United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, M.J.
an inmate at the Southern Ohio Correctional Facility (SOCF),
brings this action under 42 U.S.C. § 1983 against
defendants Warden R. Erdos and Correctional Officers C.
Duckworth and David Dunlap. By separate Order issued this
date, plaintiff has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. This
matter is before the Court for a sua sponte review
of the complaint to determine whether the complaint, or any
portion of it, should be dismissed because it is frivolous,
malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is
immune from such relief. See Prison Litigation
Reform Act of 1995 § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
enacting the original in forma pauperis statute,
Congress recognized that a "litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C. §§
1915(e)(2)(B)(i) and 1915A(b)(1). A complaint maybe dismissed
as frivolous when the plaintiff cannot make any claim with a
rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990).
An action has no arguable legal basis when the defendant is
immune from suit or when plaintiff claims a violation of a
legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or "wholly incredible."
Denton, 504 U.S. at 32; Lawler, 898 F.2d at
1199. The Court need not accept as true factual allegations
that are "fantastic or delusional" in reviewing a
complaint for frivolousness. Hill v. Lappin, 630
F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490
U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and
1915A(b)(1). A complaint filed by a pro se plaintiff
must be "liberally construed" and "held to
less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also
Hill, 630 F.3d at 470-71 ("dismissal standard
articulated in Iqbal and Twombly governs
dismissals for failure to state a claim" under
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain "detailed factual
allegations," it must provide "more than an
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the . .. claim
is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (citations omitted).
complaint, plaintiff alleges that defendant Duckworth
"told a crazy lie on [him]" on April 26, 2019.
(Doc. 1, Complaint at PageID 3). Plaintiff claims that
Duckworth wrote a false conduct report against him which was
further alleges that defendant Dunlap used excessive force
against him for no reason. According to plaintiff, Dunlap
bent his wrist so hard it popped out of socket, threw him
against the hallway wall, and hit his head against "the
cage." (Id. at PageID 2-3). Plaintiff claims he
was not provided medical treatment for his injuries and was
subsequently on hunger watch. He further claims that he has
written the chief inspector regarding his concerns, but not
received a response.
relief, plaintiff seeks monetary damages. (Id. at
stage in the proceedings, without the benefit of briefing by
the parties to this action, the undersigned concludes that
plaintiff may proceed with his Eighth Amendment excessive
force claim against defendant Dunlap. Plaintiffs remaining
claims should be dismissed. See 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b).
claims against Warden Erdos should be dismissed. Plaintiff
does not include any factual allegations or claims against
this defendant. (See Doc. 1, Complaint at PageID 6).
Plaintiffs sole mention of Erdos in the complaint is that he
is responsible for the operation of the prison and the
welfare of all inmates. (Id. at PageID 2).
Plaintiffs claims rest on a theory of respondeat
superior, which does not apply to § 1983 claims and
may not serve as a basis for liability. See Iqbal,
556 U.S. at 676; Monell v. Dep't of Social
Servs., 436 U.S. 658 (1978); Hill v. Marshall,
962 F.2d 1209, 1213 (6th Cir. 1992). "[Section] 1983
liability of supervisory personnel must be based on more than
the right to control employees." Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Section 1983
liability is premised on active unconstitutional behavior and
not a mere failure to act. Greene v. Barber, 310
F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999). The mere fact that Erdos
is the warden at SOCF is not enough to impose liability on
him under section 1983. Therefore, plaintiffs claims against
defendant Erdos should be dismissed.
Duckworth should also be dismissed as a defendant to this
action. Plaintiff alleges that Duckworth wrote a false
conduct report against him. Without any factual elaboration,
plaintiff claims that this was done in retaliation.
(See Doc. 1, Complaint at PageID 3, 6). First,
plaintiff has not stated a constitutional claim based on his
allegation that Duckworth wrote a false conduct report
against him. Erroneous or even fabricated allegations of
misconduct by an inmate, standing alone, do not constitute a
deprivation of a constitutional right. See, e.g., Reeves
v. Mohr, No. 4:1 lcv2062, 2012 WL 275166, at *2 (N.D.
Ohio Jan. 31, 2012) (and cases cited therein) (holding that
the prisoner failed to state a claim upon which relief may be
granted to the extent that he claimed he had "a
constitutional right to be free from false
accusations"). "A constitutional violation may
occur, if as a result of an accusation, the Plaintiff was
deprived of a liberty interest without due process."
Reeves, supra, 2012 WL 275166, at *2 (citing
Sandin v. Conner, 515 U.S. 472, 485 (1995)).
Plaintiffs allegations are insufficient to trigger
constitutional concerns in this case because he has not
alleged any facts even remotely suggesting that the
challenged disciplinary action deprived him of a protected
liberty interest. As noted above, plaintiff alleges that the
conduct report was withdrawn.
also fails to state a claim upon which relief may be granted
to the extent that he claims Duckworth retaliated against
him. A prisoner's claim of retaliation for engaging in
protected conduct is grounded in the First Amendment.
Jones v. Caruso, 421 Fed.Appx. 550, 553 (6th Cir.
2011) (citing Thaddeus-Xv. Blatter, 175 F.3d 378,
388 (6th Cir. 1999) (en banc)). A retaliation claim has three
elements: (1) the prisoner engaged in protected conduct; (2)
an adverse action was taken against the prisoner that
'"would deter a [prisoner] of ordinary firmness from
continuing to engage in that conduct'"; and (3) the
prisoner's protected conduct, at least in part, motivated
the adverse action. Id. (quoting Thomas v.
Eby, 481 F.3d 434, 440 (6th Cir. 2007), in turn quoting
Thaddeus-X, 175 F.3d at 394).
case, plaintiffs allegations are insufficient to demonstrate
that the alleged retaliatory acts were in response to
protected conduct under the First Amendment. Plaintiff has
only made conclusory allegations that he has "been going
through serious retaliation" based on filing a prior
lawsuit in this Court and-without any factual
elaboration-that Duckworth retaliated against him.
(See Doc. 1, Complaint at PageID 3, 6). Plaintiff
has not alleged any facts to plausibly suggest that Duckworth
was aware of or motivated by any protected conduct.
"[C]onclusory allegations of retaliatory motive
'unsupported by material facts will not be sufficient to
state ... a claim under § 1983.'" Harbin v.
Rutter,420 F.3d 571, 580 (6th Cir. 2005) (quoting
Gutierrez v. Lynch,826 F.2d 1534, 1538-39 (6th Cir.
1987)). "[N]ot every claim of retaliation by a
disciplined prisoner, who either has had contact with, or has
filed a lawsuit against prison officials, will state a cause
of action for retaliatory treatment. Rather, the prisoner
must allege a chronology of events from which retaliation may
plausibly be inferred." Cain v. Lane, 857 F.2d
1139, 1143 n.6 (7th Cir. 1988) (citing Benson v.
Cady,761 F.2d 335, 342 (7th Cir. 1985) (noting that
"alleging merely the ultimate fact of retaliation is
insufficient")). Without any "further factual
enhancement" plaintiffs conclusory allegations are
simply insufficient to state an actionable claim for relief.
Twombly, 550 at 555-57. See also Whiteside v.
Collins, No. Civ.A. 2:08-cv-875, 2009 WL 4281443, at *9
(S.D. Ohio Nov. 24, 2009) (finding the ...