Smith v. Mohr et al

Filing 38

REPORT AND RECOMMENDATION that 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and 32 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted. It is further recommended that all claims against Gary Mohr, Timothy Buchannon, Charlotte Jenkins, Dr. Kutys, and Correctional Officer Tara Smith be dismissed without prejudice pursuant to Rule 4(m). Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 4/5/2016. (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
EASTERN DIVISION
William E. Smith,

:

Plaintiff,

:

v.

Case No. 2:15-cv-1264

: JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:

Gary Mohr, et al.,
Defendants.

:

REPORT AND RECOMMENDATION
This prisoner civil rights case, filed by William E. Smith,
an inmate at the Chillicothe Correctional Institution, is before
the Court to consider two motions to dismiss.

For the following

reasons, the Court will recommend that the motions to dismiss be
granted.
I.

Background

Mr. Smith has filed an original complaint with 81 pages of
attached exhibits, an amended complaint incorporating by
reference the allegations of his original complaint accompanied
by a memorandum in support and 58 additional pages of exhibits,
and a supplemental complaint.

In his original complaint (Doc.

7), Mr. Smith names five defendants in the caption - Gary Mohr,
Timothy Buchannon, Charlotte Jenkins, Dr. Kutys, and Correctional
Officer Tara Smith.

The original complaint, in the statement of

the claim section, primarily alleges that Mr. Smith has been
denied appropriate mental health care for his PTSD since his
return to prison.

According to the complaint, during his

original incarceration, as a result of this condition, Mr. Smith
was housed in a “cell only facilit[y]” under a psychiatric
treatment plan.

Since his return, however, he has been told that

current institutional policy does not require that his PTSD be
accommodated in this way.

Consequently, he has been housed in an

“open-bay facility” and this has been detrimental to his mental
health.

Mr. Smith also inserted three pages into the middle of

his form complaint captioned as an introduction.

These pages

include ten paragraphs setting forth claims under 42 U.S.C.
§§1983 and 1986, 42 U.S.C. §12131 and 29 U.S.C. §794.a(§504).

In

these paragraphs, Mr. Smith asserts generally that “various
prison officials” failed or refused to supply him with legal
copies and mailing thereby denying him meaningful access to the
courts, the “arbitrary and capricious enforcement” of prison
policy and the Ohio Administrative Code impeded his access to the
law library “‘chilling’ his desire to gain access to the prison
law library” and “stalling his legal course,” his arbitrary
transfer to a maximum security prison, a constitutionally flawed
grievance system, due process and equal protection violations,
and health hazards as a result of overcrowded conditions.
In his amended complaint (Doc. 11), Mr. Smith names four
defendants in the caption - Gary Mohr, Timothy Buchannon,
Charlotte Jenkins, and Dr. Kutys, but he names others in the body
of the complaint.

The amended complaint, after asserting various

general rights which Mr. Smith claims to enjoy under various
provisions of the United States Constitution, identifies Mr. Mohr
as the Director of ODRC, charged with the responsibility to make
Department policy; Mr. Buchannon as the warden of the Noble
Correctional Institution and as the person responsible for
implementing ODRC policies at that institution; Ms. Hupp, who is
not named in the caption, as an institutional librarian; Byron
Beal, as a correctional officer at Noble; Ms. Jenkins as the
warden of the Chillicothe Correctional Institution; Lt. Shoemaker
as a correctional officer at Chillicothe; Tara Smith as a
correctional officer at the same institution; and Dr. Kutys as a
psychologist working under contract with the ODRC.
In the section of the complaint entitled “General
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Allegations,” Mr. Smith asserts that the policies and procedures
of ODRC have violated his constitutional rights.

He then makes

more specific allegations, claiming that various defendants
interfered with pending litigation, including a case in which he
was to be a witness; that he was punished at Noble for trying to
catch up on his litigation; that he was housed at Noble in an
overcrowded dormitory and not offered suitable mental health
treatment; that he was improperly placed in segregation; that he
was exposed to asbestos and histoplasmosis at the Chillicothe
institution; and that he was denied entry into a residential
treatment program as well as adequate mental health treatment and
treatment for an abdominal mass.
In a supplemental complaint (Doc. 24), Mr. Smith makes
additional allegations, naming a new defendant (Nurse Schoonover)
and asserting that she was or should have been aware that
overcrowded conditions were detrimental to his mental health, yet
she refused to provide him either with one-on-one counseling or a
referral for treatment.

He avers that she also threatened him

with segregation if he continued to insist on mental health
treatment and that she and Dr. Kutys treated his legitimate
grievances as frivolous.
II.

The Motions to Dismiss

Defendants Beal, Hupp, and Shoemaker - the only defendants
who had been served at the time the first motion to dismiss was
filed - moved on January 4, 2016 to dismiss the complaint under
Fed.R.Civ.P. 12(b)(6).

Defendant Schoonover filed a similar

motion on February 4, 2016.

No other defendants have been

served, apparently because Mr. Smith has not provided copies of
the amended complaint and summons forms for those defendants.
See Doc. 33.

Mr. Smith has responded to both motions to dismiss.

The first motion to dismiss describes Mr. Smith’s complaint
as “long on claim but short on factual allegations” contending
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that Mr. Smith has failed to meet applicable pleading standards.
(Doc. 23, at 2).

It then separates the complaint out into claims

directed to these defendants about access to the courts and
retaliation.

As to the former, Defendants argue that the

complaint does no more than recite that the three of them knew of
Mr. Smith’s pending litigation, took some action to “chill” his
ability to proceed in those cases, and threatened him when he
attempted to “catch up” on his pleadings.

They point out that in

order to plead a proper claim of denial of the right of access to
the courts, an inmate must identify, in the complaint, what
actually happened in his litigation as a result of the claimed
interference - that is, he must “demonstrate prejudice to nonfrivolous claims.”

(Doc. 23, at 6).

As an alternative argument,

they contend that even if Mr. Smith adequately pleaded some
prejudice to non-frivolous claims which he was pursuing in his
state court cases, his complaint does not say what any of these
three defendants actually did beyond his vague claim that they
threatened or harassed him in a way that made it harder for him
to litigate.
Mr. Smith responds to this portion of the motion to dismiss
by stating that the motion should be converted into a summary
judgment motion pursuant and resolved under Fed.R.Civ.P. 56(c).
He notes that none of the moving defendants submitted an
affidavit or sworn statement to refute his allegations and also
claims that his Eighth Amendment cause of action based upon
conditions of confinement which disregard his mental health
issues is directed to all of the defendants.

He contends that

under applicable law, he has a right to use legal assistance
provided to inmates without interference or fear of retaliation
and that “[a]ny reasonable jurist could conclude that the
totality of punitive actions taken against Smith in the context
of daily prison life engaged in legitimate litigation would and
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could have been made to impede his accessibility to the courts
....”

(Doc. 29, at 5).

He says that the way in which the three

named defendants enforce ODRC’s policy about inmates’ access to
the courts includes a habit of imposing punishment or isolation
on inmates who use the system.

Finally, he describes his actual

injury as the emotional distress he suffered while trying to
pursue his state court litigation; the fact that he was refused
credit for copying or mailing legal pleadings; and the
defendants’ refusal to give him extra time to work on his cases.
He concludes by arguing that he need not have suffered actual
injury in his state cases in order to state a valid claim for
retaliation, and that the defendants did retaliate against him
for pursuing his right of access to the courts.

He points to his

claim that he was placed in isolation simply for asking a
corrections officer not to destroy his legal work - something he
asserts was done or approved of by Defendant Shoemaker - as
evidence of such retaliation.
In reply, defendants contend that Mr. Smith’s response does
not provide any new or relevant facts to support of either his
access to the courts or retaliation claims.

Further, they

challenge Mr. Smith’s request to convert the motion to a motion
for summary judgment.

Finally, they dispute Mr. Smith’s position

that they are not entitled to qualified immunity.
Nurse Schoonover also has moved to dismiss Mr. Smith’s
claims against her, contending that Mr. Smith has not alleged a
claim under the Eighth Amendment for deliberate indifference to
his serious medical needs.

Specifically, she contends that Mr.

Smith is unable to establish the subjective component of such a
claim and has alleged nothing beyond a disagreement with the
treatment he has received for his PTSD.

She also contends that

any claims against her in her official capacity are barred by the
Eleventh Amendment and that she is entitled to qualified
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immunity.
In response, Mr. Smith filed an 18-page reply with five
pages of attached exhibits.

He raises arguments relating to due

process, asserting his entitlement to the medical treatment he
seeks under the terms of the ADA and the Rehabilitation Act, and
challenging Nurse Schoonover’s assertions that he has not
sufficiently alleged facts to demonstrate her deliberate
indifference to his serious medical needs.

In reply, Nurse

Schoonover reiterates the arguments from her motion.
III.

Legal Standard

Before setting forth the applicable legal standard, the
Court will briefly address Mr. Smith’s requests in response to
both motions to dismiss that the Court convert the motions to
motions for summary judgment. Typically, in deciding a motion to
dismiss, the Court is limited to the allegations of the complaint
and is not permitted to consider matters outside the pleadings.
Leonard v. United Ass'n of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Indus. of the United States & Canada,
2016 WL 319867, at *2 (S.D. Ohio Jan. 26, 2016) adopted and
affirmed, 2016 WL 743435 (S.D. Ohio Feb. 23, 2016), citing
Rondigo LLC v. Township of Richmond, 641 F.3d 673, 680 (6th Cir.
2011).

However, when a document is attached to the complaint and

is integral to the plaintiff's claims, the Court may consider
such document without converting a motion to dismiss to one for
summary judgment.

Id., citing Burns v. United States, 542 F.

App'x 461, 466 (6th Cir. 2013).

Similarly, “‘[w]hen a court is

presented with a Rule 12(b)(6) motion, it may consider ...
exhibits attached to defendant's motion to dismiss so long as
they are referred to in the [c]omplaint and are central to the
claims contained therein.’”

Id., quoting

Bassett v. Nat'l

Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).
Here, Mr. Smith has attached exhibits to his original

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complaint and submitted additional exhibits which he requests to
have made part of the record in connection with his amended
complaint.

Defendants have not provided any exhibits in

connection with their responses.

In light of this, the Court

sees no reason to convert the motions to dismiss to summary
judgment motions and will consider the motions under Fed.R.Civ.P.
12(b)(6).
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). All well-pleaded
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.
2009). 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
(2007).
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). The
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
to relief. 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). The moving
party is entitled to relief only when the complaint fails to meet
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this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions are required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). "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." Id.
(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 motions to
dismiss will be decided.
IV.

Analysis

A.

Defendants Hupp, Beal, and Shoemaker’s Motion to Dismiss

i.

Mr. Smith’s Claim for the Denial of Access to the Courts
Mr. Smith’s original, amended and supplemental complaints

contain extreme detail and evidence a familiarity with numerous
constitutional concepts.

Turning first to Mr. Smith’s claims

against defendants Hupp, Beal, and Shoemaker, as they recognize,
several of Mr. Smith’s allegations suggest a violation of his
right of access to the courts.

The allegations arise from

alleged actions of defendants Hupp and Beal at NCI and Mr.
Shoemaker at Chillicothe.

According to Mr. Smith’s allegations,

the conduct comprising the violations ranges from the denial of
copying and mailing to the interference with his use of the law
library, including the issuance of threats and various forms of
retaliation, and his transfer to another prison where he was
unable to access his legal documents.
It has long been recognized that inmates have a
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constitutional right, grounded in the First Amendment, to access
the courts.

See Bounds v. Smith, 430 U.S. 817, 821 (1977) (“It

is now established beyond doubt that prisoners have a
constitutional right of access to the courts”).

That right is

not, however, unlimited nor parallel to the right of access to
the courts enjoyed by non-incarcerated citizens.

Rather,

prisoners have a constitutional right to access the courts only
to present legal claims relating either to their convictions and
sentences or to the conditions of their confinement.

“Thus, a

prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.”
Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999)
(describing this right as a “carefully bounded right” and not a
“generalized ‘right to litigate,’” see id., quoting Lewis v.
Casey, 518 U.S. 343, 355 (1996)).
The restriction of the right of access to the courts to
these types of claims brings with it an additional requirement
relating to an inmate’s standing to pursue a claim of denial of
access to the courts.

Because the right in question does not

confer on prisoners an unfettered right to pursue any and all
types of legal claims, in order for the right to be infringed,
there must be a relationship between the actions which any
particular inmate claims to be unconstitutional and that
particular inmate’s ability to file or pursue either a direct
appeal, a collateral attack on a conviction or sentence, or a
civil rights action dealing with conditions of confinement.

In

Lewis v. Casey, the Supreme Court conceived of this limitation as
an issue of standing, holding that any inmate pursuing a claim
under Bounds v. Smith “must show actual injury.”

The Court of

Appeals has explained that a prisoner “can only achieve standing
if he alleges a personal injury fairly traceable to a redressable
wrong committed against him.”

Thadeus-X, 175 F.3d at 392.
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Consequently, in order for an inmate to have standing to
bring a claim under Bounds v. Smith for denial of access to the
courts, that inmate must both allege and prove that the
deficiencies about which he complains had an actual impact on his
ability to pursue either an attack on his conviction or sentence,
or on a civil rights action dealing with allegedly
unconstitutional conditions of confinement.

As explained by the

Supreme Court in Christopher v. Harbury, 536 U.S. 403, 415
(2002):
Whether an access claim turns on a litigating
opportunity yet to be gained or an opportunity already
lost, the very point of recognizing any access claim
is to provide some effective vindication for a
separate and distinct right to seek judicial relief
for some wrong. However unsettled the basis of the
constitutional right of access to courts, our cases
rest on the recognition that the right is ancillary to
the underlying claim, without which a plaintiff cannot
have suffered injury by being shut out of court.
Because this issue is one of standing, which is a threshold
issue to be addressed in any case brought in a federal court, it
is the plaintiff’s burden to allege, in the complaint, facts from
which his or her standing might reasonably be inferred.

As the

Supreme Court has observed, “[l]ike any other element of an
access claim, the underlying cause of action and its lost remedy
must be addressed by allegations in the complaint sufficient to
give fair notice to a defendant.”
U.S. at 416.
frivolous.
1999).

Christopher v. Harbury, 536

Further, the underlying claim must be non-

Hadix v Johnson, 182 F.3d 400, 405-406 (6th Cir.

It is with these controlling legal principles in mind

that the Court will consider whether Mr. Smith has succeeded in
stating a claim for denial of the right of access to the courts.
As explained below, the Court concludes that he has not.
As noted above, Mr. Smith has provided the Court significant
detailed information in his filings.
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Despite this, however, Mr.

Smith’s filings simply do not contain any allegation of actual
prejudice he suffered as a result of the conduct of defendants
Beal, Hupp, or Shoemaker sufficient to support an access to the
courts claim.

Examples of actual prejudice a court would expect

to see in this context include having a case dismissed, being
unable to file a complaint, and missing a court-imposed deadline.
Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); Walker
v. Mintzes, 771 F.2d 920, 932 (6th Cir. 1985).

The Court’s

review of Mr. Smith’s numerous exhibits does not reveal any such
examples.

The exhibits, to some extent, provide the Court with a

better understanding of the factual background underlying Mr.
Smith’s access to the courts claim.

At the same time, they

demonstrate that, even assuming the defendants acted as Mr. Smith
asserts, he did not suffer the type of actual prejudice necessary
to support such a claim.
Some of the exhibits attached to the original complaint
relate to pending federal litigation in West Virginia, including
an affidavit and an amendment to proposed findings and
recommendations issued by the West Virginia court on August 29,
2014.

Mr. Smith also attached several additional documents

relating to what appear to be three other pieces of litigation:
(1) a complaint seeking a writ of prohibition which Mr. Smith
filed against Judge James DeWeese in the Richland County Court of
Appeals on January 30, 2014, in Case No. 14CA8; (2) an appeal to
the Richland County Court of Appeals in Case No. 2014 CA 0015
filed on March 5, 2014; and (3) a state petition for a writ of
habeas corpus filed by Mr. Smith in the Noble County Court of
Appeals in Case No. 13-CA-407.
Mr. Smith provided additional exhibits relating to these and
other legal matters in connection with his amended complaint.
These exhibits include an entry of dismissal in Case No. 15-92
filed in the Ohio Court of Claims dismissing that case without
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prejudice at Mr. Smith’s request; a sentencing judgment entry
dated April 7, 1993 in Case No. 92 CR 626 from the Richland
County Court of Common Pleas; a letter from the Office of
Disciplinary Counsel of the Ohio Supreme Court relating to a
grievance Mr. Smith filed concerning Judge DeWeese;

another

judgment entry issued by the Richland County Court of Common
Pleas on January 13, 1993, appointing counsel in Case No. 92-CR626; an order signed by Judge James DeWeese on January 6, 1994 in
Case No. 92CR626 granting Mr. Smith’s motion for shock probation;
a judgment entry filed in the Richland County Court of Appeals on
October 28, 2013, dismissing Mr. Smith’s amended petition for a
writ of habeas corpus as moot because the action was dismissed on
September 18, 2013; a sentencing entry filed in the Richland
County Court of Common Pleas on February 4, 2014 in Case No. 09
CR 96; a second copy of Judge DeWeese’s motion to dismiss Mr.
Smith’s application for a writ of prohibition; two nunc pro tunc
entries issued by the Richland County Court of Appeals in Case
No. 14CA8, one granting dismissal of Mr. Smith’s writ of
prohibition action; the State of Ohio’s brief in opposition to
Mr. Smith’s application to reopen in Case No. 14-CA-15; and the
opinion from the Richland County Court of Appeals in Case No. 14
CA 15 and judgment entry both dated September 12, 2014, affirming
Mr. Smith’s criminal conviction in Case No. 09 CR 96.
While Mr. Smith’s exhibits relate to several distinct pieces
of litigation, only some of them appear to be the type of
proceedings to which the right of access to the courts could
extend.

The West Virginia litigation appears to be a prisoner

civil rights action.

The application to reopen in Case No. 14-

CA-15, and the state habeas corpus action, Case No. 13 CA 407,
relate to his conviction and sentence.

However, none of the

information Mr. Smith provided regarding these cases suggests
that he suffered any prejudice in these cases attributable to the
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defendants’ actions.
Rather, the information relied on by Mr. Smith demonstrates
the following.

As of the filing of the complaint in this case,

at least some of Mr. Smith’s claims in his civil rights case had
survived a summary judgment motion as indicated by an amended
proposed findings and recommendations issued by the court on
August 29, 2014.

Further, Mr. Smith’s application to reopen his

appeal in Case No. 14-CA-15 was considered by the appellate court
but denied for lack of evidence of counsel’s ineffectiveness.
Additionally, Mr. Smith’s attempted delayed appeal in his state
habeas action, Case No. 13-CA-407 was rejected by the Ohio
Supreme Court because the provision for delayed appeals was
inapplicable to Mr. Smith’s case and because he did not comply
with court rules by submitting either the filing fee or an
affidavit of indigence.
To the extent that Mr. Smith more specifically suggests that
the actions of the defendants caused the delay of his appeal in
the state habeas proceeding - either because he was transferred
to another prison briefly for a court appearance or otherwise this suggestion of the defendants’ responsibility for delay is
undercut by the judgment entry from the Noble County Court of
Appeals.

This judgment entry indicates that the petition was

dismissed on January 27, 2014, and that Mr. Smith filed a handwritten motion for leave on February 18, 2014.

If Mr. Smith was

able to file such a motion on that date it seems implausible that
the defendants’ actions kept him from filing a timely appeal.
Mr. Smith also was able to file his writ of prohibition during
this same time period in late January, 2014.
Further, in his response to defendants’ motion to dismiss
directed to the issue of prejudice, Mr. Smith continues to speak
in the most vague and general terms without any reference to a
specific example of sufficient prejudice.
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That is, he explains

his alleged injury only in these terms:
Plaintiff’s actual injury [Lewis, supra, 518 U.S.
343 (1996)] was first made in the infliction of great
emotional distress while attempting to plead or defend
in his state cases (see original complaint Exhibits
Doc. 1-2 PAGEID 89-120). Wherefrom the sadistic
actions of Defendant’s Hupp, Beal and Shoemaker (but
not limited to) resulted in Smith becomming (sic)
either punished or procedurally barred by Defendant
Hupp’s acting beyond the scope of DRC policy 59-LEG-01
and refusal to afford Smith credit for copying or
mailing his legal pleadings or additional time to plead
or defend in those actions even when space was
available without being screamed, yelled at or
threatened by her and officer Beal coupled with
arbitrary conduct reports, at times relevant [to]
Smith’s pending actions and while Smith suffered from
P.T.S.D. (See Doc 1-2 PAGEID 80-83).
In light of all of the above, at most, Mr. Smith’s filings,
taken together, suggest his disagreement with limitations on the
use of the law library generally and perhaps more specifically as
applied to him.

Such limitations generally are not themselves

unconstitutional unless they result in injury to a pending or
contemplated legal claim.

Walker v. Mintzes, 771 F.2d 920, 931-

32 (6th Cir. 1985) (“Prison regulations [may] reasonably limit
the times, places, and manner in which inmates may engage in
legal research and preparation of leg[al] papers so long as the
regulations do not frustrate access to the courts”).

Further, to

the extent Mr. Smith complains that he was not extended credit
for copying or mailing, the right of access to the courts does
not include free and unlimited access to photocopies or postal
expenses.

Glover v. Grant County Detention Center, 2010 WL

2804054, *6 (E.D. Ky. July 15, 2010); Courtemanche v. Gregels, 79
Fed.App’x 115, 117 (6th Cir. 2003).

Finally, not only are Mr.

Smith’s repeated allegations of emotional distress insufficient
to establish an actual injury for his access to the courts
claims, they are insufficient to state any independent claim

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against these defendants.

Under the PLRA, “[n]o Federal civil

action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.”

Carter v. Kentucky Dep’t of Corr., 2015 WL 5313550, *3

(W.D. Ky. Sept. 9, 2015), quoting 28 U.S.C. §1997e(e).
ii.

Mr. Smith’s Retaliation Claims

Mr. Smith also uses terms suggesting that defendants
retaliated against him for the exercise of his First Amendment
rights.

Mr. Smith’s allegations relating to such a claim are

sparse, aside from multiple uses of the word “retaliation.”

With

respect to defendants Beal and Hupp, he states that, after he met
with the Institutional Inspector about the issue of meaningful
access to the courts, he was met with “increased anger and hatred
and retaliation ... (records reflect) from October 2013 thru
November, 2014, while initiating arbitrary conduct reports ... by
Beal increased.”
With respect to Mr. Shoemaker, Mr. Smith states generally
that he was threatened with retaliatory punishment if he
continued filing grievances relating to conditions of confinement
and that Lt. Shoemaker took him to the hole after he either filed
grievances against Tara Smith or after he requested that she not
destroy his legal materials.

He also indicates that he appeared

before the Rules Infraction Board and that he never appealed
those decisions out of fear of further retaliation.
There is no question that retaliation for the exercise of
constitutional rights is itself a violation of the Constitution.
To state a retaliation claim, a plaintiff must allege three
elements: (1) that he or she was engaged in protected conduct;
(2) an adverse action was taken against him or her that would
deter a person of ordinary firmness from continuing to engage in
that conduct; and (3) the adverse action was motivated at least
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in part by the plaintiff’s protected conduct.
Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

Thaddeus-X v.
Retaliation claims

must include a “chronology of events from which retaliation may
plausibly be inferred.”

Ishaaq v. Compton, 900 F.Supp. 935 (W.D.

Tenn. 1995)(quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th
Cir. 1988)).
The Court will examine the retaliation claim against
defendants Beal and Hupp before turning the claim against Mr.
Shoemaker.

With respect to Mr. Beal and Ms. Hupp, the crux of

Mr. Smith’s claim appears to be that he was retaliated against by
these defendants after speaking to the institutional inspector
about his access to the courts.

The retaliation appears to have

taken the form of anger, hatred and arbitrary conduct reports
issued by Mr. Beal.

A verbal complaint to a prison official may

be considered protected conduct.

Moorer v. Booker, 2010 WL

5090111, *5 (E.D. Mich. Aug. 31, 2010).

However, the terms anger

and hatred do not describe any adverse action taken by defendants
Hupp and Beal.

To the extent that Mr. Smith might be suggesting

verbal harassment, an inmate has no right to be free from verbal
abuse, and verbal harassment does not state a claim for
retaliation.

Carney v. Craven, 40 Fed. Appx. 48, 50 (6th Cir.

2002).
With respect to Mr. Beal’s issuance of conduct reports, Mr.
Smith merely describes these conduct reports as arbitrary.

He

does not suggest that these reports were false nor does he
explain what consequences he suffered as a result of these
conduct reports.

Certainly, false disciplinary reports have been

found to constitute adverse action, see Smith v. Craven, 61
Fed.Appx. 159, 162 (6th Cir. 2003), but that is not the
allegation here.

Mr. Smith has attached copies of two conduct

reports issued by Mr. Beal relating to Mr. Smith’s use of the law
library, but these documents do not provide any additional
-16-

insight into whether the issuance of these conduct reports can be
viewed as constituting adverse action in response to Mr. Smith’s
meeting with the institutional inspector.

Absent more specific

information from Mr. Smith, the Court cannot conclude that he has
stated a claim for retaliation against defendants Beal or Hupp.
Turning to the retaliation claim against Mr. Shoemaker, part
of this claim appears to generally allege retaliation for the
filing of grievances.

“An inmate has an undisputed First

Amendment right to file grievances against prison officials on
his own behalf.”
2000).

Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.

Consequently, to the extent that Mr. Smith alleges that

he filed grievances, he has alleged that he was engaged in
protected conduct.
With respect to the second element of a retaliation claim,
adverse action taken against him, however, Mr. Smith’s
allegations again lack necessary detail.

For example, Mr. Smith

suggests generally that Mr. Shoemaker threatened retaliatory
punishment for filing grievances.

While the Court of Appeals has

recognized that a mere threat may be actionable if it would
otherwise meet the standard of deterring a person of ordinary
firmness from engaging in a protected activity, see Pasley v.
Conerly, 345 Fed.Appx. 981, 985 (6th Cir. 2009), Mr. Smith
provides no explanation of the nature of the alleged threats made
by Mr. Shoemaker.

Without this information, the Court cannot

conclude that the threats alleged are sufficient to constitute an
adverse action.

Further, looking to the third element of a

retaliation claim, with respect to this broad allegation, Mr.
Smith does not provide any information to allow the Court to find
any connection between any threats made by Mr. Shoemaker and any
specific grievance.
Mr. Smith also appears to make a second, slightly more
specific allegation of retaliation directed to Mr. Shoemaker -17-

that Mr. Shoemaker placed him in the hole either after Mr. Smith
filed grievances against Ms. Smith for acting vindictive or after
he asked her not to dispose of his legal papers.

This

allegation, while somewhat more detailed, does not fare much
better.

While placement in segregation has been found to

constitute an adverse action, see Hill v. Lappin, 630 F.3d 468
(6th Cir. 2010), Mr. Smith has provided nothing beyond conclusory
assertions to suggest that Mr. Shoemaker’s placing Mr. Smith in
segregation resulted from Mr. Smith’s pursuit of any grievances
against, or interactions with, Ms. Smith.

To the contrary, Mr.

Smith’s allegations state that he was placed in segregation based
on his “disrespect” of Ms. Smith and suggest that he appeared
before the Rules Infraction Board and chose not to appeal its
decision.

Stated another way, Mr. Smith has not alleged facts

indicating a causal connection sufficient to satisfy the third
element of a retaliation claim against Mr. Shoemaker.
To the extent that Mr. Smith suggests he appeared before the
RIB in connection with his issues involving Ms. Smith, the Court
of Appeals has recognized that “[a] finding of guilt based upon
some evidence of a violation of prison rules ‘essentially
checkmates [a] retaliation claim.’”

Jackson v. Madery, 158

Fed.Appx. 656, 662 (6th Cir. 2005), quoting Henderson v. Baird,
29 F.3d 464, 469 (8th Cir. 1994).

Further, included in Mr.

Smith’s exhibits to his amended complaint is an informal
complaint resolution form dated March 10, 2015, in which he
complains about Ms. Smith’s “isolationist demeanor” and states
that she enforces prison regulations with “hatred, ill will and
revenge.”

In the “Action Taken” portion of this form, the staff

member responding to this grievance stated only “What is your
complaint?”
conduct.

Filing frivolous grievances is not protected

Hill, 630 F.3d at 472.

Without any more specific facts

to support Mr. Smith’s bare allegation of Mr. Shoemaker’s
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retaliation, the Court cannot conclude that Mr. Smith has stated
a claim sufficient to survive the motion to dismiss.
ii.

Mr. Smith’s Additional Claims

Mr. Smith also intermingles allegations relating to due
process violations with his access to the courts claim.

These

allegations are not clear as either directed to these defendants
or more generally.

In some of his allegations, he makes

reference to a property interest created by state guidelines and
policies and specifically R.C. 111.15.

He also suggests that he

was deprived of procedural due process in connection with his RIB
hearing because “the punishment had already been rendered.”

This

latter allegation appears directed to Mr. Shoemaker.
To establish a procedural due process violation, a plaintiff
must show that a liberty or property interest is at stake.
Wilkinson v. Austin, 545 U.S. 209, 221 (2005).

As a result, a

due process analysis requires two inquiries - whether a liberty
or property interest exists which has been interfered with by the
State and whether the procedures surrounding the deprivation of
that interest were constitutionally sufficient.
Coms. v. Thompson, 490 U.S. 454, 460 (1989).

Ky Dep’t of

Stated another way,

“the question of what process is due is relevant only if the
inmate establishes a constitutionally protected interest.”
Pickelhaupt v. Jackson, 364 Fed. Appx. 221, 224 (6th Cir. 2010).
Here, Mr. Smith has not alleged facts sufficient to
demonstrate the nature of any property interest.

R.C. 111.15,

which Mr. Smith cites as a specific source of his property
interest, does not appear applicable to him.

Because Mr. Smith

has not sufficiently identified a property interest, he has not
alleged a claim for a due process violation.
Further, to the extent that Mr. Smith is contending that his
placement in segregation prior to a hearing violated his due
process rights, he has not stated a claim.
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A prison disciplinary

proceeding does not give rise to a protected liberty interest
unless it affects the duration of the prisoner’s confinement or
the restrictions impose an ‘atypical and significant hardship.”
Sandin v. Conner, 515 U.S.472, 484 (1995).

Placement in

administrative segregation without a hearing does not rise to the
level of such a hardship.
867-868 (6th Cir. 2010).

Joseph v. Curtin, 410 Fed.Appx. 865,
Rather, “[a]dministrative segregation

‘is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.’” Id.,
quoting Hewitt v. Helms, 459 U.S. 460 (1983).

Consequently, the

issue for the Court in considering Mr. Smith’s various filings is
whether he has alleged that his administrative segregation has
“imposed an ‘atypical and significant’ hardship on him ‘in
relation to the ordinary incidents of prison life.’”

Jones v.

Baker, 155 F.3d 810, 812 (6th Cir. 1998), quoting Sandin v.
Conner, 515 U.S. at 484.
Mr. Smith’s filings are replete with the conclusory
allegation that he has suffered an atypical and significant
hardship.

What is missing from Mr. Smith’s complaints, however,

are detailed allegations suggesting the nature of this hardship
sufficient to assert a due process claim.

Generally, the Court

would expect to see at least some reference to either the nature
of the segregation imposed or the length of Mr. Smith’s stay in
segregation.

The nature and duration of an inmate’s stay in

segregation are two factors considered by the Court in evaluating
whether an atypical and significant hardship has been alleged.
Joseph v. Curtin, 410 Fed.Appx. at 867-68, citing Harden-Bey v.
Rutter, 524 F.3d 789, 795 (6th Cir. 2008).

“Simply disagreeing

with being placed in administrative segregation does not make it
“‘atypical and significant.’”

Id., quoting Harden-Bey, at 796.

In Sandin, the Supreme Court concluded that 30 days in
disciplinary segregation did not constitute an atypical and
-20-

significant hardship.

Further, the Court of Appeals has held

that administrative segregation alone does not involve an
atypical and significant hardship, but that an indefinite
placement in administrative segregation might.

Harden-Bey, 524

F.3d at 795.
The only indication of the length of Mr. Smith’s stay in
segregation is found in an informal complaint resolution form
dated April 16, 2015, and submitted as an exhibit with Mr.
Smith’s amended complaint.

This document states that he was

placed in isolation for twelve days before his RIB hearing.
Based on the precedent set forth above, this length of stay,
without more detailed information, is insufficient to state a due
process claim.

See, e.g., Hursey v. Anderson, 2015 WL 7282507,

*5 (W.D. Mich. Nov. 16, 2015) (“Plaintiff’s allegations that he
was improperly kept in segregation for 13 days does not
constitute an atypical and significant hardship”).

Because Mr.

Smith has failed to provide any information to explain why his
alleged time in segregation was ‘atypical and significant,’ he
has failed to state a due process claim to the extent he is
attempting to do so against Mr. Shoemaker.
B.

Defendant Schoonover’s Motion to Dismiss

Nurse Schoonover has moved to dismiss Mr. Smith’s claims
against her on grounds that he has failed to allege her
deliberate indifference to his serious medical need.

As

explained below, the Court agrees.
To establish an Eighth Amendment violation, a prisoner
must show that he or she has a serious medical condition and
that the defendants displayed a deliberate indifference to
his or her health. Estelle v. Gamble, 429 U.S. 97 (1976);
Wilson v. Seiter, 501 U.S. 294 (1991). This formulation has both
a subjective and an objective component. Objectively, the
medical condition at issue must be “serious” as opposed to
“trivial,” “minor,” or “insubstantial.” Subjectively, the
-21-

defendants accused of violating the Eighth Amendment must have
acted with a state of mind that can accurately described as
“deliberate indifference.” Each of these components requires
some elaboration.
It is not always easy to distinguish serious medical
conditions from those that are not sufficiently substantial to
implicate the Constitutional prohibition against cruel and
unusual punishment, and the facts concerning the seriousness of
an inmate’s condition are frequently in dispute. In evaluating
such claims, courts have given weight to a variety of factors,
including whether the condition is one that a doctor or other
health care professional would find worthy of treatment, whether
it significantly affects everyday activities, and whether it
causes (or, if left untreated, has the potential to cause)
chronic and substantial pain. See Chance v. Armstrong, 143 F.3d
688, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811
F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the
condition, the potential for harm if treatment is delayed, and
whether such a delay actually caused additional harm).
As to the subjective element, in Farmer v. Brennan, 511 U.S.
825, 839 (1994), the Court adopted "subjective recklessness as
used in the criminal law" as the appropriate definition for
deliberate indifference. It held that "a prison official cannot
be held liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety. . . ."
Id. at 837. Officials must be aware of facts from which they
could conclude that a substantial risk exists and must actually
draw that conclusion. Id. Prison officials who know of a
substantial risk to the health or safety of an inmate are free
from liability if "they responded reasonably to the risk, even if
the harm ultimately was not averted." Id. at 844.
Because an Eighth Amendment medical claim must be
premised on deliberate indifference, mere negligence by a

-22-

prison doctor or prison official with respect to medical
diagnosis or treatment is not actionable under 42 U.S.C.
§1983. "[A] complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see
also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994).
In applying these standards to Mr. Smith’s allegations, the
Court notes that Ms. Schoonover does not argue that Mr. Smith’s
PTSD is not a serious medical condition. Consequently, the
Court’s focus will be limited to whether Mr. Smith has
sufficiently pled Nurse Schoonover’s deliberate indifference to
his PTSD.
As with Mr. Smith’s original and amended complaints, his
supplemental complaint directed to Nurse Schoonover contains
numerous conclusory allegations and demonstrates great
familiarity with certain constitutional concepts but does not
provide much meaningful detail. What is clear from Mr. Smith’s
pleadings is that he has been seen by Nurse Schoonover and Dr.
Kutys for his PTSD but that, in his view, they have failed to
make appropriate referrals, provide one-on-one counseling, or
place him in the therapeutic environment of his choice. Rather,
they have recommended a “chemical cure,” which he has chosen to
decline because he prefers not to be sedated. He also suggests
that they have offered a “segregation cell” as an available
therapeutic environment, but he challenges whether such a
recommendation is a proper discharge of their duties.
The documentation attached to Mr. Smith’s original complaint
sheds some further light on Mr. Smith’s factual allegations.
According to a disposition of grievance dated March 24, 2015, Mr.
Smith was seen by Dr. Kutys and Dr. Kutys agrees that he suffers
with PTSD. However, Mr. Smith’s PTSD condition does not qualify

-23-

him for residential accommodations under the applicable mental
health guidelines. Consequently, Mr. Smith has been offered
individual programming, group programming, and medication
management. This document confirms Mr. Smith’s allegation that
he has rejected recommendations to manage his PTSD with
medication.
Taking all of this into account, Mr. Smith does not assert
that he has been denied medical treatment for his PTSD in
violation of the Eighth Amendment. Rather, the focus of his
complaint is that he disagrees with the treatment recommendations
proposed. “Where a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments
and to constitutionalize claims that sound in state tort law.”
Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d
377, 385 (6th Cir. 2004), quoting Westlake v. Lucas, 537 F.2d
857, 860 (6th Cir. 1976). ‘A “difference of opinion between a
plaintiff and his doctor regarding his diagnosis and treatment
do[es] not state an Eighth Amendment claim.’”

Booth v. Kilaru,

2014 WL 3891631, at *3 (E.D. Mich. Aug. 8, 2014), aff'd (May 11,
2015), quoting Smith v. Sator, 102 F. App'x 907, 909 (6th Cir.
2004).

An inmate who is treated but disagrees with the treatment

fails to state an Eighth Amendment claim.

Id.

Consequently, the

Court will recommend that Mr. Smith’s Eighth Amendment claim
against Nurse Schoonover be dismissed.
For these same reasons, to the extent Mr. Smith intends his
complaints to be read as asserting an Eighth Amendment claim for
the denial of medical care against all defendants, which for
purposes of this order would include defendants Beal, Hupp, and
Shoemaker, he has failed to state a claim.
Finally, the Court notes that, to the extent Mr. Smith has
summarily alleged the denial of medical treatment for a liver
condition, he has failed to allege sufficient facts supporting
the plausibility of this claim.

In order to get past the

-24-

pleading stage, Mr. Smith must provide a sufficient description
of both the nature of his liver condition and any efforts he has
made to seek treatment to address it.

Similarly, looking to the

other allegations of Mr. Smith’s supplemental complaint directed
to Nurse Schoonover, including suggestions of retaliation or due
process violations, Mr. Smith again has provided only conclusory
allegations and legal conclusions.

Without more specific

information, he has failed to state a claim for such violations.
Consequently, the Court will recommend that Nurse Schoonover’s
motion to dismiss be granted.
C .

Remaining Issues

The Court notes that Mr. Smith has indicated his intention
to withdraw claims directed to all defendants in their official
capacities.

See Supplemental Complaint, Doc. 24, p.8.

The Court

construes the withdrawal of these claims as also directed to any
ADA and Rehabilitation Act claims Mr. Smith’s filings can be
construed as asserting against Nurse Schoonover.

This is so

because, to the extent that his filings can be read as asserting
claims under these statutes, they do not allow suits against
government officials in their individual capacities.

Lee v.

Michigan Parole Bd., 104 Fed.Appx. 490, 493 (6th Cir. 2004)
(“neither the ADA nor the RA impose liability upon individuals.
29 U.S.C. §794(b)(RA); 42 U.S.C. §12131(1)(ADA)”).

Consequently,

the Court did not consider any issues related to these claims.
Further, Mr. Smith withdrew his request for preliminary
injunctive relief in both his supplemental complaint (Doc. 24)
and his response to the motion to dismiss filed by defendants
Hupp, Beal, and Shoemaker (Doc. 29).

Consequently, the Court

will not consider this motion.
Finally, the Court notes that Mr. Smith has never completed
service of process on several of the defendants because he has
not provided enough service copies of any of his complaints.
-25-

By

order dated October 20, 2015 (Doc. 14), the Court denied Mr.
Smith’s request to be excused from submitting the necessary
number of copies and directed Mr. Smith to file the appropriate
service documents within 21 days.

The Court also advised Mr.

Smith that his failure to submit proper service materials would
result in the dismissal of these defendants without prejudice
pursuant to Rule 4(m).

By order dated October 27, 2015 (Doc.

16), the Court directed the Clerk to provide Mr. Smith with a
copy of the amended complaint to allow him to make service
copies.

In response to these orders, Mr Smith submitted service

documents for defendants Beal, Hupp, and Shoemaker.
dated December 21, 2015 (Doc.

In an order

22), granting Mr. Smith’s motion

to file a supplemental complaint, the Court again directed him to
provide service documents within 30 days.

In response to this

order, Mr. Smith provided service documents for Nurse Schoonover.
At the time Mr. Smith filed his original complaint on May
13, 2015, Rule 4(m) provided:
If a defendant is not served within 120
days after the complaint is filed,
the court – on motion or on its own
after notice to the plaintiff must dismiss the action without prejudice
against that defendant or order that service
be made within a specified time. But if the
plaintiff shows good cause for the failure,
the court must extend the time for service
for an appropriate period.
Because Mr. Smith has failed to show good cause why service was
not made upon the remaining defendants within 120 days, the Court
will recommend that all claims against Gary Mohr, Timothy
Buchannon, Charlotte Jenkins, Dr. Kutys, and Correctional Officer
Tara Smith be dismissed without prejudice pursuant to Fed. R.
Civ. P. 4(m).
V.

Recommendation

For the reasons stated above, it is recommended that the
-26-

motions to dismiss (Docs. 23 and 32) be granted.

It is further

recommended that all claims against Gary Mohr, Timothy Buchannon,
Charlotte Jenkins, Dr. Kutys, and Correctional Officer Tara Smith
be dismissed without prejudice pursuant to Rule 4(m).
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).

A judge

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.

Upon proper

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

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