United States District Court, S.D. Ohio, Western Division
MICHAEL D. MCCAIN, Plaintiff,
WARDEN JACKSON, et at., Defendants.
Stephanie K. Bowman Magistrate Judge
DECISION AND ENTRY ADOPTING THE REPORTS AND
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (DOCS.
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
case is before the Court pursuant to the Order of General
Reference to United States Magistrate Judge Stephanie K.
Bowman. Plaintiff, apro se inmate at the Ross
Correctional Institution, brings this action against several
Warren Correctional Institution employees and Ohio Department
of Rehabilitation employees. The Magistrate Judge entered a
Report and Recommendation on May 10, 2019 recommending (1)
that the Court dismiss Plaintiffs complaint with the
exception of Plaintiff s first amended retaliation claim
against Defendant Little, and (2) deny Plaintiffs motion for
preliminary injunction (Doc. 2). (Doc. 7). On July 12, 2019,
Plaintiff filed objections to the Report and Recommendation
(Doc. 10) and also filed an amended complaint (Doc. 11). On
August 5, 2019, the Magistrate Judge issued a second Order
and Report and Recommendation granting Plaintiff leave to
amend his complaint and again recommending that the Court
dismiss the amended complaint with the exception of
Plaintiffs retaliation claim against Defendant Little. (Doc.
12). Plaintiff filed objections to the second Report and
Recommendation on September 19, 2019. (Doc. 19).
First Report and Recommendation (Doc. 7)
Court adopts the Magistrate Judge's First Report and
Recommendation (Doc. 7) to the extent it recommends denial of
Plaintiffs motion for preliminary injunction. Plaintiffs
motion for preliminary injunction reasserts the allegations
in his original complaint and seeks an order expunging the
conduct report from his prison record. (Doc. 2). The Court
agrees with the Magistrate Judge's reasoning that
Plaintiff failed to demonstrate a substantial likelihood of
success on the merits of his constitutional claims, or that
he would suffer irreparable harm without a preliminary
injunction. In addition, the Court agrees that the
affirmative relief sought-expungement of his conduct report-
would go beyond preserving the status quo, providing
affirmative relief before judgment on the merits. The
Plaintiffs objections to the Report and Recommendation do not
specifically address the Magistrate Judge's
recommendation to deny Plaintiffs motion for preliminary
injunction. (See Doc. 10). Accordingly, Plaintiff s
motion for preliminary injunction (Doc. 2) is denied.
Second Report and Recommendation (Doc. 12)
Magistrate Judge's second Order and Report and
Recommendation granted Plaintiff leave to file his amended
complaint and proceeded to thoroughly analyze Plaintiffs
amended complaint (Doc. 11), ultimately recommending
dismissal of the amended complaint with the exception of
Plaintiff s First Amendment retaliation claim against
Defendant Little. (Doc. 12). Plaintiff filed objections to
the second Report and Recommendation. (Doc. 19).
first objects generally to the second Report and
Recommendation, asserting that the Magistrate Judge
improperly applied a heightened pleading standard.
(Id. at 3-5). The Court disagrees with this
assessment and finds that the Magistrate Judge correctly
considered whether each of Plaintiff s claims passed the
"nonfrivolous test." (See Doc. 12 at 10).
Plaintiff specifically challenges the Magistrate Judge's
finding that he failed to adequately plead a claim against
Defendant Burchell for providing inadequate access to the law
library. (Doc. 19 at 5-7). As the Magistrate Judge explained,
"when bringing a denial of access to the courts claim,
'the underlying cause of action, whether anticipated or
lost, is an element that must be described in the complaint,
just as much as allegations must describe the official acts
frustrating the litigation.'" (Doc. 12 at 9)
(quoting Christopher v. Harbury, 536 U.S. 403, 415
(2002)). The claim must be descriptive enough for the court
to assess whether the underlying claims were non-frivolous.
(Id.) (citing Hadix v. Johnson, 182 F.3d
400, 405-06 (6th Cir. 1999)). Plaintiffs amended complaint
alleges that he was only given two and a half hours in the
law library over a three-week period and that he "missed
the January 17, 2019 deadline to Appeal the ability to obtain
(doc. #113) in order to address the issue in his case on
Appeal." (Doc. 11 at ¶¶ 3-4). The Court agrees
with the Magistrate Judge that Plaintiff did not provide
enough information about the underlying cause of action to
allow the Court to assess whether it was non-frivolous.
relatedly objects to the Magistrate Judge's inference
that his claim that someone withheld his mail related to
Defendant Burchell. Because Plaintiff does not state who he
believes withheld his mail and, in the subsequent paragraph,
sets forth his allegations against Defendant Burchell, the
Magistrate Judge was likely attempting to liberally construe
Plaintiffs complaint by assuming the allegation related to
Defendant Burchell. Regardless, this claim fails as Plaintiff
merely alleges his mail was withheld without stating any
basis for his claim. Assuming this allegation ties into
Plaintiffs claim of lack of access to the courts, the claim
fails for the same reason his claim against Defendant
Plaintiff objects to the Magistrate Judge's finding that
Plaintiff failed to state a claim against Defendant Agee for
allegedly interfering with the grievance process. However,
there is no constitutionally protected right to an effective
prison grievance procedure. See Walker v. Mich. Dep't
of Corr., 128 Fed.Appx. 441, 445 (6th Cir. 2005).
Although in his objections, Plaintiff states that Defendant
Agee interfered with his grievance as an act of retaliation,
Plaintiff does not make this allegation in his complaint.
Accordingly, the objection is not well-taken.
fourth objection concerns his claims against Defendants
Jackson, Kraft, Lunecke, Crosby, Ewen, Vance, Allen, Tabler,
unknown R.LB. Secretary, or the "legal services"
defendants for their participation in the alleged retaliation
by Defendant Little. (Doc. 19 at 10-11). Plaintiff disagrees
with the Magistrate Judge's finding that these claims
fail under the theory of respondeat superior and asserts that
he pled these claims under a theory of "knowledge and
acquiescence," not under respondeat superior. Yet, the
Magistrate Judge considered the viability of these claims
under a respondeat superior theory in the alternative, first
finding that "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. (Doc. 12 at 7) (citing
Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir.
1999)). The Court agrees with the Magistrate Judge's
analysis with respect to these Defendants.
Plaintiff objects to the fact that the Magistrate Judge did
not address his argument that the Court should exercise
pendant jurisdiction over his state-law claims. (Doc. 19 at
14-15). Plaintiff references violations of the state
constitution at various points in his amended complaint. For
example, Plaintiff alleges that Defendant Agee's failure
to provide access to the grievance procedure violated both
the federal and state constitutions. (Doc. 11 at ¶ 6).
In addition, the amended complaint states that Defendant Ewen
violated ODRC policy and Ohio Administrative Laws,
constituting a state and federal constitutional
deprivation. (Id. at ¶ 18). Further, Plaintiff
appears to challenge his disciplinary hearing, which he
claims was conducted in violation of the federal and state
constitutions, as well as "state laws and
procedures." (Id. at 47). At the end of his
complaint, Plaintiff states generally that the Defendants
"in acquiescence" to the First Amendment violation,
violated Plaintiffs "protected liberty interest" in
violation ODRC statutes, the Fourteenth Amendment Due Process
Clause, as well as "state laws,"
"constitutions," and "policies and
procedures." (Id. at 53).
construed, Plaintiffs complaint alleges due process
violations based on both the federal and state constitutions.
However, to the extent Plaintiff alleges due process
violations based on the Ohio Constitution, those claims fail
for the same reasons his due process claims based on the
United States Constitution fail. See Woods v. Miamisburg
City Sch.,254 F.Supp.2d 868, 877 (S.D. Ohio 2003)
("The Ohio Supreme Court has repeatedly recognized that
the equal protection provisions of the Ohio Constitution and
the United States Constitution are equivalent."). In
addition, to the extent Plaintiff refers to state law and
policy violations as bases for his federal § 1983
claims, the claims fail for the reason stated by the
Magistrate Judge: § 1983 claims can only be brought for
violations of the United States Constitution or federal law.
See Michael v. Ghee,498 F.3d 372, 375 (6th Cir.
2007) (stating that § 1983 is "limited to
deprivations of federal statutory and constitutional ...