Horn v. Hunt
REPORT AND RECOMMENDATION that 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted in part and denied in part. Objections to R&R due by 10/26/2015), ORDER that 16 Motion to Strike is granted in part to the extent that it seeks to have three inmate declarations stricken from the exhibit attached to plaintiffs response. Signed by Magistrate Judge Terence P. Kemp on 10/8/2015. (agm)(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
Case No. 2:15-cv-220
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Charles Horn, an inmate at the Correctional
Reception Center, filed this action under 42 U.S.C. §1983 arising
from an alleged incident on October 1, 2014, involving defendant
Mr. Hunt has filed a motion to dismiss and the motion
has been fully briefed.
For the following reasons, the Court
will recommend that the motion to dismiss be granted in part and
denied in part.
Mr. Horn’s complaint, in its entirety, contains the
following factual allegations, restated verbatim as follows:
On 10-01-14 Petitioner was involved in a verbal
dispute with Defendant.
The dispute was due to the fact that Defendant
would not wear gloves while handling exposed food.
Defendant told Plaintiff that he did not have to
wear gloves, that he was not going to wear any,
and that he did not have to follow the policies of
the Ohio Department of Rehabilitation &
Plaintiff informed Defendant that he was going to
file a complaint against him for handling the food
with no gloves.
Thereafter, several inmates approached Plaintiff
and informed him that Defendant was in the prison
kitchen telling inmates and staff members that
Plaintiff was a snitch.
Shortly thereafter, Plaintiff was involved in a
fight with an inmate. The inmate warned Plaintiff
that if he continued to snitch on Defendant that
there were going to be more problems coming his
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).
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.
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
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).
merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
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
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).
party is entitled to relief only when the complaint fails to meet
this liberal standard.
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
"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."
(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.
Mr. Hunt has moved to dismiss the complaint on several
grounds, including lack of standing, failure to exhaust
administrative remedies, failure to allege a constitutional
violation, and failure to allege that he acted under color of
In response, Mr. Horn provides somewhat more insight into
the nature of his claims.
First, Mr. Horn explains that he has
set forth a First Amendment retaliation claim based on Mr. Hunt’s
labeling him a snitch.
He contends that courts have recognized
both that a prisoner’s verbal complaints may constitute protected
conduct and that labeling a prisoner as a snitch may deter an
inmate from making a complaint.
Additionally, he argues that he
has stated an Eight Amendment claim because Mr. Hunt’s labeling
him a snitch may result in attacks against him from other
prisoners violating his right to be free from cruel and unusual
He claims that he was involved in a “physical
altercation” with another inmate who warned him that “more
problems would come his way” if he continued to snitch on Hunt.
He explains that he did not report this altercation for fear of
Mr. Horn also asserts that Mr. Hunt is a state
actor under the public function test.
Finally, he claims that he
has exhausted his available administrative remedies.
has attached four exhibits to his response, including three
declarations from other inmates and a copy of his informal
complaint resolution form.
In reply, Mr. Hunt argues that Mr. Horn’s response is
untimely and should therefore be stricken.
Further, he notes
that the exhibits attached to Mr. Horn’s response cannot properly
be considered by the Court in ruling on the motion to dismiss
because they are matters outside the complaint.
Mr. Hunt also
raises this issue in a separate motion to strike directed to the
exhibits attached to Mr. Horn’s response.
Beyond this, Mr. Hunt
reiterates the arguments of his original motion with additional
discussion directed to Mr. Horn’s failure to state a First or
Eighth Amendment claim.
Finally, Mr. Hunt contends that Mr.
Horn’s claim for compensatory damages must be dismissed for
failure to allege physical injury in connection with his Eighth
Lack of Standing
Mr. Hunt’s primary argument is that Mr. Horn lacks standing
to pursue his claims.
To meet the minimum constitutional
standards for standing under Article III, Mr. Horn must show that
(1) he has suffered an injury in fact; (2) the injury is fairly
traceable to Mr. Hunt’s action; and (3) it is likely that the
injury will be redressed by a favorable decision.
Jefferson Cty. Bd. Of School Comm’rs, 641 F.3d 197, 206 (6th Cir.
The focus of Mr. Hunt’s argument is that Mr. Horn has not
alleged any actual injury.
As Mr. Hunt sees it, Mr. Horn was not
injured by Mr. Hunt’s food handling and Mr. Horn’s allegedly
being labeled a snitch is not an injury sufficient to confer
Mr. Hunt argues that because Mr. Horn has not alleged
“any physical injury as a direct result of Mr. Hunt’s alleged
comments,” he has not alleged an injury at all.
then, Mr. Hunt asserts, Mr. Horn cannot demonstrate causation or
seek redress for a non-existent injury.
As explained in more detail below, one of Mr. Horn’s claims
is that Mr. Hunt retaliated against him for the exercise of his
First Amendment rights.
“[D]eprivations of First Amendment
rights are themselves injuries, apart from any mental, emotional,
or physical injury that might also arise from the
King v. Zamiara, 788 F.3d 207, 212 (6th Cir.
2015); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
Cir. 1999) (“retaliation for the exercise of constitutional
rights is itself a violation of the Constitution”).
deprivation is traceable directly to Mr. Hunt and it is possible
that Mr. Horn could achieve redress were this case to be
ultimately resolved in his favor.
See id. at 213.
the Court will not recommend that the motion to dismiss be
granted on the ground that Mr. Horn lacks standing.
same reasons, the Court finds unavailing Mr. Hunt’s argument in
support of dismissal that Mr. Horn is not entitled to
Failure to Exhaust Administrative Remedies
Next, Mr. Hunt contends that Mr. Horn has not exhausted his
administrative remedies and, therefore, the complaint must be
Before addressing the issue of exhaustion as raised
by Mr. Hunt, however, the Court will address briefly the motion
Mr. Horn seeks to have Doc. 12-1, attached to Mr. Horn’s
Although Doc. 12-1 is reflected on the
docket as one exhibit, a review of this filing indicate Mr.
Horn’s identification of four separate exhibits.
include three inmate declarations and an informal complaint form.
The focus of Mr. Hunt’s argument in his motion to strike seems to
be limited to the three declarations.
When considering a motion
to dismiss, the Court generally is limited to a review of the
matters set forth in the pleadings.
Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Consequently, the Court will grant the motion to strike as it
relates to the three inmate declarations.
The grievance form, however, relates to the issue of Mr.
Horn’s failure to exhaust.
From the language of the motion to
strike, Mr. Hunt does not suggest that he is seeking to foreclose
Mr. Horn’s attempt to demonstrate exhaustion.
motion to strike will be denied to the extent it could be
construed as relating to the informal complaint form.
Turning directly to the issue of exhaustion, the Prison
Litigation Reform Act (PLRA) provides that “[n]o action shall be
brought with respect to prison conditions under [42 U.S.C. 1983]
or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.”
42 U.S.C. 1997e(a).
However, the Supreme Court held “that failure to exhaust is an
affirmative defense under the PLRA, and that inmates are not
required to specially plead or demonstrate exhaustion in their
Jones v. Bock, 549 U.S. 199, 216 (2007); see also
Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015)(“exhaustion is a
non-jurisdictional affirmative defense”).
plaintiff’s complaint is only subject to dismissal for failure to
exhaust if the allegations of the complaint demonstrate a failure
to exhaust that would bar the requested relief.
Jones, at 215.
Here, Mr. Hunt argues initially that Mr. Horn neither
alleged exhaustion in his complaint nor attached copies of any
dispositive decision related to his administrative remedies.
Because failure to exhaust is an affirmative defense, Mr. Horn
was not required to plead the steps he took to exhaust his
However, in response to
Mr. Hunt’s motion, Mr. Horn provided a copy of an informal
complaint resolution form indicating the nature of his complaint
and the response thereto.
He also states in his response that he
requested a grievance form when he was dissatisfied with the
action taken on his complaint.
He explains that he requested the
grievance form by way of kites sent to the inspector of
institutional services but the inspector did not respond to the
He further explains that there is no procedure to
address an institutional inspector’s failure to provide a
grievance form, so that the failure of the inspector to provide
the requested grievance forms has resulted in the exhaustion of
his available remedies.
In reply, Mr. Hunt contends that this
information demonstrates that Mr. Horn has not exhausted his
The prison grievance procedure is codified at Ohio
Administrative Code 5120-9-31.
Specifically, relevant to the
circumstances here is OAC 5120-9-31(K)(2) which states, in part,
The filing of the notification of grievance - step
If the inmate is dissatisfied with the informal
complaint response, or the informal complaint process
has been waived, the inmate may obtain a notification
of grievance form from the inspector of institutional
The PLRA requires only the exhaustion of administrative
remedies as are available.
The PLRA’s “use of the phrase ‘as are
available’ implies that if the prison has taken action to make
its administrative remedies unavailable, the prisoner has no
obligation to pursue them.”
Brown v. Blackwell, 2011 WL 63595,
*2 (S.D. Ohio Jan. 6, 2011).
“‘When a prisoner makes affirmative
efforts to comply with the administrative grievance process but
does not succeed,’ the Court ‘analyzes whether those ‘efforts to
exhaust were sufficient under the circumstances.’” Gossard v.
Warden, Madison Correctional Institution, 2015 WL 4514647, *3
(S.D. Ohio July 24, 2015), quoting Risher v. Lappin, 639 F.3d
236, 240 (6th Cir. 2011).
As the Court explained in Gossard,
“where the plaintiff alleges that he was denied access to a
required grievance form, he need not have requested the required
form from another source.”
Id., citing Peterson v. Cooper, 463
Fed.Appx. 528, 530 (6th Cir. 2012).
Here, Mr. Horn argues that further administrative remedies
were not available to him because the institutional inspector did
not provide the requested grievance forms.
Ultimately, Mr. Horn
will have to make a factual showing that he was prevented from
pursuing the grievance procedure.
At the pleading stage,
however, the Court will not consider the exhaustion issue to be
Consequently, the motion to dismiss will not be
granted on the ground that Mr. Horn has failed to exhaust his
Failure to Allege Mr. Hunt is a State Actor
Mr. Hunt also argues that he is not a state actor for
purposes of 42 U.S.C. §1983 because he is an employee of a
private food service company hired by Ohio prisons.
argument has been rejected by other courts that have analogized
the role of a private food service company to that of a private
entity providing medical services.
For example, in Ward v.
Kentucky State Reformatory, 2009 WL 2342724, *3, n.3 (W.D. Ky.
July 28, 2009), the court presumed, for purposes of initial
review, that Aramark and two of its employees were state actors.
The court relied on Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.
1993), where the Court of Appeals stated, “it is clear that a
private entity which contracts with the state to perform a
traditional state function such as providing medical services to
prison inmates may be sued under §1983 as one acting under color
of state law.”
Similarly, in Turner v. Welkal, 2014 WL 347815,
*4, n. 3 (M.D. Tenn. Jan. 31, 2014), the Court, in addressing a
motion to dismiss, considered food service provider ABL and its
employees to be state actors subject to liability under §1983
“because the obligation to provide service to individuals in
state custody - traditionally a state function - has been
contractually delegated to them.”
That court relied on West v.
Atkins, 487 U.S. 42, 56 (1988), a United States Supreme Court
decision holding that a private medical provider contracted to
provide medical care to prisoners is a state actor for purposes
Courts outside the Sixth Circuit have reached the same
In McCullum v. City of Philadelphia, 1999 WL 493696,
(E.D. Pa. July 13, 1999), the court explained:
The function of incarcerating people, whether done
publicly or privately, is the exclusive prerogative of
the state. Providing food service, like medical care,
to those incarcerated people is one part of the
government function of incarceration. Thus, the City
of Philadelphia has a duty to provide food service to
inmates housed at [the prison]. Aramark entered into a
contract with the City of Philadelphia to provide such
food services at [the prison]... The court finds that
Aramark acted under color of state law for purposes of
1983 by performing the traditional government function
of providing food service at a prison.
Id. at *3 (citations omitted).
Here, Mr. Hunt contends that his
employer, Aramark, is a private company hired to provide foodrelated services to Ohio prisons.
Under this circumstance, the
Court cannot conclude at this stage of the case that Mr. Hunt is
not a state actor for §1983 purposes.
Consequently, the motion
to dismiss will not be granted on the ground that Mr. Hunt cannot
be considered a state actor.
Failure to Allege a Constitutional Violation
First Amendment Claim
Mr. Hunt’s final argument in support of his motion to
dismiss is that Mr. Horn has failed to allege a constitutional
As Mr. Horn has explained, one of the claims he
alleges is that his First Amendment rights were violated when he
was retaliated against for threatening to report Mr. Hunt for not
wearing gloves while serving food, a violation of prison
In his view, this retaliation took the form of Mr.
Hunt’s labeling him a snitch, resulting in an altercation with
To assert a First Amendment retaliation claim,
Mr. Horn must allege, (1) that he engaged in protected conduct,
(2) an adverse action was taken that would deter a person of
ordinary firmness from continuing to engage in that conduct, and
(3) the adverse action was motivated, at least in part, by the
inmate’s protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378
(6th Cir. 1999); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.
Turning to the first element of a retaliation claim, Mr.
Horn contends that his oral complaint to Mr. Hunt constitutes
Although it is not clear, there is some
support for Mr. Horn’s position that verbal complaints by a
prisoner may, under certain circumstances, constitute protected
McCaskill v. Dettloff, 2012 WL 4177034, *3 (E.D. Mich.
July 13, 2012), citing Davis v. Straub, 2009 WL 4908433 (W.D.
Mich. Dec. 11, 2009); King v. Ditter, 432 F.Supp.2d 813, 818-19
(W.D. Wis. May 30, 2006).
As the Court of Appeals explained in
Clark v. Johnson, 413 Fed. Appx 804, 813 (6th Cir.
grievance does not necessarily have to be formal to be protected,
the issue is whether the grievance, regardless of form, is
Id. (“The problem ... is not that [the] complaint was
informally made, but that it has not been shown to have had any
The Court of Appeals has noted that “[t]he Supreme Court has
made it clear that prison inmates retain all First Amendment
rights not incompatible with their status as prisoners, ‘or with
the legitimate penological objectives of the corrections
Jones v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009),
quoting Pell v. Procunier, 417 U.S. 817, 832 (1974).
Consequently, courts have recognized that an inmate’s exercise of
First Amendment rights is not limited solely to filing grievances
or accessing the courts.
Accordingly, courts have acknowledged that prisoners
“retain, in a general sense, a right to criticize prison
officials,” Freeman v. Texas Dep’t of Criminal Justice, 369 F.3d
854, 864 (5th Cir. 2004), and “a prisoner’s oral and written
complaints to a warden about the misconduct of the prisoner’s job
supervisor are protected speech under the First Amendment.”
Davis v. Straub, supra, citing King v. Ditter, 432 F.Supp.2d at
Moreover, there may be no difference “between
retaliating against a person for filing a grievance, and
retaliating for threatening to file one.”
F.Supp.2d 826, 834 (E.D. Mich. 2009).
Carter v. Dolce, 647
Rather, “[o]nce a prisoner
makes clear his intention to resort to official channels to seek
a remedy for ill treatment by a prison employee, retaliation
against the prisoner by that employee implicates all the policies
intended to protect the exercise of a constitutional right.”
Here, the Court construes Mr. Horn’s claim as asserting that
Mr. Hunt retaliated against him for expressing his intention to
file a grievance over Mr. Hunt’s alleged failure to comply with
food handling regulations.
As such, it seems reasonably to fall
within the parameters outlined above.
Mr. Hunt has not suggested
the issue of frivolousness and, accordingly, the Court will not
With respect to the second element of a retaliation claim,
adverse action, Mr. Horn alleges that Mr. Hunt labeled him a
In considering whether an action would be capable of
deterring a person of ordinary firmness, the Court of Appeals
noted that “[a]ctual deterrence need not be shown.”
Lappin, 630 F.3d 468, 472 (6th Cir. 2010), quoting Harbin–Bey v.
Rutter, 420 F.3d 571, 579 (6th Cir. 2005) (emphasis in original)
“Even the threat of an adverse action can
satisfy this element if the threat is capable of deterring a
person of ordinary firmness from engaging in the protected
Hill, 630 F.3d at 472 (citation omitted).
of Appeals has emphasized that “while certain threats or
deprivations are so de minimis that they do not rise to the level
of being constitutional violations, this threshold is intended to
weed out only inconsequential actions....”
Thaddeus–X, 175 F.3d
Further, as previously noted, the actions threatened do
not need to violate constitutional rights; rather, the
“retaliation for the exercise of constitutional rights is itself
a violation of the Constitution.”
Hill, 630 F.3d at 473, quoting
Thaddeus–X, 175 F.3d at 394.
Labeling an inmate a snitch in the presence of other inmates
has been found to constitute adverse action.
Crum v. Wilkinson,
2006 WL 64607, *4 (S.D. Ohio Jan. 11, 2006)(“[l]abeling plaintiff
a snitch in the presence of other inmates is certainly likely to
deter a person of ordinary firmness from exercising the right at
Consequently, the Court finds that Mr. Horn has
sufficiently pled the second element of a retaliation claim.
The third element of a retaliation claim, that the adverse
action was taken because of the protected conduct, is a causation
inquiry focusing on Mr. Hunt’s motive.
441 (6th Cir. 2007).
Thomas v. Eby, F.3d 434,
Here, Mr. Horn contends that later the same
day, he was approached by other inmates informing him that Mr.
Hunt had labeled him a snitch.
Shortly thereafter, he was
involved in an altercation with an inmate and was warned that he
might encounter additional problems if he continued to snitch on
The Court finds these allegations sufficient to allow
Mr. Horn’s retaliation claim to proceed beyond the pleading
Consequently, the Court will recommend that the motion to
dismiss be denied as to Mr. Horn’s First Amendment retaliation
2. Eighth Amendment Claim
Turning to Mr. Horn’s Eighth Amendment claim, prison
officials “have an affirmative duty to protect inmates from
violence perpetrated by other prisoners.”
F.3d 596, 600 (6th Cir. 1998).
Wilson v. Yaklich, 148
In order to state an Eighth
Amendment claim, a plaintiff must allege facts showing that
defendant’s conduct amounted to “deliberate indifference” to a
known risk of harm to the plaintiff.
825, 828 (1994).
Farmer v. Brennan, 511 U.S.
Labeling an inmate as a snitch may constitute
deliberate indifference to the safety of the inmate.
Edington, 2015 WL 4620566, *2 (E.D. Mich. July 31, 2015), citing
Comstock v. McCrary, 273 F.3d 693, 699 n.2 (6th Cir. 2001).
However, the Court of Appeals has required that a plaintiff
allege that he suffered physical harm as a result of being
labeled a snitch.
Thompson v. Mich. Dept. of Corrections, 25
Fed. Appx. 357, 359 (6th Cir. 2002)(affirming dismissal where
claim that plaintiff was endangered by being labeled a snitch was
unsupported by an allegation of harm); see also Sapp, supra
Mr. Horn does not assert that he suffered any physical harm
as a result of Mr. Hunt’s alleged labeling him as a snitch.
merely states that he was involved in a “physical altercation” or
a “fight” with another inmate inside the prison restroom gym.
Such conclusory assertions, standing alone, are insufficient to
allege physical harm.
Consequently, the Court will recommend
that the motion to dismiss be granted as to Mr. Horn’s Eighth
Recommendation and Order
For the reasons stated above, the Court recommends that the
motion to dismiss (Doc. 9) be granted in part and denied in part.
The motion to strike (Doc. 16) is granted in part to the extent
that it seeks to have three inmate declarations stricken from the
exhibit attached to plaintiff’s response.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
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).
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.
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?