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The full text of §1915A reads:

(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after

docketing, a complaint in a civil action in which a prisoner

seeks redress from a governmental entity or officer or

employee of a governmental entity.

(b) Grounds for Dismissal.--On review the court shall

identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

John McQueen,

Plaintiff

 v.

C. Wingard, et al.,

Defendants.

:

:

:

:

:

Civil Action 2:11-cv-560

Judge Frost

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff McQueen, an inmate at the London Correctional Institution, brings this

prisoner civil rights action under 42 U.S.C. §1983. This matter is before the Magistrate

Judge for a Report and Recommendation on initial screening of the complaint pursuant

to 28 U.S.C. §1915A(a) and (b)1

 and 42 U.S.C. §1997e(c) to identify cognizable claims,

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(2) seeks monetary relief from a defendant who

is immune from such relief.

(c) Definition.--As used in this section, the term

"prisoner" means any person incarcerated or detained in any

facility who is accused of, convicted of, sentence for, or

adjudicated delinquent for, violations of criminal law or

terms and conditions of parole, probation, pretrial release, or

diversionary program.

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and to dismiss the 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. The Magistrate Judge finds that the

complaint fails to state a claim upon which relief may be granted and therefore

RECOMMENDS dismissal of the complaint.

The complaint alleges that plaintiff McQueen was placed on restriction. On June

8, 2011, defendant R. Chapman told McQueen that he could not buy anything from the

prison store because he was on restriction. McQueen had not yet been convicted of a

prison discipline infraction. Other inmates who had not yet been convicted of a prison

discipline infraction were allowed to by items from the prison store. The complaint

alleges that this is an equal protection violation. 

Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley

v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.

Pardus, 551 U.S. 89, 93127 S.Ct. 2197 (2007):

. . . Rule 8(a)(2) requires only "a short and plain statement of the claim

showing that the pleader is entitled to relief." Specific facts showing that

the pleader is entitled to relief are not necessary; the statement need only

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"'give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. , , 127

S.Ct. 1955, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Moreover, pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. at

94; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).

Prison inmates have not suffered the loss of a Fourteenth Amendment liberty

interest unless they are placed disciplinary confinement and denied good-time credits.

See, e.g., Sandin v. Conner, 515 U.S. 472, 485-86 (1995); Whitford v. Boglino, 63 F.3d 527, 532

(7th Cir. 1995). Here plaintiff’s complaint that he could not use the prison store on one

occasion does not amount to a deprivation that gives rise to a constitutional

deprivation. 

Plaintiff’s claim that defendants' actions denying him access to the prison store

on June 8, 2011 violated the equal protection of the laws is not actionable. To state such

a claim, “a claimant must allege both membership in a protected class and

discrimination on account of it.” Ruiz v. Hofbauer, 325 Fed.Appx. 427, 431 (6th Cir.

2009), citing Bartell v. Lohiser, 215 F.3d 550, 559 (6th Cir. 2000). “In other words, the suit

must allege action because of ‘some racial, or perhaps otherwise class-based,

invidiously discriminatory animus.’” Id. The complaint does not allege that McQueen is

a member of a protected class or that the refusal to give him access to the store was in

any way class based. Accordingly, it fails to state a claim for violation of equal

protection of the laws.

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

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for failure to state a claim under 42 U.S.C. §1983.

IT IS FURTHER ORDERED that the United States Marshal serve upon each

defendant named in part III, B and C of the form civil rights complaint a summons, a

copy of the complaint, and a copy of this Order. Defendants are not required to answer

the complaint unless later ordered to do so by the Court.

The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney

General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus,

OH 43215.

If any party objects to this Report and Recommendation, that party may, within

ten (10) days, file and serve on all parties a motion for reconsideration by the Court,

specifically designating this Report and Recommendation, and the part thereof in

question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. 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 waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge

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