save the claim from
dismissal.”); see also id. at 956 (in assessing whether the right
of access to courts has been violated “we ask whether the claimant
has demonstrated an ‘actual injury,’ ... and, if so, whether the
claimant has alleged that more than mere negligence by the state
actor caused the injury”).

The Sixth Circuit in Sims upheld the

dismissal of plaintiff’s claims under §1915(e)(2), noting that the
facts alleged showed at most that the defendant mail room employee
acted negligently in processing plaintiff’s legal mail, “not that
she acted with the intent to deprive Sims of access to the courts.”
Sims, 170 F.App’x at 957.
In the instant case, the magistrate judge concluded that
plaintiff failed to state a plausible §1983 claim because he did
not allege facts sufficient to show that any defendant acted with
the intent to impede his access to the courts. Plaintiff claims in
his objections that the allegations in his complaint are sufficient
to allege intentional conduct.

Doc. 9, p. 6.

Plaintiff complains

that the magistrate judge committed error by holding him, a pro se
litigant, to a higher pleading standard.
In

the

report

and

recommendation,

Doc. 9, p. 7.
the

magistrate

judge

recognized that pro se complaints are analyzed under less stringent
standards than formal pleadings drafted by lawyers. Doc. 5, p. 5.

7

The magistrate judge noted that plaintiff alleged that he was
denied access to courts because of defendants’ “‘mishandling,
purposefully or negligently, of his legal mail.’”
(quoting Complaint, ¶ 5).

Doc. 5, p. 7

However, the magistrate judge also

correctly observed that in cases alleging a violation of the right
of access to courts, even those filed by prisoners, conclusory
allegations of intentional conduct are not sufficient.

See Sims,

170 F.App’x at 957 (“Nor can merely alleging recklessness without
alleging facts to support the assertion save the claim from
dismissal.”); Wojnicz, 80 F.App’x at 384 (“Conclusory allegations,
unsupported by any material factual allegations, are not sufficient
to state a claim under §1983.”).
The facts alleged in the complaint and those contained in the
documents attached to the complaint show that plaintiff submitted
his legal mail to the mail room on November 21, 2012, and that his
cash slip was not received by the cashier’s office until November
26, 2012.

However, this period included a holiday on November 22,

2012, and an intervening weekend on November 24th and 25th, and
mail did not move on those days.

The package was mailed on

November 27, 2012, the day after the cash slip was received by the
cashier’s office.

It was received by the clerk’s office of the

Warren County Common Pleas Court in Lebanon, Ohio, on November 29,
2012. In responding to plaintiff’s grievance, defendant Free noted
that the cashier’s office has three to five days business days to
process cash slips, and that plaintiff’s slip was processed and
mailed

on

the

fourth

Complaint, Ex. D.
“[a]dherence

to

business

day

after

it

was

received.

In Sims, the Sixth Circuit observed that
an

accepted

mail

8

policy

cannot

establish

recklessness or callousness.”

170 F.App’x at 957.

The complaint does not identify which mail room or cashier’s
office employees processed plaintiff’s mail on this occasion or
which employees were responsible for any delay.
fails

to

allege

facts

showing

that

any

The complaint

prison

employees

deliberately delayed the processing of plaintiff’s mail with the
intent to obstruct plaintiff’s access to court. The complaint also
contains no facts sufficient to demonstrate that the mail room or
cashier’s

employees

acted

with

reckless

disregard

to

his

constitutional rights. The cash slip submitted by plaintiff had to
move from the mail room to the cashier’s office and back to the
mail room before his package could be mailed.

The facts alleged

suggest that the time it took to process plaintiff’s legal mail was
attributable to the intervening holiday and weekend, and that any
delay in mailing the package on November 27th was due, at most, to
negligence.
The court also notes that although plaintiff has alleged an
injury, namely, the dismissal of his appeal as untimely, the facts
alleged are insufficient to show that this injury was caused by any
intentional or reckless act of the defendants as opposed to
plaintiff’s own delay in waiting until November 21, 2012, the day
before a holiday, to deliver the notice of appeal to the mail room,
when it was required to be filed in the state court by November 23,
2012. The complaint indicates that even over the course of regular
business

days,

plaintiff’s

package,

which

was

postmarked

on

November 27th, did not arrive at the clerk’s office until November
29th.

Even

if

plaintiff’s

mail

had

been

processed

more

expeditiously in time to be mailed on November 23, 2012, the first

9

business day after the mail was tendered, the notice of appeal
still would have not reached the clerk’s office by the filing
deadline.
In his objections, plaintiff argues that the complaint is
sufficient to allege intentional conduct.

Doc. 9, p. 6.

He

further alleges that the mail room has engaged in a pattern and
practice of delaying legal mail.
objections,

plaintiff

has

Doc. 9, p. 7.

submitted

additional

With his
grievances

concerning the mail room which he filed after the incident at issue
in this case, as well as the affidavits of other inmates.
No facts are alleged in the complaint which would support the
existence of a pattern or practice of intentional or even reckless
delay

in

processing

outgoing

inmate

mail.

The

additional

grievances and affidavits submitted by plaintiff were not included
with his complaint.

In any event, they also are insufficient to

indicate the existence of an intentional or reckless pattern or
practice of delaying outgoing legal mail.

Plaintiff’s subsequent

grievances shed no light on the reason for the delay in processing
the legal mail he submitted on November 21, 2012. The affidavit of
inmate Raymond Blair says nothing about mail.

The grievances of

inmate Anthony DeNoma concerning delays in outgoing mail were made
while he was incarcerated in another institution, the Southeastern
Correctional Institution, not CCI where plaintiff is incarcerated.
In some cases, DeNoma’s grievances were granted and the mail room
staff was given instructions on how to handle legal mail, which
contradicts plaintiff’s theory that defendants have encouraged a
pattern or practice of mishandling mail.
Austin

provided

a

rambling

affidavit

10

Inmate Raymond Dean

which

included

multiple

complaints, but did not address the timeliness of outgoing mail.
He alleged that the cashier’s office failed to include certain
documents in his outgoing legal mail envelope, but it is not clear
whether the cashier’s office or the prison library was responsible
for this omission.

Inmate Bryan Bates complained about incoming

mail which was not delivered to him because the address label did
not adequately identify the intended recipient.
materials

are

considered

in

determining

Even if these

the

sufficiency

of

plaintiff’s complaint, they fail to supply facts which would save
plaintiff’s

interference

with

access

to

court

claim.

The

magistrate judge correctly determined that plaintiff has failed to
state a claim for a violation of his access to courts by the
defendants.
The court also finds that plaintiff has failed to allege facts
sufficient to allege liability for the access to courts claim on
the

part

of

the

named

defendants.

As

indicated

above,

the

complaint does not identify which mail room or cashier’s office
employees processed his mail on this occasion.

With the exception

of Cashier Tondra Ogier, the defendants are high-level officials of
the ODRC, or occupy supervisory positions at CCI.

The only

apparent involvement of defendants Ogier, Free and Craft described
in the complaint and attached exhibits was that they decided the
various steps of plaintiff’s grievances regarding the delay in
processing his legal mail tendered on November 21, 2012.
Plaintiff alleges that the individual defendants are liable as
supervisors.

However, to assert constitutional claims against

individual government officials, “a plaintiff must plead that each
Government-official

defendant,

through

11

the

official’s

own

individual actions, has violated the Constitution,” and cannot rely
on a theory of respondeat superior or vicarious liability.
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). In order to establish
supervisory liability under §1983, the plaintiff must prove that
the

defendant,

responsible

for

as
or

a

supervisory
actively

official,

participated

was
in,

personally
the

alleged

unconstitutional actions that caused his injury. Grinter, 532 F.3d
at 575. The complaint contains no facts indicating that any of the
named defendants had any personal involvement in the handling of
plaintiff’s mail, or that they encouraged in any way the actions of
the persons who did process the mail.

The mere fact that an

individual defendant denied an inmate’s grievance is not sufficient
to establish supervisory liability.

Id. at 576.

Plaintiff’s

complaint fails to state a claim for a violation of his right to
access to courts.
B. Due Process and Equal Protection Claims
Plaintiff has also alleged that his due process and equal
protection rights were violated.

These allegations concern the

dismissal of his appeal by the Ohio court of appeals.

Plaintiff

cites the prison mailbox rule, which was first announced by the
Supreme Court in Houston v. Lack, 487 U.S. 270 (1988), and later
incorporated in Fed. R. App. P. 4(c).

That rule provides that the

filing of a legal document by a prison inmate is deemed to be
timely if it is delivered to the institution’s internal mail system
on or before the last day for filing.

Plaintiff requests that the

Ohio courts be ordered to apply the prison mailbox rule and to
permit plaintiff to pursue his appeal.
The complaint is devoid of any factual allegations describing

12

how any of the named defendants deprived plaintiff of due process
or violated his equal protection rights. The named defendants were
not responsible for providing him with the process due him in his
appeal.

No facts are alleged that the named defendants have any

control over the application of the prison mailbox rule or the
enforcement of filing deadlines by the Ohio courts.
courts are not parties to this action.

The Ohio

In any event, plaintiff’s

prison mailbox claim fails to state a claim for relief.

The Equal

Protection Clause requires that similarly situated persons be
treated equally by a state.
(6th Cir. 2005).

Jackson v. Jamrog, 411 F.3d 615, 618

In Ohio, all litigants are required to comply

with the time requirements for filing a notice of appeal.

Non-

incarcerated litigants who use the postal system to send court
documents also risk missing filing deadlines if they do not time
the mailing of their legal documents with potential mail delays in
mind.

Plaintiff is not requesting equal treatment; rather, he is

requesting a more lenient rule for prison inmates.

In addition,

courts have concluded that Houston’s prison mailbox rule was not
based

on

constitutional

requirements,

but

rather

on

an

interpretation of the word “filed” in the federal rule and statute
governing the timeliness of notices of appeal.

See Longenett v.

Krusing, 322 F.3d 758, 768 (3d Cir. 2003); Jenkins v. Burtzloff, 69
F.3d 460, 461 (10th Cir. 1995).

The Third Circuit has also held

that federal courts lack the authority and jurisdiction to order
state courts to create a state prison mailbox rule. See Flowers v.
Phelps, 514 F.App’x 100, 103-04 (3d Cir. 2013)(any cognizable
challenge to Delaware Supreme Court’s ruling that prison mailbox
rule did not apply in that state must be filed in Delaware’s state

13

courts).
Plaintiff’s complaint fails to state a cognizable due process
or equal protection claim, or a cognizable claim for injunctive
relief concerning the application of the prison mailbox rule by
Ohio courts.
C. Retaliation
Plaintiff also alleges that after his complaints about the
mishandling of his legal mail, he was placed in segregation “to
keep him quiet and as an act of [r]etaliation.”

Complaint, ¶ 16.

He requests that this court enjoin defendants from retaliating
against

him

for

filing

the

instant

action.

However,

the

retaliation claim is not properly before the court because no facts
are

alleged

indicating

that

plaintiff

administrative remedies as to that claim.

has

exhausted

his

A prisoner must exhaust

the prison’s administrative remedies offered through the prison
grievance procedure before filing a claim under §1983.

42 U.S.C.

§1997e(a); Cook v. Caruso, 531 F.App’x 554, 561 (6th Cir. 2013).
Plaintiff’s retaliation allegations fail to state a claim for which
relief may be granted.
III. Conclusion
Having reviewed the report and recommendation and plaintiff’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that plaintiff’s objections are without merit. For
the foregoing reasons, the court overrules plaintiff’s objections
(Doc. 9), and adopts the magistrate judge’s January 10, 2014,
report

and

recommendation

(Doc.

5).

This

action

is

hereby

dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to
state a claim for which relief may be granted.

14

The clerk shall

enter judgement dismissing this case.

Plaintiff’s motion for

appointment of counsel (Doc. 2) is denied as moot.

Date: March 10, 2014

s/James L. Graham
James L. Graham
United States District Judge

15