IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD BLOODWORTH,

Plaintiff,

vs. Civil Action 2:10-CV-1121

Judge Marbley

Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,

WARDEN, et al.,

Defendants.

ORDER AND

REPORT AND RECOMMENDATION

This matter is before the Court on defendants’ motion to dismiss the

First Amended Complaint or, in the alternative, to stay the case pending

payment of the costs or full filing fees in connection with a previous

case filed by plaintiff. Motion of the State of Ohio and of Defendants

Timmerman-Cooper, Carson, Boohier, Mason, Shandale, Willis, Jewell Sr.

to Dismiss the Amended Complaint (Doc. 49), or Alternatively to Stay the

Case Pending Payment of Full Filing Fees on Case No. 2:10-cv-926, Doc.

No. 58 (“Motion to Dismiss”). For the reasons that follow, it is

RECOMMENDED that defendants’ Motion to Dismiss, Doc. No. 58, be GRANTED

IN PART and DENIED IN PART. In light of this recommendation, certain

other motions, Doc. Nos. 33, 34, 35, are also addressed.

I. BACKGROUND

On June 6, 2011, plaintiff, now an inmate at the Toledo Correctional

Institution [“ToCI”], filed the First Amended Complaint in this matter. 

Doc. No. 49. All of the counts allege claims of either Fourteenth

Amendment equal protection violations (Counts III, V, VII, VIII, X, and

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 1 of 11 PAGEID #: <pageID>
XIV) or First Amendment retaliation (Counts I, II, IV, VI, IX, XII, XIII,

XV, XVI, and XVII) by employees of the London Correctional Institution

[“LoCI”]. Id. ¶¶ 57-93. In support of these claims, plaintiff advances 1

factual allegations related to six conduct reports that he received while

an inmate at LoCI. Id. Plaintiff later voluntarily dismissed one of the

equal protection claims (Count III) and two of the retaliation claims

(Counts I and II). Plaintiff’s Notice of Voluntary Dismissal Without

Prejudice, Doc. 36; Notice of Stipulation of Dismissal (Count II), Doc.

No. 46; Notice of Voluntary Dismissal with Prejudice, Doc. No. 53;

Response of Defendants and the State of Ohio in Support of Plaintiff’s

Notice of Voluntary Dismissal with Prejudice (Counts I and III) (Doc.

53), Doc. No. 54. Defendants later filed the instant Motion to Dismiss. 

Doc. No. 58.

II. DISCUSSION

Defendants have the burden of demonstrating that dismissal under

Fed. R. Civ. P. 12(b)(6) is appropriate. DirecTV, Inc. v. Treesh, 487

F.3d 471, 476 (6th Cir. 2007). For the purpose of a motion to dismiss,

we “treat as true all of the well-pleaded allegations of the complaint.” 

Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996). A

plaintiff may not satisfy the pleading requirement by advancing “labels

and conclusions” or “a formulaic recitation of the elements of a cause

of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). 

A court must dismiss a complaint that does not plead “enough facts to

state a claim to relief that is plausible on its face.” Id. at 570.

Defendants advance overlapping arguments in support of their motion

The First Amended Complaint does not include a Count XI. 1

2

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 2 of 11 PAGEID #: <pageID>
to dismiss the First Amended Complaint for failure to state a claim upon

which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). This

Court will address each argument in turn.

A. Motion to Dismiss Defendant Timmerman-Cooper

Defendants argue that, because defendant Debora Timmerman-Cooper “is

not the subject of any count” contained in the First Amended Complaint,

she must be dismissed as a defendant. This Court agrees that the First

Amended Complaint includes no allegation regarding defendant TimmermanCooper. Plaintiff has therefore failed to state a claim against this

defendant, and her dismissal from this lawsuit is appropriate.

B. Motion to Dismiss Equal Protection Claims

Defendants also argue that none of the remaining equal protection

claims (Counts V, VII, VIII, X, and XIV) allege the elements necessary

to such claims.

A Fourteenth Amendment equal protection claim must allege

“discrimination by government which either burdens a fundamental right,

targets a suspect class, or intentionally treats one differently than

others similarly situated without any rational basis for the difference.” 

TriHealth, Inc. v. Bd. of Comm’rs, Hamilton County, Ohio, 430 F.3d 783,

788 (6th Cir. 2005). Here, plaintiff does not allege that defendants’

actions have burdened a fundamental right or that he is the member of a

suspect class. Instead, plaintiff’s equal protection claims rest upon

a “class of one” theory. To succeed under this theory, a plaintiff must

show that he was treated differently than others similarly situated and

either that “the challenged action was motivated by animus or ill-will”

or that “the differential treatment [he was] subjected to is so unrelated

to the achievement of any combination of legitimate purposes that the

3

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 3 of 11 PAGEID #: <pageID>
court can only conclude that the [defendants’] actions were irrational.” 

Id.

Nowhere does the First Amended Complaint identify an individual who

is similarly situated to plaintiff. Instead, plaintiff advances a series

of conclusory allegations about his similarity to broad, ill-defined

groups: (1) In connection with Counts V, VIII, and X, which are related

to the second, third and fourth conduct reports issued to plaintiff,

plaintiff alleges that a defendant “refused to review exculpatory

evidence (video surveillance) in connection with disciplinary proceedings

unlike other inmates who request review of video surveillance evidence

. . . in support of their accusations of wrongdoing committed against

them by other inmate(s).” Id. ¶ 66 (emphasis added); see also id. ¶¶ 72

(advancing a similar claim regarding the third conduct report), 76

(advancing a similar claim regarding the fourth conduct report). (2) In

connection with Count VII, which is related to the third conduct report

issued to plaintiff, plaintiff alleges that a defendant “confiscated

plaintiff[’]s legal material . . . but never confiscated any other

inmates[’] personal effects” even though plaintiff’s legal materials were

“situated in his cubicle in a manner identical to that of other A-1

inmates.” Id. ¶ 70 (emphasis added). (3) In connection with Count XIV,

which is related to the fifth conduct report issued to plaintiff,

plaintiff alleges that he was “attack[ed]” and that “no other inmate has

been attacked upon orders of defendant under similar circumstances.” Id.

¶ 84 (emphasis added).

Plaintiff’s broad, nonspecific statements regarding large groups of

inmates are insufficient to satisfy the pleading requirement. See

Bertovich v. Village of Valley View, Ohio, 431 F. App’x 455, 458 (6th

4

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 4 of 11 PAGEID #: <pageID>
Cir. 2011) (holding that dismissal of an equal protection claim was

appropriate under Fed. R. Civ. P. 12(b)(6) where plaintiff’s complaint

“does not point to any individual who was treated differently”); see also

Tyson v. Nixon, No. 4:10-CV-1051, 2010 WL 3488614, *2 (E.D. Mo. Aug. 31,

2010) (holding that equal protection allegations were conclusory where

“plaintiff does not cite to any particular female prisoner who was

subjected to different treatment than plaintiff or any other male sex

offender”); Adams v. Thompson, No. 3:07-3884, 2008 WL 8099780, *4 (D.S.C.

Dec. 19, 2008) (noting that a plaintiff could not allege an equal

protection violation simply by “claim[ing] that other inmates who

committed greater disciplinary offenses improved their custody status

sooner than he did” where plaintiff “has not provided the names of

inmates that he believes were treated more favorably or provided

sufficient information to show that they were similarly-situated to

him"). Dismissal of plaintiff’s equal protection claims is therefore

appropriate.

C. Motion to Dismiss Retaliation Claims

Defendants also argue that the eight remaining retaliation claims

fail because (1) in seven of the claims (Counts IV, VI, IX, XII, XIII,

XV, and XVI), plaintiff’s behavior violated prison regulations and

therefore was not “protected conduct”; (2) in six of the claims (Counts

VI, XII, XIII, XV, XVI, XVII), plaintiff’s conclusory allegations are

fatally deficient.

The elements of a First Amendment retaliation claim are “(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

5

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 5 of 11 PAGEID #: <pageID>
connection between elements one and two--that is, the adverse action was

motivated at least in part by the plaintiff’s protected conduct.”

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). It is not

enough to state, without supporting factual allegations, that prison

officials engaged in retaliation. Pack v. Martin, 174 Fed. App’x 256,

259 (6th Cir. 2006). Moreover, a prisoner’s conduct is not protected if

he “violates a legitimate prison regulation.” Lockett v. Suardini, 526

F.3d 866, 874 (6th Cir. 2008) (quoting Thaddeus-X, 175 F.3d at 394).

Defendants’ argument regarding the violation of prison regulations

fails. First, plaintiff does not admit in the First Amended Complaint

that he violated prison regulations. In fact, he specifically denies in

all the relevant counts that he violated prison regulations. First

Amended Complaint, Doc. No. 49, ¶¶ 64 (Count IV), 21 (Count VI), 74

(Count IX), 78 (Count XII), 88 (Count XVI), 48 (Counts XIII and XV). In

light of this Court’s obligation to “treat as true all of the wellpleaded allegations of the complaint,” Bower, 96 F.3d at 203, this Court

cannot dismiss these counts for failure to state a claim. Second,

defendants themselves make no effort to demonstrate that the behavior

alleged in the First Amended Complaint amounts to a violation of prison

regulations. Instead of identifying specific regulations purportedly

violated by plaintiff, defendants assert generally that “all of

[defendant’s conduct] violates prison rules” and cites to a provision in

the Ohio Administrative Code that lists more than sixty possible

disciplinary violations. Motion to Dismiss, Doc. No. 58, p.8 (citing

Ohio Admin. Code § 5120-9-06(C)). Defendants therefore have not

satisfied their burden of demonstrating that dismissal on this basis is

appropriate.

6

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 6 of 11 PAGEID #: <pageID>
Defendants’ argument regarding the “conclusory” nature of six of the

retaliation claims also fails in connection with all but one claim. 

Focusing on the causation element of a retaliation claim, defendants

argue that plaintiff must “allege plausibly . . . that ‘the adverse

action was motivated at least in part by the plaintiff’s protected

conduct.’” Motion to Dismiss, Doc. No. 58, p.10. In particular,

defendants argue that plaintiff must “allege why he suspects” that

defendants engaged in retaliation. Id., p.9. However, by even

defendants’ own standard, plaintiffs’ allegations in Counts VI, XII,

XIII, XV, and XVI are not conclusory.

In Count VI, plaintiff alleges that a defendant confiscated certain

materials and “issued him a Conduct Report that was false” in retaliation

for plaintiff’s litigation activities. First Amended Complaint, Doc. No.

49, ¶ 68. In support, plaintiff alleges that “only plaintiff’s legal

work and typewriter” were confiscated. Id.; see also id. ¶ 22 (alleging

that defendant did not confiscate other personal items despite the fact

that they were “on the floor directly next to plaintiff’s legal work and

typewriter”). In Counts XII, XIII, XV, and XVI, plaintiff alleges that

defendants engaged in retaliatory conduct soon after plaintiff’s

allegedly protected activity. Id. ¶¶ 56(a)-(d) (Count XII), 43 (Count

XIII), 86 (Count XV), 88 (Count XVI). In fact, plaintiff alleges that,

in some instances, it was his protected activity that served as the basis

for discipline by defendants. Id. Plaintiffs’ allegations in Counts VI,

XII, XIII, XV, and XVI are therefore not conclusory.

In Count XVII, however, plaintiff’s allegations do not satisfy the

pleading requirements. Plaintiff alleges that a defendant recommended

an increase in plaintiff’s security status “as punishment in retaliation

7

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 7 of 11 PAGEID #: <pageID>
for plaintiff filing grievances against defendant.” Id. ¶ 90. This is

not enough to satisfy the pleading standard. See Figel v. Overton, 121

F. App’x 642, 648 (6th Cir. 2005) (“In his complaint, [plaintiff] asserts

that Defendants' confiscation of his religious texts was retaliation for

his filing of complaints, grievances, and litigation against them.

However, he alleges no facts in support of his claim of a retaliatory

motive.”); Shavers v. McKee, No. 2:07-cv-105, 2010 WL 3734011, *1 (W.D.

Mich. Aug. 27, 2010). Dismissal is therefore appropriate as to Count

XVII.

D. Motion to Dismiss Requests for Injunctive Relief

Defendants also argue that, because plaintiff was transferred from

LoCI to ToCI, his claims for injunctive relief as against LoCI employees

are moot.

The First Amended Complaint requests the following types of

injunctive relief: (1) a preliminary injunction “to prevent plaintiff’s

continued confinement at a level three prison . . . [and] immediately

return plaintiff to his security level two status. . . ;” (2) an

injunction “ordering expungement of all Conduct Reports giving rise to

this civil action from plaintiff’s institution disciplinary record;” and

(3) an injunction “ordering preservation of all video evidence associated

with the claims giving rise to this civil action, for in camera review.” 

First Amended Complaint, Doc. No. 49, at pp. 40-41.

Defendants are correct that this Court may not order defendants, who

no longer have control over plaintiff, to return plaintiff to LoCI. See

Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); see also Wilson v.

Wilkinson, No. 98-3713, 1999 WL 777634, *1 (6th Cir. Sept. 17, 1999)

(holding that the district court properly dismissed plaintiff’s equal

8

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 8 of 11 PAGEID #: <pageID>
protection claim, which concerned the increase in plaintiff’s security

classification and his transfer to a maximum security prison) (“To the

extent that [plaintiff] requested injunctive relief from the Lebanon

Correctional Institution defendants, that request is moot because of his

transfer [from Lebanon Correctional Institution].”). But defendants fail

to explain why plaintiff’s second and third requests for injunctive

relief–-demanding expungement of his records and the preservation of

certain materials–-are moot. Dismissal is therefore appropriate as to

plaintiff’s request for a preliminary injunction "to prevent plaintiff's

continued confinement at a level three prison . . . [and] immediately

return plaintiff to his security level three status at london

correctional [sic]," but defendants have not satisfied their burden of

demonstrating that dismissal is appropriate under Rule 12(b)(6) for the

other two requests for injunctive relief.

E. Defendants’ “Independently Actionable” Argument

Defendants argue, with little elaboration, that “[m]uch of the

conduct alleged in Bloodworth’s amended complaint is not independently

actionable.” Motion to Dismiss, Doc. No. 58, p.10. In particular,

defendants argue that “mere verbal harassment and threats are not

unconstitutional” and that “[n]either . . . [is] filing false conduct

reports.” Id. But plaintiff does not allege that defendants’ verbal

harassment and filing of false conduct reports are by themselves

unconstitutional. Compare First Amended Complaint, Doc. No. 49, pp. 26-

39, with Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (cited in

Motion to Dismiss, Doc. No. 58, p.10). Instead, plaintiff challenges

defendants’ behavior in the context of is First Amendment retaliation

claims. See Payne v. Axelrod, 871 F.Supp. 1551, 1556 (N.D.N.Y. 1995)

9

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 9 of 11 PAGEID #: <pageID>
(distinguishing Freeman). Defendants’ argument in this regard therefore

fails.

F. Defendants’ Qualified Immunity Argument

Because defendants’ qualified immunity argument depends entirely on

their other arguments, see Motion to Dismiss, Doc. No. 58, p.12, it is

unnecessary to separately address that argument here.

G. Defendants’ Alternative Request Under Fed. R. Civ. P. 41(d)

Because defendants do not demonstrate that they incurred costs in

connection with a previous action, it is unnecessary for the Court to

exercise its discretionary authority and order payment of costs under

Fed. R. Civ. P. 41(d

For the foregoing reasons, it is RECOMMENDED that defendants’ motion

to dismiss, Doc. No. 58, be granted in part and denied in part. It is

specifically RECOMMENDED that plaintiff’s claims against defendant Debora

Timmerman-Cooper, plaintiff’s remaining equal protection claims (Counts

V, VII, VIII, X, and XIV), the retaliation claim in Count XVI, and

plaintiff’s request for injunctive relief demanding his return to the

London Correctional Institution be DISMISSED but that all other claims

remain for resolution.

In light of plaintiff’s dismissal of Count I and the recommended

dismissal of Count V, plaintiff’s motion for an extension of time to

serve the unidentified defendant referred to in those counts, Doc. No.

33, is DENIED. Plaintiff’s motion to stay the action pending resolution

of the motion to dismiss and service on the unidentified defendants, Doc.

No. 34, is for the same reason DENIED. Plaintiff’s motion for leave to

10

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 10 of 11 PAGEID #: <pageID>
conduct limited discovery, Doc. No. 35, is GRANTED.

It is hereby ORDERED that all discovery be completed no later than

June 30, 2012. Depositions of incarcerated persons may proceed on such

terms and conditions as the institution shall impose. Dispositive

motions may be filed, if at all, no later than July 31, 2012.

If any party seeks review by the District Judge of this Report and

Recommendation, that party may, within fourteen (14) days, file and serve

on all parties objections to the Report and Recommendation, specifically

designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. 28 U.S.C.

§636(b)(1); F.R. Civ. P. 72(b). Response to objections must be filed

within fourteen (14) days after being served with a copy thereof. F.R.

Civ. P. 72(b). 

The parties are specifically advised that failure to object to the

Report and Recommendation will result in a waiver of the right to de novo

review by the District Judge and 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); Smith v. Detroit Federation of Teachers,

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah M Cann King c

 United States Magistrate Judge

January 18, 2012

11

Case: 2:10-cv-01121-ALM-NMK Doc #: 72 Filed: 01/19/12 Page: 11 of 11 PAGEID #: <pageID>