Williams v. Director, Ohio Department of Rehabilitation and Corrections

Filing 4

ORDER AND REPORT AND RECOMMENDATION: Magistrate Judge grants 1 Motion for Leave to Proceed in forma pauperis, denies 2 Motion to Appoint Counsel; RECOMMENDS dismissing 3 Complaint. Signed by Magistrate Judge Kimberly A. Jolson on 11/22/2017. (ew)(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
DAVID A. WILLIAMS,
Plaintiff,
Case No. 2:17-CV-1000
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

v.
GARY MOHR,
Defendant.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff David A. Williams, a pro se prisoner, filed a Motion for Leave to Proceed in
forma pauperis on November 15, 2017. (Doc. 1). Pursuant to 28 U.S.C. § 1915(a), that Motion
is GRANTED. All judicial officers who render services in this action shall do so as if the costs
had been prepaid. However, as explained below, the Court concludes this action cannot proceed.
Because Plaintiff is a prisoner seeking redress from the government, this Court must
conduct an initial screening pursuant to 28 U.S.C. § 1915A(a). The Court must dismiss the
Complaint if it determines that it is frivolous or 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 Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations
of a complaint drafted by a pro se litigant are held to less stringent standards than formal
pleadings drafted by lawyers....”); Thompson v. Kentucky, 812 F.2d 1408, No. 86-5765, 1987
WL 36634, at *1 (6th Cir. 1987) (“Although pro se complaints are to be construed liberally, they
still must set forth a cognizable federal claim.” (citation omitted)). In order to survive dismissal
for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

Applying those

standards here, the Undersigned RECOMMENDS DISMISSAL.
I.

BACKGROUND
Plaintiff filed the instant action against Gary Mohr, the Director of the Ohio Department

of Rehabilitation and Corrections (“ODRC”) in his individual and official capacity seeking
injunctive relief and compensatory damages for the conditions of his confinement. (See Doc. 12). Plaintiff’s sixty-four page complaint asserts constitutional claims emanating principally from
his contention that he was wrongfully convicted in the Montgomery Court of Common Pleas for
the kidnapping and felonious assault of an incompetent individual under the age of thirteen.
(See, e.g., id. at ¶¶ 7, 13). Plaintiff states that “Defendant Gary C. Mohr of ODRC knowingly
accept[s], tak[es] in and detain[s] [him] and other human beings forcefully for crimes and
offenses that simply are not true, taking detainees (human beings) on a Corporate Conveyor Belt
ride which has caused and is still causing a chain of serious neglect, abuse of discretion,
deliberate indifference, irreparable harm and a Medical and Mental Health condition of physical
functioning that cannot be replaced or restored.” (Id. at 57, PAGEID #: 67). Plaintiff explains
that “when you go to prison for crimes against a child it puts a target on your back with inmates
and staff and you become a free for all.” (Id. at ¶ 13).
Plaintiff claims that, as a result of this wrongful conviction, he has experienced “theft,
assault, slander, libel, defamation of character, mental anguish,” verbal abuse, and being “set up
with a shank by a high ranking white supremacist” who threatened to have him sent to another
prison to be raped and killed. (Id. at ¶¶ 14, 21.1). Plaintiff states that these circumstances cause
him to suffer extreme anxiety and depression, manifesting in him “urinat[ing] with no
control…..” (Id.). He utilizes the institution’s medical and mental health services to treat his

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conditions. (Id. at ¶¶ 26, 32). Plaintiff also alleges that he was “discriminated against for his
cultural, religious haircut…” (Id. at ¶ 15). Plaintiff contends that he cut his hair and sent it home
after unnamed “staff” said they “would throw him in the hole if [his hair] was not cut by
tomorrow.” (Id.).
Although not entirely clear, Plaintiff claims there are numerous impediments to pursuing
a claim in prison. According to Plaintiff, those impediments include “fines and court costs” and
providing a kiosk computer for grievance paperwork that is “out in the open in front of bad
inmates and bad staff for all to see.” (Id. at ¶¶ 7.2–7.3; see also id. at ¶ 7.3 (stating that the kiosk
allows “bad gangster code inmates and bad staff to see, which causes safety and security
problems”)). Plaintiff also complains that the time limit on the kiosk computer is too restrictive
for inmates with limited education and mental and physical disabilities; the staff pretends to
know nothing (or in fact knows nothing) about the grievance process; and the grievance forms
“are hard to come by because most staff is against it and makes retaliation imminent….” (Id. at
¶¶ 7.3, 24, 35).
Specific to this case, Plaintiff explains that he “was told by prison staff that there is no
complaint or grievance procedure for filing to the director’s office, against Defendant Gary C.
Mohr….” (Id. at ¶ 35). Hence, Plaintiff explains that he completed the grievance process “to the
best of his knowledge and resources.” (Id. at ¶ 17). Plaintiff adds that, if his actions in doing so
were inadequate, “it is through no fault of [his] own.” (Id. at ¶ 17, 35). Finally, Plaintiff notes
that he received “no answers back” to his complaints. (Id. at ¶ 24).
II.

DISCUSSION
As an initial matter, to the extent that Plaintiff may be attempting to bring his complaint

concerning conditions of confinement on behalf of others, he is prohibited from doing so. Corn

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v. Sparkman, No. 95-5494. 1996 WL 185753, at *1 (6th Cir. Apr. 17, 1996) (“A prisoner cannot
bring claims on behalf of other prisoners.”); Proctor v. Applegate, No. 07-12414, 2008 WL
2478331, n.3 (E.D. Mich. June 16, 2008) (“It is well-established that plaintiff Proctor may only
represent himself with respect to his individual claims, and may not act on behalf of other
prisoners.”).

Additionally, to the extent that Plaintiff may be attempting to challenge the

lawfulness of his state court conviction, he may not do so in this civil rights case. As the United
States Supreme Court explained in Heck v. Humphrey, 512 U.S. 477, 480 (1994), “habeas corpus
is the exclusive remedy for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release….” Id.
Turning to Plaintiff’s complaints about the grievance process, “there is no constitutional
right to a grievance procedure and a state’s … creation of such a procedure does not create a
federal constitutional right to one.” Matheson v. Gentry, No. 2:05-cv-70, 2005 WL 1458058, at
*2 (E.D. Tenn. June 20, 2005); see also Pittman v. Kolb, No. 07-14892, 2008 WL 183588, at *2
(E.D. Mich. Jan. 18, 2008) (“There is no constitutional right to grievance procedures, nor does
the Constitution protect access to any such procedures voluntarily established by the states.”).
Further, even if Plaintiff could set forth a claim against Defendant on that basis, the
Eleventh Amendment bars official capacity claims for money. See, e.g., Younker v. Mohr, No.
2:13–cv–1116, 2013 WL 6493541, at *3 (S.D. Ohio Dec. 10, 2013). As for the individual
capacity claims, Defendant may not be held liable as a supervisor unless Plaintiff demonstrates
that he encouraged specific incidents of misconduct or in some other way directly participated in
them. Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002); see also, e.g., Anderson v. Mohr,
2:15-cv-2798, 2015 WL 7012799, at *2 (S.D. Ohio Nov. 12, 2015) (noting that a “failure to
prevent constitutional violations is insufficient to hold a supervisor liable” and plaintiff “must

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allege that they did more than play a passive role in the alleged violations or show mere tacit
approval of the actions of their subordinates”). Because Plaintiff fails to make such allegations
here, his claim fails. See Younker, 2013 WL 6493541, at *3 (noting that individual capacity
claims fail where there is insufficient factual content or context from which the Court could
reasonably infer that Defendant Mohr was personally involved in any violation of plaintiff’s
rights); Mobley v. Mohr, No. 2:11-cv-186, 2011 WL 1002174, at *2 (S.D. Ohio Mar. 16, 2011)
(“Under § 1983, absent direct personal involvement in an alleged constitutional deprivation, a
state official cannot be held liable.”).
In any event, Plaintiff’s complaint fails to contain sufficient factual matter to state a claim
to relief that is plausible on its face. See Iqbal, 556 U.S. at 678. More specifically, Plaintiff
claims to have experienced theft, assault, slander, libel, defamation, verbal abuse including
threats, but he offers no detail to support those allegations. Similarly, Plaintiff alleges that he
was discriminated against for his cultural, religious haircut, but this is nothing more than a
“naked assertion devoid of further factual enhancement.” Id. (citation and alteration omitted).
Based on the foregoing, the instant case cannot proceed, and Plaintiff’s Motion for Appointment
of Counsel is DENIED (Doc. 2)
III.

CONCLUSION
For the reasons stated, it is RECOMMENDED that Plaintiff’s complaint (Doc. 1-2) be

DISMISSED. His Motion for Appointment of Counsel is DENIED (Doc. 2).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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

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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).
IT IS SO ORDERED.

Date: November 22, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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