United States District Court, S.D. Ohio, Western Division
DONELL L. SMITH, JR., Plaintiff,
MRS. MAHLMAN, 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 against
defendants Mrs. Mahlman, Ms. Behn, and Mr, Distel. 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. §
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
may be 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 maybe
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. Attain, 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 members of the commissary
staff stole his money and/or items. (Doc. 1 -1, Complaint at
PageID 12). Plaintiff claims that he filed an informal
complaint resolution (ICR), but that defendant Mahlman
deprived him of his right to due process by denying him an
appeal from the denial of his ICR. According to plaintiff,
Mahlman based her decision denying his ICR on the credibility
of defendant Behn, who plaintiff claims never responded to
his ICR, and on defendant commissary staff member
Distel's alleged fabricated story that plaintiff only
reported his snack crackers missing. (Id. at PageID
12-13). Plaintiff claims that the named defendants acted in
concert to "cover up the fact that the staff made a
mistake or covering up that the staff are stealing peoples
money." (Id. at PageID 13).
seeks declaratory relief, as well as monetary damages.
(Id. at PageID 14).
complaint is subject to dismissal for failure to state a
claim upon which relief may be granted.
extent that plaintiff seeks to hold any defendant liable for
taking his commissary items or money, he has failed to state
a claim upon which relief may be granted. In order to assert
such a claim, plaintiff must first "plead . . . that
state remedies for redressing the wrong are inadequate."
Vicory v. Walton, 721 F.2d 1062, 1066 (6th Cir.
1983). See also Hudson v. Palmer, 468 U.S. 517
(1984). "If satisfactory state procedures are provided
in a procedural due process case, then no constitutional
deprivation has occurred despite the injury."
Jefferson v. Jefferson County Pub. Sch. Sys., 360
F.3d 583, 587-88 (6th Cir. 2004). Accordingly, in order to
state a procedural due process claim under section 1983
"the plaintiff must attack the state's corrective
procedure as well as the substantive wrong." Meyers
v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991)
(quoting Vicory, 721 F.2d at 1066). A plaintiff
"may not seek relief under Section 1983 without first
pleading and proving the inadequacy of state or
administrative processes and remedies to redress [his] due
process violations." Jefferson, 360 F.3d at
has not alleged any facts even remotely indicating that his
remedies under Ohio law to redress the wrong of which he
complains are inadequate. Plaintiffs complaint fails to
explain why a state tort remedy for conversion would not
suffice to address his claim. See Fox v. Van
Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Therefore,
he fails to state a due process claim that is actionable in
this § 1983 proceeding.
extent that plaintiff seeks to hold defendants liable for
their failure to adequately investigate his administrative
grievances or for their role in the grievance process he also
fails to state a claim upon which relief may be granted.
"There is no statutory or common law right, much less a
constitutional right, to an investigation." Mitchell
v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007); see
also Daniels v. Lisath, No. 2:10-cv-968, 2011 WL
2710786, at *2 (S.D. Ohio July 13, 2011). Furthermore, to the
extent that plaintiff claims that the grievance procedure
failed to produce the correct outcome, this cannot give rise
to a § 1983 claim because "[p]rison inmates do not
have a constitutionally protected right to a grievance
procedure." Miller v. Haines, No. 97-3416, 1998
WL 476247, at *1 (6th Cir. Aug.03, 1998) (citations omitted).
Prison officials whose only roles "involve their denial
of administrative grievances and their failure to remedy the
alleged [unconstitutional] behavior"' cannot be
liable under § 1983. Shehee v. Luttrell, 199
F.3d 295, 300 (6th Cir. 1999). Nor does a prison
official's alleged failure to adequately investigate
claims of misconduct rise to the level of
"encouragement" that would make the official liable
for such misconduct. Knop v. Johnson, 977 F.2d 996,
1014 (6th Cir. 1992); Bellamy v. Bradley, 729 F.2d
416, 421 (6th Cir. 1984). Therefore, plaintiffs claims that
Mahlman improperly denied him an appeal, Behn failed to
respond to his ICR, and Distel fabricated a story against him
in the course of the investigation should be dismissed for
failure to state a claim upon which relief may be granted.
plaintiffs conclusory conspiracy allegation should be
dismissed. It is well-settled in the Sixth Circuit that
conspiracy claims must be pleaded with "with some degree
of specificity, and vague and conclusory allegations
unsupported by material facts are not sufficient to state a
claim." Hamilton v. City of Romulus, 409
Fed.Appx. 826, 835 (6th Cir. 2010). See also
Boxill v. O'Grady, No. 18-3385, ___F.3d___, 2019 WL
3849559, at *4 (6th Cir. Aug. 16, 2019) ("The plaintiff
must plead enough facts to support a reasonable inference
that there was a single plan, that the alleged coconspirator
shared in the general conspiratorial objective, and that an
overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.") (internal quotation
marks omitted); Moldowan v. City of Warren, 578 F.3d
351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch,
826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of
conspiracy claims under 42 U.S.C. § 1983 because the
plaintiff failed to plead the claims with the "requisite
specificity"). Here, construing the complaint liberally,
plaintiffs factual allegations are insufficient to suggest
that the defendants shared a conspiratorial objective or
otherwise planned together to deprive him of a
constitutionally-protected right. Therefore, plaintiffs
vague, unsubstantiated and conclusory claim based on a
conspiracy theory lacks the requisite specificity to state a
cognizable claim under 42 U.S.C. § 1983.
in sum, the undersigned finds that plaintiffs complaint fails
to state a claim upon which relief may be granted. Therefore,
the complaint should be dismissed pursuant to ...