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holding that the plaintiff-inmate's one-hundred-day loss of recreational privileges and telephone use did not implicate a constitutionally protected liberty interest
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Case No. 1:13-cv-226
11-22-2013
ROY A. DURHAM, JR., Plaintiff, v. ROB JEFFREYS, et al., Defendants.
Weber, J.
Litkovitz, M.J.
ORDER AND REPORT
AND RECOMMENDATION
This case has a convoluted procedural history. Plaintiff, a prisoner at the Southern Ohio Correctional Facility in Lucasville, Ohio, initiated the action in April 2013 by filing a pro se complaint under 42 U.S.C. § 1983 challenging his treatment at the Warren Correctional Institution (WCI) in Lebanon, Ohio, when he was incarcerated there in 2011-2012. (See Doc. 1). On June 10, 2013, the undersigned granted plaintiff's motion for leave to proceed in forma pauperis submitted in response to a Deficiency Order. (See Docs. 2, 7-8). The undersigned also issued a separate Order and Report and Recommendation allowing the action for damages to proceed against five WCI correctional officers, but recommending the dismissal of certain supervisory correctional officials as defendants as well as plaintiff's claim for injunctive relief. (Doc. 9).
Soon thereafter, plaintiff filed a motion for leave to amend the complaint, which was granted in light of a recent decision by the Sixth Circuit in LaFountain v. Harry, 716 F.3d 944 (6th Cir. 2013). On August 1, 2013, plaintiff filed a 339-page amended complaint against 99 defendants, challenging not only his treatment at WCI (as alleged in the original complaint), but also his treatment over the course of several years at various penal institutions in Ohio. (See Doc. 20). In an order filed on August 19, 2013, the undersigned found that the amended complaint failed to comply with Fed. R. Civ. P. 8(a) and ordered plaintiff to resubmit another amended complaint limited to 20 pages and "to causes of action that arose in a location that is covered by this Court's venue jurisdiction (i.e., Warren Correctional Institution) based on incidents occurring within two years of the filing of the instant action." (See Doc. 22). On September 9, 2013, plaintiff submitted a second amended complaint in compliance with the August 19, 2013 Order (Doc. 28), but also filed objections to that Order to the extent he had been directed to limit the scope of the amended complaint to events occurring at WCI. (See Doc. 27). On October 30, 2013, the District Court overruled plaintiff's objections to the August 19, 2013 Order and granted the defendants' motion to stay the time for filing an answer in response to the second amended complaint until after the District Court has issued a final ruling with respect to any Report and Recommendation issued on screening of that pleading pursuant to 28 U.S.C. § 1915(d). (Doc. 31; see also Doc. 29).
At this juncture, it appears that plaintiff's second amended complaint has supplanted the original complaint. Because the original complaint is no longer in effect, the Order and Report and Recommendation filed on June 10, 2013 upon screening of the original complaint (Doc. 9) is hereby VACATED as moot. However, the inquiry does not end here. This matter is now before the Court for sua sponte review of the second amended complaint in accordance with the standards set forth in detail in the June 10, 2013 Report and Recommendation (see Doc. 9, pp. 1-3), which are incorporated by reference herein. See also 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007); Denton v. Hernandez, 504 U.S. 25, 31-32 (1992); Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Also pending before the Court are plaintiff's motions for leave to submit exhibits as attachments to the second amended complaint (Docs. 30, 34), which are hereby GRANTED. The exhibits that plaintiff has included with those motions shall, therefore, be considered as exhibits attached to his second amended complaint.
In the second amended complaint, plaintiff names the following state correctional officers and employees as defendants: Michael Sheets, the former Warden of WCI; Rudolph Pringles, the Deputy Warden of Operations at WCI; Douglas Luneke, the Major at WCI; Sandra Crawford, the Unit Manager Administrator at WCI; Parvez Sarwar, the Unit Manager at WCI; WCI case managers Justin Johnson and Rosalie Battles; Walker, WCI's supervising mental health doctor; Washington, a mental health doctor at WCI; Nancy Frye, the health care administrator at WCI; Gary Mohr, the Director of the Ohio Department of Rehabilitation and Correction (ODRC); Rob Jeffreys, Chief of ODRC's Bureau of Classification; Gary Croft, ODRC Chief Inspector; Eugene R. Hunyadi, ODRC Assistant Inspector; L.L. Coval, ODRC Deputy Chief Inspector; and WCI correctional officers Justin Reese, Adam Keesler, Joseph Little, Romanak, Montgomary, Lang, Johnson, Miller, Timothy Rodeffer, Taylor, Lawson, and Bailey. (Doc. 28, ¶¶ 9-36). In the substance of the second amended complaint, plaintiff also brings claims against the following additional individuals who were not included in the list of named defendants: Sgt. Brooks, Cpt. Turner, Captain Williams, Rodney McIntosh, Landis, Maggard and Bush. (See id., ¶¶ 37, 38-48, 49, 50).
Plaintiff alleges a variety of claims under 42 U.S.C. § 1983 challenging his treatment by the defendants while he was incarcerated at WCI. At this stage in the proceedings, without the benefit of briefing by the parties to this action and out of an abundance of caution, the undersigned concludes that plaintiff should be allowed to proceed on most of his claims. However, it is RECOMMENDED that the following portions of the second amended complaint should be dismissed at the screening stage because it is clear from the face of the pleading that plaintiff has failed to state a claim upon which relief may be granted:
(1) Plaintiff's claims against "defendant Rodney McIntosh," which are set forth in paragraphs 38 through 48 of the second amended complaint, should be dismissed for failure to state a viable federal claim under § 1983. The claims against McIntosh are based on allegations of denial of access to grievance forms, failure to provide plaintiff with responses to his "kites," and other errors and omissions that allegedly occurred in the handling of plaintiff's various "kites," complaints and grievances at WCI. (See Doc. 28, ¶¶ 38-48). The allegations fail to state a claim for which relief may be granted because plaintiff has no federal constitutional right to an effective prison grievance procedure. See, e.g., Hill v. Warden, Southern Ohio Corr. Facility, No. 1:12cv63, 2012 WL 1639991, at *2 (S.D. Ohio Mar. 13, 2012) (Litkovitz, M.J.) (recommending dismissal of portion of complaint complaining about "the failure of prison staff to provide [plaintiff] with inmate grievance forms and other deficiencies in the inmate grievance procedure" because "plaintiff has no federal constitutional right to an effective prison grievance procedure"), adopted, 2012 WL 1623565 (S.D. Ohio May 9, 2012) (Weber, J.); Dearing v. Mahalma, No. 1:11cv204, 2011 WL 3739029, at *7 (S.D. Ohio Aug. 24, 2011) (Barrett, J.) (holding that the plaintiff's allegations referring to "his dissatisfaction with the . . . investigation of [an] allegedly mishandled letter" through the prison grievance process did not state an actionable claim under 42 U.S.C. § 1983); Williams v. Harris, No. 1:11cv362, 2011 WL 3667438, at *3 (S.D. Ohio June 15, 2011) (Litkovitz, M.J.) (recommending dismissal of complaint against prison official responsible for responding to institutional grievances because the plaintiff had "no constitutional right to an effective grievance procedure"), adopted, 2011 WL 3667389 (S.D. Ohio Aug. 22, 2011) (Dlott, J.); see also Walker v. Michigan Dep't of Corr., 128 F. App'x 441, 445 (6th Cir. 2005) (per curiam) (and cases cited therein); Argue v. Hofmeyer, 80 F. App'x 427, 430 (6th Cir. 2003) (and cases cited therein); Overholt v. Unibase Data Entry, Inc., No. 98-3302, 2000 WL 799760, at *3 (6th Cir. June 14, 2000)).
Therefore, all of plaintiff's claims against Rodney McIntosh are subject to dismissal, and McIntosh should be dismissed as a defendant in this action. Moreover, for the same reasons, any additional claims alleged in the second amended complaint challenging the handling of plaintiff's complaints and grievances by other named defendants should be dismissed on the ground that plaintiff has failed to state a claim upon which relief may be granted by this Court.
(2) The claims alleged in paragraphs 45 and 50 of the second amended complaint should be dismissed for failure to state a viable federal claim under § 1983. (See Doc. 28, ¶¶ 45, 50). In paragraph 50, plaintiff brings a claim against defendants Taylor, Rodeffer, Maggard, Bush and Sheets, challenging a Rules Infraction Board (RIB) proceeding that resulted in plaintiff's confinement for 100 days in segregation with only one opportunity provided for recreation outside his cell. In paragraph 45, plaintiff claims that defendants Sandra Crawford and Parvez Sarwar denied him the use of a telephone while he was confined in segregation.
To the extent plaintiff has alleged in paragraph 50 that the RIB proceeding was based on "false conduct reports," it is well-settled that erroneous or even fabricated allegations of misconduct by an inmate, standing alone, do not constitute a deprivation of a constitutional right. See, e.g., Reeves v. Mohr, No. 4:11cv2062, 2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012) (and cases cited therein); see also Jackson v. Madery, 158 F. App'x 656, 662 (6th Cir. 2005) ("False accusations of misconduct filed against an inmate do not constitute a deprivation of constitutional rights where the charges are adjudicated in a fair hearing."). Although plaintiff has also generally asserted that the RIB proceeding was "unfair," in the absence of any factual allegations supporting that assertion, plaintiff has failed to provide the defendants with "fair notice of what [his] claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations omitted); see also Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, 557. Cf. 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (pointing out that Iqbal and Twombly established that "the sufficiency of a complaint turns on its factual content, . . . requiring the plaintiff to plead enough factual matter to raise a plausible inference of wrongdoing") (internal quotation marks and citations omitted).
Furthermore, to the extent plaintiff claims in paragraphs 45 and 50 that his due process rights were violated based on his 100-day confinement in segregation and the denial of recreational privileges and the use of a telephone while in segregation, he has not alleged any facts to suggest that the defendants' actions deprived him of a constitutionally protected liberty interest. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that the Fourteenth Amendment confers on prisoners only a "limited" liberty interest "to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," or which "will inevitably affect the duration of his sentence." Sandin, 515 U.S. at 484, 487; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Williams v. Wilkinson, 51 F. App'x 553, 556 (6th Cir. 2002). The Sixth Circuit has held that confinement in segregation generally does not rise to the level of an "atypical and significant" hardship implicating a liberty interest except in "extreme circumstances, such as when the prisoner's complaint alleged that he is subject to an indefinite administrative segregation" or that such confinement was excessively long in duration. Joseph v. Curtin, 410 F. App'x 865, 868 (6th Cir. 2010) (citing Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008)) (emphasis in original); see also Harris v. Caruso, 465 F. App'x 481, 484 (6th Cir.) (holding that the prisoner's 8-year confinement in segregation was of "atypical duration" and thus "created a liberty interest that triggered his right to due process"), cert. denied, 133 S.Ct. 429 (2012). Cf. Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005) (ruling 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).
Here, plaintiff has not alleged that the challenged RIB proceeding resulted in the lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any necessities of life. Plaintiff's 100-day confinement in segregation was not so lengthy in duration as to rise to the level of an atypical and significant hardship and thus does not trigger due process concerns. Cf. Jones, 155 F.3d at 812 (holding that an inmate's administrative segregation for two and a half years while his participation in a prison riot was being investigated did not amount to an atypical and significant hardship); Mackey v. Dyke, 111 F.3d 460, 461, 463 (6th Cir. 1997) (117-day delay in releasing the plaintiff from administrative segregation to the general prison population did not impose an atypical or significant hardship on the plaintiff and thus did not trigger due process concerns); Bradley v. Evans, No. 98-5861, 2000 WL 1277229, at *7 (6th Cir. Aug. 23, 2000) (and numerous cases cited therein in support of holding that placement for 14 months in administrative segregation did not impose an atypical or significant hardship on the prisoner); Collmar v. Wilkinson, No. 97-4374, 1999 WL 623708, at *3 (6th Cir. Aug. 11, 1999) (30 days in Security Control, 14 days in Disciplinary Control and six to eight months in Administrative Control did not constitute an "atypical hardship" under Sandin). Although plaintiff has also alleged that he was only permitted one hour out of his cell for recreation during that 100-day period, the loss of recreational privileges does not amount to an "atypical and significant hardship" under Sandin. Cf. Payne v. Dretke, 80 F. App'x 314, 315 (5th Cir. 2003) (per curiam) (involving commissary and recreation restrictions); Barham v. Duckworth, No. 95-2913, 1997 WL 686207, at *1 (7th Cir. Oct. 28, 1997) (involving 30-day loss of recreational privileges); Davis v. Collins, No. 4:13CV140 CDP, 2013 WL 3457096, at *3 (E.D. Mo. July 9, 2013) (and cases cited therein) ("Under the standards set forth in Sandin, the loss of recreation time cannot be said to be atypical, significant deprivations that could encroach upon any liberty interest."); Maxwell v. Clarke, No. 7:12cv00477, 2013 WL 2902833, at *9 (W.D. Va. June 13, 2013) (citing holding in Beverati v. Smith, 120 F.3d 500, 503 (4th Cir. 1997), that six-month period of segregation with "no outside recreation" did not impose an atypical and significant hardship on the prisoner), aff'd, _ F. App'x _, No. 13-7056, 2013 WL 5405536 (4th Cir. Sept. 27, 2013) (per curiam); Brown v. LeBlanc, Civ. Act. No. 09-1477-P, 2013 WL 1947180, at *9 (W.D. La. Mar. 27, 2013) (Report & Recommendation) ("12 weeks loss of yard/recreation privileges does not constitute the type of atypical punishment that presents a significant deprivation which would implicate due process concerns"), adopted, 2013 WL 1947175 (W.D. La. May 9, 2013). Similarly, plaintiff's allegations in paragraph 45 of the second amendment complaint about the denial of telephone privileges while in segregation does not implicate due process concerns. Cf. Doyle v. Clark, No. 1:09cv1150, 2010 WL 2540740, at *3 (W.D. Mich. June 15, 2010) (citing Johnson v. Vroman, No. 1:06cv145, 2006 WL 1050497, at *2 (W.D. Mich. Apr. 19, 2006) (in turn citing numerous cases in support of holding that 6-month restriction on telephone privileges did not trigger the protection of the Due Process Clause)); Baker v. Meko, No. 08-CV-119-HRW, 2008 WL 4889614, at *4 (E.D. Ky. Nov. 12, 2008) ("Under Sandin, the loss of a mere privilege (such as telephone access . . .) would not qualify as an atypical or significant hardship in relation to the incident of prison life under the Eighth Amendment."); Barhite v. Michigan Dep't of Corr., No. 06-CV-11292, 2007 WL 2647098, at *5 (E.D. Mich. Sept. 5, 2007) ("Restriction on telephone privileges does not implicate the Due [P]rocess [C]lause since it does not contain an atypical and significant hardship.").
Accordingly, because plaintiff does not have a protected liberty interest under the circumstances alleged herein, the claims alleged in paragraphs 45 and 50 of the second amended complaint fail to state a cognizable federal claim. Because defendants Parvez Sarwar, Maggard and Bush are not named as defendants in any other portions of the second amended complaint, they should also be dismissed as defendants in this action.
(3) The claim alleged in paragraph 46 of the second amended complaint against defendant Romanak, stemming from Romanak's alleged failure to adequately protect against the loss of plaintiff's personal property on December 18, 2011, should be dismissed because plaintiff has not stated a cognizable federal claim for relief under § 1983. (See Doc. 28, ¶ 46). To the extent plaintiff contends that Romanak negligently failed to ensure that plaintiff's property was "secured and protected," he fails to state a claim of constitutional dimension because the "mere lack of due care by a state official" does not trigger due process concerns. See Daniels v. Williams, 474 U.S. 327, 330-32 (1986). As the Supreme Court stated in Daniels, "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Id. at 328 (emphasis in original). Plaintiff has alleged no facts even remotely suggesting that Romanak intentionally deprived plaintiff of his property.
In any event, even if plaintiff had asserted a claim of an intentional deprivation of property, he may not seek relief under § 1983 without first pleading and proving the inadequacy of state or administrative processes and remedies to redress the alleged violation of his due process rights. See Hudson v. Palmer, 468 U.S. 517, 533-36 (1984) (extending Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), to intentional property deprivations); see also Jefferson v. Jefferson Cnty. Pub. School Sys., 360 F.3d 583, 588 (6th Cir. 2004). Although plaintiff has claimed that he was hindered in seeking redress through the prison grievance procedure at WCI, he has not alleged any facts even remotely suggesting that the tort remedies available under Ohio law to redress the wrong of which he complains are inadequate. Cf. Bobo v. McCrosky, No. 1:12cv842, 2013 WL 1721960, at *2-3 (S.D. Ohio Apr. 22, 2013) (Bowman, M.J.) (Report & Recommendation), adopted, 2013 WL 2253197 (S.D. Ohio May 22, 2013) (Dlott, J.) (screening dismissal of a complaint challenging the confiscation and destruction of a prisoner's radio and stereo receiver).
IT IS THEREFORE RECOMMENDED THAT:
The second amended complaint be DISMISSED for failure to state a claim upon which relief may be granted to the extent that plaintiff has named Rodney McIntosh, Parvez Sarwar, Romanak, Maggard and Bush as defendants and seeks to bring claims challenging (1) the handling of his "kites," complaints and grievances while he was incarcerated at WCI; (2) the conduct of a RIB proceeding that resulted in his confinement in segregation for a 100-day period at WCI; (3) the denial of recreational and telephone privileges while he was in segregation at WCI; and (4) the failure of defendant Romanak to adequately protect against the loss of plaintiffs "property." Specifically, claims alleged against McIntosh in paragraphs 38-48 of the second amended complaint, any other claims in the second amended complaint challenging the handling of plaintiff's complaints and grievances by other named defendants, and the claims alleged in paragraphs 45, 46 and 50 of the second amended complaint should be dismissed on the ground that plaintiff has failed to state a claim upon which relief may be granted by this Court. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
IT IS THEREFORE ORDERED THAT:
1. The Order and Report and Recommendation issued June 10, 2013 addressing plaintiff's original complaint (Doc. 9) is VACATED.
2. Plaintiff's motions to submit exhibits to include as attachments to the second amended complaint (Docs. 30, 34) are GRANTED. The exhibits attached to the two motions are to be included as exhibits to plaintiff's second amended complaint.
3. To the extent that plaintiff has submitted completed summons and United States Marshal forms for the new defendants named in the second amended complaint, the United States Marshal shall serve a copy of the second amended complaint (Doc. 28), summons, the Order issued on June 10, 2013 granting plaintiff's in forma pauperis application (Doc. 8), and this Order and Report and Recommendation upon those defendants as directed by plaintiff. All costs of service shall be advanced by the United States.
To the extent that plaintiff has not submitted summons and United States Marshal forms for the new defendants named in the second amended complaint, plaintiff is ORDERED to submit completed summons and United States Marshal forms for those defendant within thirty (30) days of the date of this Order. Once the Court receives the completed forms, the Court will order service of process by the United States Marshal on those defendants who remain in this action. The Clerk of Court is DIRECTED to send summons and United States Marshal forms to plaintiff for this purpose.
4. Plaintiff shall serve upon the defendants or, if appearance has been entered by counsel, upon the 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 their 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.
5. Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit.
___________________
Karen L. Litkovitz
United States Magistrate Judge
ROY A. DURHAM, JR., Plaintiff,
vs ROB JEFFREYS, et al., Defendants.
Case No. 1:13-cv-226
Weber, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after being served with a copy thereof. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN DAYS after being served with a copy of those objections. 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).