Whitfield v. Evers et al

Filing 6

ORDER AND REPORT AND RECOMMENDATION - IT IS RECOMMENDED THAT: 1) The Court DISMISS with prejudice plaintiff's complaint, with the exception of his first group of claims against defendant Sergeants Evers and Eversole in their individual capacitie s. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b), 2) The Court certify pursuant to 28 U.S.C. § 1915(e)(2)(B) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. See McG ore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).IT IS ORDERED THAT: 1) The United States Marshal shall serve a copy of the complaint, summons, the separate Order issued granting plaintiff in forma pauperis status, and this Order and Repor t and Recommendation upon defendants Sergeants Evers and Eversole, as directed by plaintiff, 2) Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon defendants' attorney(s), a copy of every further pleading o r other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date a true and correct copy of any document was mailed to defendants or defendan ts' counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court, 3) Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit. Signed by Magistrate Judge Karen L. Litkovitz on 1/6/2025. (kev)(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
WESTERN DIVISION AT DAYTON
CALEB WHITFIELD,
Plaintiff,
vs.
SERGEANT EVERS, et al.,
Defendants.

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Case No. 3:24-cv-244
District Judge Thomas M. Rose
Magistrate Judge Karen L. Litkovitz

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff is an inmate currently at the Toledo Correctional Institution, in Toledo, Ohio,
and a former pretrial detainee at the Montgomery County Jail (Jail), in Dayton, Ohio. He brings
this action against Jail defendants Sergeants Evers and Eversole for alleged violations of his
rights while he was confined at the Jail. (Doc. 1-1). The Court understands the action to be
brought under 42 U.S.C. § 1983. 1 By separate Order, plaintiff has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Many of the allegations in plaintiff’s complaint were previously set forth in another
action filed by plaintiff in this Court in Case No. 3:23-cv-23. In a Report and Recommendation
in that case, which the District Judge adopted, the Magistrate Judge recommended that plaintiff’s
claims against Sergeants Evers and Eversole be severed and dismissed from that action without
prejudice under Fed. R. Civ. P. 20(a)(2) and 21, because they were improperly joined. See
Whitfield v. Gustave, et al., No. 3:23-cv-23 (S.D. Ohio) (Doc. 11); see also Harris v. Erdos, No.

“Section 1983 provides a private cause of action for the deprivation, under color of state law, of ‘rights . . .
secured by the Constitution and laws.’” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 624 (1979) (Powell,
J., concurring). .
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1:21-cv-104, 2022 WL 3053496, at *7 (S.D. Ohio Aug. 3, 2022). Following the issuance of the
adoption of that Report and Recommendation, plaintiff filed the instant action, reasserting claims
from the earlier lawsuit against these two defendants. 2
This matter is now before the Court for a sua sponte review of the complaint in the
instant case to determine whether the complaint or any portion of it should be dismissed because
it 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. See Prison Litigation
Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
Screening of Complaint
A.

Legal Standard

In enacting the original in forma pauperis statute, 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.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as
frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or
law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a legal interest which clearly does not
Plaintiff has also filed a third civil rights lawsuit, Whitfield v. Runyan, et al.,, No. 3:24-cv-252 (S.D. Ohio),
reasserting additional claims from the earlier lawsuit.
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exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations
are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at
32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are
“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d
468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1).
A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at
470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
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at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
B.

Plaintiff’s Allegations

Plaintiff alleges that while housed at the Jail a deputy, who is not named as a defendant,
noticed that the lock on his cell door was damaged. (Doc. 1-1, at PageID 13). Plaintiff was
told that he would be moved to a holding cell in intake until the lock was fixed. (Id.). Plaintiff
alleges that when he was moved to intake, he repeatedly knocked on his cell door to tell staff that
he was having chest pains. (Id.). Plaintiff states that he was ignored and eventually started to
pound on the door to get a supervisor’s attention. (Id.). Plaintiff alleges that defendant
Sergeant Evers and other staff approached his cell and told him to “cuff up.” (Id.). Plaintiff
alleges that he was then transferred to a transport cell, where he remained for approximately two
weeks. (Id.).
Plaintiff alleges that for the first two days in the transport cell he was denied a mattress
and forced to sleep on a concrete slab, which prevented him from sleeping and caused him to
develop sore muscles and body pains. (Doc. 1-1, at PageID 13). Plaintiff states that even when
he received a mattress it did not fit on the concrete slab and he “had to sleep on the floor, on the
mat.” (Id. at PageID 14). He also alleges that the cell walls, floor, food port, and toilet were
covered in feces, that there was an “overwhelming smell of urination,” and that there was no
working water. (Id. at PageID 13-14). Additionally, plaintiff alleges that “[t]he illumination
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light in the intake cell never turned off,” leading to sleep deprivation and concerns with his
eyesight that he reported to medical. (Id. at PageID 13). Plaintiff alleges that while in the cell
he suffered from “constant migraines,” mood swings, anxiety, and depression. (Id. at PageID
13). Plaintiff also alleges that, unlike other pretrial detainees, he was denied recreation,
personal property, hygiene items, phone privileges, and visitation. (Id. at PageID 13-15).
Plaintiff alleges that defendant Evers was aware of the “cell[’]s inhumane living
conditions” because he and other non-defendant correctional officers had entered the cell when
they removed plaintiff’s handcuffs. (Doc. 1-1, at PageID 14). Plaintiff also alleges that the cell
was in the area of the Jail that Evers controlled. (Id.). Plaintiff alleges that defendant Eversole
knew plaintiff was in the transport cell because Eversole responded to a disturbance in the area
where plaintiff was being held and plaintiff attempted to complain to him but he did not respond.
(Id.). Plaintiff asserts that on the last day he was in the transport cell he filed a grievance. (Id.).
According to plaintiff, Eversole responded to the grievance by marking it as “not a grievance,”
which prevented plaintiff from appealing, by deeming it frivolous, and by attempting to justify
plaintiff’s placement in the transport cell by stating, “Due to you trying to force open a security
door you had to be placed in one that secures properly.” (Id.). Plaintiff disputes, however, that
there was a “disciplinary or legitimate reason” for his placement. (Id. at PageID 15).
For relief, plaintiff seeks monetary damages. (Doc. 1-1, at PageID 16).
C.

Analysis of the Complaint

Liberally construing the complaint, see Erickson, 551 U.S. at 94, the Court understands
plaintiff to be raising the following five groups of claims: (1) defendants Evers and Eversole
subjected him to an unsanitary cell for two weeks—with the cell walls, floor, food port, and
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toilet covered in feces, an “overwhelming smell of urination,” no working water, and constant
illumination that interfered with his sleep and his eyes and caused him headaches, anxiety, and
depression; forced him to sleep on a bare concrete slab for two days and then on a mat on the
floor because the mattress did not fit; and denied him cleaning supplies in violation of the
Fourteenth Amendment (Doc. 1-1, at PageID 13-14); 3 (2) defendants Evers and Eversole “put[]
[i]n motion a series of events which they kn[ew] or should’ve known would force [plaintiff] not
to be able to have visits with friends or family” in violation of the Fourteenth Amendment (id. at
PageID 15); (3) defendant Evers “put in motion a series of events that he kn[ew] or should’ve
known would cause [plaintiff] to be subjected to recreation, phone, personal property and
visitation restrictions” without a “disciplinary or legitimate reason or purpose” in violation of the
Fourteenth Amendment (id.); (4) defendant Evers’ actions of placing plaintiff in a transport cell
“could’ve le[d] staff to believe and/or assume that [plaintiff] was just simply awaiting transport”
and “not entitled to the privileges” afforded other detainees in violation of the Fourteenth
Amendment (id.); and (5) defendant Eversole prevented plaintiff from appealing his grievance in
violation of the Fourteenth Amendment (id. at PageID 14).
At this stage in the proceedings, without the benefit of briefing by the parties to this
action, the undersigned concludes in an abundance of caution that plaintiff may proceed for
further development at this juncture with his first group of claims against defendants Evers and
Eversole in their individual capacities. See Taylor v. Larson, 505 F. App’x 475, 477-78 (6th

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“The Fourteenth Amendment applies to conditions-of-confinement claims brought by pretrial detainees.”
Bensfield v. Murray, No. 4:21-cv-P104, 2022 WL 508902, at *2 (W.D. Ky. Feb. 18, 2022) (citing Brawner v. Scott
Cty., 14 F.4th 585, 591 (6th Cir. 2021)). Thus, to the extent that plaintiff asserts his conditions-of-confinement claims
against defendants under the First or Eighth Amendments (see, e.g., Doc. 1-1, at PageID 14-15), the Court considers
them under the Fourteenth Amendment.

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Cir. 2012). 4 However, his remaining claims should be dismissed for failure to state a claim
upon which relief can be granted. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).
First, plaintiff has failed to state a claim against defendants Evers or Eversole in their
official capacities. Plaintiff has failed to allege sufficient facts to plausibly suggest that his
rights were violated by a custom or policy at the Jail as would be required to hold defendants
liable in an official capacity. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
Plaintiff’s conclusory allegations that “[t]here was no automatic nor any type of system in place”
in the transport cells at the Jail “that allowed or provided . . . access [to] the phones and
recreation time” are the type of legal conclusion couched as a factual allegation that do not pass
muster under Twombly or Iqbal.

(Doc. 1-1, at PageID 15). Plaintiff’s assertions are too

conclusory to permit the Court to draw the reasonable inference that the Jail is liable for the
specific instances of misconduct alleged in the complaint. See Twombly, 550 U.S. at 556.
Accordingly, the complaint should be dismissed as to both defendants in their official capacities.
See Monell, 436 U.S. at 690.
Next, plaintiff’s second and third groups of claims in which he alleges that he was
improperly subjected to restrictions on recreation, phone use, personal property, and visitation
while in the transport cell are subject to dismissal. To state a claim for unconstitutional
conditions of confinement, a pretrial detainee must allege both an objective and a subjective
component. See Brawner v. Scott Cty., 14 F.4th 585, 596 (6th Cir. 2021) (citation omitted).
The plaintiff must allege sufficient facts to show that he was held under conditions which posed

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The Court advises plaintiff that this is only a preliminary determination. The Court has not made a
determination as to the merits of the claims or potential defenses thereto, nor are defendants precluded from filing a
motion to dismiss, motion for more definite statement, or other appropriate motion under the Federal Rules of Civil
Procedure. See, e.g., Wiley v. Austin, No. 8:20CV220, 2020 WL 6204382, at *3 (D. Neb. Oct. 22, 2020).

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an objectively serious threat to his health and safety. Id. at 596–97. The plaintiff must also
allege facts indicating that each defendant “acted deliberately (not accidentally), [and] also
recklessly ‘in the face of an unjustifiably high risk of harm that is either known or so obvious
that it should be known.’” Id. at 596 (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)).
However, “[t]here is, of course, a de minimis level of imposition with which the Constitution is
not concerned.” Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979) (internal quotation marks
omitted).
Here, plaintiff’s allegations that he was temporarily denied privileges for recreation,
phone use, personal property, and visitation are insufficient to rise to a constitutional level. See,
e.g., Welsh v. Correct Care Recovery Sols., 845 F. App’x 311, 323-24 (5th Cir. 2021) (rejecting
“punitive confinement conditions” claims premised on denial of “certain property such as
electronics, snacks, and clothes”); Broomfield v. Allen Cty. Jail, No. 1:04-CV-361, 2005 WL
1174123, at *2 (N.D. Ind. May 3, 2005) (finding that the denial of telephone privileges and
visitation for ten days to pretrial detainee did not amount to constitutional violation) (citing
cases); Stafford v. DeRose, No. 3:CV-09-346, 2013 WL 877133, at *6 (M.D. Pa. Mar. 8, 2013)
(pretrial detainee’s allegations that he was denied adequate recreation privileges for twenty-one
days insufficient to state a claim).
Plaintiff’s fourth group of claims, which the Court understands to constitute a Fourteenth
Amendment equal protection claim, is also subject to dismissal. To state an equal protection
claim, plaintiff must allege sufficient facts to raise a plausible inference “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) (cleaned up), abrogated in part on other
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grounds by King v. Harwood, 853 F.3d 568, 580 n. 4 (6th Cir. 2017). Alternatively, plaintiff
may state a “class-of-one” equal protection claim by alleging that he “has been intentionally
treated differently from others similarly situated and that there is no rational basis for the
difference in treatment.” Franks v. Rubitschun, 312 F. App’x 764, 766 (6th Cir. 2009) (quoting
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff’s allegations do not
demonstrate that he was discriminated against because of membership in a protected class. Nor
do they demonstrate differential treatment from those similarly situated. Plaintiff does not
allege that he was treated differently from other pretrial detainees who were found to have a
security issue with their cell door or who may have been temporarily housed in an intake or
transport cell. Accordingly, plaintiff’s fourth group of claims should be dismissed.
Finally, plaintiff’s fifth group of claims should be dismissed. “Prison inmates do not
have a constitutionally protected right to a grievance procedure.” Miller v. Haines, No. 97–
3416, 1998 WL 476247, at *1 (6th Cir. Aug. 3, 1998) (citations omitted); see also Argue v.
Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003). Furthermore, even assuming, arguendo, that
plaintiff was improperly prevented from filing a grievance, his right of access to the courts would
not be compromised as the exhaustion requirement only mandates exhaustion of available
administrative remedies. See 42 U.S.C. § 1997e(a). See, e.g., Perkins v. Bailey, No. 1:20-CV1029, 2021 WL 868887, at *4–5 (W.D. Mich. Mar. 9, 2021).
Accordingly, in sum, the undersigned RECOMMENDS that the Court DISMISS with
prejudice plaintiff’s complaint, with the exception of his first group of claims against defendant
Sergeants Evers and Eversole in their individual capacities. 28 U.S.C. §§ 1915(e)(2)(B);
1915A(b).
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IT IS THEREFORE RECOMMENDED THAT:
1. The Court DISMISS with prejudice plaintiff’s complaint, with the exception of his
first group of claims against defendant Sergeants Evers and Eversole in their individual
capacities. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).
2. The Court certify pursuant to 28 U.S.C. § 1915(e)(2)(B) that for the foregoing
reasons an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, the
separate Order issued granting plaintiff in forma pauperis status, and this Order and Report and
Recommendation upon defendants Sergeants Evers and Eversole, as directed by plaintiff.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,
upon defendants’ attorney(s), a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed with the
Clerk of Court a certificate stating the date a true and correct copy of any document was mailed
to defendants or defendants’ counsel. Any paper received by a district judge or magistrate judge
which has not been filed with the Clerk or which fails to include a certificate of service will be
disregarded by the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may
occur during the pendency of this lawsuit.
PROCEDURE ON OBJECTIONS:
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
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the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.

This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 6, 2025

KAREN L. LITKOVITZ
United States Magistrate Judge

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