Heidenescher v. Mohr et al

Filing 7

ORDER adopting Report and Recommendations re 4 Report and Recommendations.. Signed by Judge James L Graham on 5/30/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Edward D. Heidenescher,
Plaintiff,
v.

Case No. 2:14-cv-344

Gary Mohr, et al.,
Defendants.
ORDER
This is an action under 42 U.S.C. § 1983 brought by Edward D.
Heidenescher,

a

state

inmate

incarcerated

at

North

Central

Correctional Institution, a prison in Marion County, Ohio, against
Ohio

Governor

John

Kasich,

Gary

Mohr,

Director

of

the

Ohio

Department of Rehabilitation and Correction, and other prison
employees. Plaintiff alleges that his property and person were not
protected from theft, threats and assault by other inmates, that he
was denied proper medical treatment, and that he was subjected to
inhumane conditions of confinement, including unsanitary conditions
and cold food.

He alleges that inmates stole items purchased from

the prison commissary from his locker, and that defendants Shuller
and White refused to reimburse him for the theft with money or
other commissary items. He alleges generally that he was subjected
to cruel and unusual punishment, and was denied due process, equal
access, and equal protection.
On May 9, 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 against
defendants Kasich and Mohr, and recommended that they be dismissed
from this action.

See Doc. 4, pp. 5-7.

The magistrate judge

further noted that insofar as plaintiff sought monetary relief
against these defendants in their official capacities, those claims
were barred by the Eleventh Amendment.

Doc. 4, p. 6.

The

magistrate judge also concluded that because plaintiff’s remaining
claims concern acts which allegedly occurred in Marion County,
Ohio, and are asserted against defendants who reside in Marion
County, venue is not proper in the Southern District of Ohio. Doc.
4,

p.

6

(citing

28

U.S.C.

§

1391).

The

magistrate

judge

recommended that this action be transferred pursuant to 28 U.S.C.
§ 1406 or § 1404(a) to the United States District Court for the
Northern District of Ohio, Western Division at Toledo, which serves
Marion County.
This

Doc. 4, pp. 6-7.

matter

is

before

the

court

for

consideration

of

plaintiff’s objection (Doc. 6) to the magistrate judge’s report and
recommendation.
report

and

If a party objects within the allotted time to a

recommendation,

the

court

“shall

make

a

de

novo

determination of those portions of the report or specified proposed
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.”
U.S.C. § 636(b)(1).

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28

I. Standards of Review
As

the

requires sua

magistrate
sponte

judge

explained,

28

U.S.C.

§

1915(e)

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.
Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572 (6th

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

allegations will not suffice.

Id.

masquerading

Conclusory
as

factual

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.”

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

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544, 555, 570 (2007).

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. Plaintiff’s Claims Against Kasich and Mohr
Plaintiff objects to the recommendation of the magistrate
judge that defendants Kasich and Mohr be dismissed from this
action.

Although plaintiff has named Governor Kasich and Director

Mohr as defendants, the complaint fails to allege facts concerning
their involvement in the acts alleged in the complaint.

As to

Governor Kasich, plaintiff alleges in the complaint that Kasich was
“in full & individual capacity[] responsible.
unusual punishment.”

This was cruel and

In regard to Director Mohr, the complaint

contains no allegations other than to state that he is being named
as a defendant.
The magistrate judge correctly noted that to sufficiently
plead a violation under § 1983, plaintiff must allege “personal
involvement” because there is no respondeat superior liability
under § 1983.

Grinter, 532 F.3d at 575.

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[.]”
495 (6th Cir. 2009).

Everson v. Leis, 556 F.3d 484,

Plaintiff’s complaint contains no factual

allegations indicating that defendants Kasich and Mohr had any
involvement in the alleged violations of his constitutional rights.
In his objections to the report and recommendation, plaintiff
states that “after writing this suit” he complained to defendants
Kasich and Mohr “in regards to conditions[,] violations & fear for

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life & robbery” and that afterwards he was assaulted by other
inmates.

Doc. 6, p. 2.

However, § 1983 liability cannot be based

on mere knowledge or failure to act.

See Grinter, 532 F.3d at 576

(failure to act by prison officials does not subject supervisors to
liability); Ingram v. Jewell, 94 F.App’x 271, 273 (6th Cir.
2004)(allegations that defendants had knowledge of plaintiff’s
claims not sufficient for liability under § 1983; supervisory
liability must be based on active unconstitutional behavior, not on
the mere failure to act); Bass v. Robinson, 167 F.3d 1041, 1048
(6th Cir. 1999)(supervisory liability cannot be based on the mere
failure to act).

Plaintiff has included no additional factual

allegations in his objection which would indicate that defendants
Kasich and Mohr implicitly authorized, approved, or knowingly
acquiesced in any of the alleged unconstitutional conduct by other
prison employees.

This court agrees with the conclusion of the

magistrate judge that plaintiff’s complaint fails to state a claim
against defendants Kasich and Mohr.
Plaintiff has advanced no objection to the conclusion of the
magistrate judge that any claim for monetary damages against these
defendants would be barred by the Eleventh Amendment, see Mixon v.
State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999), and this court
agrees with that conclusion.

This court also notes that plaintiff

has not objected to the conclusion of the magistrate judge that
venue in this district is improper, or to the recommendation of the
magistrate judge that this action be transferred to the Northern
District of Ohio. Regardless of whether venue in this district was
proper at the time of filing, the court finds that a transfer of
this action to the Northern District of Ohio, be it under the

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authority of 28 U.S.C. § 1406(a) or 28 U.S.C. § 1404(a), is in the
interest of justice and appropriate for the convenience of the
parties and witnesses.
III. Conclusion
Having reviewed the report and recommendation and plaintiff’s
objection in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that plaintiff’s objection is without merit.

For

the foregoing reasons, the court overrules plaintiff’s objection
(Doc. 6), and adopts and affirms the magistrate judge’s May 9,
2014, report and recommendation (Doc. 4).

Plaintiff’s claims

against defendants Kasich and Mohr are 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.

Pursuant to 28 U.S.C. §§ 1404(a)

and/or 1406(a), this action is hereby transferred to the United
States District Court for the Northern District of Ohio, Western
Division at Toledo.

Date: May 30, 2014

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

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