DeJarnette v. Shoop et al

Filing 5

ORDER and REPORT AND RECOMMENDATION: Plaintiff's 3 Motion for Leave to Proceed in forma pauperis is GRANTED. It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial o fficers who render services in this action shall do so as if the costs had been prepaid. Further, the Magistrate Judge RECOMMENDS that the Court DISMISS this action in its entirety pursuant to § 1915(e)(2). Objections to R&R due by 6/14/2018. Signed by Magistrate Judge Chelsey M. Vascura on 5/31/2018. (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

JAMES T. DEJARNETTE,
Plaintiff,
Civil Action 2:18-cv-520
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.
WARDEN TIMOTHY SHOOP, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, James T. DeJarnette, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against Warden Gary Mohr and prison
employees and officials, alleging that prison disciplinary proceedings violated his due process
rights. 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. 3.) 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
$108.87 in his prison account as of April 26, 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 A-717147) at Warren Correctional Institution 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
had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff

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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.
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) 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. See
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)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
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set forth in Federal Rule of Civil Procedure 8(a). 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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, 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. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).

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II.
According to the Complaint, in April 2017, Defendant Lieutenant Richard Davis issued a
conduct report to Plaintiff, which stated that Plaintiff “attempted to convey contraband into PCI
Correctional” and charging him with dealing and contraband. (Compl. 5, ECF No. 1.) In
subsequent disciplinary proceedings in front of the Rules Infraction Board (“RIB”), Plaintiff was
found guilty of dealing. Upon appeal, the RIB’s decision was affirmed. Plaintiff maintains that
Defendants violated his due process rights because he was denied his right to have a particular
witness present during the RIB hearing and because he was found guilty of a charge that was not
contained in the body of the conduct report. Plaintiff seeks only injunctive relief, requesting that
the Court “remove the bogus charge from [his] prison record” and that his security level “be
decreased back to medium security, the same as it was when [he] received the conduct report.”
(Id. at 6.)
Plaintiff’s due process claims concerning the prison disciplinary proceedings fail to state
a claim of relief. “[T]he Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural protection
must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005).
Plaintiff’s due process claim fails because he has not identified a constitutionally
protected liberty interest that the RIB proceedings implicated. “Failing to follow proper
procedures is insufficient to establish an infringement of a liberty interest.” Grinter v. Knight,
532 F.3d 567, 574, 576 (citing Olim v. Wakinekona, 461 U.S. 238, 250 (1983)). Rather, “[a]n
inmate establishes a liberty interest when a change in conditions of confinement ‘imposes
atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.’”
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Williams v. Lindamood, 526 F. App’x 559, 562 (6th Cir. 2013) (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). “To determine whether changed conditions are ‘atypical and significant,’
a reviewing court considers both the duration and the nature of the more restrictive confinement
relative to ‘prison norms and to the terms of the individual’s sentence.’” Id. (quoting Harden–
Bey v. Rutter, 524 F.3d 789, 792–93 (6th Cir. 2008)).
To the extent Plaintiff is alleging that the RIB verdict impacted his security level, in the
absence of allegations reflecting that his new security level has resulted in “atypical and
significant” changed conditions, he has failed to sufficiently implicate a liberty interest arising
from the Due Process Clause. Harbin–Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005) (“[A]n
increase in security classification . . . does not constitute an ‘atypical and significant’ hardship in
relation to the ordinary incidents of prison life because a prisoner has no constitutional right to
remain incarcerated in a particular prison or to be held in a specific security classification.”
(internal quotation marks and citations omitted)); cf. Wilkinson, 545 U.S. at 222–23 (“[T]he
Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse
conditions of confinement.”); Meachum v. Fano, 427 U.S. 215, 228 (1976) (no due process
violation arising from transfer to a maximum-security prison because “[c]onfinement in any of
the State’s institutions is within the normal limits or range of custody which the conviction has
authorized the State to impose”)); but see Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005)
(holding that an inmate’s transfer to Ohio’s “supermax” prison “imposes an atypical and
significant hardship” given the combination of extreme isolation of inmates, prohibition of
almost all human contact, indefinite duration of assignment, and disqualification for parole
consideration of otherwise eligible inmates).

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In sum, because Plaintiff has failed to state a claim upon which relief may be granted, it
is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to
§ 1915(e)(2).
III.
For the reasons set forth above, Plaintiff White’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 3.) 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 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).

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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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