Bennett v. Mohr et al

Filing 29

REPORT AND RECOMMENDATIONS: The Magistrate Judge RECOMMENDS that plaintiff John Bennetts 10/24/2014 motion for declaratory/injunctive relief (doc. 12) and his motion for a civil protection order/injunctions relief (doc. 13) be DENIED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 12/16/2014. (sr1)(This document has been sent by the Clerks Office 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
John Bennett,

:
Plaintiff

Defendants

Judge Smith

:

Gary Mohr, et al.,

Civil Action 2:14-cv-01450

:

v.

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff John Bennett, an inmate at the Marion Correctional Institution
("MaCI"),brings this prisoner civil rights action under 42 U.S.C. §1983 alleging that
defendant Thomas King, MaCI Librarian denied him access to the law library causing
his federal habeas corpus petition to be dismissed as untimely. This matter is before the
Magistrate Judge for a report and recommendation on plaintiff John Bennett’s October
24, 2014 motion for declaratory and injunctive relief (doc. 12) and his motion for a civil
protection order and injunctions relief (doc. 13).
Plaintiff Bennett argues that he is in need of an immediate protection order for
fear of retaliation such as transfer, placement in segregation, and interference from the
legal law clerk. Plaintiff maintains that defendant Jason Bunting, the Warden, allows
defendant Thomas King, the Institutional Librarian, to violates established policies,
rules and prison regulations, which adversely affected his ability to file his writ of
habeas corpus. He has been denied access to the word processor, legal research
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materials and the library. Plaintiff contends that the Warden has breached his duty of
care to him by failing to acting his grievances. Plaintiff alleges that defendant King
looked over his shoulder as he typed his writ of habeas corpus. Plaintiff also contends
that he received only two law passes in over a two-month period.
Plaintiff further alleges that he was placed in segregation when he refused
defendant King’s request to see the documents he was submitting to the court. Plaintiff
maintains that he has been subjected to “shake downs” in order to harass him. Plaintiff
argues that the Warden has refused to act in response to grievances regarding access to
the library.
In his motion for a civil protection order and injunctions relief (doc. 13) plaintiff
seeks an order preventing defendant from retaliating against and moving him to
another institution. Plaintiff is enrolled at the Marion Technical College, and he
maintains that if he is moved to another institution it will disrupt his program. A
transfer to another institution would impair his family’s ability to visit him.
Discussion. A district court must assess four factors in deciding whether to issue
a preliminary injunction: “(1) whether the plaintiff has established a substantial
likelihood or probability of success on the merits; (2) whether there is a threat of
irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be served by
granting injunctive relief.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.
2000). “The four considerations applicable to preliminary injunction decisions are

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factors to be balanced, not prerequisites that must be met.” Mich. Bell Tel. Co. v. Engler,
257 F.3d 587, 592 (6th Cir. 2001).
Plaintiff does not satisfy the requisites for a preliminary injunction because he
has not established a substantial likelihood or probability of success on the merits. To
establish liability under §1983, a plaintiff must plead and prove that a defendant is
personally responsible for the unconstitutional actions which injured him. Monell v.
New York City Dept. of Social Services, 436 U.S. 658, 694 (1978). Respondeat superior is not a
basis for liability. Polk Co. v. Dodson, 454 U.S. 313, 325 (1981); Rizzo v. Goode, 423 U.S.
362, 371 (1976). A supervisor is not liable unless the supervisor encouraged or
somehow participated in the actionable events. There is no liability under 42 U.S.C.
§1983 for “mere failure to act.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Furthermore, prison officials whose only roles “involve their denial of administrative
grievances and their failure to remedy the alleged retaliatory behavior” cannot be liable
under §1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); see also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984); Hays v. Jefferson County, 668 F.2d 869, 874 (6th
Cir. 1982).
Plaintiff has no constitutionally protected interest in remaining at the Marion
Correctional Center. See Montayne v. Haymes, 427 U.S. 236, 242-43 (1976); Meachum v.
Fano, 427 U.S. 215, 224-25 (1976). The transfer of an inmate from one correctional
institution to another is simply one of the “ordinary incidents of prison life.” Sandin v.
Connor, 515 U.S. 472, 483 (1995).

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Although plaintiff makes the conclusory allegation that defendants may retaliate
against for him for his exercising his constitutional rights and his filing this lawsuit, that
allegation is not supported by any facts from which the Court could conclude that
defendants have acted with an intent to retaliate rather than require plaintiff to follow
prison rules. Consequently, plaintiff has failed to demonstrate a likelihood that he will
succeed on the merits of his retaliation allegation.
For the reasons stated above, the Magistrate Judge RECOMMENDS that plaintiff
John Bennett’s October 24, 2014 motion for declaratory and injunctive relief (doc. 12)
and his motion for a civil protection order and injunctions relief (doc. 13) be DENIED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that 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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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