Horn v. Hunt

Filing 23

ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 17 Report and Recommendations.. Signed by Judge James L. Graham on 12/11/2015. (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
Charles Horn,
Plaintiff,
v.

Case No. 2:15-cv-220

Chad Hunt,
Defendant.
ORDER
Plaintiff Charles Horn, an inmate currently housed in the
Lebanon Correctional Institution, filed the instant civil rights
action pursuant to 42 U.S.C. §1983 against defendant Chad Hunt, a
food service worker at the Correctional Reception Center where
plaintiff was previously incarcerated.

Plaintiff alleged in his

complaint that on October 1, 2014, he was involved in a verbal
dispute with the defendant over the fact that defendant would not
wear gloves while handling exposed food.

Defendant informed

plaintiff that he was not going to wear gloves, and that he did not
have

to

follow

the

policies

Rehabilitation and Correction.

of

the

Ohio

Department

of

Plaintiff further alleged that

after plaintiff informed defendant that he was going to file a
complaint against him for handling food with no gloves, several
inmates approached plaintiff and said that defendant was in the
kitchen telling staff and inmates that plaintiff was a snitch.
Plaintiff alleges that shortly thereafter, he was involved in a
fight with an inmate, who warned plaintiff that if he continued to
snitch on the defendant, more problems would be coming plaintiff’s
way.

Doc. 3.
On March 31, 2015, defendant moved to dismiss the complaint

for failure to state a claim for which relief may be granted.

By

order filed on April 23, 2015, the time for plaintiff to respond to
the motion was extended to April 26, 2015.

Plaintiff’s response,

with a certificate of service dated April 24, 2015, was docketed by
the clerk on May 12, 2015.

In reply, defendant argued that

plaintiff’s response should be stricken as untimely.

In a motion

to strike filed on June 2, 2015, defendant argued that documents
attached to plaintiff’s response, including an informal complaint
and three inmate declarations, should be stricken as constituting
evidence outside the complaint.
This matter is now before the court for consideration of the
October 8, 2015, report and recommendation of the magistrate judge.
The magistrate judge granted defendant’s motion to strike in part
to the extent that defendant sought to strike the three inmate
declarations.

Doc. 17, p. 14.

The magistrate judge denied the

motion to strike the informal complaint form.

Doc. 17, p. 6.

The

magistrate judge also recommended that the motion to dismiss be
granted in part and denied in part.

The magistrate judge rejected

defendant’s arguments: 1) that plaintiff lacked standing to assert
his First Amendment claim, Doc. 17, pp. 4-5; 2) that the complaint
should be dismissed for failure to exhaust administrative remedies,
Doc. 17, pp. 5-8; and 3) that the complaint should be dismissed
because defendant was not a state actor, Doc. 17, pp. 8-10.

The

magistrate judge concluded that the allegations in plaintiff’s
complaint were sufficient to allege a claim of retaliation in
violation of the First Amendment.

Doc. 17, pp. 10-13.

However,

the magistrate judge found that the complaint failed to state a
claim under the Eighth Amendment based on a duty to protect theory.

2

Doc.

17,

pp.

13-14.

On

November

2,

2015,

defendant

filed

objections to the report and recommendation, and on November 23,
2015, plaintiff filed a response to the objections.
I. Standard of Review
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).
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).
allegations

or

legal

conclusions

allegations will not suffice.

Id.

masquerading

Conclusory
as

factual

While the complaint need not

contain detailed factual allegations, the “[f]actual allegations
must be enough to raise the claimed right to relief above the
speculative level” and “state a claim that to relief that is

3

plausible on its face.”

Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007). However, the court also notes that pleadings
filed by pro se litigants are liberally construed.

Urbina v.

Thoms, 270 F.3d 292, 295 (6th Cir. 2001).
II. Plaintiff’s Objections
A. First Objection
Defendant
erroneously

argues

failed

that

to

the

address

report

and

defendant’s

recommendation

objections

to

the

untimely nature of plaintiff’s opposition to the motion to dismiss.
The magistrate judge did refer to the request to strike plaintiff’s
response as untimely, but did not expressly rule on that motion.
Doc. 17, p. 4.

The court concludes that plaintiff’s response

should not be stricken as untimely. Under the prison mailbox rule,
a pro se prisoner’s pleading is deemed filed when it is handed over
to prison officials for mailing.
925 (6th Cir. 2008).

Brand v. Motley, 526 F.3d 921,

Absent contrary evidence, it is assumed that

the prisoner handed the pleading to prison officials for mailing on
the date the pleading is signed.
812-13 (6th Cir. 2002).

Richard v. Ray, 290 F.3d 810,

Plaintiff’s response is dated April 24,

2015, which is within the filing deadline of April 26, 2015,
established

by

the

magistrate

defendant’s

objections,

judge.

plaintiff

stated

In

his

that

he

response
handed

to
his

pleading over to prison officials on April 24, 2015, see Doc. 22,
p. 1, and there is no evidence in the record to dispute plaintiff’s
claim in that regard.

The delay in the receipt of the document by

the clerk’s office might possibly be due to a delay in establishing
plaintiff’s prison account following his transfer to the Lebanon
Correctional Institution.

Regardless of whether the response was

4

properly filed under the prison mailbox rule, the court would not
strike plaintiff’s response for untimeliness because the filing
delay was not excessive and the motion to dismiss should be decided
on the merits.
B. Second Objection
Defendant
declining

to

contends
address

that

the

the

issue

magistrate

of

the

judge

erred

frivolousness

of

in
the

complaint, stating that defendant “has not suggested the issue of
frivolousness[.]”

Doc. 17, p. 12.

Defendant did allege generally

at the beginning of his motion to dismiss that “the allegations [in
the complaint] are frivolous” and referred in his reply to the
“overall frivolity of Inmate Horn’s lawsuit,”
15, p. 11.

Doc. 9, p. 1; Doc.

However, the only specific allegation of frivolity

occurs at page 11 of the reply, where defendant argues that the
making of an oral complaint was per se not protected under the
First Amendment because the form of an oral complaint was not “the
proper pursuit of a non-frivolous grievance.”

Doc. 15, p. 11

(citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)).
It is helpful to view the statement of the magistrate judge in
context.

The magistrate judge specifically addressed defendant’s

argument that an oral complaint was not protected conduct under the
First Amendment, and cited contrary authority for the proposition
that verbal complaints by a prisoner may constitute protected
conduct under some circumstances.

Doc. 17, p. 10.

The magistrate

judge noted that “a grievance does not necessarily have to be
formal to be protected, the issue is whether the grievance,
regardless of form, is frivolous.” Doc. 17, p. 11 (citing Clark v.
Johnston, 413 F.App’x 804, 813 (6th Cir. 2011)).

5

The magistrate

judge then observed that plaintiff did not simply allege that he
made

an

oral

complaint

to

defendant

about

his

food-handling

practices; rather, plaintiff claimed that defendant retaliated
against him after plaintiff told defendant about his intention to
file a grievance concerning defendant’s noncompliance with prison
food-handling regulations.

Doc. 17, p. 12.

At that point, the

magistrate judge stated that defendant “has not suggested the issue
of frivolousness.”

Doc. 17, p. 12.

The court construes this

comment as accurately noting that the defendant never argued
specifically that a claim of retaliation arising from plaintiff’s
stated intention to file a written grievance for defendant’s
failure to comply with prison regulations would be frivolous.
In any event, the court agrees with the conclusion of the
magistrate judge that the complaint was sufficient to allege that
plaintiff engaged in conduct protected under the First Amendment by
threatening

to

file

a

grievance

concerning

compliance with food-handling regulations.

defendant’s

non-

This claim was not

frivolous on its face and was sufficient to survive defendant’s
motion to dismiss.
C. Third Objection
Defendant argues that the magistrate judge erred in concluding
that plaintiff sufficiently pleaded a First Amendment retaliation
claim.

To state a First Amendment retaliation claim, plaintiff

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.

Herron, 203 F.3d at 415.

6

As to the first element, defendant argued that an oral
complaint does not constitute protected conduct.

Based on the

authorities discussed by the magistrate judge, the court concludes
that the complaint, which stated that plaintiff informed defendant
of his intention to file a grievance concerning defendant’s alleged
failure

to

comply

with

prison

food-handling

regulations,

was

sufficient to allege that plaintiff engaged in protected conduct.
While evidence regarding the circumstances of this particular case
may later reveal that plaintiff’s conduct was not protected, the
allegations in the complaint are sufficient to survive a motion to
dismiss.
In regard to the second element, the magistrate judge cited
authority for the proposition that labeling an inmate as a snitch
in the presence of other inmates is likely to deter a person of
ordinary firmness from exercising the right to file a grievance.
In the context of the closed prison environment , a “snitch” could
be an inmate who reports rules violations by other inmates or
prison employees to prison authorities, thus inviting adverse
action in the form of retaliation by the alleged violators.
Defendant’s narrow definition of the term “snitch” as meaning an
individual who cooperates with law enforcement in a criminal
investigation is too restrictive.

The court agrees with the

finding of the magistrate judge that plaintiff’s allegations (that
defendant labeled him as a snitch and that plaintiff later had an
altercation with an inmate who warned plaintiff that he might have
additional problems if he continued to snitch on defendant) were
sufficient to satisfy the third element of causation at the
pleading stage.

7

D. Fourth Objection
Defendant

argues

that

plaintiff

has

failed

sufficient injury in fact to establish standing.

to

allege

a

However, this

objection rests on defendant’s argument that plaintiff did not
successfully plead a First Amendment retaliation claim, an argument
which the magistrate judge and this court have rejected.

The

magistrate judge properly rejected defendant’s lack of standing
argument in regard to plaintiff’s First Amendment retaliation
claim.
Defendant also contests the magistrate judge’s rejection of
his argument that plaintiff’s claim for compensatory damages should
be dismissed due to plaintiff’s failure to allege physical injury.
However, as the magistrate judge noted, the Sixth Circuit has held
that

“deprivations

of

First

Amendment

rights

are

themselves

injuries, apart from any mental, emotional, or physical injury that
might also arise from the deprivation[.]”

Doc. 17, p. 5 (quoting

King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015).

Title 42,

U.S.C. §1997e(e), which prohibits a prisoner from bringing a civil
action for mental or emotional injury unless he has also suffered
a physical injury, does not bar an action to redress a violation of
constitutional rights under the First Amendment. King, 788 F.3d at
213.

Plaintiff may recover compensatory damages for actual injury

caused by a violation of his First Amendment rights.

Id. at 213-

214 (noting that courts have allowed plaintiffs to recover presumed
damages for actual injuries caused by constitutional violations
that are likely to have occurred but difficult to measure, even
when the injury claims is neither physical harm nor mental or
emotional distress).

The magistrate judge correctly declined to

8

accept defendant’s argument that plaintiff’s claim for compensatory
damages should be dismissed.
E. Fifth Objection
Defendant

notes

the

magistrate

judge’s

comment

that

plaintiff’s response “provides somewhat more insight into the
nature of his claims.”
magistrate

judge

Doc. 17, p. 3.

should

not

have

Defendant argues that the
considered

the

additional

information in plaintiff’s response, and should have required
plaintiff to amend his complaint. Although plaintiff stated in his
response that he was asserting a First Amendment retaliation claim,
he did not have to include that label in his complaint.

Pro se

complaints are held to “‘less stringent standards than formal
pleadings drafted by lawyers.’”

Garrett v. Belmont Cty. Sheriff’s

Dep’t, 374 F.App’x 612, 614 (6th Cir. 2010)(quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)).

A plaintiff is not required to

plead legal theories or to specify the law which defendant has
violated. Shah v. Inter-Continental Hotel Chicago Operating Corp.,
314 F.3d 278, 282 (7th Cir. 2002); see also Gean v. Hattaway, 330
F.3d 758 , 765 (6th Cir. 2003)(mere failure to refer to statute
which provides legal theory giving rise to plaintiff’s claim does
not mandate dismissal).
The allegations in plaintiff’s complaint are sufficient to
state a First Amendment retaliation claim.

Plaintiff’s response

simply confirmed that this was the nature of his claim.

In

addition to the other elements of a retaliation claim discussed
above as being adequately pleaded, the fact that defendant was a
food worker and a state actor can be inferred from the facts
alleged. Although defendant has advanced legal arguments as to why

9

he is not a state actor, the magistrate judge cited authority which
could support defendant’s being a state actor in this case.

This

is an argument which would best be resolved at the summary judgment
phase based on an evidentiary record.
III. Conclusion
Having reviewed the report and recommendation and defendant’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that defendant’s objections are without merit. The
court overrules defendant’s objections (Doc. 20), and adopts the
magistrate judge’s report and recommendation (Doc. 17). The motion
to dismiss (Doc. 9) is granted in part and denied in part:
plaintiff’s Eighth Amendment claim is dismissed, but the motion to
dismiss plaintiff’s First Amendment retaliation claim is denied.

Date: December 11, 2015

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

10