Cleare v. Jenkins et al

Filing 32

REPORT AND RECOMMENDATIONS re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : The Magistrate Judge RECOMMENDS that Defendants' Motion to Dismiss be GRANTED IN PART and DENIED IN PART. The Undersigned further RECOMMENDS that the C ourt sua sponte GRANT Plaintiff leave to amend his complaint consistent with this Report and Recommendation. Objections to R&R due by 7/11/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/24/2016. (mas)(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
RODERICK CLEARE,
Plaintiff,
Civil Action 2:15-cv-2295
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN CHAROLETTE JENKINS,
et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for Consideration of Defendants’ Motion to Dismiss
(ECF. 19) and Plaintiff’s Response in Opposition (ECF No. 20). Defendants did not file a Reply.
For the reasons that follow, the Undersigned RECOMMENDS that Defendants’ Motion to
Dismiss be GRANTED IN PART and DENIED IN PART. The Undersigned further
RECOMMENDS that the Court sua sponte GRANT Plaintiff leave to amend his complaint
consistent with this Report and Recommendation.
I. BACKGROUND
On May 29, 2015, Plaintiff brought this civil rights action, pursuant to 42 U.S.C. §§
1983, 1985(3), and 1986. (ECF No. 1.) In his Complaint, Plaintiff alleges that Defendants
violated his constitutional rights by committing acts of physical violence, fabricating false
disciplinary charges against him, and placing Plaintiff into segregation as punishment for
Plaintiff’s filing of grievances.
According to Plaintiff, on February 21, 2015, he “was taken to [a] captain’s office and
was physically abused by [a] lieutenant in the present [sic] of a captain and three other officers

while I had handcuffs on.” (ECF No. 1 at 5.) Plaintiff states that he was “then dragged to
segregation like I was cattle for no reason whatsoever.” (Id.) Plaintiff further states that after his
release from segregation on March 3, 2015, he made “an informal complaint about the physical
abuse while I was handcuffed and sent it directly to C.C.I Warden Jenkins’ Office.” (Id.)
Plaintiff relates that approximately one week later he was again put into segregation.
Plaintiff states he was told that he was in segregation for his protection during the investigation
into his excessive force complaint. (Id.) According to Plaintiff, however, “it was very clear it
was all done to punish me for using [the] complaint procedure.” (Id.) Plaintiff claims that he
was in segregation until March 23, 2015 and “[a]t no time had I receive[d] any notice,
documentation, hearing or anything in accordance with policy violating my due process rights.”
(Id. at 5-6.)
Plaintiff further alleges that he received punishment, in the form of a misconduct ticket,
for receiving medical treatment during his scheduled work hours. (Id. at 6.) According to
Plaintiff, the punishment served only to retaliate against him for his earlier grievances. (Id.) The
Court also construes Plaintiff’s Amended Complaint to allege conspiracy to violate his civil
rights under 42 U.S.C. §§ 1985(3) and 1986. (ECF No. 5 at 2.)
Defendants filed their Motion to Dismiss on October 26, 2015. (ECF No. 19.) On
November 6, 2015, Plaintiff filed his Response in Opposition. (ECF No. 20.)
II. STANDARD OF REVIEW
Defendants bring their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff must
satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

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Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and
factual demands on the authors of complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank,
F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
Further, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

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III. ANALYSIS
Plaintiff brings his claims against Defendants under 42 U.S.C. § 1983, which provides as
follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under § 1983, a plaintiff must prove both that (1) the perpetrator acted under
color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev’d and remanded sub
nom. Brandon v. Holt, 469 U.S. 464 (1985). To sufficiently plead the first element, a plaintiff
must allege “personal involvement” on the part of the defendant. Grinter v. Knight, 532 F.3d
567, 575 (6th Cir. 2008) (citation omitted). This requirement arises because Ҥ 1983 liability
cannot be imposed under a theory of respondeat superior.” Id. (citation omitted).
Defendants move to dismiss this case, urging the Court to find Plaintiff’s pleading
deficient upon three grounds. First, Defendants argue that Plaintiff’s Complaint does not allege
that Defendants personally committed any of the acts in question. (ECF No. 19 at 2.) Second,
Defendants assert that Plaintiff’s Complaint fails to allege sufficient facts to establish
wrongdoing. (Id. at 5.) According to Defendants, Plaintiff’s allegations of “physical abuse”
amount to a mere conclusory statement that formulaically recites the elements of his cause of
action. (Id. at 5-6.) Last, Defendants argue that Plaintiff’s claims with respect to Defendant Free
fail as a matter of law because they only assert liability under the theory of respondeat
superioror, which is not a proper basis for liability in a § 1983 action. (Id. at 9-10.)
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In response, Plaintiff seeks to convert Defendants’ motion to dismiss into a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 12(d). (ECF No. 20 at 6.)
Plaintiff argues that the conversion will necessarily result in a finding that a genuine issue of
material fact exists. According to Plaintiff, Defendants have access to evidence that would
support his case but which is currently unavailable to him. (Id. at 5-6.) Under Plaintiff’s theory,
invoking Federal Rule of Civil Procedure 56(d), therefore, would require the Court to defer
considering Defendant’s motion, deny the motion, or allow time to take discovery before ruling.
(Id.)
Plaintiff’s Response does not address Defendants’ assertion that his pleadings are
deficient. Plaintiff, instead, reasserts the Complaint’s allegations but identifies Defendants by
name and states what acts he believes they committed. With respect to his First Amendment
retaliation claims, Plaintiff states that Defendants Higgenbothem and Irvin made false
disciplinary charges against him because Plaintiff filed a grievance against them. (ECF No. 20 at
7.) Plaintiff further states that Defendant Lieutenant Brown retaliated further and violated
Plaintiff’s Eighth Amendment rights “by bending my wrist and hands while handcuffed to the
breaking point” as the other defendants watched and verbally abused him in Defendant Captain
Brown’s office. (Id.) Plaintiff also claims that Defendant Free ordered him segregated as
retaliation for filing grievances. (Id.)
A. PLAINTIFF’S RULE 12(d) ARGUMENT
Plaintiff contends that the Court should convert Defendants’ motion to dismiss into a
motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). Rule 12(d)
reads in relevant part as follows:

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If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.
By the plain language of the rule, then, in order to convert a motion to dismiss into a motion for
summary judgment, two conditions must obtain. First, the parties must present “matters outside
the pleadings.” Second, the Court must decline to exclude those matters when considering the
motion. In the instant case, however, neither condition applies. The parties have not presented
matters outside the pleadings. Plaintiff alleges in his Response that Defendants have access to
evidence favorable to him, but he has not submitted any evidence himself or any other matters
outside the pleadings. (ECF No. 20 at 6.) Neither have Defendants, for their part, presented the
Court with any matters outside the pleadings. As the Court has not been presented with any
matters outside the pleadings, there are no matters to be excluded in considering Defendants’
motion to dismiss. Rule 12(d), therefore, is inapplicable to the instant case. Accordingly, the
Undersigned finds that Plaintiff’s argument that Defendant’s motion to dismiss should be
converted to a motion for summary judgment and then stayed pending discovery is without
merit.
B. COUNT I: EIGHTH AMENDMENT EXCESSIVE FORCE CLAIMS
The Eighth Amendment, through the Due Process Clause of the Fourteenth Amendment,
prohibits state officials from inflicting “cruel and unusual punishments” on prison inmates. U.S.
Const. amends. VIII and XIV; Wilson v. Seiter, 501 U.S. 294, 296 (1991). State officials are
prohibited from enacting punishments that “involve the unnecessary and wanton infliction of
pain or are grossly disproportionate to the severity of the crime.” Rhodes v. Chapman, 452 U.S.
337, 346 (1981) (internal citations and quotations omitted).

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When analyzing excessive force claims under the Eighth Amendment, courts consider
“‘whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir.
2002) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). This analysis contains both a
subjective and an objective component. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).
“The subjective component focuses on the state of mind of the prison officials. The relevant
inquiry is ‘whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.’” Id. (quoting Hudson, 503
U.S. at 6). Relevant factors to consider include “the extent of injury suffered by an inmate, the
need for application of force, the relationship between that need and the amount of force used,
the threat reasonably perceived by the responsible officials, and any efforts made to temper the
severity of a forceful response.” Combs, 315 F.3d at 556–57 (internal quotes omitted).
The objective component of an Eighth Amendment excessive force claim requires that a
plaintiff’s injury or pain be “sufficiently serious.” Williams, 631 F.3d at 383. This component is
“contextual and responsive to ‘contemporary standards of decency.” Hudson, 503 U.S. at 8. Not
“every malevolent touch” by a prison guard, however, gives rise to a federal cause of action. Id.
at 9.
Here, Plaintiff has pleaded facts that, if taken as true, fail to satisfy both the subjective
and the objective prongs of an excessive force claim under the Eighth Amendment. First, as to
the subjective prong, plaintiff alleges he was “physically abused” by an unnamed “lieutenant in
the presence of a captain and three other officers. (ECF No. 1 at 5.) In his Amended Complaint,
Plaintiff alleges that Defendant Higginbothem “used needless use of force on Plaintiff
maliciously and sadistically in bad faith.” (ECF No. 5 at 2.) These allegations against

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Defendant Higginbothem are mere “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” that the Supreme Court has determined “do not
suffice” to state a claim for which relief may be granted. Iqbal, 556 U.S. at 678. Plaintiff’s
pleading is insufficient to establish a culpable state of mind. Curtin, 631 F.3d at 383. With
respect to the objective prong, Plaintiff’s Complaint fails to allege a specific injury from which
the Court could conclude Defendants have inflicted “sufficiently serious” harm, Williams, 631
F.3d at 383, that goes beyond “contemporary standards of decency.” Hudson, 503 U.S. at 8.
In his Response to Defendants’ Motion to Dismiss, however, Plaintiff provides specific
facts that, if true, could state a claim upon which relief can be granted against certain Defendants
for excessive force. In his response, Plaintiff states that, after he filed his initial grievance,
Defendant Higgenbothem and Defendant Lieutenant Brown, while in Captain Brown’s office,
“applied the needless use of force upon plaintiff by bending my wrist and hands while
handcuffed to the breaking point and all defendants being verbally abusive.” (ECF No. 20 at 7.)
Notably, Plaintiff does not indicate that Defendant Irvin committed any of these acts, but merely
alleges that Defendant Irvin was present. (Id.) These facts, as alleged in Plaintiff’s Response,
sufficiently satisfy the pleading requirements for both the objective and subjective components
of an Eighth Amendment excessive force claim.
Were Plaintiff to amend his Complaint to incorporate these allegations, he would then
state a claim upon which relief can be granted against Defendants Higgenbothem, Lieutenant
Brown, and Captain Brown. Plaintiff, however, has advanced no allegations of fact against
Defendant Irvin or Defendant Free that if proved would show their personal involvement in the
alleged misconduct apart from Defendant Irvin’s “being verbally abusive.” Rizzo, 423 U.S. at
371. The Court notes, however, that “[m]ere insults are generally not actionable under 42 U.S.C.

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§ 1983.” Siggers v. Renner, 37 F. App’x 138, 141 (6th Cir. 2002); see Wingo v. Tennessee Dept.
of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (“Verbal harassment or idle threats by a state
actor do not create a constitutional violation and are insufficient to support a § 1983 claim for
relief.”).
In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege “personal
involvement” on the part of the defendant. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008)
(citation omitted). This requirement arises because Ҥ 1983 liability cannot be imposed under a
theory of respondeat superior.” Id. (citation omitted). Moreover, Plaintiff cannot establish the
liability of a defendant absent a clear showing that the defendant was personally involved in the
activities that form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S.
362, 371 (1976); see also Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012)
(noting that “[p]ersons sued in their individual capacities under § 1983 can be held liable based
only on their own unconstitutional behavior”); Murphy v. Grenier, 406 F. App’x at 972, 974 (6th
Cir. 2011) (“Personal involvement is necessary to establish section 1983 liability”). In other
words, individual liability “must be based on the actions of that defendant in the situation that the
defendant faced, and not based on any problems caused by the errors of others, either defendants
or non-defendants.” Gibson v. Matthews, 926 F.2d 532, 535 (6th Cir. 1991). A defendant must,
therefore, play more than a passive role in the alleged violation or show mere tacit approval of
the actions in question. Rizzo, 423 U.S. at 371.
In his Complaint, Plaintiff alleges that Defendant Free investigated his complaint
regarding excessive force. (ECF No. 1 at 5.) Plaintiff also states that Defendant Free visited him
when he was in segregation. (Id.) Plaintiff further claims that Defendant Free retaliated against
him for using the grievance procedure by having him placed in segregation. (ECF No. 1 at 6.)

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Nowhere in his Complaint does Plaintiff allege facts that, if accepted as true, would indicate
Defendant Free used excessive force against Plaintiff. At most, Plaintiff has pleaded facts that
suggest Defendant Free was generally aware of his complaint for use of excessive force. Mere
awareness, coupled with a supervisory position, however, is not enough to establish liability
under 42 U.S.C. § 1983. Grinter, 532 F.3d at 575.
Accordingly, the Undersigned finds that these allegations fail state a claim for which
relief can be granted against Defendant Irvin and Defendant Free for excessive force.
C. COUNT II: FIRST AMENDMENT RETALIATION CLAIM
The three elements of a First Amendment retaliation claim are as follows:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff 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.
Rapp v. Putman, No. 15-1995, 2016 WL 1211850 at *3 (6th Cir. Mar. 29, 2016) (quoting
Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)) (internal quotes omitted).
“[C]onclusory allegations of retaliatory motive unsupported by material facts will not be
sufficient to state a . . . claim.” Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005).
In the instant case, the Complaint alleges that Defendants placed Plaintiff in segregation
for approximately twelve days “to punish me for using [the] complaint procedure.” (ECF No. 1
at 5.) The Complaint further alleges that Plaintiff received a misconduct ticket for refusing to
work when he was actually receiving medical treatment. (Id. at 6.) Plaintiff also states in his
Complaint that prison staff wrongly found against him in the matter and ignored his subsequent
complaint and grievance. (Id. at 6-7) In his Response to Defendants’ Motion to Dismiss,

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Plaintiff alleges that Defendants Higgenbothem and Irvin “retaliated against Plaintiff by
asserting false disciplinary charges.” (ECF No. 20 at 7.)
1. Count II(a) Segregation and False Disciplinary Charges
With respect to Plaintiff’s allegation that Defendants placed him in segregation and made
false disciplinary charges as retaliation for Plaintiff’s use of the complaint and grievance system,
Plaintiff has pleaded sufficient facts to state a claim upon which relief may be granted. Plaintiff
alleges that he engaged in the protected conduct of filing grievances and complaints against
prison officials. (ECF No. 1 at 5.) He also alleges that, in retaliation, Defendants placed him in
segregation and filed false disciplinary actions against him. These actions are “sufficiently
adverse to deter a person of ordinary firmness from exercising his First Amendment rights.”
Dunham–Bey v. Holden, No. 98–1522, 1999 WL 1023730 at *2, 198 F.3d 244 (unpublished)
(6th Cir. Nov. 5, 1999). Plaintiff further alleges that Defendants’ conduct was, at least in part,
motivated by his filing of grievances. (ECF No. 1 at 5.)
The Court is mindful that Plaintiff has neither a constitutional right to be free from false
accusations nor a liberty interest in an appeal from a conviction of conduct report charges.
Jackson v. Hamlin, 61 F. App’x 131, 132 (6th Cir. 2003) (A “prisoner has no constitutional right
to be free from false accusations of misconduct.”) (citing Freeman v. Rideout, 808 F.2d 949, 951
(2d Cir. 1986)). Furthermore, “to the extent that [a plaintiff] has asserted a pure retaliation
claim, [he] still has not stated a claim [when he has been] convicted of the misconduct charges.”
Ruiz v. Bouchard, 60 F. App’x 572, 574 (6th Cir. 2003). The “prison officials’ conclusions that
[the plaintiff] was guilty of the underlying misconduct charges satisfies defendants’ burden of
showing that they would have brought the charges against him even if [the plaintiff] had not filed
his grievances and complaints.” Wilson v. Wellman, No. 99-2377, 2000 WL 1829265 at *2 (6th

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Cir. Dec. 6, 2000). In the instant case, Plaintiff states in his Response to Defendants’ Motion to
Dismiss that the misconduct charges of which he complains did not end in conviction, but were
“later retracted.” (ECF No. 20 at 7.) With respect to these later retracted misconduct charges,
therefore, the Undersigned construes Plaintiff’s pleading to allege instances of First Amendment
retaliation rather than some other constitutional violation.
Defendants argue that Plaintiff has failed to plead “material facts” with respect to their
motivation to place him in segregation. (ECF No. 19 at 9.) Defendants are correct that Plaintiff
has not pleaded any facts that, if accepted as true, would directly prove that Defendants were
motivated by Plaintiff’s protected conduct. The Court notes, however, that allegations of
“retaliation rarely can be supported with direct evidence of intent.” Harbin-Bey, 420 F.3d at 580
(6th Cir. 2005) (quoting Murphy v. Lane, 833 F.2d 106, 108 (7th Cir. 1987); see Thaddeus-X,
175 F.3d at 399 (“Circumstantial evidence, like the timing of events or the disparate treatment of
similarly situated individuals is appropriate”).
In the instant case, Plaintiff has pleaded material facts that, if accepted as true, indirectly
support a conclusion that Defendants were motivated by Plaintiff’s protected conduct. In a
similar retaliation case, the Sixth Circuit found plaintiff’s allegation of improper motive
sufficient when the plaintiff was placed in segregation and faced false disciplinary charges
against him after utilizing the prison grievance system. Dunham-Bey v. Holden, 1999 WL
1023730 at *2. Here, Plaintiff has pleaded similar facts regarding the timing of the adverse acts
that suffice to support an allegation of improper motive. Id.; Thaddeus-X, 175 F.3d at 399
In the instant case, Plaintiff alleges more material facts supporting his allegation of
improper motivation than did the plaintiff in Dunham-Bey. As explained above, Plaintiff has
pleaded sufficient facts with respect to his Eighth Amendment excessive force contention to state

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a claim upon which relief can be granted. Here, Plaintiff’s excessive force claim is also
“material fact” supporting the allegation that Defendants retaliated against Plaintiff for filing his
subsequent grievance. Plaintiff’s Eighth Amendment allegations speak to a plausible motive for
Defendants other alleged unconstitutional acts.
Defendants argue further that, even if Plaintiff has made out a sufficient cause of action,
he failed to allege their personal involvement in his placement in segregation. (ECF No. 19 at 8.)
In his Amended Complaint, however, Plaintiff specifically names Defendant Free as the
defendant responsible for “Retaliation for filing complaints/grievances.” (ECF No. 5 at 2.)
Furthermore, in his Response to Defendants’ Motion to Dismiss, Plaintiff claims Defendants
Higgenbothm and Irvin filed the alleged false disciplinary charges. (ECF No. 20 at 7.) The
Undersigned finds, therefore, that Plaintiff has sufficiently pleaded a claim upon which relief
may be granted with respect to Defendant Free. The Undersigned also finds that, were
Defendant to amend his Complaint to incorporate his allegations against Defendants
Higgenbothem, Irvin, and Lieutenant Brown, as contained in his Response to the Motion to
Dismiss, he would then sufficiently plead a retaliation claim against them. The Undersigned
further finds that Plaintiff has failed to state a claim upon which relief can be granted against
Defendant Captain Brown, as he has failed to mention any conduct attributable to him.
2. Count II(b) Misconduct Tickets for Refusing to Work
In his Complaint, Plaintiff alleges that he received false misconduct tickets for refusing to
work when he was, in fact, receiving medical treatment. (ECF No. 1 at 6.) The only person
named in Plaintiff’s Complaint with respect to this allegation is a Sgt. Rheinscheld, who is not a
party to this matter. (ECF No. 1 at 6.) To sufficiently plead a cause of action under 42 U.S.C. §
1983, a plaintiff must allege “personal involvement” on the part of the defendant. Grinter, 532

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F.3d at 575. Plaintiff has not met that burden here. Furthermore, Plaintiff indicates that he was
convicted of this misconduct. (ECF No. 1 at 6.) As explained above, a conclusion of guilt
requires the Court to find that Plaintiff has not stated a claim for First Amendment retaliation.
Ruiz, 60 F. App’x at 574. The Undersigned finds, therefore, that Plaintiff has failed to state a
claim for which relief may be granted with respect to his work refusal misconduct ticket claims.
D. COUNT III: CONSPIRACY UNDER 42 U.S.C. §§ 1985(3) AND 1986
42 U.S.C. § 1985(3) provides in relevant part that:
If two or more persons in any State or Territory conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; or for the purpose of
preventing or hindering the constituted authorities of any State or Territory from
giving or securing to all persons within such State or Territory the equal
protection of the laws; . . . in any case of conspiracy set forth in this section, if one
or more persons engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or privilege of a citizen
of the United States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one or
more of the conspirators.
During Reconstruction, Congress passed § 1985(3) in order to provide a cause of action
against participants in private conspiracies to deprive others “of rights secured by the law to all.”
Griffin v. Breckenridge, 403 U.S. 88, 101 (1971). “A plaintiff makes out a valid cause of action
under § 1985(3) by demonstrating: (1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and
(4) an injury to either person or property or a deprivation of any right or privilege of a United
States citizen.” Volunteer Med. Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 222-23 (6th Cir.
1991). In order to plead a conspiracy under § 1985(3), Plaintiff must allege facts that, if true,

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would show that Defendants either acted in concert or in furtherance of a common objective to
injure Plaintiff. Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998). Conspiracy claims
must be pled with some degree of specificity. Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.
1987). Vague and conclusory allegations unsupported by materials facts are not sufficient to
state a conspiracy claim. Id. Section 1986 creates a cause of action for a knowing failure to
prevent wrongful acts pursuant to a conspiracy to interfere with civil rights. 42 U.S.C. § 1986.
Any defendants with knowledge of a §1985(3) conspiracy who, through negligence, fail to
prevent the discriminatory acts can be liable under § 1986.1
In his Amended Complaint, Plaintiff asserts that Defendant Free “acted in concert with
defendants to conspire to deprive plaintiff of his civil and statutory rights.” (ECF No. 5 at 2.)
Plaintiff, however, offers nothing more than this conclusory allegation that Defendants acted in
concert. Plaintiff fails to make sufficient factual allegations to establish any sort of “meeting of
the minds” or to link any of the alleged conspirators in a conspiracy to deprive him of his
constitutional rights. The Undersigned finds, therefore, that Plaintiff has failed to state a claim
under 42 U.S.C. § 1985 upon which relief can be granted.
Because Plaintiff has failed to state a claim under § 1985, the Undersigned finds that his
claims under § 1986 likewise fail. See Braley v. City of Pontiac, 906 F.2d 220, 227 (6th Cir.
1990) (“Where a plaintiff has stated no cause of action under § 1985, no cause of action exists
under § 1986.”).

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42 U.S.C. § 1986 provides, in relevant part:
Every person who, having knowledge that any wrongs conspired to be done, and
mentioned in section 1985 of this title, are about to be committed, and having
power to prevent or aid in preventing the commission of the same, neglects or
refuses so to do, if such wrongful act be committed, shall be liable to the party
injured . . . for all damages caused by such wrongful act, which such person by
reasonable diligence could have prevented. 
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D. PLAINTIFF’S OPPORTUNITY TO AMEND HIS COMPLAINT
A “motion under Rule 12(b)(6) is directed solely to the complaint itself.” Roth Steel
Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983) (quoting Sims v. Mercy Hosp.
of Monroe, 451 F.2d 171, 173 (6th Cir. 1971)). “[C]onsequently, extrinsic evidence cannot be
considered in determining whether the complaint states a claim.” Roth Steel, 705 F.2d at 155;
Fed R. Civ. P. 12(b)(6). The Court, therefore, may not consider Plaintiff’s Response to
Defendants’ motion as part of his Complaint. Courts, however, have discretion to determine
whether to dismiss a complaint or to grant plaintiff the opportunity to amend. U.S. ex rel.
Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 644 (6th Cir. 2003). The Court’s decision does
not weigh on the merits of Plaintiff’s claims against Defendants, but merely reflects that
Plaintiff’s Response to Defendants’ Motion to Dismiss indicates he can plead with enough
specificity to overcome the Rule 12(b)(6) hurdle with respect to at least some of his claims. The
Undersigned finds, therefore, that it is appropriate to grant Plaintiff leave to file a Second
Amended Complaint with respect to those salvageable claims.
IV. CONCLUSION
For the reasons explained above, the Undersigned RECOMMENDS that Plaintiff’s
motion to convert Defendant’s Motion to Dismiss into a motion for summary judgment be
DENIED. The Undersigned also RECOMMENDS that Defendants’ Motion to Dismiss with
respect to Plaintiff’s Count I Excessive Force against Defendants Irvin and Free; Plaintiff’s
Count II(a) Retaliation against Defendant Captain Brown; Plaintiff’s Count II(b) Retaliation
against all Defendants; and, Plaintiff’s Count III Conspiracy against all Defendants be
GRANTED. (ECF No. 19.)

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The Undersigned further RECOMMENDS that the Court sua sponte GRANT Plaintiff
leave to file a Second Amended Complaint consistent with the foregoing within TWENTYONE (21) DAYS from the date of the Court’s disposition of this Report and Recommendation
with respect to Plaintiff’s Count I against Defendants Higgenbothem, Lieutenant Brown, and
Captain Brown and Plaintiff’s Count II(a) against Defendants Higgenbothem, Irvin, and
Lieutenant Brown. If no Second Amended Complaint is filed within twenty-one days, the
Undersigned RECOMMENDS that Court deem these claims dismissed with prejudice as
against those defendants.
Last, the Undersigned RECOMMENDS the Court allow Plaintiff to proceed with his
Count II(a) Retaliation claim against Defendant Free.
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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 “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

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defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when 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 to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: June 24, 2016

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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