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Thomas v. Slusher

United States District Court, N.D. Ohio

February 16, 2018

SHAWN M. THOMAS, Plaintiff,
KAREN SLUSHER, et al., Defendants.

          OPINION & ORDER [RESOLVING DOC. NOS. 9, 10, 20, 34, 35]


         Plaintiff Shawn M. Thomas alleges that a number of state prison employees, as well as Aramark Correctional Services, LLC, violated his constitutional rights, the Fair Labor Standards Act (“FLSA”), and Ohio law.[1] The State Defendants[2] move to dismiss Thomas's complaints for failure to state a claim.[3] They also allege that Thomas did not administratively exhaust his claims and that the statute of limitations stops his claims.[4]

         Thomas has also filed a number of motions attempting to strike the State Defendants' motion to dismiss and to extend his deadline for replying to this motion.[5]

         For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the State Defendants' motion to dismiss. The Court DENIES Thomas's other outstanding motions related to this motion to dismiss.

         I. Background

         Ohio imprisons Plaintiff Shawn Thomas at the Richland Correctional Institution (“Richland”). In his wide-ranging complaint, Plaintiff Thomas alleges that some Richland officers and Aramark Correctional Services, LLC (“Aramark”) violated numerous state and federal laws as well as his constitutional rights. Thomas gives only a limited description of individual allegedly unconstitutional acts. Instead, Thomas makes summary conspiracy allegations with little, if any, specific supporting factual conspiracy allegations.[6]

         Thomas alleges that the State Defendants collectively viewed him as a “filer” or “high filer, ” and alleges that the State Defendants collectively sought to punish him because Thomas had filed so many earlier lawsuits and grievances.[7] Thomas alleges the State Defendants refer to him as a “filer, ” “high filer, ” or “troublemaker, ” in reference to his numerous litigation activities. Thomas makes almost no specific factual allegation sufficient to show a conspiracy.[8]

         A. Count One[9]

         Thomas alleges that on or around January 28, 2015, when he attempted to inform Defendants Burgos and Adams about his right to access the courts, they falsely accused Thomas of “doubling up” on food in the chow hall, which resulted in Thomas receiving four hours of unpaid labor as punishment.[10] Thomas also alleges that Defendant Slusher refused him sufficient access to the law library under the pretense that his shirt was not tucked in.[11]

         B. Count Two

         On December 16, 2014, Thomas alleges that unidentified Defendants “John/Jane Doe 1-3” and Defendant John Doe 4, who Thomas identifies only as “Ace, ” searched his cell and wrongfully confiscated “2 large bags of coffee, 6 Christmas greeting cards . . . a box of candy (nutty bars, and his only bag of shaving razors, an expensive T-shirt” and some television cables.[12] Without saying Defendant Eslick was present, Thomas conclusorily alleges that Defendant Eslick was the Doe Defendants' supervisor and that Defendant Eslick failed to stop the coffee taking.[13] When Thomas sought to get his property back, Defendants Eslick and Rose allegedly refused to return it.[14]

         C. Count Three

         After alleging that Defendant Rose referred to Thomas as a “high filer, ” Defendant Rose allegedly ordered Thomas's typewriter confiscated on October 27, 2015.[15] Because of an alleged wrist injury, Thomas alleges that the loss of his typewriter made it difficult to work on several administrative complaints and lawsuits.[16]

         D. Count Four

         On or around October 15, 2015, Defendant Rose called Thomas a “malicious filer.”[17]Since that date, Thomas alleges that Defendant Rose has refused to provide Thomas with the appropriate administrative grievance forms.[18]

         E. Count Five

         With Count Five, Plaintiff Thomas says he has some physical condition and a “lower-range, lower-bunk” placement better accommodates his physical condition. He says that he cannot be placed in most of the five “lower-range, lower-bunk” locations because he serves a life sentence and is not a reintegration inmate; he does not have a very serious medical condition; and he was not on punitive lock-down. Because Thomas wanted this type of housing, only two units were possible: a faith-centered location and a limited movement location.

         On or around August 27, 2015, Defendant Walker-Williams transferred Thomas from a faith-based unit within the prison to a Limited Movement Unit (“LMU”).[19] Thomas alleges that Walker-Williams made this transfer in spite of the fact that Thomas complied with all of the faith-based unit's requirements.[20]

         According to Thomas, the LMU houses especially dangerous or uncompliant prisoners who regularly engage in drug use, gang activities, and who threaten or attack prisoners unaffiliated with a gang.[21] Thomas states that since his transfer to the LMU, he has been beaten and has relapsed into tobacco use.[22]

         Thomas alleges that Walker-Williams knew about these conditions when she transferred him.[23] He also states that Walker-Williams said that she did not “care about any of your programs or religious programs, ” and that he should “see how much trouble [he could] cause there.”[24]

         F. Count Six

         Thomas alleges that between April 2015 and July 2016 Defendant Slusher would routinely close the law library 15 minutes early.[25] Thomas claims she would use profanity and aggressively remove the “filers” from the library first.[26] Thomas informed Defendants Milligan, Adams, and Burgos about Slusher's actions, but they did nothing to stop her.[27]

         After inmate complaints, Defendant Rose ordered Slusher to keep the library open longer and to cease using profanity, but she did neither.[28]

         G. Count Seven

         Thomas alleges that Defendants Yockey and Aramark have created an unsanitary eating environment that serves insufficiently nutritious food. Specifically, Thomas states that Aramark's food does not provide a minimum necessary amounts of vitamins.[29] He also alleges that there are birds in the chow hall, and that their feathers and feces fall from the ceiling.[30] As a result, Thomas states that he has suffered from a number of medical maladies.[31]

         Thomas recounts one event that occurred on October 7, 2014 involving Defendant Yockey. Thomas attempted to leave the chow hall for the infirmary, but Yockey refused to let him go.[32] This refusal allegedly aggravated Thomas's pre-existing disabilities[33] and caused Thomas to skip meals in the chow hall because he feared further harassment from Defendant Yockey.[34]

         Thomas also alleges that he has been forced into involuntary servitude for Defendant Aramark. He states that Aramark hires, fires, and disciplines its prison employees and generally exercises significant control over their work.[35] Thomas argues that he is an employee of Aramark, and is covered by the Fair Labor Standards Act, which entitles him to the minimum wage.[36]

         H. Count Eight

         On approximately February 5, 2015, Defendant Ginley allegedly took a federal courts packet that Thomas received and destroyed carbons used to make service of federal court papers.[37] Ginley allegedly stated that, “[Y]ou ain't filing s*** with the courts or using these forms for tattooing, we're destroying them and that's all that's to it. If you don't like it, file a complaint!”[38]

         I. Counts Nine and Ten

         In Count Nine, Thomas makes only general allegations that “Defendants” engaged in a campaign of harassment. In Count Ten, Thomas says Ohio's adoption of administrative regulations created an implied contract that Defendants generally breached.[39] He alleges that Defendants have failed to follow a number of internal prison regulations.[40]

         J. Thomas's November 1, 2017 “Supplemental Complaint”

         On March 28, 2017 at approximately 9:45 PM, Defendant Burgos allegedly locked Thomas in a “change-out/holding cell.”[41] Thomas describes the cell as approximately four feet square and containing a metal chair but no toilet or sink.[42] Thomas says he was kept in this holding cell for three to four hours. Thomas does not claim any defendant denied a request to use a toilet.

         While held in the holding cell, Thomas apparently urinated on the cell's floor.[43] Thomas complains he received a rash on his ankles and calves from the urine.[44]

         Thomas believes that Burgos put him in the holding cell for three or four hours because Burgos believes Thomas to be a “high filer.”[45] Thomas also alleges that when Burgos released Thomas from this cell, Burgos pretextually accused him of using a racial slur against one of the prison staff.[46] Thomas states that he was cleared of this allegation in an administrative hearing.[47]

         II. Legal Standard

         A complaint is subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) if it fails to state a claim upon which relief can be granted. To survive a dismissal, a complaint “must present ‘enough facts to state claim to relief that is plausible on its face'” when its factual allegations are presumed true and all reasonable inferences are drawn in favor of the non-moving party.[48] Although pleadings and documents filed by pro se litigants are “liberally construed” and held to less stringent standards than formal pleadings drafted by lawyers, [49] pro se plaintiffs must still meet basic pleading requirements and courts are not required to conjure allegations on their behalf.[50]

         III. Analysis

         The State Defendants seek to dismiss all of Thomas's claims. The Court addresses each of their arguments in turn.

         A. Statute of Limitations and Failure to Exhaust

         The State Defendants argue that Thomas's claims are untimely and that he has not exhausted his remedies within the prison administrative system. Both of these arguments are affirmative defenses. The State Defendants bear the burdens to prove these defenses.[51] While the statute of limitations appears to have run on many of Thomas' claims, the limitation period tolls during administrative grievance procedures.

         The State Defendants have provided no documents suggesting that Thomas has not exhausted his intra-prison remedies. Without the relevant documentation, the Court is unable to determine whether Thomas has exhausted his intra-prison remedies.

         Relatedly, Thomas correctly notes that the statute of limitations on his claims is tolled during the pendency of administrative grievance procedures.[52] Because neither party has presented evidence regarding what administrative grievances were filed or regarding when any administrative grievances were filed or finished, the Court cannot calculate how long the statute of limitations may have been tolled or whether the statute of limitations has run on any of Thomas's claims.

         The Court DENIES the State Defendants' motion to dismiss on these grounds.

         B. Thomas's State Law Claims and Claims Based on Failure to Follow Internal Regulations

         Thomas raises a number of state law claims in his complaint. He has not presented these claims, however, to the Ohio Court of Claims, as Ohio state law requires.[53] Thomas's argument that this state law statutory scheme is unconstitutional fails as the Sixth Circuit has previously upheld the Court of Claims presentation requirement for state law claims in similar cases alleging wrongful actions by corrections employees.[54]

         Thomas also raises a number of claims based on the State Defendants' alleged failure to follow internal prison regulations. To the extent these claims are based on implied contract, they are state law claims and the Court dismisses them because Thomas has failed to present those state law claims to the Ohio Court of Claims. If Thomas intends these claims to state constitutional law claims, these claims also fail. A mere failure to follow an internal regulation does not, by itself, rise to the level of a federal constitutional violation.

         For this reason, the Court GRANTS the State Defendants' motion to dismiss Thomas's state law claims without prejudice for lack of jurisdiction. The Court also GRANTS the State Defendants' motion to dismiss Thomas's claims that the State Defendants failed to follow internal regulations.

         C. Access to Courts Claim

         Thomas claims the State Defendants attempted to impede his access to the courts or to retaliate against him for his litigation activities. Thomas's complaint gives few specific descriptions of individual defendant's acts that impaired his access to court. Instead, Thomas gives only general and conclusory allegations.

         In order to state an access to courts claim, Thomas must allege both that the actions of the State Defendants have impeded his law library access or similarly denied access to other needed resources and Thomas must also allege that this lack of access has negatively impacted a non-frivolous underlying claim.[55]

         The State Defendants focus their access to court dismissal arguments on the merit of his underlying claims. Defendants argue that the State Defendants did not impact any non-frivolous claims.

         First, the State Defendants are correct that Thomas's post-conviction petition challenging his child rape conviction cannot support his access to courts claim. Thomas's post-conviction civil case lost in 2009, before any of the allegations in Thomas's complaint occurred. Therefore the State Defendants' actions could not have impacted Thomas's post-conviction petition.

         Similarly, the State Defendants' actions did not hinder Thomas's ability to pursue his claims in Thomas v. Novicky.[56] The Sixth Circuit dismissed that case because of Thomas's 2012 failure to timely pursue his administrative remedies.[57] As with his post-conviction petition, Thomas's point-of-failure leading to Novicky's dismissal occurred before any of the actions by the State Defendants in Thomas's complaint in this case.

         Finally, Thomas's still-pending § 1983 claim in Thomas v. Rogers, [58] cannot be used to sustain his access to courts claim here. Excepting the deliberate indifference claim that remains undecided, none of the factual predicates in Thomas's complaint in the Rogers case stated a claim upon which a court could grant relief.[59] Thomas's failure in that case was caused by factual deficiencies, not insufficient legal research.

         Even if Thomas could show some impact upon a non-frivolous claim, Thomas alleges little to support an actionable access to court denial. Thomas merely complains that the prison library was closed fifteen minutes early, complains that his typewriter was taken from him for some time, and complains that he was once wrongfully excluded from the law library because his shirt was untucked.[60] None of these actions would plausibly deny an inmate access to the courts.

         Because he has not identified a non-frivolous lawsuit that was impacted by the State Defendants' actions, Thomas has failed to state an access to courts claim. The Court therefore GRANTS the State Defendants' motion to dismiss Thomas's access to courts claim.

         D. First Amendment Retaliation Claim

         In order to state a First Amendment retaliation claim, Thomas must adequately allege that:

(1) [he] engaged in protected conduct; (2) an adverse action was taken against [him] that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two - that is, the adverse action was motivated at least in part by [Thomas's] protected conduct.[61]

         Thomas has met these three requirements.

         Thomas has filed lawsuits that are protected conduct.[62] But Thomas generally fails to show that the individual defendants took actions that would deter a person of ordinary firmness from continuing those lawsuits.

         Thomas first alleges that not-identified John Doe Defendants took “2 large bags of coffee, 6 Christmas greeting cards . . . a box of candy (‘nutty bars'), his only bag of shaving razors, an expensive Polo T-shirt, [and a] cable cord and TV splitter necessary to make his television operable, and an ace of spades card from his deck of playing cards.”[63]

         Thomas does not allege who took these items of property. But apart from this deficiency, even a wrongful taking of coffee and candy nutty bars would not deter a litigant of ordinary firmness.

         Thomas next complains that the State Defendants generally verbally harassed him for pursuing claims. Mostly, Thomas does not identify specific defendants and instead generally complains about comments identifying him as a filer. For example, Thomas alleges: “When the inmates were still present, Defendant John Doe 4 referred to Thomas and a number of other inmates to Defendants John/Jane Doe 1-3 and other SRT personnel, as ‘filers' and ‘troublemakers.'”[64] Even if we overlook Thomas' failure to identify the responsible defendant, the general reference to Thomas as a filer is insufficient to deter a litigant of ordinary firmness.

         Thomas makes one plausible retaliation claim. With Count Five, Thomas says he was removed from Range 5A/B and placed in Range 4A/B. Range 5A/B includes Christian faith- based programming while Range 4A/B operated as a limited movement range and housed disciplined, gang-related and predator inmates. Thomas alleges that, in part, Defendant Walker-Williams placed him Range 4A/B in retaliation for his protected grievance and lawsuit actions.

         Although the removal of coffee or candy is insufficient to allege retaliation, the Range 4A/B placement is sufficient to possibly dissuade Thomas from, and to retaliate for, exercising his right to access the courts.[65]

         Finally, Thomas also sufficiently states a connection between Walker-Williams's actions in moving Thomas to Range 4A/B and his protected conduct. He alleges that she, like other State Defendants, referred to him as “causing trouble” in reference to his litigation activities when she took negative actions towards him.

         The Court DENIES the State Defendants' motion to dismiss Thomas's First Amendment retaliation claim as to the Housing Range 4A/B placement. Moreover, whether Thomas exhausted administrative grievance requirements and whether Thomas timely makes this First Amendment retaliation claim will be decided later. The Court GRANTS the State Defendants' motion to dismiss Thomas's other First Amendment retaliation claims.

         D. Fourth, Fifth, and Fourteenth Amendment Claims

         Thomas claims that the State Defendants' wrongful seizure of some minimal personal belongings during searches of his cell violated his due process rights and his right to be free from unreasonable government seizures.[66] However, “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.”[67]

         To state a claim, Thomas must allege that there is no state remedy that could adequately compensate him for his loss.[68] Because he has not done and could not do this, he fails to state a Fourth Amendment due process claim or a Fifth Amendment takings claim.

         Thomas also alleges a Fourteenth Amendment equal protection claim. Because no suspect class is involved, the Ohio practice Thomas attacks need only rationally further a legitimate purpose to withstand Thomas' equal protection challenge.[69] To win on an equal protection claim, an inmate must prove: (1) that similarly situated inmates intentionally have been treated differently from one another by the government; and (2) that there is no rational relation between the dissimilar treatment and any legitimate penological interest.[70]

         Thomas makes a general claim that he was treated badly because he pursued litigation and administrative remedies. But regarding the unidentified prison guard's purported property taking, Thomas does not allege any similarly situated non-litigator who was treated differently.

         The Sixth Circuit has previously stated that “selective enforcement of the laws in retaliation for the exercise of a fundamental right, ” including the right to access the courts, can state an equal protection claim.[71] Nevertheless, Thomas never identifies any otherwise similarly situated comparator.

         Further, the Sixth Circuit's holding on the selective enforcement of laws can easily be distinguished from the selective enforcement of prison regulations that Thomas alleges here. Prison officials are regularly given broad discretion in enforcing intra-prison regulations.[72 ...

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