Martin v. Wilson et al

Filing 3

ORDER & REPORT and RECOMMENDATION: The Magistrate Judge RECOMMENDS that the Court DISMISS this action. Plaintiff's motion for leave to proceed in forma pauperis is GRANTED. It is ORDERED that Plaintiff be allow ed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. Objections to R&R due by 5/29/2018. Signed by Magistrate Judge Chelsey M. Vascura on 5/15/2018. (kpt)(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

WILLIAM E. MARTIN,
Plaintiff,
Civil Action 2:18-cv-463
Judge Algenon. L. Marbley
Magistrate Judge Chelsey A. Vascura

v.

ROGER WILSON, et al.,
Defendants.

ORDER & REPORT and RECOMMENDATION
Plaintiff, William E. Martin, a state inmate who is proceeding without the assistance of
counsel, brings this action against a number of employees of the Ohio Department of
Rehabilitation and Correction and Madison Correctional Institution (collectively “Defendants”),
alleging that the prison officials’ “unconstitutional practice of dismantling Ohio’s
post-deprivation remedies” caused him to suffer uncompensated property loss. (Compl., ECF
No. 1-1.) This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28
U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of
Plaintiff’s 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 that follow, the
undersigned RECOMMENDS that the Court DISMISS this action pursuant to § 1915(e)(2) for
failure to state a claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s
motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing
fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he had the
sum of sixty-eight cents in his prison account as of April 23, 2018. That amount is insufficient
to pay the full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account
(Inmate Number A150188) at Corrections Reception Center is DIRECTED to submit to the
Clerk of the United States District Court for the Southern District of Ohio as an initial partial
payment, 20% of the greater of either the average monthly deposits to the inmate trust account or
the average monthly balance in the inmate trust account, for the six-months immediately
preceding the filing of the Complaint. After full payment of the initial, partial filing fee, the
custodian shall submit 20% of the inmate’s preceding monthly income credited to the account,
but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been
paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114
F.3d 601 (6th Cir. 1997). Checks should be made payable to: Clerk, United States District
Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of
fees or costs and that judicial officers who render services in this action shall do so as if the costs
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had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff
and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this
Order to the Court’s financial office in Columbus.
I.
In his Complaint, Plaintiff outlines several instances in which other inmates’ or prison
officials’ actions resulted in his loss of property. For each of these instances, Plaintiff details
the property he lost and his attempts to utilize the prison’s internal grievance procedure to obtain
relief for the property losses he suffered.
Plaintiff asserts that this Court has jurisdiction under 42 U.S.C. §1983 to adjudicate his
claims because Defendants have “refused to resolve the grievances[s] in question or be fair in
any way whatsoever,” which he maintains constitutes an unconstitutional “practice of
dismantling” post-deprivation remedies. (Compl. 9, ECF No. 1-1; see also id. at 14 (“The
[ODRC] is engaging in the unconstitutional practice of dismantling Ohio’s post-deprivation
remedies . . . [w]hen [it] misuses . . . the grievance procedure [to] prevent[] litigants from filing
legitimate claims in state court . . . .”)
Plaintiff seeks declaratory, injunctive, and monetary relief.
II.
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

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1, which
provides in pertinent part as follows:
(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-*

*

*

(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
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
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Formerly 28 U.S.C. § 1915(d).
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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)).
III.
Applying the foregoing, the undersigned recommends dismissal of Plaintiff’s Complaint
in its entirety.
Even accepting Plaintiff’s allegations as true, he has failed to state a claim upon which
relief can be granted because he has not sufficiently alleged the inadequacy of the remedies
available under Ohio law. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by

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Daniels v. Williams, 474 U.S. 327 (1986) and Hudson v. Palmer, 468 U.S. 517 (1984). In
Paratt, the Supreme Court held that the existence of adequate post-deprivation state remedies
eliminates any due process claim arising from the negligent deprivation of a prisoner’s property.
451 U.S. at 539–44. The Hudson Court extended Parratt’s application to all § 1983 due process
claims involving deprivation of property, regardless of whether the deprivation is negligent or
intentional. Hudson, 468 U.S. at 533–36. Cf. Jefferson v. Jefferson Cnty. Pub. Sch. Sys., 360
F.3d 583, 587–88 (6th Cir. 2004) (“If satisfactory state procedures are provided in a procedural
due process case, then no constitutional deprivation has occurred despite the injury.”).
Following Parratt and Hudson, the United States Court of Appeals for the Sixth Circuit held that
in a § 1983 case “claiming the deprivation of a property interest without procedural due process
of law, the plaintiff must plead and prove that state remedies for redressing the wrong are
inadequate.” Vicory v. Walton, 721 F.2d 1062, 1065–66 (6th Cir. 1983). Where a plaintiff fails
to do so, dismissal for failure to state a claim is appropriate. See, e.g., Gibbs v. Hopkins, 10
F.3d 373, 377-78 (6th Cir. 1993) (dismissal of procedural due process claim upheld where the
plaintiff had “not pled or shown that [the state] judicial remedies are inadequate . . .”); Ruiz v.
Fisher, No. 96-4212, 1998 WL 661139, at *5 (6th Cir. Sept. 2, 1998) (concluding that the
plaintiff had failed to state a claim of either intentional or negligent deprivation of property
where he had not pled “that state remedies for redressing the wrong [were] inadequate”).
In this instant case, Plaintiff has failed to sufficiently plead that the post-deprivation tort
remedies available to him under Ohio law are inadequate to adjudicate his property-loss claims
as required under Parratt and Vicory. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir.
1999) (citing Hudson, 468 U.S. at 534–36) (“State tort remedies generally satisfy the

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postdeprivation process requirement of the Due Process Clauses.”). In effort to satisfy his
burden, Plaintiff challenges Defendants’ administration of the prison’s inmate grievance
procedure. (See Compl., ECF No. 1-1.) Plaintiff’s dissatisfaction with the handling of his
administrative grievances, however, fails to state a claim or otherwise satisfy his burden because
“there is no inherent constitutional right to an effective grievance procedure.” Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003) (citing Hewitt v. Helms, 459 U.S. 460, 467
(1983); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75
(4th Cir. 1994); and Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Beyond Plaintiff’s
expressed dissatisfaction with the handling of his administrative grievances, his Complaint
contains only “naked assertions,” Twombly, 550 U.S. at 557, and provides insufficient factual
content or context from which the Court could reasonably infer that Ohio’s post-deprivation tort
remedies are inadequate to adjudicate his property-loss claims.
Accordingly, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IV.
For the reasons set forth above, Plaintiff's motion for leave to proceed in forma pauperis
under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) In addition, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the
Court’s financial office in Columbus. Finally, the Clerk is DIRECTED to send a copy of this

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order to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
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
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.

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

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