IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

George H. Swogger,

Plaintiff

 v.

Sgt. Scott Yonak, et al.,

Defendants

:

:

:

:

:

Civil Action 2:11-cv-01051

Judge Frost

Magistrate Judge Abel

ORDER

Plaintiff George H. Swogger brings this action alleging that defendants violated

his Fourth, Eighth and Fourteenth Amendment rights. This matter is before the Court

on Magistrate Judge Abel's May 22, 2012 Report and Recommendation that defendants'

unopposed January 17, 2012 motion to dismiss (doc. 9) be granted. No objections were

filed to the Report and Recommendation.

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation and GRANTS defendants'

unopposed January 17, 2012 motion to dismiss. (Doc. 9.) 

As noted by the Magistrate Judge, the Prison Litigation Reform Act states in

pertinent part:

No Federal civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical injury.

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42 U.S.C. § 1997e(e). The Sixth Circuit requires that a plaintiff seeking relief based on

emotional damages must show that he also suffered a physical injury that is more than

de minimis to state an Eighth Amendment claim. Here, plaintiff fails to allege that he

suffered any physical injury. Jarriett v. Wilson, 162 Fed. Appx. 394, 400 (6th Cir. 2005).

Because Swogger has not alleged that he suffered a physical injury as required by

section 1997e(e), his Eighth Amendment claim is dismissed.

Although the defendants’ motion to dismiss did not address plaintiff’s remaining

claims for violations of his Fourth and Fourteenth Amendment rights and for

negligence, gross negligence, and negligent infliction of emotional stress, the Magistrate

Judge properly considered whether these claims failed to stated a claim upon which

relief can be granted. See 42 U.S.C. 1997e(c)(1) (“The court shall on its own motion . . .

dismiss any action brought with respect to prison conditions under section 1983 of this

title, . . . by a prisoner confined in any jail, prison, or other correctional facility if the

court is satisfied that the action is frivolous, malicious, fails to state a claim upon which

relief can be granted. . . .”).

The Magistrate Judge properly concluded that plaintiff’s claims based on

negligence fail. The Supreme Court has held that the Due Process Clause is not

implicated by a negligent act of an official causing unintended loss of or injury to life,

liberty, or property. Daniels v. Williams, 474 U.S. 327, 328 (1986). “Negligence does not

suffice to state an access to the courts violation under § 1983.” Garrison v. Corr, 26 F.

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Appx 410, 411 (6th Cir.2001) (citing Collins v. Harker Heights, Tex., 503 U.S. 115, 127–30

(1992)). 

Plaintiff’s claim based upon the Fourth Amendment also fails. The Supreme

Court has ruled that visual body cavity searches are constitutional. Bell v. Wolfish, 441

U.S. 520, 558-60 (1979). 

For the reasons stated above, the Court ADOPTS the Magistrate Judge's Report

and Recommendation and GRANTS defendants' unopposed January 17, 2012 motion to

dismiss (doc. 9). This action is hereby DISMISSED.

 /s/ Gregory L. Frost 

Gregory L. Frost 

United States District Judge

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