Opinion
Civil Action 2:24-cv-764
05-01-2024
CLINTON RUTHERFORD, Plaintiff, v. CORY FREE, et al., Defendants.
Algenon L. Marbley, Chief Judge
ORDER AND REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
Plaintiff, Clinton Rutherford, an Ohio inmate who is proceeding without the assistance of counsel, brings this action against several employees of the Chillicothe Correctional Institution (“CCI”) under 42 U.S.C. § 1983 for alleged violation of his constitutional rights arising out of the handling of his legal mail and subsequent retaliation for Plaintiff's filing of grievances. (Compl., ECF No. 1, PAGEID #14-22.) This matter is before the Court for the initial screen of Plaintiff's Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff's Complaint, or any portion of it, which 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. 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1)-(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, Plaintiff MAY PROCEED on his individual and officialcapacity First Amendment legal mail claims against Defendant Lt. Ashley Marsh as to the February 9, 2023 Court mailing, but the undersigned RECOMMENDS that the Court DISMISS Plaintiff's remaining claims for failure to state a claim on which relief can be granted. The undersigned further RECOMMENDS that Plaintiff's motion for preliminary injunction (ECF No. 2) be DENIED.
This matter is also before the Court for consideration of Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF No. 1.) Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff's certified trust fund statement reveals that he has $1.32 in his prison account, which is insufficient to pay the filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust accounts (Inmate ID Number A734462) at WCI is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner's name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier's office.
I. BACKGROUND
On February 9, 2023, Plaintiff attended a mail call and received mail from the United States District Court for the Southern District of Ohio. (Informal Compl., ECF No. 1-5, PAGEID #97.) Plaintiff had requested copies of two motions from the Court; however, when he received the mailing on February 9, 2023, pages were missing from both motions, and part of one of the motions had been replaced with a “God's Holiness News” pamphlet. (Id.; ECF No. 1-7, PAGEID #158-71.) Plaintiff alleges that his legal mail must have been tampered with by prison staff, as the Court would not include a religious pamphlet in response to a request for a copy of legal filings. (Id.)
Plaintiff filed an informal complaint on February 10, 2023, asserting that mailroom staff had not followed the appropriate legal mail policy, which requires that legal mail be opened in the presence of the recipient inmate, when providing him with mail from the Court. (Id.) On February 13, 2023, Defendant Lieutenant Ashley Marsh, the mailroom supervisor, responded to Plaintiff's informal complaint, stating that mail from the Court would have been processed as regular mail if it was not marked with a control number; however, Plaintiff could ask mailroom staff for a new copy of the mailing. (Id.) On February 17, 2023, Plaintiff spoke to mailroom staff, who told Plaintiff that a trainee had incorrectly copied Plaintiff's mail. (Id.) Plaintiff was then provided with a correct copy of his mail from the Court. (Id.) Plaintiff continued to pursue his grievance, however, as he still objected to mail from the Court being opened outside his presence. (Id.) On Mary 7, 2023, Defendant Cory Free, CCI's institutional inspector, “granted”
Plaintiff's grievance, stating that the mailroom staff was unable to find the original mailing from the Court, which violated the Ohio Department of Rehabilitation and Correction's (“ODRC”) policy of keeping all mailings on file for 30 days. (Id.) However, Mr. Free did not address Plaintiff's complaints of his mail from the Court being treated as regular (instead of legal) mail, and stated that “[t]his office will take no further action concerning this matter.” (Id.) Plaintiff appealed this determination to the Office of the Chief Inspector, who affirmed Defendant Free's decision. (Id. at PAGEID #100.)
On June 7, 2023, Plaintiff filed another informal complaint, asserting that he was expecting additional mail from the Court that should have arrived by May 18, 2023, but the mailing was never received. (Id. at PAGEID #102.) Defendant Marsh responded that, after checking with the mailroom and investigator's office, the prison was not withholding any mail for Plaintiff. (Id.) Plaintiff filed another informal complaint on June 8, 2023, regarding the same missing Court mail, asserting that the Court would not let his request go unanswered, so the prison must have the mailing and be withholding it from Plaintiff. (Id. at PAGEID #103.) Defendant Marsh again responded that the mailroom and mail logs had been thoroughly checked and no mail had been received for Plaintiff. (Id.) On June 11, 2023, Plaintiff escalated his informal complaint to a grievance, repeating his assertions that the mailroom must be tampering with his legal mail, and asserting that Defendant Marsh's response to Plaintiff's informal complaint had been disrespectful. (Id.) That same day, Plaintiff was “cuffed up at 11:30pm 3rd shift and taken to see [Defendant] Lt. Jhones at the captain's/Post 5 office.” (Compl., ECF No. 1, PAGEID #19.) Defendant Jhones “talked to [Plaintiff] about feeling disrespected by Lt. Ashley Marsh's reply to my complaint....Then he told [Plaintiff] that he was going to dismiss [Plaintiff's] complaint.” (Id.) Plaintiff asserts that, because Defendant Jhones works third shift, he could not have contacted any mailroom staff or investigated the complaint. (Id.) Plaintiff also states, “Lt. Jhones used the institutional inspector's name Cory Free, I do believe that this was retaliation because of me using the inmate grievance procedure.” (Id.) On June 12, 2023, Defendant Free denied the grievance after speaking with mailroom staff and confirming that no mail for Plaintiff was being withheld. (ECF No. 1-5, PAGEID #104.)
Plaintiff alleges that, despite his complaints, CCI continues to mishandle his legal mail. Plaintiff filed his Complaint in this Court on February 22, 2024, seeking injunctions to require CCI to follow the correct legal mail policy and to prevent prison staff from retaliating against him for filing this suit, as well as $225,000 in compensatory damages and attorney's fees and costs. (Compl., ECF No. 1, PAGEID #22; Civil Cover Sheet, ECF No. 1-2, PAGEID #66.) Plaintiff also notes on his civil cover sheet, “[l]oss of property (legal mail)” and “violation- rights to religion.” (Civil Cover Sheet, ECF No. 1-2, PAGEID #66.) Plaintiff has also filed a motion for preliminary injunction against prison staff retaliation (ECF No. 2) and a motion for appointment of counsel (ECF No. 3).
II. STANDARD OF REVIEW
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, “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.'” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
* * *
(B) the action or appeal-
(i) is frivolous or malicious; [or]
(ii) fails to state a claim on which relief may be granted....28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted. See also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be granted”).
Further, to properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of complaints.” 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “detailed factual allegations, a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not “suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up). Instead, in order to state a claim upon which relief may be granted, “a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up). Facial plausibility is established “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds pro se complaints “to less stringent standards than formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff's Dep't, 374 Fed.Appx. 612, 614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “courts should not have to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 Fed.Appx. 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III. ANALYSIS
The undersigned construes Plaintiff's Complaint to advance the following claims for violation of his constitutional rights under 42 U.S.C. § 1983: (1) a First Amendment legal mail claim against Defendants Marsh and Free, (2) a First Amendment retaliation claim against Defendant Jhones, (3) a First Amendment free exercise claim against unspecified Defendants, and (4) a Fourteenth Amendment deprivation of property claim against unspecified Defendants. The undersigned does not recommend dismissal of Plaintiff's individual- or official-capacity First amendment legal mail claims against Defendant Marsh arising out of the February 9, 2023 court mailing. The undersigned considers each remaining claim in turn before addressing Plaintiff's motions for preliminary injunction and for appointment of counsel.
A. Official-Capacity Claims
Plaintiff does not specify whether he intends to sue Defendants in their individual or official capacities. To the extent he advances official-capacity claims for money damages, those claims must be dismissed under the doctrine of sovereign immunity. The Eleventh Amendment operates as a bar to federal-court jurisdiction when a private citizen sues a state or its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cty., 211 F.3d 331, 334 (6th Cir. 2000). A suit against a state official in his or her official capacity is “not a suit against the official but rather is a suit against the official's office,” and is therefore “no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). “There are three exceptions to sovereign immunity: (1) when the state has waived immunity by consenting to the suit, (2) when Congress has expressly abrogated the states' sovereign immunity, and (3) when the doctrine set forth in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), applies.” Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017) (citation omitted).
Here, the first two exceptions do not apply. First, “Ohio has not waived sovereign immunity in federal court.” Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Second, “Section 1983 does not abrogate Eleventh Amendment immunity.” Boler, 865 F.3d at 410 (citing Will, 491 U.S. at 66). However, Plaintiff's legal mail claims for injunctive relief may be viable under Ex Parte Young. The Ex Parte Young exception to sovereign immunity allows a plaintiff “to bring claims for prospective relief against state officials sued in their official capacity to prevent future federal constitutional or statutory violations, regardless of whether compliance might have an ancillary effect on the state treasury.” Boler, 865 F.3d at 412 (cleaned up). The exception applies where the plaintiff alleges “an ongoing violation of federal law and seeks relief properly characterized as prospective.” Dubuc v. Mich. Bd. of Law Exam'rs, 342 F.3d 610, 616 (6th Cir. 2003) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 645 (2002)). Here, Plaintiff alleges an ongoing violation of his First Amendment rights as a result of the state of Ohio's legal mail practices. Thus, Plaintiff may proceed on his official-capacity claims to the extent he seeks injunctive relief to redress ongoing violations of his First Amendment legal mail rights, but Plaintiff's official-capacity claims for damages must be dismissed.
B. Plaintiff has failed to state a First Amendment legal mail claim against Defendant Free or against any Defendant as to the expected May 2023 Court mailings.
“A prisoner's right to receive mail is protected by the First Amendment ....” Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003). The protection is heightened when the incoming mail is legal mail. Id. at 874. Prior to April 8, 2022, the Ohio Administrative Code prevented state prison officials from opening or inspecting “legal mail,” including mail from a state or federal court, outside the presence of the inmate to whom it was addressed. The Code provision in question read as follows:
“Legal mail” is mail addressed to an inmate clearly bearing the return address of an attorney-at-law, a public service law office, a law school legal clinic, court of law, or the correctional institution inspection committee. It may be opened and inspected for contraband only in the presence of the inmate-addressee. “Legal mail” does not include postcards from a court of law that indicates fees and/or fines owed by the inmate-addressee.O.A.C. 5120-9-17(B)(2) (valid through April 7, 2022). This procedure was consistent with the holding of the United States Court of Appeals for the Sixth Circuit in Sallier, which held:
In order to guard against the possibility of a chilling effect on a prisoner's exercise of his or her First Amendment rights and to protect the right of access to the courts, we hold that mail from a court constitutes “legal mail” and cannot be opened outside the presence of a prisoner who has specifically requested otherwise.343 F.3d at 877. Sallier also emphasized that an “opt-in system” (whereby legal mail must be opened in an inmate's presence if the inmate has made a specific request to that effect) is “constitutionally sound” only so far as “prisoners received written notice of the policy, did not have to renew the request upon transfer to another facility, and were not required to designate particular attorneys as their counsel.” Id. at 874 (citing Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992)).
On April 8, 2022, an amended version of O.A.C. 5120-9-17, describing a new legal mail policy, went into effect. The amended version provides:
“Legal mail” is mail addressed to an inmate clearly bearing the return address of an attorney-at-law, a public service law office, a law school legal clinic, court of law, or the correctional institution inspection committee that is marked with a valid control number provided by the department. It may be opened and inspected for contraband only in the presence of the inmate-addressee. “Legal mail” does not include postcards from a court of law that indicates fees and/or fines owed by the inmate-addressee. If mail is received from any of the groups listed without a valid control number, then it may be treated as a regular, non-legal mail, as set forth in paragraph (B)(1) of this rule.O.A.C. 5120-9-17(B)(2) (effective April 8, 2022) (emphasis added). Thus, the amended Code provision creates a new requirement for senders of legal mail, including courts and attorneys, to obtain a control number prior to mailing and to mark the envelope with that number.
Plaintiff asserts that CCI's handling of his legal mail in accordance with this policy violates his First Amendment right to have mail from courts opened in his presence. As to Defendant Marsh, Plaintiff may proceed on this claim as to the February 9, 2023 court mailing. Although Plaintiff does not allege that Defendant Marsh personally participated in opening Plaintiff's legal mail outside his presence and “§ 1983 liability cannot be imposed under a theory of respondeat superior,” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008), Plaintiff has alleged that Defendant Marsh “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct” of her mailroom staff by affirming to Plaintiff that CCI would not treat mail from courts as legal mail without a control number. See Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).
Defendant Free, however, neither personally participated in opening Plaintiff's legal mail outside his presence nor ratified the conduct of other CCI staff in doing so. Indeed, Defendant Free did not address Plaintiff's complaints regarding opening his legal mail outside his presence at all. Plaintiff has therefore failed to allege the necessary “personal involvement” or implicit “authoriz[ation], approv[al], or knowing[ ] acquiesce[nce]” to hold Defendant Free liable for legal mail violations. See Grinter, 532 F.3d at 575. Nor does Defendant Free's failure to address legal mail violations entitle Plaintiff to relief, because “there is no inherent constitutional right to an effective grievance procedure.” Argue v. Hofmeyer, 80 Fed.Appx. 427, 430 (6th Cir. 2003) (citing Hewitt v. Helms, 459 U.S. 460, 467 (1983); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d 72, 75 (4th Cir.), cert. denied, 514 U.S. 72 (1994); and Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). Accordingly, Plaintiff's claims against Defendant Free must be dismissed.
Finally, to the extent Plaintiff intends to advance a First Amendment legal mail claim arising out of the Court mailings he was expecting in May 2023, that claim must be dismissed. Plaintiff's allegations-that mailroom staff checked the mailroom and logs and could not find any Court mail being held for Plaintiff-do not give rise to a plausible inference that the mailroom staff somehow tampered with his mail. The Court could have inadvertently failed to send the documents he requested, or the mail could have been lost in transit before reaching the prison. Any assertion by Plaintiff that mailroom staff withheld Court mail in May 2023 is therefore merely a “naked assertion devoid of further factual enhancement,” which is insufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Accordingly, any First Amendment legal mail claim as to the expected May 2023 mailings must be dismissed.
C. Plaintiff has failed to state a First Amendment retaliation claim against Defendant Jhones.
“Prisoners have a First Amendment right to file grievances and access the courts without suffering retaliation for so doing.” Rodgers v. Hawley, 14 Fed.Appx. 403, 409-10 (6th Cir. 2001). A retaliation claim involves three elements:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff 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 the plaintiff's protected conduct.Thaddeus-Xv. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Here, Plaintiff satisfies the first element because the filing of grievances is protected by the First Amendment. Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2018) (“[A]n inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf.”) (quoting Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). However, Plaintiff has not alleged that Defendant Jhones took any action that would deter a person of ordinary firmness from continuing to file grievances. All Plaintiff has alleged in that regard is that Defendant Jhones had Plaintiff brought to Jhones's office at 11:30pm and told Plaintiff that Jhones was going to dismiss Plaintiff's grievance against Defendant Marsh. Denial of a grievance is not a sufficiently adverse action to state a retaliation claim. See, e.g., Colvin v. Horton, No. 2:19-CV-122, 2019 WL 3927425, at *12 (W.D. Mich. Aug. 20, 2019); Northington v. Armstrong, No. 1:10-CV-424, 2011 WL 3209079, at *3 (W.D. Mich. July 28, 2011). Accordingly, Plaintiff's claims against Defendant Jhones must be dismissed.
D. Plaintiff has failed to state a First Amendment free exercise claim.
Plaintiff makes only a stray reference to “violation-rights to religion” on his civil cover sheet. To the extent Plaintiff intends to advance a First Amendment free exercise claim, this claim must be dismissed because he has not alleged that Defendants have burdened his sincerely-held religious beliefs. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....” U.S. Const. amend. I. “Prisoners retain the First Amendment right to the free exercise of their religion.” Hayes v. Tenn., 424 Fed.Appx. 546, 549 (6th Cir. 2011). “Under § 1983, a prisoner alleging that the actions of prison officials violate his religious beliefs must show that the belief or practice asserted is religious in the person's own scheme of things and is sincerely held.” Barhite v. Caruso, 377 Fed.Appx. 508, 511 (6th Cir. 2010) (cleaned up). The prisoner must also show that the prison's action substantially burdens his sincerely-held religious beliefs. Id. “An action of a prison official will be classified as a substantial burden when that action forced an individual to choose between following the precepts of his religion and forfeiting benefits or when the action in question placed substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Hayes, 424 Fed.Appx. at 555 (internal quotation marks and citations omitted). Under § 1983, if the action substantially burdens a prisoner's sincerely held beliefs, the action “is valid if it is ‘reasonably related to legitimate penological interests.'” Colvin v. Caruso, 605 F.3d 282, 296 (6th Cir. 2010) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
The undersigned finds that Plaintiff has failed to adequately allege that Defendants substantially burdened the free exercise of his religion. Plaintiff has not identified any religious beliefs that he holds; the only allegations related to religion in his Complaint are that mailroom staff replaced one of his Court mailings with a religious pamphlet. The undersigned can discern no impingement on Plaintiff's religious exercise as a result of receiving this pamphlet. Accordingly, Plaintiff's free exercise claim must be dismissed.
E. Plaintiff has failed to state a Fourteenth Amendment property deprivation claim.
Plaintiff similarly makes only a stray reference to “loss of property (legal mail)” on his civil cover sheet. To the extent Plaintiff intends to advance a Fourteenth Amendment property deprivation claim, this claim must be dismissed because Plaintiff has not sufficiently alleged the inadequacy of the remedies available under Ohio law. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986) and Hudson v. Palmer, 468 U.S. 517 (1984). In Paratt, the United States Supreme Court held that the existence of adequate post-deprivation state remedies eliminates any due process claim arising from the negligent deprivation of a prisoner's property. 451 U.S. at 539-44. The Hudson Court extended Parratt's application to all § 1983 due process claims involving deprivation of property, regardless of whether the deprivation is negligent or intentional. Hudson, 468 U.S. at 533-36; cf. Jefferson v. Jefferson Cty. Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004) (“If satisfactory state procedures are provided in a procedural due process case, then no constitutional deprivation has occurred despite the injury.”). Following Parratt and Hudson, the United States Court of Appeals for the Sixth Circuit held that in a § 1983 case “claiming the deprivation of a property interest without procedural due process of law, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 106566 (6th Cir. 1983). Where a plaintiff fails to do so, dismissal for failure to state a claim is appropriate. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 377-78 (6th Cir. 1993) (dismissal of procedural due process claim upheld where the plaintiff had “not pled or shown that [the state] judicial remedies are inadequate ....”); Ruiz v. Fisher, No. 96-4212, 1998 WL 661139, at *5 (6th Cir. Sept. 2, 1998) (concluding that the plaintiff had failed to state a claim of either intentional or negligent deprivation of property where he had not pled “that state remedies for redressing the wrong [were] inadequate”).
In this case, Plaintiff has failed to sufficiently plead that the post-deprivation tort remedies available to him under Ohio law are inadequate to adjudicate his property-loss claims as required under Parratt and Vicory. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999) (citing Hudson, 468 U.S. at 534-36) (“State tort remedies generally satisfy the postdeprivation process requirement of the Due Process Clauses.”). Because Plaintiff's Complaint provides insufficient factual content or context from which the Court could reasonably infer that Ohio's post-deprivation tort remedies are inadequate to adjudicate his property-loss claims, Plaintiff's property deprivation claim must be dismissed.
F. Plaintiff has failed to state a claim against Defendant Spanual
Although Plaintiff lists “C/O Spanual” as a Defendant in the caption of his Complaint, the only other reference to Defendant Spanual is Plaintiff's note that Spanual “works in the mailroom.” (Compl. 5, ECF No. 1, PAGEID #19.) Plaintiff does not allege that Defendant Spanual was personally involved in any improper mail handling, harassment, or retaliation. Accordingly, Plaintiff has failed to state a claim upon which relief can be granted against Defendant Spanual. See Grinter, 532 F.3d at 575 (§ 1983 claims require the “personal involvement” of the defendant).
G. Plaintiff has not demonstrated that a preliminary injunction is warranted.
Plaintiff further moves for a preliminary injunction. (ECF No. 2.) Specifically, Plaintiff seeks to enjoin Defendants and all CCI staff members from harassing him or retaliating against him due to his filing of this lawsuit. (Id.) When deciding whether to issue a preliminary injunction, the Sixth Circuit has instructed trial courts to consider the following factors:
(1) whether the movant has a “strong” likelihood of success on the merits;
(2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing cases). Applied here, Plaintiff cannot demonstrate a strong likelihood of success on the merits because, as explained above, his Complaint fails to state a claim for retaliation. Moreover, Plaintiff's allegations do not demonstrate that he would suffer irreparable harm absent the injunction, as there is no indication that any CCI staff have harassed or will harass him in a manner that would deter inmates from filing grievances or lawsuits. Accordingly, Plaintiff's motion for preliminary injunction should be denied.
H. Plaintiff is not entitled to appointment of counsel
Finally, Plaintiff moves for appointment of counsel. (ECF No. 3.) Although Plaintiff is proceeding in forma pauperis, appointment of counsel is discretionary under 28 U.S.C. § 1915(e); appointment of counsel in a civil case is not a constitutional right. See Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). Rather, “[i]t is a privilege that is justified only by exceptional circumstances.” Id. at 606. The Court has evaluated whether such exceptional circumstances exist and determines that the appointment of counsel is not warranted at this juncture. Accordingly, Plaintiff's Motion for Appointment of Counsel (ECF No. 3) is denied.
IV. DISPOSITION
For the foregoing reasons, Plaintiff MAY PROCEED on his individual- and officialcapacity First Amendment legal mail claims against Defendant Marsh arising out of the February 9, 2023 Court mailing, and it is RECOMMENDED that the Court DISMISS Plaintiff's remaining claims for failure to state a claim upon which relief may be granted. It is further RECOMMENDED that the Court DENY Plaintiff's Motion for Preliminary Injunction (ECF No. 2). Plaintiff's Motion for Appointment of Counsel (ECF No. 3) is DENIED.
Further, Plaintiff's Motion for Leave to Proceed in Forma Pauperis is GRANTED. Plaintiff has already submitted a summons form (Form AO-440) and a service of process by U.S. Marshal form (Form USM-285) for Defendant Marsh (ECF No. 1-1, PAGEID #43-44, 46-47).
However, the summons form for Defendant Marsh (ECF No. 1-1, PAGEID #43) is incomplete in that Plaintiff has not filled in the name and address for either Defendant Marsh or Plaintiff. If Plaintiff wishes to have the United States Marshal effect service of process over Defendant Marsh as to his First Amendment legal mail claim, Plaintiff is DIRECTED to submit a completed summons form (Form AO-440) for Defendant Marsh. Once the Clerk is in receipt of the required forms, the Clerk is DIRECTED to issue the summons, and the United States Marshal is DIRECTED to serve by certified mail upon Defendant Marsh the summons, a copy of the Complaint (ECF No. 1, PAGEID #14-22), and a copy of this Order and Report and Recommendation.
Finally, in order to manage this case in a timely and efficient manner, the undersigned hereby ORDERS that mail from this Court addressed to Plaintiff in this case is legal mail under Sallier v. Brooks, 343 F.3d 868, 877 (6th Cir. 2003). The Ohio Department of Rehabilitation and Correction is ORDERED to treat the Court's mail to Plaintiff as legal mail with all the protections afforded to legal mail.
The Clerk of Court is DIRECTED to serve this Order on (1) the Ohio Attorney General's Office (which represents defendants employed by the State of Ohio in similar matters) at 30 E. Broad Street, 23rd Floor, Columbus, OH 43215; and (2) the Mailroom Supervisor at Chillicothe Correctional Institution.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A District Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a District Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the District Judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.