United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
an inmate at the Southern Ohio Correctional Facility (SOCF),
brings this action under 42 U.S.C. § 1983 against
defendants Captain H. Bell and Inspector Linnea Mahlman. 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 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 Bell has deprived
him of his mail and phone privileges since arriving at SOCF.
(See Doc. 1-1, Complaint at PageID 5-6). He further
alleges that defendant institutional inspector Linnea Mahlman
failed to send him a decision on his grievance and improperly
denied him his right to appeal. (Id. at PageID 6).
Plaintiff seeks declaratory relief and monetary damages.
(Id. at PageID 7).
stage in the proceedings, without the benefit of briefing by
the parties to this action, the undersigned concludes that
plaintiff may proceed with his First Amendment claim against
defendant Bell based on his allegation that Bell deprived him
of his mail and phone access. Plaintiff's remaining
claims should be dismissed. See 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A(b).
complaint should be dismissed against defendant Mahlman. As
noted above plaintiff alleges that Mahlman failed to respond
to his grievance and otherwise deprived him of his right to
appeal. These claims should be dismissed for failure 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, plaintiff's
claims that Mahlman improperly denied him an appeal or failed
to respond to his grievances should be dismissed for failure
to state a claim upon which relief may be granted.
in sum, plaintiff may proceed with his First Amendment claim
against defendant Bell in his individual capacity.
See 28 U.S.C. §§ 1915(e)(2)(B) &
1915A(b). Having found that the remaining allegations in the
complaint fail to state a claim upon which relief may be
granted, plaintiff's remaining claims should be
IS THEREFORE RECOMMENDED THAT: The complaint be
DISMISSED with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the
exception of plaintiff's First Amendment claim against
IS THEREFORE ORDERED THAT:
United States Marshal shall serve a copy of the complaint,
summons, the Order granting plaintiff in forma
pauperis status, and this Order and Report and
Recommendation upon defendant Bell as directed by plaintiff,
with costs of service to be advanced by the United States.
Plaintiff shall serve upon defendant or, if appearance has
been entered by counsel, upon defendant's attorney, a
copy of every further pleading or other document submitted
for consideration by the Court. Plaintiff shall include with
the original paper to be filed with the Clerk of Court a
certificate stating the date a true and correct copy of any
document was mailed to defendant or defendant's counsel.
Any paper received by a district judge or magistrate judge