Bennett v. Mohr et al

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by John Bennett. It is hereby RECOMMENDED that defendants Gary Mohr, Director of ODRC, Ed Voorhies, Operations Director of ODRC, David Bobby, Regional Director of ODRC, Denise L. Justice, Superint endent of OCSS, Gary Croft, Chief Inspector for ODRC, Robert D. Smith, Inst. Inspector for MaCI, Terry Chatman, DWSS for MaCI, K. Paine, DWOfor MaCI, James Rinehart, School Principle for MaCI, Major Grisham, Chief of Security for MaCI, First Shift Ca ptain Blake for MaCI, First Shift Cartain Morgan for MaCI. Second Shift Captain Straker for MaCI, Second Shift Captain Sims for MaCI be DISMISSED because the complaint fails to state a claim for relief against them under 42 U.S.C. §1983. It is FURTHER RECOMMENDED that this suit continue against defendants Jason Bunting and Thomas King - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 10/07/2014. (sr1)

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

:
Plaintiff

Gary Mohr, Director of ODRC, et al.,
Defendants

Civil Action 2:14-cv-1450

:

v.

:

Judge Smith

:

Magistrate Judge Abel

:

INITIAL SCREENING
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 initial screening of the complaint pursuant to
28 U.S.C. §1915A(a) and (b)1 and 42 U.S.C. §1997e(c) to identify cognizable claims, and to
1

The full text of §1915A reads:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for Dismissal.--On review the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or

dismiss the complaint, or any portion of it, which is frivolous, malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. Named as defendants are Gary Mohr, Director of ODRC, Ed
Voorhies, Operations Director of ODRC, David Bobby, Regional Director of ODRC, Denise
L. Justice, Superintendent of OCSS, Gary Croft, Chief Inspector for ODRC, Jason Bunting,
Warden for MaCI, Robert D. Smith, Inst. Inspector for MaCI, Terry Chatman, DWSS for
MaCI, K. Paine, DWO for MaCI, James Rinehart, School Principle for MaCI, Major Grisham, Chief of Security for MaCI, First Shift Captain Blake for MaCI, First Shift Cartain
Morgan for MaCI. Second Shift Captain Straker for MaCI, Second Shift Captain Sims for
MaCI, Thomas King, Inst. Librarian for MaCI. The Magistrate Judge finds that the complaint fails to state a claim upon which relief may be granted against all defendants except
King and MaCI Warden Jason Bunting, and therefore RECOMMENDS dismissal of the
complaint against them. The Magistrate Judge FURTHER RECOMMENDS at the initial
screening stage that the complaint states claims for relief against King and Bunting.
The complaint alleges that King repeatedly denied plaintiff Bennett access to the law
library, delayed his access to the law library, retaliated against him for the exercise of the

(2) seeks monetary relief from a defendant who
is immune from such relief.
(c) Definition.--As used in this section, the term
"prisoner" means any person incarcerated or detained in any
facility who is accused of, convicted of, sentence for, or
adjudicated delinquent for, violations of criminal law or
terms and conditions of parole, probation, pretrial release, or
diversionary program.
2

right of access to courts, created an unsafe/hostile environment, and ordered unreasonable
searches of King for other inmates’ legal work. Warden Jason Bunting is alleged to have
been aware of King’s unlawful conduct and to have condoned it. The allegations regarding
the remaining defendants either lack specificity or fail to allege a claim against them.
Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley v.
Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v. Pardus,
551 U.S. 89, 93 (2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Specific facts showing that the pleader is entitled to relief are not necessary; the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.' Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S.Ct. 1955 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Moreover, pro se complaints must be liberally construed. Erickson, 551 U.S. at 94; Hughes v.
Rowe, 449 U.S. 5, 9-10 (1980). Nonetheless, "a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Twombly, 550
U.S. at 570." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Analysis. The complaint fails to state claims for relief against defendants Mohr, Voorhies, Bobby, and Justice because it does not allege that they took any act to deprive King of
a constitutional right. The complaint alleges they were “bosses” ultimately responsible for
King’s alleged unconstitutional acts. 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);

3

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).
Defendant Croft ODRC’s Chief Inspector and Smith an MaCI Institutional Inspector
conducted grievance investigations and resolved King's grievances to his dissatifaction.
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).
Defendants Chatman, Faine, Rinehart, Major Grisham, Captain Blake, Captain Morgan, Captain Straker, and Captain Sims are alleged to have been at best peripherally involved in King’s alleged unlawful conduct. For example, the complaint alleges that defendant Faine allowed camp inmates (level one) to have library time at the same time as MaCI
inmates (level two). Even if the allegation were assumed to be actionable, it does not allege
that King suffered any cognizable injury as a result of Faine’s conduct.
Similarly, defendant Chatman is alleged to have been interviewed during a grievance investigation and to have given–in King’s view–inaccurate information to an investigator. Rinehart is alleged not to have staffed the library when King was not available to
open it. The complaint further alleges that Rinehart determined that inmates whose library
day fell on a holiday or who went to the library on a day there was an equipment malfunction could not get a make-up day. Neither allegation rises to the level of a constitutional
deprivation. The remaining defendants were even more peripherally involved in King's
4

alleged actionable conduct.
The complaint does allege actionable claims against defendants Bunting and King.
Prisoners have a right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821-24 (1977).
However, it is not enough to allege that defendants denied a prisoner access to legal
materials, the prisoner must show actual injury to be entitled to relief. Lewis v. Casey, 518
U.S. 343, 249-51 (1996). A complaint that merely alleges that the plaintiff was "prejudiced"
and fails to allege "any specific or concrete prejudice to his cause" fails to state a claim for
relief. Pilgrim v. Littlefield, 92 F.3d 413, 415-16 (6th Cir. 1996). See, Stanley v. Vining, 602 F.3d
767, 770 (6th Cir. 2010). In contrast, when the complaint alleges prejudice in a particular
case, such as dismissal of an appeal because late mailing of a prisoner's claim of appeal by
prison officials caused the it to be filed late, resulting in the dismissal of the appeal, it states
a claim for relief. Dorn v. Lafler, 601 F.3d 439, 444 (6th Cir. 2010). Here the complaint alleges
that King’s conduct, which was condoned by Bunting, caused plaintiff to hiss the statute of
limitations for filing a federal habeas corpus petition.
Accordingly, it is hereby RECOMMENDED that defendants Gary Mohr, Director of
ODRC, Ed Voorhies, Operations Director of ODRC, David Bobby, Regional Director of
ODRC, Denise L. Justice, Superintendent of OCSS, Gary Croft, Chief Inspector for ODRC, ,
Robert D. Smith, Inst. Inspector for MaCI, Terry Chatman, DWSS for MaCI, K. Paine, DWO
for MaCI, James Rinehart, School Principle for MaCI, Major Grisham, Chief of Security for
MaCI, First Shift Captain Blake for MaCI, First Shift Cartain Morgan for MaCI. Second Shift
Captain Straker for MaCI, Second Shift Captain Sims for MaCI be DISMISSED because the
complaint fails to state a claim for relief against them under 42 U.S.C. §1983. It is
5

FURTHER RECOMMENDED that this suit continue against defendants Jason Bunting
and Thomas King.
IT IS FURTHER ORDERED that the United States Marshal serve upon each
defendant named in part III, B and C of the form civil rights complaint a summons, a copy
of the complaint, and a copy of this Order. The defendants for whom this Report and
Recommendation recommend dismissal are not required to answer the complaint unless
later ordered to do so by the Court. Defendants Bunting and King are ORDERED to answer
or otherwise respond to the complaint within 45 days of being served with summons and
complaint.
The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney
General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus, OH
43215.
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. See 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b).
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). See also Small v.
Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge
6