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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--

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Ronald D. Leonard,

Plaintiff

 v.

Warden Shelton, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-1091

Judge Sargus

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff Ronald D. Leonard, an inmate at the Toledo 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

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

upon which relief may be granted; or

(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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cognizable claims, 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 portions of the complaint fail to state a claim upon which relief may be granted and

therefore RECOMMENDS partial dismissal of the complaint.

The complaint alleges that the Aryan Brotherhood have threatened to kill him,

and defendants have failed to take sufficient precautions to protect him demonstrating

deliberate indifference to his safety. A similar action is pending in this Court concerning

the Ross Correctional Institution. See case 2:11-cv-00152. Plaintiff seeks to have this case

consolidated with the earlier filed case.

The complaint also alleges that plaintiff's due process rights under the 5th and

14th Amendments were violated because of the absence of "some evidence" in a Rules

Infraction Board ("RIB") hearing. The complaint alleges that plaintiff has been placed in

the Limited Access Privileges Unit in the without either a conduct report or RIB

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hearing. Plaintiff also seeks an injunction ordering defendants to transfer him to the

Hocking Correctional Institution because he is in imminent danger of serious physical

injury.

Plaintiff has adequately stated a claim based on the Eighth Amendment;

however, his claim based on the 5th and 14th Amendments fails.

To state a procedural due process claim under §1983, a plaintiff must

demonstrate that he possessed a protected liberty or property interest,

and that he was deprived of that interest without due process. Hahn v.

Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). The question then becomes

which of prisoners’ conceivable liberty interests receive Due Process

Clause protection. In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293,

132 L.Ed.2d 418 (1995), the Supreme Court held that the only liberty

interest a prisoner may protect through §1983 is “freedom from restraint

which... imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.”

Williams v. Wilkinson, 51 Fed.Appx. 553, 556 (6th Cir. 2002). A prisoner has no

constitutional right to remain incarcerated in a particular prison or to be held in a

specific security classification. See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245 (1983); 

Moody v. Daggert, 429 U.S. 78, 88 n. 9 (1976); Meachum v. Fano, 427 U.S. 215, 224 (1976). 

Mere transfer from one prison to another – or refusal to transfer– does not by itself

implicate a liberty interest protected by the Due Process Clause. As a result, plaintiff's

claim that his placement in the Limited Access Privileges Unit violated his due process

rights fails to state a claim.

Plaintiff also seeks a preliminary injunction from the Court requiring the Ohio

Department of Rehabilitation and Correction to transfer him to Hocking Correctional

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Institution. In determining whether to issue a preliminary injunction, the Court must

consider the following four factors:

1. Whether the party seeking the injunction has shown a substantial

likelihood of success on the merits;

2. Whether the party seeking the injunction will suffer irreparable

harm absent the injunction;

3. Whether an injunction will cause others to suffer substantial harm;

and

4. Whether the public interest would be served by a preliminary

injunction.

Procter & Gamble v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir. 1996), citing Mason

County Medical Ass’n v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977).

Plaintiff has not alleged facts or presented evidence sufficient to warrant a

preliminary injunction in this case. To establish a substantial likelihood of success on

his Eighth Amendment claim, plaintiff must present evidence showing that he actually

faces a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). His

bare assertion that he is in danger and that the Aryan Brotherhood Gang will kill him is

unsupported even by any allegations that any threats have ever been made against him

by a gang member, or that he has taken some action which would lead this gang to

retaliate against him. Although he presented a prison grievance asking prison

authorities for protection against the Aryan Brotherhood Gang, he does not provide any

actual evidence of such danger. In the absence of any showing that Plaintiff actually

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faces a substantial risk of serious harm, the extraordinary relief Plaintiff seeks is not

warranted.

Once defendants have been served, counsel for defendants is DIRECTED to

inform the Court as to whether defendants object to having this case consolidated with

case number 2:11-cv-152. 

Accordingly, it is hereby RECOMMENDED that plaintiff's claim for deprivation

of his constitutional right to due process be DISMISSED for failure to state a claim

under 42 U.S.C. §1983 and that his motion for a preliminary injunction be DENIED.

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. 

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

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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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