Dehler v. Mohr et al

Filing 16

REPORT AND RECOMMENDATION AND ORDER: It is recommended that the motion to dismiss (Doc. 12) be granted. The motion for a ruling (Doc. 15) is denied as moot - obejctions due w/in fourteen (14) days of the date of this Report. Signed by Magistrate Judge Terence P. Kemp on 08/14/2015. (sr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-614

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Gary C. Mohr, et al.,
Defendants.

:

REPORT AND RECOMMENDATION AND ORDER
Lambert Dehler, an inmate at the Grafton Correctional
Institution, filed this action under 42 U.S.C. §1983 against Gary
Mohr and Warden Wanza Jackson alleging violations of his First,
Eighth, and Fourteenth Amendment rights.

By order dated November

25, 2014, Mr. Dehler’s claims against Warden Jackson were
dismissed without prejudice under Fed.R.Civ.P. 41(a)(1),
following defendants’ filing of a motion to sever and Mr.
Dehler’s filing of a notice that he voluntarily severed his
claims against Warden Jackson and had filed a new action (Case
No. 2:14-cv-2099).

The remaining claims against Director Mohr

relate to a power outage at GCI during July, 2013.

Director Mohr

has moved to dismiss these claims and the motion has been fully
briefed.

For the following reasons, the Court will recommend

that the motion to dismiss be granted.
I.

Background

Mr. Dehler’s complaint alleges the following.

In January,

2013, Director Mohr enrolled the Ohio Department of
Rehabilitation and Correction in an electricity conservation
program known as the “Demand Response Program.”

This program

allows for the reduction of electricity usage in response to
electric grid emergencies.

According to an exhibit attached to

Mr. Dehler’s complaint, when PJM, the largest grid operator in
North America, calls an “event” it means that a “brown out” could
potentially occur.

When PJM makes such a call, businesses

enrolled in the program reduce certain electric usage.
On July 15, 2013, from approximately 4:00 p.m. to 6:30 p.m.,
the power was turned off at GCI.

On July 16, 2015, the power was

turned off from approximately 1:00 p.m to 5:30 p.m.

Mr. Dehler

asserts that during these outages he was forced to remain locked
in his cell without a fan or ice while temperatures exceeded 100
degrees.

He states that he is an elderly inmate and that these

incidents of overheating caused him to suffer severe stress and
endure pain and suffering in violation of his Eighth Amendment
rights.

He also contends that his Fourteenth Amendment right to

equal protection of the law was violated when Mr. Mohr allowed
the power to be turned off at GCI but allowed the power to remain
on at other nearby Ohio prisons.
II.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded
factual allegations must be taken as true and be construed most
favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009). Rule 8(a) admonishes the Court to look only for a “short
and plain statement of the claim,” however, rather than requiring
the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89
(2007).
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The
merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
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Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction
with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." 5A Wright &
Miller, Federal Practice and Procedure § 1356 (1990). The moving
party is entitled to relief only when the complaint fails to meet
this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). "In practice, a complaint must contain either direct
or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory." Id.
(emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. It is with these standards in mind that the motion to dismiss
will be decided.
III.

Analysis

In his motion to dismiss Director Mohr contends that Mr.
Dehler fails to state an Eighth Amendment claim because he cannot
satisfy either the objective or subjective component of such a
claim.

With respect to the objective component, Director Mohr

relies on Bomer v. Lavigne, 101 Fed.Appx. 91 (6th Cir. 2004), a
case in which the Court of Appeals upheld the dismissal of an
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inmate-plaintiff’s claim similar to Mr. Dehler’s, characterizing
a three-day power outage as a “brief inconvenience.”

With

respect to the subjective component, Director Mohr contends that
Mr. Dehler does not allege his personal involvement in the
decision to shut off power nor does he provide any facts to
suggest that Director Mohr acted wantonly in enrolling the ODRC
in the Demand Reduction Program.

Further, by footnote, Director

Mohr states that, in Bomer, the Court of Appeals also upheld the
dismissal of an equal protection claim because the plaintiff had
not alleged that he was intentionally treated differently from
other inmates.
In response, Mr. Dehler contends that, although he is unable
to access the GCI law library to read the case, from his reading
of Director Mohr’s brief, Bomer is easily distinguishable because
its circumstances did not involve a voluntary power outage.
Further, he argues that Bomer recognizes that an equal protection
claim relating to a power outage is cognizable.

Additionally, he

contends that the exhibits to his complaint demonstrate that
Director Mohr’s “Office was responsible for turning off the power
to GCI.”

Finally, he cites to several cases where he contends

that courts have found that conditions of extreme heat violate an
inmate’s Eighth Amendment rights.
In reply, Director Mohr asserts that none of the cases Mr.
Dehler relies on are controlling because they predate the series
of United States Supreme Court cases that refined the governing
Eighth Amendment analysis by clearly establishing the parameters
of the objective and subjective components.
reiterates that Bomer controls here.

Director Mohr

Finally, he notes that,

under Rhodes v. Chapman, 452 U.S. 337 (1981), restrictive or
harsh conditions are part of prison life.
To establish an Eighth Amendment violation, in the context
of conditions of confinement, a plaintiff must demonstrate one of
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two alternatives; he must show either that he was incarcerated
under conditions posing a substantial risk of serious physical
harm or that he was deprived of the minimal civilized measure of
life necessities.

See Farmer v. Brennan, 511 U.S. 825, 834

(1970); Wilson v. Seiter, 501 U.S. 294, 298 (1991); Rhoades v.
Chapman, 452 U.S. 337, 347 (1981).
For all Eighth Amendment claims, there is a subjective and
an objective component.

Objectively, the prison conditions must

be “serious” as opposed to “trivial,” “minor,” or
“insubstantial.”

Subjectively, the defendant accused of

violating the Eighth Amendment must have acted with a state of
mind that can accurately be described as “deliberate
indifference.”

Both of these components require further

explanation.
It is not always easy to distinguish between serious
inhumane prison conditions and those which are not sufficiently
substantial to implicate the constitutional prohibition against
cruel and unusual punishment.

The facts concerning the

seriousness of a prison’s condition are often in dispute.

In

evaluating such claims, there is no definitive test that courts
can use to decide if conditions are objectively cruel and unjust.
Rather courts should look to “evolving standards of decency” to
determine if certain conditions are serious enough to pose a
substantial risk of harm or deprive an inmate of minimal life
necessities.

See Trop v, Dulles, 356 U.S. 86, 101 (1958)

(plurality opinion).

Furthermore, conditions of confinement are

permitted to be “restrictive and even harsh, [because] they are
part of the penalty that criminal offenders pay for their
offenses against society” as long as they are not objectively
considered cruel and unusual under contemporary standards.

See

Rhoades, 452 U.S. at 347.
As to the second component, in Farmer v. Brennan, 511 U.S.
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825, 839 (1994), the Supreme Court adopted “subjective
recklessness as used in criminal law” as the appropriate
definition for deliberate indifference. It held that“a prison
official cannot be held liable under the Eighth Amendment for
denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate
health or safety. . .”

Id. at 837.

Officials must be aware of

facts from which they could conclude that a substantial risk
exists and must actually draw that conclusion. Id.

Prison

officials who know of a substantial risk to the health or safety
of an inmate are free from liability if “they responded
reasonably to the risk, even if the harm ultimately was not
averted.”

Id.

Because an Eighth Amendment claim must be based

on deliberate indifference, mere negligence by a prison official
with respect to prison conditions is not actionable under 42
U.S.C. §1983.
The Court agrees with Director Mohr that Bomer applies here
and will recommend that the motion to dismiss be granted as to
this claim.

In Bomer, the Court of Appeals agreed with the

district court that a three-day power outage did not constitute
cruel and unusual punishment.

Mr. Dehler’s complaint alleges

only a seven-hour outage over the course of two consecutive days.
These allegations fall far short of the length of an outage the
Court of Appeals characterized as merely a “brief inconvenience”
and suggest, at most, ordinary discomfort.

Further, as the

plaintiff in Bomer, Mr. Dehler has not alleged harm as a result
of the power outage beyond conclusory statements that he suffered
“stress” and endured “pain and suffering.”

As a result, Mr.

Dehler is unable to satisfy the objective component of an Eighth
Amendment claim.
Additionally, Mr. Dehler’s complaint does not contain any
allegations suggesting that Director Mohr exhibited deliberate
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indifference in enrolling the ODRC in an electricity conservation
program.

Consequently, he has failed to establish the subjective

component of an Eighth Amendment claim.
Similarly, Mr. Dehler has not stated an equal protection
claim.

“Disparate treatment is an inherent initial requirement

of an equal protection violation.”

Lothes v. Butler County

Juvenile Rehabilitation Center, 243 Fed.Appx. 950, 956 (6th Cir.
July 5, 2007).

However, “[d]isparate treatment does not arise

from any and all differences in treatment; it occurs only where
the offending party ‘treats some people less favorably than
others because of their race, color, religion, sex, or national
origin.’”

Cmtys. for Equity v. Mich. High Sch. Athletic Ass’n,

459 F.3d 676, 680 (6th Cir. 2006), quoting Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977).

Mr.

Dehler has not alleged that he is a member of a suspect class and
“prisoners confined to a particular correctional institution are
not the type of ‘discrete and insular’ minorities that the Equal
Protection Clause was designed to protect.”
2011 WL 63595 (S.D. Ohio Jan. 6, 2011).

Brown v. Blackwell,

Moreover, as explained

above, he cannot state a claim for a deprivation of any
fundamental right by Director Mohr’s conduct.

Consequently, it

will be recommended that the motion to dismiss be granted as to
this claim.
Finally, Mr. Dehler’s motion for a ruling on the motion to
dismiss will be denied as moot.
IV.

Recommendation and Order

For the reasons stated above, it is recommended that the
motion to dismiss (Doc. 12) be granted.

The motion for a ruling

(Doc. 15) is denied as moot and shall be removed from the Court’s
pending motions list.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
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party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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