United States District Court, S.D. Ohio, Western Division
JONATHAN T. THOMAS, Plaintiff,
RON ERDOS, et al., Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility (SOCF),
brings this action under 42 U.S.C. § 1983 for violations
of his civil rights. This matter is before the Court on
defendant J. Cool's motion to dismiss the complaint under
Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 20(a)(2) (Doc. 44),
plaintiffs memorandum in opposition (Doc. 50), and
defendants' reply memorandum (Doc. 52).
asserted a claim against defendant Cool in the original
complaint as supplemented at ¶ XL (Doc. 9 at 14).
Plaintiff sues defendant Cool, the Deputy Warden of
Operations at SOCF, in his individual and official
capacities. (Id. at 14, 15). Plaintiff alleges that
Cool violated his First Amendment rights by prohibiting him
from freely exercising his religion. (Id. at 16).
Plaintiff alleges that while housed in the LPHU (Limited
Privilege Housing Unit), he filed a grievance because he was
not allowed to attend religious services as he had regularly
done at SOCF. (Id. at 14). Plaintiff alleges he sent
a "kite" to Cool, who responded by stating that
inmates in LPHU are not allowed to attend chapel services.
Plaintiff alleges defendant Linnea Mahlman denied his
grievance, stating in the disposition that "K7 is the
LPHU and cannot attend because K7 cannot mix with any other
block." (Id.). Plaintiff alleges he was not
allowed to attend chapel services the entire 27 days he was
Cool seeks to dismiss plaintiffs complaint on the grounds the
claim against him is barred by the Eleventh Amendment; he is
entitled to qualified immunity; the complaint fails to state
a claim for relief against him because it alleges only that
Cool denied plaintiffs grievance relating to access to
religious services, and participation in a prison grievance
process is not actionable under § 1983; and plaintiffs
claim against Cool is part of a "buckshot
complaint" that is prohibited by Fed.R.Civ.P. 20 because
it attempts to "piggyback" a claim relating to the
grievance procedure, and possibly access to religious
services, onto unrelated claims of retaliation. (Doc. 44). In
response, plaintiff alleges he is suing defendant Cool in
both his official and individual capacities and the
individual capacity claim is not barred by the Eleventh
Amendment; he has stated a claim against defendant Cool for
violation of his First Amendment rights by alleging that Cool
refused to allow plaintiff to attend institutional religious
services; and plaintiff has not filed a "buckshot"
complaint but instead has alleged defendants engaged in a
campaign of harassment against him for filing multiple
complaints against officials and officers, which included
refusing to allow plaintiff to attend religious services as
punishment for filing complaints. (Doc. 50).
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Butter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)).
"[T]he statement need only give the defendant fair
notice of what the . .. claim is and the grounds upon which
it rests." Id. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting
Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009)).
well-settled that a document filed pro se is "to be
liberally construed" and that a pro se complaint,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers[.]" Erickson, 551 U.S. at 94 (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the Sixth Circuit has recognized that the Supreme
Court's liberal construction case law has not had the
effect of "abrogating] basic pleading essentials"
in pro se suits. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989).
motion to dismiss should be granted insofar as plaintiff sues
defendant Cool in his official capacity. Plaintiffs claim
against Cool in his official capacity is barred by the
Eleventh Amendment. Will v. Mich. Dept. of State
Police, 491 U.S. 58, 66-67 (1989); Quern v.
Jordan, 440 U.S. 332, 337 (1979). The Eleventh Amendment
does not bar plaintiffs claim against defendant Cool in his
Cool asserts he is entitled to qualified immunity on
plaintiffs claim brought against him in his individual
capacity. Qualified immunity protects government officials
performing discretionary functions "from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). Once a
defendant raises a qualified immunity defense, the plaintiff
must satisfy a two pronged analysis: (1) did the
officer's conduct violate a constitutional right, and (2)
if the first step is satisfied, was the right clearly
established at the time of the injury? Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled in part,
Pearson v. Callahan, 555 U.S. 223 (2009).
Cool argues that plaintiff has not stated a claim against him
for violation of his First Amendment rights because plaintiff
alleges only that Cool denied plaintiffs grievance regarding
his inability to attend religious services. (Doc. 44 at 6).
Defendant contends there is no allegation in the complaint
that Cool was responsible for plaintiff being unable to
attend religious services or that Cool retaliated against
plaintiff in any way. Defendant asserts that responding to a
grievance or participating in a grievance procedure is
insufficient to trigger liability under § 1983. See,
e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.
1999) (prison officials whose only roles "involve their
denial of administrative grievances and their failure to
remedy the alleged [unconstitutional] behavior" are not
subject to liability under § 1983).
asserts that his claim against defendant Cool is not based on
Cool's denial of a grievance. (Doc. 50 at 2-3). Plaintiff
alleges it is instead premised on defendant Cool's
refusal to allow him to attend religious services.
(Id. at 2). Plaintiff has attached to his response a
Disposition of Grievance issued by Institutional Inspector
Mahlman on May 18, 2016 to support his claim. (Doc. 50-1,
Exh, A). Plaintiff contends that Cool refused to allow him to
attend religious services as punishment for filing
complaints. (Id. at 3). Defendant argues in reply
that the Court cannot consider new arguments and
documentation plaintiff has presented in response to his
motion to dismiss because they are not part of the complaint.
(Doc. 52 at 2-3). Defendant also argues that the new
information submitted by plaintiff demonstrates that he was
not permitted to attend religious services due to safety
concerns and that alternatives to chapel services were
available to him. (Id. at 3). Defendant concludes
that regardless of any new factual allegations plaintiff has
made, his claim against Cool should be dismissed for
noncompliance with Fed.R.Civ.P. 20(a)(2) and the prohibition
against "buckshot" complaints because plaintiff
does not allege retaliation by Cool in the complaint.
(Id. at 3-4).
amended complaint states a plausible claim to relief against
defendant Cool. Plaintiffs First Amendment claim is premised
on more than simply Cool's participation in the grievance
process. Liberally construed in plaintiffs favor, the
complaint alleges that defendant Cool, acting in his capacity
as Deputy Warden of Operations, violated plaintiffs First
Amendment rights by denying him the opportunity to attend
religious services while plaintiff was housed in LPHU. (Doc.
9 at 14). According to the allegations of the complaint,
plaintiff was not permitted to attend religious services
during his 27-day stay in LPHU and defendant Cool was the
individual who was responsible for this decision. For
purposes of the motion to dismiss, the Court must accept
plaintiffs allegations as true. It is not appropriate to
consider the Disposition of Grievance or other evidence in
connection with a motion to dismiss to determine whether
Cool's decision was justified by security concerns and
whether plaintiff was provided with adequate alternatives to
religious services. Considering only the allegations of the
complaint, the motion to dismiss should not be granted on the
basis of qualified immunity.
should plaintiffs claim against Cool be dismissed on the
ground it is part of a "buckshot complaint" that is
prohibited by Fed.R.Civ.P. 20. (Doc. 44). This case is
distinguishable from the misjoinder decisions cited by
defendants: Michaels Bldg. Co. v. Ameritrust Co.,
N.A., 848 F.2d 674 (6th Cir. 1988) and George v.
Smith, 507 F.3d 605 (7th Cir. 2007). The Sixth Circuit
in Michaels Bldg. Co., 848 F.2d at 674, held that
dismissal of certain defendants under Rule 20(a) was not an
abuse of discretion because the loan transaction that formed
the basis for the claims against them "involve[d]
different banks, different contracts and different
terms" and the "loan document contain[ed] an
entirely different representation as to its interest rate
than the loan documents of the other defendants."
Id. at 682. The Seventh Circuit in George,
507 F.3d 605, found that defendants had been misjoined where
the prisoner plaintiff filed 50 different claims in an effort
to avoid the "three strike" provision of the Prison
Litigation Reform Act.
plaintiff brings a significantly smaller number of claims
based on incidents that allegedly occurred at SOCF within a
relatively brief two-mo nth time period. (Doc. 9). Plaintiff
alleges defendants engaged in a pattern of harassment based
on the nature of his crime and took a series of retaliatory
actions against him for filing complaints against prison
officers and officials. (Doc. 9 at 14-15). Given the nature
and scope of his allegations, plaintiffs claim against Cool
should not be dismissed under the very liberal joinder
provisions of Rule 20, even though plaintiff does not
specifically allege in the complaint that defendant Cool
acted with a retaliatory motive. See United Mine Workers
v. Gibbs,383 U.S. 715, 724 (1966) ("Under the
Rules, the impulse is toward entertaining the broadest
possible scope of action consistent ...