Thorp v. Ohio Department of Rehabilitation and Correction et al
Filing
7
ORDER AND REPORT AND RECOMMENDATIONS re 4 Complaint filed by Kenneth G. Thorp. Objections to R&R due by 5/4/2015. Signed by Magistrate Judge Norah McCann King on 4/17/2015. (pes) (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
KENNETH G. THORP,
Plaintiff,
vs.
Civil Action 2:15-cv-1121
Judge Smith
Magistrate Judge King
OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, a state inmate currently incarcerated at the Belmont
Correctional Institution (“BeCI”), brings this civil action without
prepayment of fees or costs.
This matter is now before the Court for
the initial screen of the Complaint, ECF 4, required by 28 U.S.C. §§
1915(e), 1915A. For the reasons that follow, the action may proceed
against defendant Michelle Miller, the Warden at the Belmont
Correctional Institution, and against defendant Major Clark, who is
alleged to be responsible for security at BeCI. However, it is
recommended that the claims against the other named defendants be
dismissed for lack of subject matter jurisdiction or for failure to
state a claim upon which relief can be granted.
Plaintiff alleges that he was the victim of a vicious game
referred to as the “knock-out game,” by which he was attacked by
unknown inmate assailants in an unsecure area of BeCI referred to a
the “mailbox walkway area” or “deadman’s corner.” Complaint, ¶ 11.
Plaintiff underwent treatment for his injuries but continues to suffer
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post-traumatic stress disorder and post-concussion syndrome. Id. ¶¶
12-15. Plaintiff alleges that, in December 2014, he wrote a letter to
defendant Warden Michelle Miller, asking for increased security for
the area, and that the Warden assured plaintiff that he would “be
‘seeing some [unspecified] changes shortly.’” Id. at ¶ 17.
However,
plaintiff alleges, no changes have been instituted, “deadman’s corner”
has not been secured, and the attacks continue. Id. at ¶¶ 16-18. The
Complaint, which seeks declaratory and monetary relief, names as
defendants the Ohio Department of Rehabilitation and Correction
(“ODRC”), the ODRC Director, BeCI Warden Miller, the Institutional
Inspector and the Acting Institutional Inspector at BeCI, and one
Major Clark, who is alleged to be responsible for security at BeCI.
The caption of the Complaint names as a defendant the ODRC. This
state agency is absolutely immune from suit in this Court by virtue of
the Eleventh Amendment to the United States Constitution. See Beil v.
Lake Erie Correction Records Dept., 282 Fed. Appx. 363, 2008 WL
2434738 (6th Cir. June 13, 2008). See also Regents of Univ. of Calif. v.
Doe, 519 U.S. 425, 429 (1997) (Eleventh Amendment sovereign immunity
applies not only to the states themselves but also to “state agents
and instrumentalities”). Moreover, a state agency is not a “person”
subject to suit under 42 U.S.C. §1983. Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 70-71 (1989). The action cannot proceed against
the ODRC.
Plaintiff claims that individual defendants have been
deliberately indifferent to his safety and that of the other inmates
at BeCI. “[P]rison officials have a duty . . . to protect prisoners
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from violence at the hands of other prisoners.”
Farmer v. Brennan,
511 U.S. 825, 833 (1994) (internal quotation marks and citation
omitted).
2011).
See also Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir.
To establish liability under the Eighth Amendment for a
defendant’s alleged failure to protect an inmate from prison violence,
a plaintiff must show that the defendant was deliberately indifferent
“to a substantial risk of serious harm.”
Farmer, 511 U.S. at 828.
Deliberate indifference contains both an objective and subjective
component.
Id. at 833, 837; Phillips v. Roane County, 534 F.3d 531,
539 (6th Cir. 2008); Watkins v. City of Battle Creek, 273 F.3d 682,
685-86 (6th Cir. 2001)).
In the case presently before the Court,
plaintiff has sufficiently identified an objective threat to his
safety.
The subjective prong of plaintiff’s claim requires that a
plaintiff-inmate allege that each defendant knew of and yet
disregarded an excessive risk to his safety. Plaintiff has
sufficiently alleged this subjective component in his claim against
defendant BeCI Warden Miller and defendant Major Clark.
However, the Court concludes that the Complaint does not state a
claim against the remaining defendants.
The Complaint names as a defendant the Director of the ODRC, who
is alleged to be responsible for the “general operations as regards
the safety, security and welfare of all the prisoners at” BeCI,
Complaint, ¶ 4. A supervisory official may not be held liable under 42
U.S.C. §1983 for the alleged misconduct of subordinates unless “the
plaintiff demonstrates that ‘the supervisor encouraged the specific
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incident of misconduct or in some other way directly participated in
it.’” Combs v. Wilkinson, 315 F.3f 548, 554 (6th Cir. 2002) quoting
Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). “‘At a minimum a
plaintiff must show that the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of
the offending officers.’”
Id., quoting Hays v. Jefferson County, 668
F.2d 869, 874 (6th Cir. 1982).
Liability on the part of a supervisor
must be based on “active unconstitutional behavior.”
v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999).
Id., citing Bass
The Complaint simply
fails to allege such conduct on the part of the Director of the ODRC.
The Complaint also names as defendants the BeCI Institutional
Inspector and the Acting Institutional Inspector. Plaintiff alleges
that these defendants are charged with handling inmate grievances and
were thus aware of the problems at “deadman’s corner” but failed to
correct the problems. A prison inmate does not have an inherent
constitutional right to an effective prison grievance procedure. Young
v. Gundy, 30 Fed.Appx. 568, 569–70 (6th Cir. 2002), citing Antonelli
v. Sheahan, 81 F.3d 1422, 1430–31 (7th Cir. 1996). See also Hewitt v.
Helms, 459 U.S. 460, 467 (1983); Argue v. Hofmeyer, 80 Fed.Appx. 427,
430 (6th Cir. 2003); Keenan v. Marker, 23 Fed.Appx. 405, 407 (6th Cir.
2001); Mays v. Wilkinson, 181 F.3d 102 at *1 (6th Cir. 1999). Prison
officials are not obligated to respond to an inmate's grievances in a
way satisfactory to the inmate. Overholt v. Unibase Data Entry, Inc.,
221 F.3d 1335, *3 (6th Cir. 2000). The fact that these defendants are
charged with handling inmates’ grievances is not sufficient to allege
that they had either the authority or the ability to change or correct
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the prison conditions about which plaintiff complains.
It is therefore ORDERED that the action may proceed against
defendant Michelle Miller, the Warden at BeCI, and against defendant
Major Clark. If plaintiff provides a copy of the Complaint, a summons
and a Marshals service form for each of these defendants, the United
States Marshals Service will effect service of process by certified
mail on these defendants, who may have forty-five (45) days after
service of process to respond to the Complaint.
It is RECOMMENDED that the claims asserted against the remaining
defendants, i.e., the ODRC and defendants Mohr, Bumgardner and Riehle,
be dismissed for lack of subject matter jurisdiction and for failure
to state a claim upon which relief can be granted.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
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Response to objections
must be filed within fourteen (14) days after being served with a copy
thereof.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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.
See, e.g., Pfahler v.
Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
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“failure
to
constituted
object
a
waiver
to
the
of
[the
magistrate
defendant’s]
judge’s
recommendations
ability
to
appeal
the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s
denial
magistrate
of
judge’s
pretrial
report
motion
and
by
failing
to
recommendation).
timely
Even
object
when
to
timely
objections are filed, appellate review of issues not raised in those
objections is waived.
Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.
2007) (“[A] general objection to a magistrate judge’s report, which
fails
to
specify
the
issues
of
contention,
does
not
suffice
preserve an issue for appeal . . . .”) (citation omitted)).
April 17, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
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