Johnson v. Mohr et al

Filing 11

ORDER adopting in part Report and Recommendations re 5 Report and Recommendations.. Signed by Judge James L Graham on 4/3/2015. (ds)(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
Frederick E. Johnson,
Plaintiff,
v.

Case No. 2:15-cv-86

Gary C. Mohr, et al.,
Defendants.
ORDER
Plaintiff, a state inmate, brings the instant action pursuant
to 42 U.S.C. §1983, asserting claims arising out of a prison
disciplinary proceeding against him while he was incarcerated at
the London Correctional Institution.

On February 11, 2015, 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.
(b)(1).

28 U.S.C. §1915A(a)-

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

matter

is

before

the

court

See Doc. 5, pp. 6-7.
for

consideration

of

plaintiff’s objections (Doc. 9) 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
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).
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

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).
Plaintiff has asserted claims against Gary C. Mohr, the
director of the Ohio Department of Rehabilitation and Correction
(“ODRC”);

Warden

Timmerman-Cooper,

the

warden

at

the

London

Correctional Institution; Mathew Chrisler, an investigator at the

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institution; Lt. Sabulski, chairman of the institution’s Rules
Infraction Board (“RIB”); Jane Doe, an RIB secretary; and Brian
Wittrup, chief of ODRC’s Bureau of Classification.

Plaintiff

alleges

a

in

his

complaint

that

he

was

charged

in

prison

disciplinary proceeding with raping another inmate. He claims that
Chrisler filed a false conduct report.

He further claims that he

was denied procedural due process during his disciplinary hearing
by Sabulski and Doe, including the denial of the opportunity to
call witnesses.

Plaintiff also alleges that he was denied due

process during his appeal by Timmerman-Cooper, who did not allow
him to review camera footage or to take a lie detector test.

He

further contends that Timmerman-Cooper got upset and denied his
appeal, and that she had the staff destroy all of plaintiff’s
property in retaliation. Plaintiff asserts that as a result of the
disciplinary proceedings, he was transferred to a maximum security
segregation unit within the prison, and that he was incarcerated in
maximum security for over a year.
Wittrup

has

refused

to

lower

Plaintiff contends that Chief

his

security

level.

Finally,

plaintiff alleges that Director Mohr should be held liable as the
supervisor of the other defendants.
The magistrate judge correctly concluded that plaintiff’s due
process claims concerning the prison disciplinary proceeding fail
to state a claim for relief.

The Fourteenth Amendment’s Due

Process Clause protects persons against deprivations of life,
liberty, or property, and those who seek to invoke its procedural
protection must establish that one of these interests is at stake.
Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

In his objections,

plaintiff reiterates his complaints concerning the disciplinary

3

hearing and his allegations that the defendants brought false
charges against him, failed to follow prison regulations at the
hearing, and denied him a fair hearing.

However, prisoners have

narrower liberty interests than other citizens.
at 573.

Grinter, 532 F.3d

“Discipline by prison officials in response to a wide

range of misconduct falls within the expected perimeters of the
sentence imposed by a court of law.”

Sandin v. Conner, 515 U.S.

472, 485 (1995). A prisoner has no constitutional right to be free
from false accusations of misconduct.
F.App’x 131, 132 (6th Cir. 2003).

Jackson v. Hamlin, 61

The failure of prison officials

to follow proper procedures is also insufficient to establish an
infringement of a liberty interest under the Due Process Clause.
Grinter, 532 F.3d at 574, 576 (citing Olim v. Wakinekona, 461 U.S.
238, 250 (1983)).
Plaintiff alleges in his complaint that he was placed in
maximum

security

segregation

disciplinary investigation.

pending

the

Doc. 1, p. 5.

completion

of

the

He further contends

that Wittrup changed his security level from minimum security to
maximum security, and that he had been in maximum security for over
a year.
that

he

Doc. 1, pp. 18-19.
was

held

in

Plaintiff clarifies in his objections

isolation

at

the

London

Correctional

Institution from July 17, 2013, to November 24, 2013, and was then
transferred to the Southern Ohio Correctional Facility, a maximum
security facility in Lucasville, Ohio, where he was held for
thirteen months.

Doc. 9, p. 9-11.

In Sandin, the Supreme Court held that liberty interests “will
be generally limited to freedom from restraint which ... imposes
atypical and significant hardship on the inmate in relation to the

4

ordinary incidents of prison life.” The Constitution does not give
rise to a liberty interest in avoiding transfer to more adverse
conditions of confinement.

Wilkinson, 545 U.S. at 221.

Plaintiff

had no liberty interest arising from the Due Process Clause which
would prevent his transfer from a low security facility to a
maximum security prison because “[c]onfinement in any of the
State’s institutions is within the normal limits or range of
custody which the conviction has authorized the State to impose”.
Meachum v. Fano, 427 U.S. 215, 225 (1976).

Likewise, an increase

in security classification does not constitute an atypical and
significant hardship in relation to the ordinary incidents of
prison life because a prisoner has no constitutional right to
remain incarcerated in a particular prison or to be held in a
specific security classification.

Harbin-Bey v. Rutter, 420 F.3d

571, 577 (6th Cir. 2005).
Plaintiff’s placement in administrative segregation pending
the outcome of his disciplinary hearing did not infringe on a
liberty interest.

See Sandin, 515 U.S. at 486 (“discipline in

segregated confinement did not present the type of atypical,
significant deprivation in which a State might conceivably create
a liberty interest”).

Plaintiff contends in his objections that

the prison recreation times at the London Correctional Institution
were from 6:00 a.m. to 10:30 a.m., 11:00 a.m. to 3:30 p.m. and 4:30
p.m. to 9:00 p.m.

Doc. 9, p. 18.

He alleges that when he was in

segregation and in the maximum security facility, he was on lockdown for twenty-three hours per day, with only one hour permitted
for recreation.

Doc. 9, p. 19.

This information is insufficient

to show that the conditions of plaintiff’s confinement posed an

5

atypical or significant hardship.

See Bradley v. Evans, 229 F.3d

1150

at

(table),

2000

WL

1277229

*5-7

(6th

Cir.

Aug.

23,

2000)(prisoner who was held in administrative segregation for
fourteen months as a disciplinary measure had not shown that he was
subjected to an atypical or significant hardship); see also Sandin,
515 U.S. at 486 (noting that inmates in the general population also
experienced significant amounts of lockdown time, and that the
degree

of

confinement

in

disciplinary

segregation

was

not

excessive).
Plaintiff also alleges in his objections that his release date
was extended thirty-six months by the parole board due to the
findings in his disciplinary proceeding.

However, a liberty

interest may be created on behalf of an inmate only where the
state’s

action

sentence.”

“will

inevitably

affect

Sandin, 515 U.S. at 487.

the

duration

of

his

Findings of misconduct, even

findings that could lengthen a prison sentence, do not implicate a
protected liberty interest so long as the parole board retains
discretion

to

considerations.

release

a

prisoner

based

on

a

myriad

of

Nali v. Ekman, 355 F.App’x 909, 912 (6th Cir.

2009)(citing Sandin, 515 U.S. at 487).

Where an inmate has no

substantive liberty interest in parole, the procedures used to deny
him parole cannot be challenged.

Settle v. Tennessee Dep’t of

Correction, 487 F.App’x 290, 290-91 (6th Cir. 2012).
Ohio

law

does

not

create

eligibility or release on parole.

a

liberty

interest

in

parole

Jergens v. State of Ohio Dep’t

of Rehabilitation and Corrections Adult Parole Authority, 492
F.App’x 567, 570 (6th Cir. 2012)(citing Michael v. Ghee, 498 F.3d
372, 378 (6th Cir. 2007)).

Ohio has a completely discretionary

6

parole system, see

Michael, 498 F.3d at 378, and the parole board

considers a lengthy list of factors in deciding whether to release
an inmate on parole, see Ohio Admin. Code §5120:1-1-07.
inmate’s

eligibility

for

parole

at

a

certain

time

An

under

a

discretionary parole system is not an “atypical and significant
hardship” and does not implicate a liberty interest.

Michael, 498

F.3d at 378.
Finally,

to

the

extent

that

plaintiff

seeks

to

impose

liability on Director Mohr or other defendants based solely on
their supervisory roles, the court notes that §1983 liability
cannot be imposed under a theory of respondeat superior; rather,
proof of personal involvement is required to hold a supervisor
liable.

Grinter,

administrative

532

F.3d

grievances

or

at
the

575.

The

failure

mere
to

denial

of

intervene

by

overturning a disciplinary finding does not subject supervisors to
liability under §1983.

Id. at 576.

The court concludes that plaintiff’s due process claim fails
to state a claim for which relief may be granted, and plaintiff’s
objections regarding his due process claims are denied.
The court notes, however, that plaintiff has also asserted a
First Amendment retaliation claim against Warden Timmerman-Cooper
for the destruction of his property in retaliation for pursuing an
appeal

of

the

disciplinary

hearing.

That

specifically addressed by the magistrate judge.

claim

was

not

To state a First

Amendment claim for retaliation, plaintiff must allege that: (1) he
engaged in protected conduct; (2) an adverse action was taken
against him, and (3) there is a causal connection between the first
and second elements, i.e., that the adverse action was motivated at

7

least in part by the protected conduct.
F.3d 944, 948 (6th Cir. 2013).
constitute an adverse action.
Plaintiff

has

not

defendant

other

alleged

than

The destruction of property can
LaFountain, 716 F.3d at 948-949.

sufficient

Warden

LaFountain v. Harry, 716

facts

Timmerman-Cooper

destruction of his property.

to

implicate

in

the

any

alleged

However, plaintiff may proceed

against Warden Timmerman-Cooper on his First Amendment retaliation
claim.
In

accordance

with

the

foregoing,

the

report

and

recommendation (Doc. 5) is adopted in part. Plaintiff’s claims are
dismissed

with

the

exception

of

plaintiff’s

First

Amendment

retaliation claim against Warden Timmerman-Cooper alleging the
destruction of his personal property, which will be allowed to
proceed.

Defendants Mohr, Chrisler, Sabulski, Jane Doe, and

Wittrup are dismissed as parties.

Plaintiff’s objections (Doc. 9)

are denied in part, and granted in part solely with respect to the
retaliation claim against Warden Timmerman-Cooper.

The United

States Marshal’s Service is directed to complete service of the
complaint on Warden Timmerman-Cooper.

Date: April 3, 2015

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

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