United States District Court, S.D. Ohio, Western Division
SUPPLEMENTAL REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
an inmate at the Lebanon Correctional Institution (LeCI),
brings this civil rights action under 42 U.S.C. § 1983
against defendants Gary Moore, Thomas Schweitzer, Douglas
Luneke, Tyler Ley, Tenet Bell, Brian Holley, and Quillen
Berry. (Doc. 3). On February 1, 2017, the undersigned issued
a Report recommending that the complaint be dismissed for
failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1). (Doc. 4). This matter is before the Court on
plaintiffs motion to amend the complaint. (Doc. 11).
granting or denial of a motion to amend pursuant to
Fed.R.Civ.P. 15(a) is within the discretion of the trial
court. Leave to amend a complaint should be liberally
granted. Foman v. Davis, 371 U.S. 178 (1962). The
Court should consider factors such as undue delay, bad faith
or dilatory motive on the part of the movant, the repeated
failure to cure deficiencies by amendments previously
allowed, lack of notice to the opposing party, undue
prejudice to the opposing party by virtue of allowance of the
amendment, and futility of amendment. Brumbalough v.
Camelot Care Centers, Inc., 427 F.3d 996, 1001 (6th Cir.
2005) (citing Brooks v. Celeste, 39 F.3d 125, 130
(6th Cir. 1994)). The Court may deny the motion to amend
where the complaint, as amended, could not withstand a motion
to dismiss. Miller v. Calhoun County, 408 F.3d 803
(6th Cir. 2005) (citing Neighborhood Development Corp. v.
Advisory Council on Historic Preservation,
Department of Housing and Urban Development, City of
Louisville, 632 F.2d 21, 23 (6th Cir. 1980));
Matthews v, Jones, 35 F.3d 1046, 1050 (6th Cir.
1994); Thiokol Corp. v. Dept. of Treasury, 987 F.2d
376, 383 (6th Cir. 1993). See also 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b).
seeks to amend his complaint to add the following defendants:
the Ohio Department of Rehabilitation and Correction (ODRC);
LeCI Officer Zachary Cherryholmes; and LeCI Officer J.
Saylor. Plaintiff also seeks to add new claims against some
of the original defendants and claims against the new
defendants. Plaintiff further seeks to correct the name of
defendant Moore to "Mohr" and to add an additional
prayer for relief. Plaintiffs motion to amend should be
granted in part and denied in part.
initial matter, plaintiffs proposed amended complaint fails
to state an actionable claim against the ODRC because the
state agency is not a "person" or legal entity that
may be sued under § 1983. See, e.g., McGlone v.
Warren Corr. Inst.. No. 1:13cvl26, 2013 WL 1563265, at
*3 (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report &
Recommendation) (and numerous cases cited therein) (holding
that claims against a state prison and the ODRC should be
dismissed at the screening stage because "neither the
state prison facility nor the state corrections department is
an entity capable of being sued under § 1983"),
adopted, 2013 WL 2352743 (S.D. Ohio May 29, 2013)
(Dlott, J.); see also Hix v. Tennessee Dep't of
Corr., 196 F.App'x 350, 355-56 (6th Cir. 2006) (and
cases cited therein); Rodgers v. Michigan Dep 7
of Corr., 29 F.App'x 259, 260 (6th Cir. 2002).
Cf Will v. Michigan Dep't of State Police, 491
U.S. 58, 63-64, 71 (1989) (holding that "neither a State
nor its officials acting in their official capacities are
'persons'" who may be held liable for
constitutional violations in a § 1983 action).
Furthermore, to the extent that plaintiff seeks damages in
the instant action, the Eleventh Amendment bars plaintiffs
cause of action against the state agency defendant.
McGlone, supra, 2013 WL 1563265, at *3 (citing
Rodgers, 29 F.App'x at 260); see also
Will, 491 U.S. at 66-71; Wingo v. Tennessee
Dep'l o/Corr., 499 F.App'x 453, 454 (6th Cir.
2012). Therefore, plaintiffs motion to amend to name the ODRC
as a defendant should be denied.
alleges that on November 9, 2016, "block officers"
entered his cell and destroyed his property "as a form
of retaliation and harassment" in violation of Ohio
regulations. (Doc. 10, ¶ 21). This claim is wholly
conclusory and fails to allege any facts in support of a
claim of retaliation. The motion to amend to add this claim
should be denied. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (the Court need not
"accept as true a legal conclusion couched as a factual
alleges that on December 29, 2016, defendant Cherryholmes
harassed plaintiff using sexually abusive language. He
further alleges that on February 2, 2016, defendant Saylor
was verbally abusive and called plaintiff several derogatory
names. (Doc. 10, ¶¶ 23, 26). The motion to amend
the complaint to add these claims should also be dismissed as
it is well-settled that "[v]erbal harassment or idle
threats by a state actor do not create a constitutional
violation and are insufficient to support a section 1983
claim for relief." Wingo, 499 F.App'x at
455 (citing Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987)); see also Violet! v.
Reynolds, 76 F.App'x 24, 27 (6th Cir. 2003) (in
affirming dismissal of Eighth Amendment claim based on a
correctional employee's "alleged offer of sexual
favors, " the Sixth Circuit stated that "verbal
abuse and harassment do not constitute punishment that would
support an Eighth Amendment claim").
also complains that his personal property was destroyed after
searches of his cell by various corrections officers on
November 15, 2016, December 29, 2016 and February 2, 2017.
(Doc. 10, ¶¶ 22, 23, 26). Plaintiff 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, 45] 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). Plaintiff has not alleged any
facts even remotely suggesting that the tort remedies
available under Ohio law 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). The motion to
amend to add a due process claim for the destruction of
plaintiff s personal property should be denied.
also reiterates his claim that he was deprived of meals by
defendants Berry, Hoiley and Ley. (Doc. 10, ¶ 27).
Although plaintiff s original complaint alleged plaintiff was
deprived of meals on four occasions, the amended complaint
alleges a "continuous deprivation of nutrition" by
these defendants that has resulted in a weight loss of 40
pounds over the past three months. Liberally construed,
plaintiffs proposed amended complaint states a claim for
relief under the Eighth Amendment. See Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (the Eighth Amendment
requires prison officials "to provide humane conditions
of confinement" and to "ensure that inmates receive
adequate food, clothing, shelter, and medical care. . .
."); Wilson v. Johnson, 385 F.App'x 319,
320 (4th Cir. 2010) (finding that prisoner stated a
cognizable Eighth Amendment claim regarding inadequate
nutrition when he asserted that he lost twelve pounds in a
month because of inadequate portions). The motion to amend
should be granted as to plaintiffs Eighth Amendment claim.
alleges that on November 15, 2016, defendant Bell ordered two
officers to go to plaintiffs cell and "tear it the hell
up." (Doc. 10, ¶ 22). The officers complied and
when plaintiff advised defendant Bell that this was the
second time his property had been destroyed by a cell search
defendant Bell allegedly stated, "Write me up like you
did Lt. Berry then bitch." (Id.). Plaintiff
alleges that on January 7, 2017, defendant Berry allegedly
told him that if he "talks to her, writes her any
further kites, or writes one more informal complaint
resolution on her that [plaintiff] will 'get f***ed
up."' (Doc. 10, ¶ 25). Defendant Berry also
allegedly stated that if plaintiff "even so much as
looks at her ever again that he would be 'healing in his
cell for the remainder of his time at LeCI."'
(Id.). Plaintiff also alleges that on February 2,
2017, defendant Saylor falsely accused plaintiff of
possessing multiple identification tags and stated to
plaintiff, "You are the one suing everyone. Well,
let's see what we can do about that." (Doc, 10,
¶ 26). Defendant Saylor then entered plaintiffs cell and
destroyed plaintiffs legal papers, causing plaintiff to
reprint his motion and complaints. (Id.). Liberally
construed, plaintiffs amended complaint may state a viable
constitutional claim under 42 U.S.C. § 1983 against
defendants Bell, Berry, and Saylor to the extent that
plaintiff has suggested in the amended complaint that they
have taken various adverse actions against him while acting
under color of state law in retaliation for his exercising
his First Amendment rights. See Kennedy v.
Bonevelle, 413 F.App'x 836, 839-40 (6th Cir. 2011).
At this stage in the proceedings, without the benefit of
briefing by the parties to this action, the undersigned
concludes that to the extent that plaintiff is bringing a
First Amendment retaliation claim against defendants Bell,
Berry, and Saylor such claim is deserving of further
development and the motion to amend should be granted in this
further alleges that on December 29, 2016, defendant
Cherryholmes confiscated all of plaintiff s religious
materials, including plaintiffs personal Christian Bibles
valued at $250 to $350 and ordered plaintiff to
"donate" them to the prison library. Plaintiff
states he complied with the directive after defendant
Cherryholmes threatened to spray him in the face with pepper
spray and "beat the shit" out of him. (Doc. 10,
¶ 24). Plaintiffs motion to amend the complaint should
be granted as to plaintiffs claim alleging a violation of his
First Amendment right to freely exercise his Christian
plaintiff alleges that on February 13, 2017, he placed a
large legal envelope in the mailbox slot at LeCI which
contained documents pertaining to his complaint in this case.
He later received a letter from the Clerk of Court stating
the post office delivered the envelope to the Clerk
"opened, empty, and damaged." (Doc. 10, ¶ 28).
See also Doc. 6. Plaintiff alleges that his legal
mail was opened and stolen or destroyed between the time he
placed the envelope in the institution mailbox and its
receipt by the Clerk of Court.
order to state a claim of denial of access to the courts,
plaintiff must allege facts indicating he was actually
impeded in an existing or contemplated non-frivolous legal
proceeding. Lewis v. Casey,518 U.S. 343, 351-53
(1996); Hadix v. Johnson,182 F.3d 400, 406 (6th
Cir. 1999). To have standing to pursue an
access-to-the-courts claim, plaintiff must "show actual
prejudice to non-frivolous claims." Hadix, 182
F.3d at 406. See also Stanley v. Vining, 602 F.3d
767, 770 (6th Cir. 2010). Plaintiffs proposed amended
complaint does not allege that he was actually impeded in
this lawsuit or that he was harmed in some other
non-frivolous legal proceeding by the alleged destruction or
theft of the ...