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Tate v. Williams

January 10, 2007

PHILLIP TATE, PLAINTIFF,
v.
JOE WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge

JUDGE SMITH

REPORT AND RECOMMENDATION

On January 9, 2006, pro se prisoner Phillip Tate filed a complaint in this Court alleging violations of his constitutional rights under 42 U.S.C. §1983. On March 21, 2006, defendants Joe Williams, Inspector of Institutional Services at Noble Correctional Institution ("NCI"); Jose Ventosa, M.D., medical director at NCI; Sergeant Tony Wittekind, hearing officer at NCI; Jeffrey Wolfe, Warden at NCI; Michelle Eberlin, Warden at Belmont Correctional Institution ("BCI"); William Eleby, Chief of Bureau of Classification and Reception for the Ohio Department of Rehabilitation and Correction ("ODRC"); and Reginald Wilkinson, Director of ODRC (collectively known as "defendants") filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). The motion is fully briefed and is now ripe for decision. For the following reasons, it will be recommended that the motion to dismiss be granted in part and denied in part.

I.

The following facts are taken from the complaint. Mr. Tate is a prisoner in the ODRC system currently serving his sentence at Ross Correctional Institution ("RCI"). In June 2004, Mr. Tate sent a personal letter to Terry Collins, the Deputy Director of the ODRC, complaining about the actions and conduct of the NCI Deputy Warden. As a result of sending the letter, Mr. Tate was placed in punitive segregation and received a conduct report for the use of inappropriate language in the letter. A hearing was held concerning Mr. Tate's letter. Mr. Tate was denied the use of his requested witnesses and was sentenced to five days in the disciplinary cell.

In October 2005, Mr. Tate sent a personal letter to Dr. Ventosa concerning alleged racial discrimination in medical treatment. Upon reading the letter, Dr. Ventosa issued a conduct report against Mr. Tate for disrespecting a staff member. A hearing was held and Mr. Tate was again denied the opportunity to present witnesses. The hearing officers cited Mr. Tate's use of inappropriate language and sentenced him to fifteen days of commissary restriction.

In March 2005, Mr. Tate was transferred to BCI without any notice or hearing and was placed on security control status within BCI's infirmary under segregation conditions. While at BCI, Mr. Tate was brought before a Rule Infractions Board ("RIB") for an investigation into whether he attempted to establish a relationship with an officer. According to Mr. Tate, he was denied the right to present witnesses and documentary evidence. Mr. Tate was sentenced to fifteen days in the disciplinary cell and placed on local control. As a result of this conduct and the RIB's action, Mr. Tate's parole release was rescinded, and Mr. Tate was ordered to serve out the remaining portion of his criminal sentence.

Mr. Tate was held in the BCI infirmary from March 18, 2005 to May 18, 2005 pursuant to Ms. Eberlin's request. Additionally, Mr. Tate was on segregated conditions status and was denied request for out-of-cell exercise by Ms. Eberlin. In April 2005, Mr. Tate filed a formal grievance with the chief inspector against Ms. Eberlin for her denial of Mr. Tate's request for exercise. The chief inspector disposed of the grievance in October 2005.

From March 19, 2005 to May 31, 2005, Mr. Tate requested and was denied the use of dental floss. Accordingly, on May 14, 2005, Mr. Tate filed an informal complaint with Ms. Eberlin claiming that he was suffering from pain in his mouth due to the lack of his ability to floss. A dentist examined Mr. Tate's teeth and gums through a window and concluded that Mr. Tate was unharmed. Subsequently, Mr. Tate filed a formal grievance against Ms. Eberlin challenging "the [d]department wide absence of a formal policy authorizing access to dental floss or an equivalent to plaintiff and other inmates confined to" segregated conditions or disciplinary cells. (Complaint at ¶90.)

On April 26, 2005, Mr. Eleby upgraded Mr. Tate's security status from medium to close and approved Mr. Tate's transfer to RCI. Mr. Tate was not provided a hearing regarding the transfer.

Additionally, Mr. Tate cites the history of the Ohio inmate grievance system. Specifically, Mr. Tate refers to a report issued on or about 2001 that details an "unacceptably high level of retaliation against inmates who seek to access the grievance procedure ...." (Id. ¶¶103-11.) Mr. Tate claims that Mr. Wilkinson has failed to enforce or adopt any new regulations to address the problem.

In all, Mr. Tate makes the following claims (reproduced verbatim):

Defendant Joe Williams violated plaintiff's rights and constituted general and direct retaliation by using the disciplinary procedures as a method of retaliation, denying plaintiff of substantive and procedural due process, and subjecting him to cruel and unusual punishment, in violation of the First, Eighth and Fourteenth Amendments.

Defendant Dr. Joes Ventosa violated plaintiff's rights and constituted direct and general retaliation and denial of substantive and procedural due process, in violation of the First and Fourteenth Amendments.

Defendant Lt. Frizzell violated plaintiff's rights and constituted general and direct retaliation, failure to protect, cruel and unusual punishment, and a denial of substantive and procedural due process, in violation of the First, Eighth and Fourteenth Amendments.

Defendant Sgt. Tony Wittekind violated plaintiff's right and constituted general and direct retaliation, and denial of substantive and procedural due process, in violation of the First and Fourteenth Amendments.

Defendant Jeffrey Wolfe violated plaintiff's rights and constituted general and direct retaliation, failure to protect and denial of substantive and procedural due process, and cruel and unusual punishment, in violation of the First, Eighth and Fourteenth Amendments.

Defendant Reginald Wilkinson violated plaintiff's rights and constituted general and direct retaliation, failure to protect, cruel and unusual punishment, and denial of substantive and procedural due process, in violation of the First, Eighth and Fourteenth Amendments.

Defendant Michele Eberlin violated plaintiff's rights and constituted general and direct retaliation, failure to protect, cruel and unusual punishment, and denial of substantive and procedural due process, in violation of the First, Eighth and Fourteenth Amendments.

Defendant Williams Eleby violated plaintiff's rights and constituted general and direct retaliation, failure to protect, cruel and unusual punishment, and denial of substantive and procedural due process, in violation of the First, Eighth and Fourteenth Amendments.

(Complaint ¶¶120-27.)

II.

When considering a motion to dismiss pursuant to Fed. R. Civ. P. l2(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 4l6 U.S. 232, 236 (l974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.l983). When determining the sufficiency of a complaint in the face of a motion to dismiss, the court must apply the principle that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 4l, 45-46 (l957). See also, McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232 (l980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983), cert. denied, 469 U.S. 826 (1984).

A motion to dismiss under Rule 12(b)(6) is directed solely to the complaint itself. Roth Steel Products, 705 F.2d at 155. Consequently, the Court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. Scheuer, 4l6 U.S. at 236. A federal court cannot consider extrinsic evidence in determining whether a complaint states a claim upon which relief can be granted. Roth Steel Products, 705 F.2d at 155. The Court will grant a defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(6) if the complaint is without merit because of an absence of law to support a claim of the type made, or of facts sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See, generally, Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.l978).

In defendants' motion to dismiss, defendants primarily argue that Mr. Tate has failed to exhaust all administrative remedies under the Prison Litigation Reform Act ("PLRA") prior to bringing this action. In the alternative, if the Court concludes that Mr. Tate did properly exhaust, defendants contend that the claims against Mr. Wilkinson, Mr. Wolfe, Ms. Eberlin, Mr. Wolfe, Mr. Wittekind, Mr. Frizzell and Mr. Eleby are based on the doctrine of respondeat superior, and, because vicarious liability cannot be extended under §1983, those defendants must be dismissed from the lawsuit. Finally, defendants claim that Mr. Tate's retaliation claims must fail because Mr. Tate did not engage in protected conduct and that no action was taken against him that would deter a person of ordinary firmness from continuing to engage in such conduct.

On the other hand, Mr. Tate claims that he exhausted all required administrative remedies prior to filing suit in this Court. Further, Mr. Tate argues that the defendants fail to characterize properly Mr. Tate's claims against the defendants. Mr. Tate argues that he is not relying on the doctrine of respondeat superior to attach liability to certain defendants. Instead, Mr. Tate states that all claims are brought against each defendant based on each defendant's personal retaliatory actions. Mr. Tate also contends that his constitutional due process rights were violated because he was never afforded a fair hearing when he was transferred and/or disciplined. Finally, Mr. Tate alleges that his due process rights were violated when he was denied outdoor exercise and that he was subjected to cruel and unusual punishment when denied dental floss.

III. Exhaustion

The Prison Litigation Reform Act requires that a prisoner exhaust administrative remedies before filing suit in the district court. It states: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. ยง1997e(a). The plaintiff- prisoner has the burden of proving that all administrative remedies are exhausted, Baxter v. Rose, 305 F.3d 486, 488 (6th Cir.2002), and, for proof, documentation, if available, must be attached to the complaint. Brown v. Toombs, 139 F.3d 1102, 1004 (6th Cir.1999). Finally, although exhaustion is not jurisdictional, it is a mandatory requirement imposed by statute. Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999). A prisoner must exhaust all administrative remedies against each defendant that the prisoner seeks to sue. See, e.g., ...


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