United States District Court, N.D. Ohio
SHAWN M. THOMAS, Plaintiff,
KAREN SLUSHER, et al., Defendants.
OPINION & ORDER [RESOLVING DOC. NOS. 9, 10, 20,
S. GWIN UNITED STATES DISTRICT JUDGE.
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. The State
Defendants move to dismiss Thomas's complaints
for failure to state a claim. They also allege that Thomas did
not administratively exhaust his claims and that the statute
of limitations stops his claims.
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.
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.
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.
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. 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
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. Thomas also alleges that Defendant
Slusher refused him sufficient access to the law library
under the pretense that his shirt was not tucked
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. 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. When Thomas
sought to get his property back, Defendants Eslick and Rose
allegedly refused to return it.
alleging that Defendant Rose referred to Thomas as a
“high filer, ” Defendant Rose allegedly ordered
Thomas's typewriter confiscated on October 27,
2015. Because of an alleged wrist injury,
Thomas alleges that the loss of his typewriter made it
difficult to work on several administrative complaints and
around October 15, 2015, Defendant Rose called Thomas a
“malicious filer.”Since that date, Thomas alleges
that Defendant Rose has refused to provide Thomas with the
appropriate administrative grievance forms.
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.
around August 27, 2015, Defendant Walker-Williams transferred
Thomas from a faith-based unit within the prison to a Limited
Movement Unit (“LMU”). Thomas alleges that
Walker-Williams made this transfer in spite of the fact that
Thomas complied with all of the faith-based unit's
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. Thomas states that since his transfer to
the LMU, he has been beaten and has relapsed into tobacco
alleges that Walker-Williams knew about these conditions when
she transferred him. 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.”
alleges that between April 2015 and July 2016 Defendant
Slusher would routinely close the law library 15 minutes
early. Thomas claims she would use profanity
and aggressively remove the “filers” from the
library first. Thomas informed Defendants Milligan,
Adams, and Burgos about Slusher's actions, but they did
nothing to stop her.
inmate complaints, Defendant Rose ordered Slusher to keep the
library open longer and to cease using profanity, but she did
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. He also alleges that there are birds in
the chow hall, and that their feathers and feces fall from
the ceiling. As a result, Thomas states that he has
suffered from a number of medical maladies.
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. This refusal allegedly aggravated
Thomas's pre-existing disabilities and caused
Thomas to skip meals in the chow hall because he feared
further harassment from Defendant Yockey.
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. 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.
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. 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!”
Counts Nine and Ten
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. He alleges that Defendants
have failed to follow a number of internal prison
Thomas's November 1, 2017 “Supplemental
March 28, 2017 at approximately 9:45 PM, Defendant Burgos
allegedly locked Thomas in a “change-out/holding
cell.” Thomas describes the cell as
approximately four feet square and containing a metal chair
but no toilet or sink. 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.
held in the holding cell, Thomas apparently urinated on the
cell's floor. Thomas complains he received a rash on
his ankles and calves from the urine.
believes that Burgos put him in the holding cell for three or
four hours because Burgos believes Thomas to be a “high
filer.” 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. Thomas states that he was cleared of
this allegation in an administrative hearing.
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. Although pleadings and documents filed
by pro se litigants are “liberally
construed” and held to less stringent standards than
formal pleadings drafted by lawyers,  pro
se plaintiffs must still meet basic pleading
requirements and courts are not required to conjure
allegations on their behalf.
State Defendants seek to dismiss all of Thomas's claims.
The Court addresses each of their arguments in turn.
Statute of Limitations and Failure to Exhaust
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. While the statute of limitations
appears to have run on many of Thomas' claims, the
limitation period tolls during administrative grievance
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.
Thomas correctly notes that the statute of limitations on his
claims is tolled during the pendency of administrative
grievance procedures. 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.
Court DENIES the State Defendants'
motion to dismiss on these grounds.
Thomas's State Law Claims and Claims Based on Failure to
Follow Internal Regulations
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. 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
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
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.
Access to Courts Claim
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
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
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
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.
the State Defendants' actions did not hinder Thomas's
ability to pursue his claims in Thomas v.
Novicky. The Sixth Circuit dismissed that case
because of Thomas's 2012 failure to timely pursue his
administrative remedies. 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
Thomas's still-pending § 1983 claim in Thomas v.
Rogers,  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. Thomas's
failure in that case was caused by factual deficiencies, not
insufficient legal research.
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. None of these actions
would plausibly deny an inmate access to the courts.
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.
First Amendment Retaliation Claim
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.
has met these three requirements.
has filed lawsuits that are protected conduct. But Thomas
generally fails to show that the individual defendants took
actions that would deter a person of ordinary firmness from
continuing those lawsuits.
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
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
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.'” 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.
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.
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.
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.
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
Fourth, Fifth, and Fourteenth Amendment Claims
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. 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.”
state a claim, Thomas must allege that there is no state
remedy that could adequately compensate him for his
loss. 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.
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. 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
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.
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. Nevertheless,
Thomas never identifies any otherwise similarly situated
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 ...