IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD BLOODWORTH,

Plaintiff,

vs. Civil Action 2:10-CV-1122

Judge Marbley

Magistrate Judge King

DEBORA A. TIMMERMAN-COOPER,

WARDEN, et al.

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, formerly an inmate at the London Correctional 

Institution [“LoCI”], brings this civil rights action under 42 U.S.C. §

1983. Plaintiff sought and was granted leave to proceed in forma

pauperis. Order, Doc. No. 2. This matter is before the Court on the

Motion of Defendants to Dismiss Plaintiff’s Third Amended Complaint

(Docs. 34, 34-1) , Doc. No. 39 (“ Motion to Dismiss”). For the reasons

that follow, it is RECOMMENDED that the Motion to Dismiss, Doc. No. 39,

be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff has filed a number of complaint in this action, but all

parties agree that it is Doc. No. 34, which defendants refer to as the

Third Amended Complaint, is the operative pleading.1

 In that pleading,

plaintiff alleges three categories of misconduct by employees at LoCI. 

First, plaintiff alleges that employees of LoCI engaged in secret

surveillance of his activities. Id. (counts I, II, III). Second, he

alleges that employees of LoCI improperly examined and tampered with his

1

This pleading is captioned First Amended Complaint, and plaintiff

objects to the referral to the pleading as the Third Amended Complaint. However, the pleading is clearly not the first amended complaint filed by

plaintiff in this action. See Doc. Nos. 28, 32, which are also captioned

First Amended Complaint.

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mail and communications. Id. (counts IV, V, VI, VII, IX, X). Third, he

alleges that employees of LoCI prohibited him from entering the dining

facility in retaliation for his filing of grievances. Id. (count VIII).

Plaintiff advances his surveillance allegations as claims under the

Fourth Amendment (counts I, II) and the Eighth Amendment (count III). 

In support of the surveillance claims, plaintiff alleges that his in-cell

activities corresponded to loud noises from prison officials:

[A]s plaintiff engaged in various activities, considered

personal [inside] of his cell, i.e., pick up a piece of paper,

write on a piece of paper, experienced flatulence, touched his

pencil, moved his eyeballs, and, touched a piece of paper,

simultaneous therewith, and not until, corrections officers

working segregation would either: open the block entrance/exit

door, slam what sounds like a door in the area outside the [CRange] where officers congregate, extremely loudly, speak in

an abrupt tone of voice to an inmate in a cell on the C-Range,

and slam the C-Range entrance door very loudly.

Id., ¶ 11. Based on this and similar allegations, plaintiff concludes

that he was “being constantly watched by an unknown prison official, via

covert and/or overt video surveillance cameras/equipment.” Id., ¶ 13. 

Plaintiff advances his mail-related allegations as claims under the

First Amendment (counts V, VI, VII), Fourth Amendment (counts IV, IX),

and Eighth Amendment (count X). In support of the mail-related claims,

plaintiff alleges that LoCI employees improperly interfered with his

communications on three occasions. First, plaintiff alleges that certain

defendants marked incoming communications, which included an “informal

complaint” with masking tape. Id., ¶¶ 24-25. Second, plaintiff alleges

that certain defendants opened and failed to mail two informal grievances

written by plaintiff. Id., ¶ 47. Third, plaintiff alleges that certain

defendants removed him from his cell, “questioned [him] intensely

regarding the number of complaints he’s filed while in segregation,” and

at this time removed several “blank informal complaint resolutions forms”

from his cell. Id., ¶¶ 64, 68.

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Plaintiff advances his dining facility allegation as a claim of

retaliation under the First Amendment (count VIII). In support, plaintiff

alleges that certain defendants “denied plaintiff an opportunity to eat

on May 5, []2010, not as punishment for being late to chow but[] as

punishment in retaliation for plaintiff’s filing [of grievances] against

each defendant on prior occasions.” Id., ¶ 150. Plaintiff draws this

conclusion on the fact that these defendants allegedly “permitt[ed] the

inmate walking directly in front of plaintiff to eat without incident.” 

Id., ¶ 150; see also id., ¶¶ 104-05. 

II. DISCUSSION

Defendants move to dismiss plaintiff’s claims for failure to state

a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6). 

Parties moving under Rule 12(b)(6) bear 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). In resolving a motion to

dismiss, a court must “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 does 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.

A. Surveillance Claims (Counts I, II, III)

Plaintiff advances three claims based on allegations that prison

employees engaged in a secret campaign of surveillance. Defendants ask

this Court to dismiss the claims as “fanciful.”

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Under 28 U.S.C. § 1915(e)(2)(b)(i), “the court shall dismiss the

case at any time if the court determines that . . . the action . . . is

frivolous or malicious.” A complaint filed in forma pauperis will be

dismissed as “frivolous” if ”it lacks an arguable basis either in law or

in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint

is frivolous if it relies on “fanciful factual allegation[s].” Although

this action survived the initial screen of the original complaint

pursuant to 42 U.S.C. § 1915(e) and § 1915A, the Court has “inherent

power to reconsider interlocutory orders and reopen any part of a case

before entry of a final judgment.” Mallory v. Eyrich, 922 F.2d 1273,

1282 (6th Cir. 1991). The Northern District of Ohio dismissed similar

claims by plaintiff as “irrational and delusional” under 42 U.S.C.

§ 1915(e). Bloodworth v. Konteh, No. 3:10-CV-1617, 2010 WL 4809037, *2

(N.D. Ohio Nov. 18, 2010) (“The claims that Defendants deliberately made

sounds when Plaintiff performed daily functions of dressing and changing,

even blinking his eyes or picking up pencils, are incredulous.”).

Because the factual allegations in support of plaintiff’s

surveillance claims are clearly frivolous, the Court reconsiders its

initial review under 28 U.S.C. § 1915(e) and concludes that dismissal of

counts I, II and III is appropriate.

B. Mail Misconduct Claims (Counts IV, V, VI, VII, IX, X)

Plaintiff advances six claims based on allegations that prison

employees interfered with certain communications. Defendants challenge

the sufficiency of these claims.

(1) Fourth Amendment Claims ()

Plaintiff advances two of his mail misconduct claims, i.e., counts

IV, IX, as Fourth Amendment claims. Defendants object to count IV on the

ground that “Bloodworth bases that claim on no factual allegations” and

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therefore contend that this claim must fail under Ashcroft v. Iqbal, 556

U.S. 662, 129 S.Ct. 1937 (2009). Motion to Dismiss, Doc. No. 39, p.4. 

Defendants object to count IX on the grounds that (1) “[p]rison officials

are allowed to inspect an inmate’s personal mail,” (2) plaintiff’s

allegations regarding his legal mail “lack foundation,” (3) plaintiff

fails to allege that the relevant legal mail “involved privileged

information,” and (4) plaintiff fails “to allege that he was injured by

the inspection of his mail.” Id., p.4.

Count IV alleges that the warden of LoCI

promulgate[d] an informal, unwritten, in-coming mail policy

applicable to the segregation unit regarding the re-opening,

re-inspecting and reading of all incoming U.S. Mail and all

institutional correspondence by segregation corrections

officers[] to deprive plaintiff, and all LOCI segregation

inmates of their clearly established federally protected

rights.

Third Amended Complaint, Doc. No. 34, ¶ 136. It is true that plaintiff’s

official statement of the facts does not allege that all of his incoming

correspondence was opened or inspected while he was in segregation; it

is also true that the official statement of facts does not include any

allegation concerning the incoming correspondence of other inmates. 

Nevertheless, it is clear that count IV is not simply a “[t]hreadbare

recital[] of the elements of a cause of action, supported by mere

conclusory statements.” Iqbal, 556 U.S. 662, 129 S.Ct. at 1949. 

Furthermore, it is well-established that a pro se complaint must “be

liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). 

Defendants’ objection to the sufficiency of count IV therefore fails.

Count IX alleges that certain defendants

opened plaintiff’s properly marked incoming, previously

inspected, purely personal letter from friends and family and

read it, outside plaintiff’s presence; opened plaintiff’s

properly marked incoming mail, removed the letter from its

envelope of origin, read it, and placed it in an “INMATE FREE

ENVELOPE”, outside of plaintiff’s presence; opened plaintiff’s

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properly marked incoming court mail and read it outside of his

presence.

Id., ¶ 154. Defendants challenge the sufficient of count IX in four

respects. First, defendants argue that prison officials may, subject to

certain conditions, open an inmate’s incoming personal mail. See 

Merriweather v. Zamora, 569 F.3d 307, 316-17 (6th Cir. 2009); Parrish v.

Johnson, 800 F.2d 600, 603-04 (6th Cir. 1986). Although that proposition

is generally true, defendants’ statement of the law – which suggests that

defendants may search an inmate’s incoming personal mail at any time, in

any manner, and for any reason – sweeps too broadly. See Parrish, 800

F.2d at 604 (noting that “arbitrary opening and reading of [inmate’s]

personal mail” formed the basis for a First Amendment claim). Beyond

defendants’ over-broad statement of law, defendants make no attempt to

develop this argument. Defendants’ first objection to count IX therefore

fails.

Second, defendants’ attempt to challenge count IX by citing Fed. R.

Evid. 602 and asserting a lack of foundation is clearly insufficient. 

Under Fed. R. Evid. 602, “[a] witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the witness

has personal knowledge of the matter.” At the summary judgment stage,

a plaintiff’s personal knowledge of matters in the verified complaint may

be relevant. See Totman v. Louisville Jefferson County Metro Gov’t, 391

F. App’x 454, 464 (6th Cir. 2010). But for the purpose of a motion to

dismiss, this Court must “treat as true all of the well-pleaded

allegations of the complaint.” See Bower, 96 F.3d at 203. Defendants’

foundation argument is without merit.

Third, defendants cite no legal authority for their proposition that

a claim premised on interference with legal mail must specifically allege

that such mail “involved privileged information.” Motion to Dismiss ,

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Doc. No. 39, p.5. In addition, and defendants’ assertion to the contrary

notwithstanding, the Supreme Court’s decision in Wolff v. McDonnell, 418

U.S. 539, 576 (1974), does not stand for the principle that “the

restriction on inspection of inmate mail only applies to mail that is

protected by attorney client privilege.” Defendants’ argument in this

regard therefore fails.

Fourth, defendants’ citations regarding prejudice to litigation are

irrelevant to plaintiff’s Fourth Amendment claims. Both Lewis v. Casey,

518 U.S. 343, 350-53 (1996), and Baker v. Wells, 39 F. App’x 150, 152

(6th Cir. 2002), concern claims asserting a violation of a prisoner’s

First Amendment right of access to the courts. Such cases are

inapplicable to plaintiff’s claims under the Fourth Amendment. See

Weatherspoon v. Ferguson, 302 F. App’x 231, 231-32 (5th Cir. 2008)

(holding that a court properly dismissed a right of access claim that

failed to allege injury, but distinguishing between Fourth Amendment

claims and right of access claims). Plaintiff’s final objection to count

IX therefore fails.

(2) First Amendment Retaliation Claims (Counts V, VI, VII)

Plaintiff advances three of his mail misconduct claims as First

Amendment retaliation claims. Defendants challenge the sufficiency of 

these claims, arguing that they are conclusory and “do[] not allege why

[plaintiff] believes any of this alleged conduct was done in retaliation

for his use of the grievance system.” Motion to Dismiss, Doc. No. 39,

p.7.

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

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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); 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). 

Here, counts V, VI, and VII allege that defendants engaged in

misconduct specifically aimed at communications concerning the grievance

process. Third Amended Complaint, Doc. No. 34, Count V (¶¶ 64-72, 137-

40), Count VI (¶¶ 24-28; 141-44), Count VII (¶¶ 64-72, 145-48). Count

V alleges that a defendant “retriev[ed] . . . , open[ed] and discard[ed]

plaintiff’s out-going institutional grievances.” Id., ¶ 138; see also

id., ¶ 47. Count VI alleges that certain defendants “tap[ed] with

masking tape the outside of plaintiff’s incoming kite in its entirety on

June 26, 2009 . . . because of plaintiff’s protected conduct of utilizing

the inmate grievance procedure.” Id., ¶ 142. Plaintiff’s statement of

facts indicates that the communication at issue concerned an “informal

complaint.” Id., ¶ 25. Count VII alleges that certain defendants

searched plaintiff’s cell, and the corresponding factual allegations

assert that they did so during a meeting “regarding the number of

complaints [plaintiff has] filed” and seized “eight blank informal

complaint resolutions.” Id., ¶¶ 64, 146; see also id. 64-72. Because

plaintiff alleges specific facts in support of his claims that defendants

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targeted communications concerning the grievance procedure, defendants’

argument is without merit.

(3) Eighth Amendment Claim (Count X)

Plaintiff advances his final mail misconduct claim as an Eighth

Amendment Claim. Defendants object to count X on the grounds that

“[m]ere harassment, even if maliciously motivated, does not constitute

cruel and unusual punishment under the 8th Amendment” and that “[t]here

must be at least a ‘specific deprivation of a single human need.’” 

Motion to Dismiss, Doc. No. 39, p.6 (citing Wilson v. Seiter, 501 U.S.

294, 305 (1991)). The Court agrees that plaintiff’s allegations fail to

state a claim for a violation of the Eighth Amendment. See Miller v.

Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004) (“The district court

properly concluded that one instance of deprivation of books, linens,

food trays, and mail did not violate the Eighth Amendment . . . .”); see

also Williams v. Delo , 49 F.3d 442, 444 (8th Cir. 1995)(dismissing an

Eighth Amendment claim based on the alleged denial, at various times, of

a requested tooth brush, tooth paste, deodorant, soap, sheets, blankets,

pillow cases, pillows, mattresses, legal mail and clothing). Dismissal

of count X is therefore appropriate.

C. Dining Facility Claim (Count VIII)

Plaintiff alleges an additional claim concerning his access to the

dining facility as a First Amendment retaliation claim. Defendants

object to this claim on the grounds that it is conclusory and “does not

allege why [plaintiff] believes any of this alleged conduct was done in

retaliation for his use of the grievance system.” Motion to Dismiss,

Doc. No. 39, p.7.

Here, defendants are correct that plaintiff fails to allege any

connection between his use of the grievance system and defendants’

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alleged actions against him. Plaintiff does not allege that defendants

engaged in the alleged actions soon after he filed a particular grievance

or that their behavior directly affected plaintiff’s actions in filing

grievances. Instead, plaintiff bases his conclusion of retaliation on

the single allegation that these defendants “permitt[ed] the inmate

walking directly in front of plaintiff to eat without incident.” Id.,

¶ 150; see also id., ¶¶ 104-05. Plaintiff does not, however, assert that

the unnamed inmate was allowed to eat because he had not filed

grievances. In light of the conclusory nature of plaintiff’s

allegations, dismissal of count VIII is appropriate.

D. Count XI

Because count XI is a request for damages unattached to an

independent claim, it is unnecessary to address count XI here. See Third

Amended Complaint, Doc. No. 34-1, ¶¶ 159-62.

E. Qualified Immunity

Because defendants’ qualified immunity argument depends entirely on

their other arguments, see Motion to Dismiss, Doc. No. 39, pp. 9-10, it

is unnecessary to separately address that argument here.

It is therefore RECOMMENDED that the Motion to Dismiss, Doc. No. 39,

be GRANTED IN PART and DENIED IN PART. It is specifically RECOMMENDED

that counts I, II, III, VIII, and X be DISMISSED but that all other

claims remain for resolution.

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.

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§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 McCann King

 United States Magistrate Judge

February 23, 2012

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