Heid et al v. Hooks et al

Filing 10

INITIAL SCREEN AND REPORT AND RECOMMENDATION re 9 Complaint filed by Ray Scott Heid and James E Damron. It is RECOMMENDED that Plaintiffs' equal protection claim be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failur e to state a claim for relief on which relief can be granted. It is further RECOMMENDED that Plaintiffs' class action allegation be DISMISSED and that Plaintiffs be permitted to proceed on their Eighth Amendment claim on their own behalf only. Objections to R&R due by 9/28/2017. Response to objections must be filed within fourteen (14) days after being served with a copy. Signed by Magistrate Judge Chelsey M. Vascura on 9/14/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RAY SCOTT HEID, et al.,
Plaintiffs,
Civil Action 2:17-cv-650
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.

MARK HOOKS, et al.,
Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiffs, Ray Scott Heid and James E. Damron, state prison inmates who are proceeding
without the assistance of counsel, bring this action under 42 U.S.C. § 1983 against employees of
Ross Correctional Institution (“RCI”). (ECF No. 1.) This matter is before the Court for the
initial screen of Plaintiffs’ Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify
cognizable claims and to recommend dismissal of Plaintiffs’ Complaint, or any portion of it, which
is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); see also
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial
screen, for the reasons set forth below, it is RECOMMENDED that the Court DISMISS
Plaintiffs’ equal protection claim and their class action allegation and that Plaintiffs be permitted
to proceed on their claim of deliberate indifference to a risk of serious harm under the Eighth
Amendment to the United States Constitution.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319,
324 (1989)). To address this concern, Congress included subsection (e)1 as part of the statute,
which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
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Formerly 28 U.S.C. § 1915(d).
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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., 374 F. App’x 612, 614 (6th Cir. 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)).
II.
Plaintiffs purport to represent a class of white inmates at RCI. They allege that black
inmates who are members of prison gangs control access to the telephones in the cell block in
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which Plaintiffs reside. Attempts by white inmates to gain access to the telephones result in
violence and threats of violence, according to Plaintiffs’ allegations. Plaintiffs allege that they
have alerted the RCI warden and deputy warden, who are the Defendants in this action, to tensions
over access to telephones but Defendants have failed to take meaningful action to eliminate the
risk of harm to Plaintiffs and other white inmates. Plaintiffs request declaratory and injunctive
relief, as well as nominal damages and punitive damages. They purport to represent a class of
similarly-situated white inmates, and they assert equal protection and deliberate indifference
claims against Defendants in their official and individual capacities.
The basis for Plaintiffs’ equal protection claims is that “[p]ermitting the black inmate
population to control five of the six phones is not reflective of the inmate racial composition at
RCI.” (Compl. p. 5, ECF No. 1-1.) Plaintiffs clarify that the black inmates exercise “control”
over the telephones through intimidation and threats of violence and by permitting white inmates
to use just one of the six telephones in the cell block. As a result, Plaintiffs allege, white inmates
are denied the same access to the telephones as black inmates enjoy in violation of the United
States Constitution’s Equal Protection Clause.
Plaintiffs’ Eighth Amendment claim is based on the same allegations. Plaintiffs allege
that Defendants’ failure to correct the telephone access problem has allowed a substantial risk of
harm to persist at RCI. Plaintiffs further allege that, in addition to the threat of violence, incidents
of actual violence have occurred. (Id. at p. 7) Plaintiffs allege that Defendants are aware of the
tensions related to telephone access and have acknowledged the “pervasive risk of harm.” (Id.)
Still, Plaintiffs allege, Defendants have failed “to take reasonable measures to abate the serious
risk of harm . . . .” (Id. at p. 8)
III.
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Plaintiffs do not state an equal protection claim upon which this Court may grant relief.
Prisoners are protected from invidious racial discrimination under the Fourteenth Amendment’s
Equal Protection Clause. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The Equal
Protection Clause forbids racial classifications absent compelling justifications and a narrowly
tailored plan. Johnson v. California, 543 U.S. 499, 509 (2005). Inmates retain the right to be
free from government-sponsored race discrimination absent a compelling governmental interest
supporting the racial classification. See Johnson, 543 U.S. at 508–15. To state an equal
protection claim, a prisoner need only allege sufficient plausible facts to show “that a state actor
intentionally discriminated against [him] because of membership in a protected class.” Henry v.
Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990) (internal quotation marks omitted),
abrogated in part on other grounds by King v. Harwood, 853 F.3d 568, 580 n. 4 (6th Cir. 2017),
reh’g en banc denied, 853 F.3d 568 (6th Cir. 2017), petition for cert. filed, (Aug. 15, 2017) (No.
17-260); see also Herron v. Harrison, 203 F.3d 410, 417 (6th Cir. 2000); Copeland v. Machulis,
57 F.3d 476, 480 (6th Cir. 1995) (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 255-56 (1995)).
Plaintiffs’ allegations about the actions and inaction of Defendants Hook and Howard do
not begin to approach that standard. Plaintiffs repeatedly allege indifference on Defendants’ part,
but they say nothing in their Complaint about an official policy of segregation or official conduct
intentionally promoting segregation. They have also failed to allege discriminatory intent or
purpose or anti-white bias on the part of Defendants Hooks and Howard. In the portion of their
Complaint devoted to the equal protection claim specifically, Plaintiffs allege only that “those in
authority’s charge will not force integration for the benefit of equality for the Plaintiffs and,
generally, those of the White race.” (Compl. p. 6, ECF No. 1-1.) Combined with Plaintiffs’
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allegations of Defendants’ indifference, this failure-to-force-integration allegation amounts to a
charge that Defendants were indifferent to the self-imposed segregation of the races in Plaintiffs’
cell block and the control by black inmates of telephone access. Without additional plausible
allegations of intent or purpose on Defendants’ part, Plaintiffs may not maintain their equal
protection claim. It is, therefore, recommended that the Court dismiss that claim.
Plaintiffs have, on the other hand, alleged plausible facts in support of their claim under the
Eighth Amendment that Defendants Hooks and Howard were deliberately indifferent to a known
risk of serious harm in the form of violence among inmates over telephone access. Prisoners are
entitled to protection from violence at the hands of other inmates, and prison officials must take
reasonable steps to guarantee inmate safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 833-34
(1994); Williams v. McLemore, 10 F. App’x 241, 243-44 (6th Cir. 2001). To state an Eighth
Amendment claim, an inmate must allege both objectively serious harm and deliberate
indifference. Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Where other prisoners are the
source of the harm or threat of harm, the plaintiff inmate must allege that prison officials “[knew]
of and disregard[ed] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The
inmate need not wait for an actual injury but may base a claim for equitable relief on the threat of
harm. Id. at 845. To satisfy Rule 8(a)’s pleading requirements as to the serious harm aspect of

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the claim, a prisoner need only allege the existence of conditions that may lead to injury or future
health problems. See Brown v. Bargery, 207 F.3d 863, 868 (6th Cir. 2000).
Liberally construed, Plaintiffs’ allegations satisfy those requirements. They have alleged
that Defendants were aware of the risk of violence related to telephone access in their cell block
and that, even though they made multiple assurances that corrective action was forthcoming,
Defendants did nothing to abate the risk. (Compl. p. 7, ECF No. 1-1.) Documents attached to
Plaintiffs’ Complaint as Exhibits appear to give credence to Plaintiffs’ claim that Defendants knew
of the telephone access tensions and the resulting risk of violence. The Court accepts as true, for
purposes of this initial screen, Plaintiffs’ allegation that Defendants have not taken corrective
action to date. Finally, Plaintiffs’ allegations suggest an atmosphere surrounding telephone
access in which injuries are likely to occur and, indeed, have occurred. Plaintiffs’ allegations are
sufficient to satisfy the pleading requirements as outlined above. Accordingly, it is recommended
that Plaintiffs be permitted to proceed on their Eighth Amendment claim against Defendants Heid
and Damron.
Plaintiffs may not, however, represent a class of similarly-situated prisoners. Plaintiffs
are non-attorneys proceeding pro se. They cannot adequately represent a class. Ziegler v.
Michigan, 90 F. App’x 808, 810 (6th Cir. 2004) (citing Fymbo v. State Farm Fire & Cas. Co., 213
F.3d 1320, 1321 (10th Cir. 2000); see also Palasty v. Hawk, 15 F. App’x 197, 200 (6th Cir. 2001)
(“pro se prisoners are not able to represent fairly the class”). “This is because the competence of
a layman is clearly too limited to allow him to risk the rights of others.” Fymbo, 213 F.3d at 1321.
It is recommended, therefore, that Plaintiffs be permitted to proceed only on their own Eighth
Amendment claim.

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IV.
For the reasons set forth above, it is RECOMMENDED that Plaintiffs’ equal protection
claim be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief
on which relief can be granted. It is further RECOMMENDED that Plaintiffs’ class action
allegation be DISMISSED and that Plaintiffs be permitted to proceed on their Eighth Amendment
claim on their own behalf only.
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 of 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
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

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(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)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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