Martin v. Posey et al

Filing 22

REPORT AND RECOMMENDATION AND ORDER - The Court recommends that the motions to dismiss (ECF 10 and 15 ) be granted in part and denied in part. It is recommended that the motion for leave to amend the complaint (ECF 17 ) be denied. Further, the mo tion to moot the motion to dismiss (ECF 16 ) and the motion for appointment of counsel (ECF 19 ) are denied. Objections to R&R and/or Motions for reconsideration of the Order due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 2/5/2016. (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
Ronald Martin,

:

Plaintiff,

:
:

v.
Cody Posey, et al.,

Case No. 2:15-cv-2294
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION AND ORDER
Plaintiff Ronald Martin, an inmate at the Chillicothe
Correctional Institution, filed this action under 42 U.S.C. §1983
alleging violations of his First and Fourteenth Amendment rights
as a result of the conduct of defendants Woody Coey, Cody Posey,
Brent Cruse, Corby Free, Roger Wilson, and Gary Mohr.

The

defendants have filed motions to dismiss and the motions have
been fully briefed.

Also before the Court is Mr. Martin’s motion

for leave to amend the complaint.

For the following reasons, the

Court will recommend that the motions to dismiss be granted in
part and denied in part.

Further, the Court will recommend that

the motion for leave to amend be denied.
I.

Background

Mr. Martin’s complaint arises from the same event that
forms one of the bases for the complaint filed in Robison v.
Coey, Case No. 2:14-cv-944.

As a result, some of the factual

allegations detailed in Mr. Martin’s complaint relate to
circumstances involving Mr. Robison.

The factual allegations of

the complaint, relating to Mr. Martin, can be summarized as
follows.
shop.

Mr. Martin worked in the Ohio Penal Industries paint

Mr. Posey filled in for Mr. Blakeman, Mr. Martin’s

supervisor during a three-week period in late September to mid-

October, 2014.

At some point during this time, Mr. Posey asked

Mr. Martin if he knew how to open the lock on Mr. Blakeman’s
personal locker.

Mr. Martin did not know of any way short of

breaking the lock, so he informed Mr. Posey that he did not.
Eventually, on October 15, 2014, Mr. Martin “began to feel so
uncomfortable” with Mr. Posey’s request that he told Randy
Dunham, a supervisor in the YUSA building.
On October 20, 2014, Mr. Blakeman returned from his
vacation, discovered that his lock was missing, and filed an
incident report.

The following day, Mr. Blakeman questioned Mr.

Martin and other inmate workers about the missing lock to see if
they knew anything about it.

Mr. Martin told Mr. Blakeman what

Mr. Posey had asked him to do.
Based on information from both Mr. Martin and Mr. Robison,
Mr. Blakeman filled out a second incident report on October 23,
2014.

On that same date, Mr. Martin was handcuffed, called to

the Captain’s office, and placed in isolation for eight days
without explanation.

On November 3, 2014, Mr. Martin received a

conduct report for lying to staff.

In the report, Mr. Martin was

accused of making false statements to corroborate Mr. Robison’s
story.

This conduct report was false because when Mr. Martin

spoke to Mr. Blakeman, he was unaware that Mr. Robison also had
spoken with Mr. Blakeman and because Mr. Martin had told the same
story days earlier to Mr. Dunham.

The information in the conduct

report was designed to “cover up for Defendant Posey’s criminal
activities.”

Later that same day, Mr. Martin was fired from and

“re-classed out of” his job at OPI.
The following day, Mr. Martin was called to Sargeant
Parnell’s Office for disposition of the conduct report.

Sargeant

Parnell told Mr. Martin that “‘personally I think your (sic)
getting screwed, but I have to find you guilty because they want
you out of OPI and never allowed through the OPI gate again.’”
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Sargeant Parnell did not turn the conduct report over to the
Rules Infraction Board and had formed his opinion that Mr. Martin
was getting “‘screwed’” based on Mr. Coey’s direction regarding
what should happen to Mr. Martin.
Mr. Posey worked in concert with the OPI Industry Manager
Mr. Coey and the OPI Superintendent Mr. Cruse to retaliate
against Mr. Martin by writing a false conduct report.

Mr. Coey

retaliated against Mr. Martin for telling the truth and giving a
statement to Mr. Blakeman.

Mr. Coey “covered up” for Mr. Posey’s

criminal activity by writing the false conduct report against Mr.
Martin.

Mr. Coey originally had asked Mr. Blakeman to “‘make

something up’” and write the conduct report because Mr. Coey
wanted Mr. Martin to lose his job.

Mr. Coey also requested that

Mr. Cruse write the false report but had to write it himself when
Mr. Cruse declined.
Although Mr. Cruse did not write the false conduct report,
he knew that doing so was wrong.

In fact, he was willing to

write the report until he realized he would have to do so by hand
and could not simply submit it anonymously on the computer.

Mr.

Cruse admittedly knew Mr. Martin was innocent but participated in
the cover up to protect Mr. Posey from being held accountable for
a criminal offense.

Mr. Cruse knew that the investigation

undertaken by his office did not conform with the policies of the
ODRC and did not alert the CCI administrative offices about the
investigation.
Institutional Inspector Corby Free did not respond to Mr.
Martin’s notification of grievance requesting that he conduct a
“proper investigation” of the circumstances surrounding the
conduct report.

Further, Mr. Free affirmed the conduct report

and continued the cover up engaged in by Mr. Posey, Mr. Coey and
Mr. Cruse.

Mr. Free informed Mr. Martin that the grievance

procedure was not a substitute appeal process for hearing officer
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decisions but that he could appeal his job reclassification to
the Unit Manager Administrator.
Mr. Wilson, Chief Inspector of the ODRC, affirmed the
Institutional Inspector’s decision and failed to investigate the
cover-up brought to his attention by Mr. Martin in his appeal.
This violated Mr. Martin’s due process rights and allowed the
retaliation to continue.

Mr. Mohr, as director of the ODRC, has

failed to change Ohio Administrative Rule 5120-9-07 which has had
the impact of denying Mr. Martin’s right to procedural due
process in disciplinary proceedings.
II.

Legal Standard

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
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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
this liberal standard. Id.
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
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.
III.
A.

Analysis

The Motion to Dismiss

All the defendants have moved to dismiss Mr. Martin’s claims
against them in their official capacities because, in that
capacity, all claims for damages are barred by the Eleventh
Amendment.
Turning to the defendants individually, Mr. Coey contends
that the claims he violated Mr. Martin’s First and Fourteenth
Amendment rights by writing a false conduct report in retaliation
for Mr. Martin’s “telling the truth” to Mr. Blakeman fail for
several reasons.

First, he contends that Mr. Martin has no

constitutional right to a prison job or to remain free from
administrative segregation so no due process claim under §1983

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arises from either the termination of his employment or his
eight-day stay in segregation.

Further, he argues that the fact

that Mr. Martin was found guilty of the allegations of the
conduct report negates any retaliation claim.

He also contends

that any conspiracy claim should be dismissed because nothing
beyond conclusory allegations are pled.

Finally, he asserts that

he is entitled to qualified immunity.
The remaining defendants make a similar argument as to the
due process claim and also raise the defense of qualified
immunity.

Additionally, they argue that the focus of Mr.

Martin’s complaint is Mr. Coey’s alleged actions in writing a
false conduct report and they cannot be held liable for his
actions.

Because, in their view, Mr. Martin has failed to allege

their personal involvement in any unconstitutional behavior, any
retaliation claim related to the report cannot succeed against
them.

They also assert that any claims relating to their

participation in the grievance process do not state a
constitutional deprivation and that any conspiracy claim is
supported only by conclusory allegations.
Neither of Mr. Martin’s responses address the issues raised
by defendants relating to his due process claim.

Rather, his

response to Mr. Coey’s motion to dismiss focuses on the
retaliation and conspiracy claims and argues that Mr. Coey is not
entitled to qualified immunity.

Further, his response to the

remaining defendants’ motion to dismiss is limited to addressing
the retaliation claim.
B.

Official Capacity Claims

Initially, the defendants all assert that the claims against
them in their official capacities must be dismissed.
“To state a claim under §1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
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committed by a person acting under color of state law.”
Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.
1998) (internal quotations and citations omitted).

A plaintiff

seeking relief under §1983 may bring a claim against a public
official in the official's individual or official capacity.
Individual-capacity claims “seek to impose individual liability
upon a government officer for actions taken under color of state
law.”

Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d

301 (1991).

In contrast, an official-capacity claim is “another

way of pleading an action against an entity of which an officer
is an agent.”

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690

n.55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
The Eleventh Amendment to the United States Constitution
“bars suits brought in federal court against a state and its
agencies unless the state has waived its sovereign immunity or
consented to be sued in federal court.”

Grinter, 532 F.3d at 572

(citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 66
(1989); additional citations omitted).

This immunity extends to

claims against individuals sued in their official capacity to the
extent that those claims seek monetary damages.

Barker v.

Goodrich, 649 F.3d 428, 433 (6th Cir. 2011), reh'g denied (Sept.
12, 2011); see also McCormick v. Miami Univ., 693 F.3d 654, 662
(6th Cir. 2012).

Ohio has not waived its sovereign immunity or

consented to being sued in federal court.

See Mixon v. State of

Ohio, 193 F.3d 389, 397 (6th Cir. 1999); see also Barker, 649
F.3d at 432 (“The burden of establishing Eleventh Amendment
immunity lies with the state, and the defense is waived if it is
not raised.”) (citations omitted).
not abrogated that immunity.

Furthermore, section 1983 has

See Campbell v. Hamilton Cnty., 23

F. App'x 318, 327 (6th Cir. 2001) (quoting Quern v. Jordan, 440
U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)).

Accordingly,

because the claims at issue here are claims for monetary damages,
-7-

claims against defendants in their official capacities are barred
by the Eleventh Amendment.
In his complaint, Mr. Martin makes clear that he filed this
lawsuit against each defendant in his “personal and official
capacity.”

Consequently, Mr. Martin’s claims for monetary relief

against defendants in their official capacities must be dismissed
under the Eleventh Amendment.
C.

Retaliation Claim

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
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)).
Turning to the first element of protected conduct, certainly
Mr. Martin has not asserted a more typical First Amendment
retaliation claim.

That is, he is not contending that he filed a

grievance or lawsuit and was retaliated against as a result.
Rather, Mr. Martin’s claim, on one hand, is that he gave truthful
information to his supervisor, Mr. Blakeman, during Mr.
Blakeman’s investigation of the locker incident and that he was
retaliated against for these statements.

In short, Mr. Martin

alleges a First Amendment right to respond truthfully to
questioning in connection with an investigation undertaken by his
supervisor.
-8-

The Court of Appeals has acknowledged a prisoner’s right to
cooperate in an internal prison investigation.

See Griffin v.

Berghuis, 563 Fed.Appx. 411, 421 (6th Cir. 2014).

In Griffin,

the Sixth Circuit relied on Cornell v. Woods, 69 F.3d 1383, 1390
(8th Cir. 1995), in reversing a summary judgment finding of
qualified immunity in response to a retaliation claim.

In

Cornell, the Eighth Circuit explained:
We believe it to be self evident that ordinary citizens
enjoy a constitutional privilege to freely participate
in government investigations.
The right to respond to a prison investigator’s
inquiries is not inconsistent with a person’s status as
a prisoner or with the legitimate penological
objectives of the corrections system. To the contrary,
we agree with the district court that truthfully
answering questions concerning a misconduct
investigation against a correctional officer is
“undoubtedly quite consistent with legitimate
penological objectives.” Consequently, we conclude
under the facts of this case that Cornell’s activity
implicated his rights under the First Amendment.
...
It seems elementary to us that a prisoner retains a
First Amendment right to respond to questions posed to
him by a prison investigator.
Cornell, 69 F.3d at 1388, 1390.
With respect to the second element of a retaliation claim,
adverse action, Mr. Martin alleges that Mr. Coey, with the
involvement of Mr. Posey and Mr. Cruse, wrote a false conduct
report against him and that, as a result, Mr. Martin lost his
job.

It appears from the complaint that this false conduct

report related to his statements regarding Mr. Posey’s alleged
criminal conduct.

The focus of defendants’ argument appears to

be that because Mr. Martin was found guilty of the alleged
misconduct, he has no claim for retaliation and that he has no
constitutionally-protected right to a prison job.

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Defendants’

arguments on this point are not persuasive.
Charging an inmate with a major misconduct violation has
been found by the Court of Appeals to be sufficiently adverse
conduct to “deter a person of ordinary firmness from the exercise
of the right at stake,” because conviction of such a violation
could result in the prisoner’s segregation or loss of good time
credits.

Carter v. Dolce, 647 F.Supp.2d 826, 834-835 (E.D. Mich.

2009), quoting Thaddeus-X at 396; see also Brown v. Crowley, 312
F.3d 782, 789 (6th Cir. 2002); King v. Zamiara, 150 Fed. Appx.
485, 494 (6th Cir. 2005).

More specifically, the filing of false

disciplinary reports has been found to be an adverse action.
Loyde v. Jenkins, 2015 WL 3645515 (M.D. Tenn. June 10, 2015).
Further, while generally a prisoner has no constitutional
right to prison employment or a particular prison job,

Jewell v.

Leroux, 20 Fed.Appx. 375, 377 (6th Cir. 2001), citing Newsom v.
Norris, 888 F.2d 371, 374 (6th Cir. 1989), the Court of Appeals
has suggested that, “in the context of a retaliation claim,
termination of prison employment may constitute adverse action.”
Walker v. Brewer, 2014 WL 1117835, *2 (W.D. Mich. March 20,
2014), citing Pasley v. Conerly, 345 Fed.Appx. 981, 985 (6th Cir.
2009); Dobbins v. Craycraft, 423 Fed. Appx. 550, 552 (6th Cir.
2011).

Consequently, the Court finds that Mr. Martin 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 the defendants’ motive.
F.3d 434, 441 (6th Cir. 2007).

Thomas v. Eby, 481

Defendants contend that the fact

that Mr. Martin was found guilty of the alleged misconduct by a
hearing officer bars his retaliation claim.

However, here Mr.

Martin specifically contends that the hearing officer was acting
at Mr. Coey’s instruction who, in turn, was acting to protect Mr.
Posey.

The Court finds that these allegations, at least at the
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pleading stage, are sufficient to satisfy Mr. Martin’s burden as
to the third element of his retaliation claim.
To summarize, Mr. Martin has stated a claim for retaliation
based on the following allegations.

He provided statements to

his supervisor Mr. Blakeman regarding Mr. Posey’s alleged
criminal activity in connection with Mr. Blakeman’s investigation
regarding the break-in to his locker.

As a result, Mr. Coey

prepared a false conduct report against Mr. Martin in conspiracy
with Mr. Posey and Mr. Cruse which then caused Mr. Martin to lose
his job.

Mr. Coey and Mr. Posey conspired to have Mr. Coey

write the false conduct report because Mr. Martin had implicated
Mr. Posey in Mr. Blakeman’s investigation.

Further, Mr. Cruse

had full knowledge of the false conduct report, was willing to
write it himself until he realized he could not do so
anonymously, and admittedly worked to cover up Mr. Posey’s guilt.
Beyond these specific allegations and these specific defendants,
Mr. Martin has not stated a retaliation claim.
That is, Mr. Martin has not alleged the involvement of Mr.
Free, Mr. Wilson, or Mr. Mohr in the act of retaliation at issue.
At most, Mr. Martin has alleged in a broad and conclusory manner
that these defendants perpetuated the retaliation because they
refused to provide the relief Mr. Martin sought through the
grievance process.

Given that Mr. Martin has not alleged the

personal involvement of these defendants in the alleged
retaliation, and the most he has alleged is their failure to act,
they cannot be liable under §1983.

Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000).
Consequently, the Court will recommend that the motion to dismiss
be granted as to Mr. Martin’s retaliation claim against Mr. Free,
Mr. Wilson, and Mr. Mohr.
D.

Conspiracy Claim

In his complaint, Mr. Martin repeatedly explains the actions
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of Mr. Coey, Mr. Posey, and Mr. Cruse with respect to the
allegedly false conduct report in terms of a conspiracy.

The

defendants recognize Mr. Martin’s attempt to set forth a
conspiracy claim, but contend that Mr. Martin’s allegations are
too conclusory to state such a claim under §1983.

However, to

assert such a claim under §1983, a plaintiff must show:

(1) a

single plan, (2) that the alleged co-conspirators shared in the
general objective, and (3) that an overt act was committed in
furtherance of the conspiracy that deprived plaintiff of his
civil rights.
1985).

Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.

Here, Mr. Martin has alleged that a single plan existed -

a plan to protect Mr. Posey by implicating Mr. Martin as a liar;
that Mr. Posey, Mr. Coey, and Mr. Cruse shared in this general
objective of protecting Mr. Posey at Mr. Martin’s expense; that a
false conduct report was written in retaliation for Mr. Martin’s
exposing Mr. Posey’s illegal conduct; and that this retaliation
violated Mr. Martin’s First Amendment rights.

While certainly,

Mr. Martin will be required to come forward with specific factual
support in order to sustain his conspiracy claim, the Court finds
that these allegations, at least at the pleading stage, are
sufficient to satisfy Mr. Martin’s burden.

Consequently, the

Court will recommend that the motions to dismiss be denied as to
Mr. Martin’s conspiracy claim against Mr. Coey, Mr. Posey, and
Mr. Cruse.
E.

Procedural Due Process Claim

With respect to his due process claim against various named
defendants, Mr. Martin frames that claim as follows.

According

to the complaint, various defendants perpetuated the violation of
his due process rights by failing properly to address the issue
of the hearing, as well as his claims of retaliation, when he
undertook to pursue his claims through the prison grievance
system.

Mr. Martin claims that he was unable to appeal or grieve
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the hearing officer’s decision and that many of the defendants
failed to follow ODRC rules and policy in connection with the
grievance process.

He also contends, most specifically with

respect to his claim against Mr. Mohr, that the Ohio
Administrative Code regulations relating to the authority of
hearing officers violate his due process rights.
Defendants are correct that, to the extent Mr. Martin may be
asserting a due process claim because of an alleged liberty
interest in his prison job, he cannot succeed.

Prisoners do not

have a constitutionally protected liberty interest in prison
vocational, and educational programs based on the Fourteenth
Amendment.

Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989).

Consequently, the loss of a prison job does not trigger due
process protections and the Court will not consider Mr. Martin’s
due process claim as it relates to his loss of his prison job.
Given the way in which Mr. Martin has pled his due process
claim as it relates to most of the named defendants, however, his
focus appears to be on the way various defendants handled his
informal complaints and grievances.

For example, Mr. Martin

states that Mr. Free did not call any witnesses or conduct any
investigation in response to the notification of grievance but
simply affirmed the Conduct Report.

Additionally, Mr. Martin

contends that Mr. Wilson did not conduct any investigation but
simply affirmed Mr. Free’s decision.

With respect to Mr. Mohr,

Mr. Martin appears to be alleging that Mr. Mohr has failed to
change the administrative regulations which resulted in the
deprivation of his due process rights.

These allegations do not

state a due process claim against the defendants.
To the extent that Mr. Martin contends that these defendants
mishandled his informal complaints and grievances, he has failed
to state a claim because he has no constitutional right to an
effective prison grievance procedure.
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Young v. Gundy, 30

Fed.Appx. 568, 569-70 (6th Cir. 2002); LaFlame v. Montgomery
County Sheriff’s Department, 3 Fed.Appx. 346, 348 (6th Cir.
2001).

Additionally, responding to a grievance or participating

in the grievance procedure is insufficient to trigger a prison
official’s liability, even when grievances alert them to
unconstitutional actions.

See Shehee v. Luttrell, 199 F.3d at

300.
More specifically with respect to Mr. Mohr, Mr. Martin’s
framing of his claims indicates an intention to state a claim
against Mr. Mohr solely on the basis of his role as the Director
of the ODRC.

As explained above, Mr. Martin’s claims for damages

against Mr. Mohr in his official capacity clearly are barred by
the Eleventh Amendment.

Further, to the extent that Mr. Martin

may be attempting to state a claim for damages against Mr. Mohr
in his personal capacity, Mr. Martin cannot succeed.

Allegations

of direct involvement in constitutional deprivations, rather than
attempts to impose liability by virtue of the doctrine of
respondeat superior, are necessary in order to hold an individual
defendant liable under §1983.

Monell v. Department of Social

Services, 436 U.S. 658 (1978).
Finally, to the extent that Mr. Martin is attempting to
state a claim under §1983 by alleging that defendants’ actions
with respect to the grievance process violated ODRC policies,
such a claim must also fail.

An alleged failure to comply with

an administrative rule or policy does not rise to the level of a
constitutional violation.
2 (6th Cir. 2007).

Laney v. Farley, 501 F.3d 577, 581 n.

Consequently, the Court will recommend that

Mr. Martin’s due process claim be dismissed as to all defendants.
F.

Qualified Immunity Defense

The defendants’ qualified immunity defense, as presented, is
limited to Mr. Martin’s due process claim.

In Mr. Coey’s motion

to dismiss, he claims he is entitled to qualified immunity
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because “... there is no clearly established constitutional right
to a prison job, to avoiding a short transfer to segregation, or
to averting a conduct report that is found to be meritorious.

As

such Defendant is entitled to qualified immunity and the claims
against him should be dismissed.”

The remaining defendants, in

their motion to dismiss, contend that “... there is no clearly
established constitutional right to an effective grievance
procedure, to a prison job, or to control or supervision of a
defendant’s employees.

As such, Defendants are entitled to

qualified immunity and the claims against them should be
dismissed.”

Because the defendants do not address their

qualified immunity argument to Mr. Martin’s retaliation claim,
the Court will not consider it.
IV.

The Motion for Leave to Amend

Following the filing of the motions to dismiss and the
issuance of the Court’s order of October 21, 2015 adopting the
Report and Recommendation in Robison v. Coey, Case No. 2:15-cv944, Mr. Martin moved for leave to amend his complaint.

Although

the motion is unopposed, for the following reasons, the Court
will recommend that it be denied.
First, Mr. Martin has not provided a copy of a proposed
amended complaint for the Court’s consideration.

According to

his brief motion, however, he seeks to:
1.

Add the Hearing Officer, Rick Parnell as a Defendant.

2.

Add the Ohio Department of Rehabilitation and Correction

as a Defendant.
3.

Add Injunctive Relief to the Plaintiffs Claim for

Relief.
On one hand, his failure to provide a copy of a proposed
amended complaint or to provide more detailed proposed amendments
could be considered grounds to deny his motion.
On the other hand, viewing his limited proposed amendments
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in the context of his original complaint, the Court concludes
that such amendments would be futile in light of the
recommendation set forth above.
To the extent that Mr. Martin seeks to add the hearing
officer, Mr. Parnell, as a defendant, the allegations of the
complaint addressing Mr. Parnell’s alleged conduct relate only to
Mr. Martin’s due process claim.

That is, the complaint’s

allegations suggest that Mr. Parnell found Mr. Martin guilty on
the conduct report solely due to Mr. Coey’s desire to have Mr.
Martin fired and that Mr. Parnell himself independently believed
that Mr. Martin was getting ‘”screwed.’”
Similarly, Mr. Martin’s request for injunctive relief, again
looking at the allegations of the complaint, relates only to his
due process claim.

That is, Mr. Martin believes a change to Ohio

Administrative Rule 5120-9-07 is necessary because it grants too
much power to a hearing officer and acts to deprive inmates of
their due process rights.
his role as ODRC Director.

He directs this claim to Gary Mohr in
However, because the Court has

recommended that the due process claim be dismissed, these
proposed amendments would not survive a motion to dismiss.
Further, the ODRC would be entitled to Eleventh Amendment
immunity as to any claim for monetary damages arising from the
alleged retaliation.

For these reasons, the Court will recommend

that the motion for leave to amend be denied.
V.

Remaining Motions

Mr. Martin has requested the appointment of counsel.

Since

this action has not yet progressed to the point that the Court is
able to evaluate the merits of plaintiff's claim, the motion for
appointment of counsel will be denied.

See Mars v. Hanberry, 752

F.2d 254 (6th Cir. l985).
Finally, Mr. Martin’s motion to moot the motion to dismiss
filed by the defendants other than Mr. Coey will be denied.
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VI.

Recommendation

For the reasons stated above, the Court recommends that the
motions to dismiss (Doc. 10 and 15) be granted in part and denied
in part.

It is recommended that the motions to dismiss be denied

as to Plaintiff’s retaliation and conspiracy claims against
defendants Coey, Posey, and Cruse in their individual capacities.
It is recommended that the motions to dismiss be granted as to
all other claims and defendants.

Further, it is recommended that

the motion for leave to amend the complaint (Doc. 17) be denied.
Further, the motion to moot the motion to dismiss (Doc. 16)
and the motion for appointment of counsel (Doc. 19) are denied.
PROCEDURE ON OBJECTIONS TO THE REPORT AND RECOMMENDATION
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).
MOTION FOR RECONSIDERATION OF THE ORDER
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Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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