IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Benjamin Hendricks, :

 Plaintiff, : Case No. 2:11-cv-399

 v. : JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Ms. Wessell, et al., :

 Defendants. :

REPORT AND RECOMMENDATION

 Plaintiff, Benjamin Hendricks, an inmate currently housed at

the Frazier Health Center, has brought this action against

several state employees in their individual capacities pursuant

to 42 U.S.C. §1983 and state law. Defendants have filed a motion

to dismiss, which has been fully briefed. For the following

reasons, it is recommended that the Court grant in part and deny

in part the motion to dismiss as described below. 

I. The Complaint

The following facts are all taken from Mr. Hendricks’s

complaint. Because Mr. Hendricks is without counsel, his

complaint must be liberally construed. See Haines v. Kerner, 404

U.S. 519 (1972). 

On or around January 15, 2010, Mr. Hendricks was being

transported from the infirmary (apparently of the Pickaway

Correctional Institution) to a different part of the prison,

namely the segregation area. The medical staff and Mr. Hendricks

informed the corrections officer who transported him that he had

a prosthetic implant in his left shoulder and needed to be

handcuffed in front, and the corrections officer complied. 

When Mr. Hendricks arrived at the part of the prison where

he would be housed, Defendant Hazzard demanded an explanation for

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why Mr. Hendricks was handcuffed in front. The transporting

corrections officer explained that Mr. Hendricks had a prosthetic

implant in his left shoulder requiring front handcuffing. When

Defendant Hazzard prepared to uncuff Mr. Hendricks, Mr. Hendricks

asked Defendant Hazzard to remove the latex gloves he was wearing

because Mr. Hendricks had a latex allergy. At that point

Defendant Hazzard became “verbally abusive and extremely hostile

for no apparent reason.” Then, without justification, Defendant

Hazzard “grabbed plaintiff by the left arm and jerked on it . . .

and threw the plaintiff in a holding cell causing extreme pain

and a ‘popping’ sound to issue from his left shoulder.” Mr.

Hendricks informed Defendant Hazzard that he was having a medical

emergency and asked for a nurse. Defendant Hazzard initially

refused and then ultimately called a nurse. 

As a result of Defendant Hazzard’s actions, Mr. Hendricks

was taken to a medical center by ambulance and x-rayed. While

the results of the initial x-ray were inconclusive, on February

15, 2010, approximately a month later, Mr. Hendricks’s shoulder

pain became so bad that he was sent back to the medical center

for more testing. At that time, the doctors determined that the

implant had become loose and required surgery. When he was seen

in March, 2010 for the surgery clinic, he was informed that his

shoulder needed to be fused together, creating a permanent

disability. 

Mr. Hendricks filed several grievances to complain about

Defendant Hazzard’s conduct in injuring his shoulder. He first

filed an Informal Complaint Resolution, which was forwarded to

the Acting Inspector of Institutional Services, but he received

no answer. Around March 19, 2010, Mr. Hendricks filed another

grievance regarding the same incident, this time directed to

Defendant Wessell. Mr. Hendricks received no answer to this

grievance either. Sometime around the end of May 2010, Mr.

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Hendricks had a conversation with the case manager at the health

center regarding the incident with Defendant Hazzard, and the

case manager informed him that he had spoken with Defendant

Lawrence, who was supposed to speak with Defendant Hazzard about

the incident. 

A few weeks later, around June 18, 2010, Defendant Hazzard

destroyed Mr. Hendricks’s legal materials that related to a

separate action, along with information related to that action. 

Mr. Hendricks then filed several grievances relating to

Defendant Hazzard’s conduct in destroying the legal materials. 

First, he filed a complaint on June 19, 2010 to Defendant Harris

about the incident. Next, he filed a complaint on June 22, 2010

to Defendant Lawrence about the same incident. Mr. Hendricks

received no direct answer to those complaints. However, sometime

after the incident, Defendant Lt. John Doe came to investigate

the incident and saw Mr. Hendricks’s property “all over the

place” and “refused to address the incident or review the cameras

stating he ‘had seen worse.’” 

In addition to destroying Mr. Hendricks’s legal materials,

Defendant Hazzard also harassed Mr. Hendricks by, among other

actions, threatening to harm him physically if he pursued legal

action against Defendant Hazzard. 

On December 1, 2010, Mr. Hendricks complained about the

problems with Defendant Hazzard by writing a letter that was

ultimately forwarded to Defendant Harris. Around January 13,

2011, Defendant Harris confronted Mr. Hendricks “in a very

hostile manner” and “refused to address/entertain an ‘incident

with an officer’ which was the reason for the letter.” On or

around the same day, January 13, 2011, Mr. Hendricks filed a

complaint to the warden and he received an “unsatisfactory”

answer. Mr. Hendricks then sent a request to Defendant Lawrence

for a Notification of Grievance, and Defendant Lawrence refused

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to issue either a Notification of Grievance or a Disposition of

Grievance. Rather, Defendant Lawrence informed Mr. Hendricks

that he needed to file an appeal to the Chief Inspector. Mr.

Hendricks did so, and on or around March 8, 2011, he received

notice that the Chief Inspector would not address the issue

unless a Notification of Grievance and Disposition of Grievance

were provided. 

II. Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not

be granted if the complaint contains “enough facts to state a

claim to relief that is plausible on its face." Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded factual

allegations must be taken as true and be construed most favorably

toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). 

Rule 8(a) admonishes the Court to look only for a “short and

plain statement of the claim,” however, rather than requiring the

pleading of specific facts. Erickson v. Pardus, 551 U.S. 89

(2007). 

A 12(b)(6) motion to dismiss is directed solely to the

complaint and any exhibits attached to it. Roth Steel Products v.

Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits

of the claims set forth in the complaint are not at issue on a

motion to dismiss for failure to state a claim. Consequently, a

complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6)

only if there is no law to support the claims made, or if the

facts alleged are insufficient to state a claim, or if on the

face of the complaint there is an insurmountable bar to relief. 

See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.

1978). Rule 12 (b)(6) must be read in conjunction with Fed. R.

Civ. P. 8(a) which provides that a pleading for relief shall

contain "a short and plain statement of the claim showing that

the pleader is entitled to relief." 5A Wright & Miller, Federal

Practice and Procedure §1356 (1990). The moving party is

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entitled to relief only when the complaint fails to meet this

liberal standard. Id.

On the other hand, more than bare assertions of legal

conclusions is required to satisfy the notice pleading standard. 

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th

Cir. 1988). "In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements

to sustain a recovery under some viable legal theory." Id.

(emphasis in original, quotes omitted).

"[w]e are not holding the pleader to an impossibly high

standard; we recognize the policies behind rule 8 and

the concept of notice pleading. A plaintiff will not

be thrown out of court for failing to plead facts in

support of every arcane element of his claim. But when

a complaint omits facts that, if they existed, would

clearly dominate the case, it seems fair to assume that

those facts do not exist."

Id. It is with these standards in mind that the motion to dismiss

will be decided.

III. Discussion

A. Exhaustion of Remedies

Defendants first seek dismissal on the grounds that Mr.

Hendricks did not exhaust his administrative remedies as to his

deliberate indifference or retaliation claims. One section of

the Prison Litigation Reform Act (PLRA) provides that “[n]o

action shall be brought with respect to prison conditions under

[42 U.S.C. §1983] or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are

exhausted.” 42 U.S.C. §1997e(a). However, the Supreme Court

held “that failure to exhaust is an affirmative defense under the

PLRA, and that inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Jones v. Bock, 549

U.S. 199, 216 (2007). Accordingly, a plaintiff’s complaint is

only subject to dismissal for failure to exhaust if the

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allegations of the complaint demonstrate a failure to exhaust

that would bar the requested relief. Id. at 215.

Here, Defendants argue that Mr. Hendricks did not comply

with Ohio’s grievance requirements as to his deliberate

indifference or retaliation claims. In support, they cite to the

paragraphs of Mr. Hendricks’s complaint that allege certain

actions he took to seek redress for his alleged injuries. In

particular, they state that Mr. Hendricks did not file a formal

grievance. However, in support of that statement, they merely

cite an absence of allegations of any formal grievance. 

Because failure to exhaust is an affirmative defense, Mr.

Hendricks was not required to plead the steps he took to exhaust

his administrative remedies. Neither can a failure to exhaust be

inferred based on the fact that Mr. Hendricks did allege that he

took some steps to seek administrative remedies. Defendants, in

essence, seek to have the Court apply one of the principles of

contract interpretation, which states that the express mention of

one thing excludes all others, to interpret the complaint. 

However, doing so would penalize Mr. Hendricks for omitting

elements of an affirmative defense that he had no duty to plead. 

Defendants have cited to no allegation that affirmatively alleges

that Mr. Hendricks failed to take the steps necessary to exhaust

his administrative remedies. Therefore, failure to exhaust is

not a proper basis for dismissing his complaint. 

B. Retaliation Claim

Next, Defendants seek dismissal of the complaint for failure

to state a retaliation claim. In particular, Defendants assert

that Mr. Hendricks failed to allege that the adverse action taken

against him was motivated at least in part by protected conduct

engaged in by Mr. Hendricks. In order to state a claim for

retaliation, a plaintiff must establish that adverse action was

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

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Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010). At the

summary judgment stage, circumstantial evidence, such as

“disparate treatment of similarly situated individuals” or “the

temporal proximity between the prisoner’s protected conduct and

the official’s adverse action,” can suffice to establish

retaliatory motive. Id. at 475-76 (citations omitted). While

the Court of Appeals has expressed its reluctance to find that

temporal proximity alone establishes retaliatory motive, id. at

476, at the motion to dismiss stage, “temporal proximity between

the protected conduct and the adverse action by the state actor

‘alone may be significant enough to constitute indirect evidence

. . . to create an inference of retaliatory motive.’” Paige v.

Coyner, 614 F.3d 273, 283 (6th Cir. 2010) (citation and internal

quotation omitted). In addition, alleged statements can

constitute direct evidence of retaliatory motive. Hill, 630 F.3d

at 476. Ultimately the question is whether the complaint alleges

facts that, if taken as true, could establish that the defendant

was acting with a retaliatory motive. Paige, 614 F.3d at 283. 

The protected conduct at issue here is Mr. Hendricks’s First

Amendment right to file non-frivolous grievances in response to

mistreatment by Defendant Hazzard. See Herron v. Harrison, 203

F.3d 410, 415 (6th Cir. 2000). The adverse action which Mr.

Hendricks has alleged is that Defendant Hazzard destroyed his

legal material that was part of another case. In support of his

claim that this was retaliatory, Mr. Hendricks has alleged a

close temporal proximity between the time when the case manager

informed him that someone would be speaking with Defendant

Hazzard about the incident and the time when Defendant Hazzard

destroyed his legal material. In addition, Mr. Hendricks has

alleged that Defendant Hazzard threatened to harm him physically

if he pursued legal action against Defendant Hazzard. While this

is not direct evidence of Defendant Hazzard’s motivation for

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destroying Mr. Hendricks’s legal materials, it plausibly

demonstrates Defendant Hazzard’s desire to deter Mr. Hendricks

from pursuing complaints against Defendant Hazzard. Accordingly,

Mr. Hendricks has alleged facts sufficient to plead the elements

of his retaliation claim. 

C. Tacit Authorization Claims

Third, Defendants argue that Mr. Hendricks fails to state a

claim for tacit authorization of actions violating his rights

under the Eighth and First Amendments. “To state a claim under

§1983, a plaintiff must allege the violation of a right secured

by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting

under color of state law.” Salehpour v. University of Tennessee,

159 F.3d 199, 206 (6th Cir. 1998) (internal quotations and

citations omitted). Where individual defendants are alleged to

be liable based on the acts of others who they supervise, there

must be a “direct causal link between the acts of individual

[employees] and the supervisory defendants.” Hays v. Jefferson

County, 668 F.2d 869, 872 (6th Cir. 1982); see also Doe ex rel.

Doe v. City of Roseville, 296 F.3d 431, 440-41 (6th Cir. 2002)

(dismissing claims against individual defendants where there was

no causal connection between the action or inaction of the

individual defendant and the deprivation of a Constitutional

right). 

In light of this requirement of causation, a mere failure to

respond to a grievance does not state a claim under §1983 where

that non-response did not cause or contribute to the

constitutional violation. “The ‘denial of administrative

grievances or the failure to act’ by prison officials does not

subject supervisors to liability under § 1983.” Grinter v.

Knight, 532 F.3d 567, 576 (6th Cir. 2008) (citations omitted)

(also noting that “an expectation of receiving process is not,

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without more, a liberty interest protected by the Due Process

Clause.”); see also Argue v. Hofmeyer, 80 Fed. Appx. 427, 430

(6th Cir. 2003) (holding that the plaintiff failed to state a

claim concerning the alleged interference with his ability to

file grievances “because there is no inherent constitutional

right to an effective prison grievance procedure”). An

official’s failure to act may rise to the level of a

constitutional violation where that failure is an abandonment of

“the specific duties of his position . . . in the face of actual

knowledge of a breakdown in the proper workings of the

department,” that “result[s] directly in a violation of the

plaintiff’s” Constitutional rights. Hill v. Marshall, 962 F.2d

1209, 1213 (6th Cir. 1992) (involving an official who repeatedly

failed to review and respond to the medical needs of the prison

population). However, there is no liability where officials knew

of alleged violations against the plaintiff “but failed to act

when the situation was in their control.” Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999) (holding that allegations that

the defendants had denied the plaintiff’s administrative

grievances and failed to remedy the alleged retaliatory behavior

did not rise to the level of a constitutional violation). 

Mr. Hendricks has asserted tacit authorization claims

against Defendants Wessell, Doe, Harris, and Lawrence. These

claims are based on these individuals’ responses or failures to

respond to complaints about either the alleged conduct of

Defendant Hazzard on January 15, 2010 or his alleged retaliatory

conduct which occurred on June 18, 2010. The allegations against

the individual defendants will be considered in turn. 

Mr. Hendricks’s only claim against Defendant Wessell is that

around March 19, 2010, Mr. Hendricks filed a grievance against

Defendant Hazzard with Defendant Wessell but she failed to

respond to it. That grievance addressed only the January 15,

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2010 incident. There are no allegations that at the time Mr.

Hendricks complained to Defendant Wessell, he was concerned about

any continuing conduct or that his medical needs were not being

cared for adequately. Unlike the defendants in Hicks v. Frey,

who had daily communications about the ongoing medical needs of

the plaintiff that were not being adequately addressed and who

knew that the conditions of his confinement were inadequate, see

992 F.2d 1450, 1457 (6th Cir. 1993), Defendant Wessell received a

single complaint about an isolated incident that had already

occurred. Mr. Hendricks does not allege that her failure to

respond to this grievance caused some future constitutional

violation. Rather, this appears to be a straightforward “denial

of administrative grievances” or “failure to act” that does not

state a claim for liability under §1983. Grinter, 532 F.3d at

576. Accordingly, the claim against Defendant Wessell should be

dismissed. 

Mr. Hendricks alleges that, following the June 18, 2010

incident where Defendant Hazzard allegedly destroyed Mr.

Hendricks’s legal materials, Defendant Lt. John Doe came to

investigate that incident. Mr. Hendricks alleges that Defendant

Doe “saw the plaintiff’s property all over the place and refused

to address the incident or review the cameras stating he ‘had

seen worse.’” The complaint does not contain allegations

sufficient to demonstrate that Defendant Doe’s conduct was

motivated by Mr. Hendricks’s protected conduct, so there is no

claim that Defendant Doe’s actions or inactions themselves

constituted retaliation. See Thaddeus-X v. Blatter, 175 F.3d

378, 394-95 (6th Cir. 1999) (setting forth the elements of a

retaliation claim: (1) plaintiff engaged in protected conduct;

(2) an adverse action was taken against him that would deter a

person of ordinary firmness from continuing to engage in that

conduct; and (3) the adverse action was motivated at least in

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part by the protected conduct). Neither is there any allegation

that Defendant Doe’s investigation caused Defendant Hazzard to

destroy Mr. Hendricks’s legal materials. Indeed, that was the

very conduct that Defendant Doe was investigating. There are no

allegations that Defendant Doe was personally involved in any

allegedly unconstitutional action. Once again, this appears to

be a straightforward “denial of administrative grievances” or

“failure to act” that does not state a claim for liability under

§1983. Grinter, 532 F.3d at 576. Accordingly, the claim against

Defendant Lt. John Doe should be dismissed. 

Mr. Hendricks alleges two instances of action or inaction by

Defendant Harris, both of which relate to her response or lack of

response to Mr. Hendricks’s complaints about Defendant Hazzard’s

alleged retaliatory actions. First, Mr. Hendricks alleges that

he filed a complaint to Defendant Harris on June 19, 2010, the

day after Defendant Hazzard supposedly destroyed Mr. Hendricks’s

legal materials. Mr. Hendricks alleges that Defendant Harris did

not respond to that grievance. Second, Mr. Hendricks alleges

that he wrote a letter about other “incidents of harassment from

Defendant Hazzard ranging from a middle finger to physical

threats if legal action against him is pursued” as well as other

problems, and that the letter was forwarded to Defendant Harris. 

He then alleges that on January 13, 2011, Defendant Harris

“confronted the plaintiff in a very hostile manner,” and “refused

to address/entertain an ‘incident with an officer’ which was the

reason for the letter . . . .” All of these allegations also

involve “denial[s] of administrative grievances” or “failure[s]

to act” that do not state a claim for liability under §1983. 

Grinter, 532 F.3d at 576. Accordingly, the claim against

Defendant Harris should be dismissed. 

Finally, Mr. Hendricks alleges various instances where

Defendant Lawrence either failed to respond to his grievances or

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responded inadequately. The allegations are very similar in

substance to the ones discussed above. For example, Mr.

Hendricks filed an “Informal Complaint Resolution” relating to

the January 15, 2010 incident which was sent to the Acting

Inspector of Institutional Services but went unanswered. 

Although Defendant Lawrence is the Inspector (rather than the

Acting Inspector) of Institutional Services, this allegation

could be directed toward his failure to respond to that

grievance. However, as discussed above, such an allegation,

without more, does not state a claim for liability under §1983. 

Mr. Hendricks also alleges that at the end of May 2010, he had a

conversation with the case manager at the health center about the

incident with Defendant Hazzard and the case manager “informed

plaintiff that he had spoke with defendant Lawrence who was

suppose [sic] to speak with defendant Hazzard.” This allegation,

while relevant to Mr. Hendricks’s retaliation claim against

Defendant Hazzard, does not allege any misconduct by Defendant

Lawrence. 

Next, Mr. Hendricks alleges that Defendant Hazzard destroyed

his legal materials shortly after that conversation, that Mr.

Hendricks filed a grievance to Defendant Lawrence about that

misconduct, and that he again received no answer. This

allegation is substantively identical to the first allegation

against Defendant Harris. Once again, this failure to respond to

a grievance does not rise to the level of a constitutional

violation. Lastly, Mr. Hendricks alleges that he sent a request

to Defendant Lawrence for a Notification of Grievance and that

she responded that he needed to file an Appeal to the Chief

Inspector. However, the Chief Inspector informed Mr. Hendricks

that the issue would not be addressed unless Mr. Hendricks

submitted a Notification of Grievance and Disposition of

Grievance. This seems to be a claim that Defendant Lawrence

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wrongfully denied him a Notification of Grievance necessary to

pursue his appeal and to seek further relief through the prison

grievance process. 

Again, non of these additional incidents state a

constitutional claim. They also fail to state a claim of a

violation of the right to access the courts because Mr. Hendricks

has not alleged frustration of a particular legal claim. See

Barnett v. Luttrell, 414 Fed. Appx. 784, 787 (6th Cir. 2011)

(holding that allegations that a defendant did not properly deal

with the plaintiff’s grievances and falsified various information

in relation to the grievances failed to state a claim because to

state a violation of a prisoner’s First Amendment right to access

the courts “a prisoner must allege that a prison official’s

conduct caused him an actual injury, such as frustration of a

particular legal claim.”) (citation omitted). There are no

allegations that transform this alleged misconduct into a

constitutional violation. Accordingly, the claim against

Defendant Lawrence should be dismissed. 

D. State Law Claims

Defendants seek dismissal of Mr. Hendricks’s state law

claims of assault and battery, menacing, harassment, and slander

against Defendant Hazzard. Under O.R.C. §9.86 no such claims may

be maintained against state officials unless and until it has

been determined that those officials acted manifestly outside the

scope of their employment or acted with malicious purpose, in bad

faith, or in a wanton and reckless manner. O.R.C. §9.86. That

determination cannot be made by a federal court, but is reserved

to the Ohio Court of Claims under O.R.C. §2743.02(F), which

reads:

A civil action against an officer or employee, as

defined in section 109.36 of the Revised Code, that

alleges that the officer's or employee's conduct was

manifestly outside the scope of the officer's or

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employee's employment or official responsibilities, or

that the officer or employee acted with malicious

purpose, in bad faith, or in a wanton or reckless

manner shall first be filed against the state in the

court of claims, which has exclusive, original

jurisdiction to determine, initially, whether the

officer or employee is entitled to personal immunity

under section 9.86 of the Revised Code and whether the

courts of common pleas have jurisdiction over the civil

action. . . . 

Accordingly, regarding claims arising under Ohio law such as the

ones made by Mr. Hendricks, “Ohio law requires that, as a

condition precedent to asserting a cause of action against a

state employee in his individual capacity, the Court of Claims

must first determine that the employee is not entitled to the

immunity provided for in Revised Code section 9.86.” Haynes v.

Marshall, 887 F.2d 700, 705 (6th Cir. 1989); see also Nuovo v.

The Ohio State University, 726 F. Supp. 2d 829, 848 (S.D. Ohio

2010) (Frost, J.). Mr. Hendricks alleges that Defendant Hazzard

is a state employee and does not allege that the Ohio Court of

Claims has made a determination under §2743.02(F). Accordingly,

his state law claims should be dismissed without prejudice. 

E. Qualified Immunity

Defendants also contend that they are protected by the

doctrine of qualified immunity. Public officials sued under 42

U.S.C. §1983 in their individual capacities may raise “qualified

immunity” as a defense to the suit. This doctrine “protects

government officials ‘from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Conversely,

“[i]f the law was clearly established, the immunity defense

should fail, since a reasonably competent public official should

know the law governing his conduct.” Harlow, 457 U.S. at 818-19.

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The Court of Appeals applies “a two-prong test to qualified

immunity claims, determining ‘whether the facts that a plaintiff

has ... shown make out a violation of a constitutional right,’

and ‘whether the right at issue was “clearly established” at the

time of [the] defendant's alleged misconduct.’” Barker v.

Goodrich, 649 F.3d 428, 433 (6th Cir. 2011) (citing Pearson, 555

U.S. at 232 (2009) (additional citations omitted)). Courts may

address these two prongs in the order that makes sense in light

of the circumstances. Id. 

“Preferably, the claimant will make factual allegations in

his complaint which are sufficient to establish a violation of

clearly established law before the qualified immunity issue

arises.” Noble v. Schmitt, 87 F.3d 157, 161 (6th Cir. 1996)

(citation omitted). “If, however, the claimant has not done so,

and the defendant then invokes qualified immunity, the court must

allow the claimant the opportunity to present additional facts

which ‘show not only violations of constitutional rights, but

also that these rights were so clearly established when the acts

were committed that any officer in the defendant's position,

measured objectively, would have clearly understood that he was

under an affirmative duty to have refrained from such conduct.’”

Id. (citations omitted). When the defense is raised by motion,

“the district court must decide the purely legal question of

whether the law at the time of the alleged action was clearly

established in favor of the plaintiff.” Dominique v. Telb, 831

F.2d 673 (6th Cir. 1987). The Court's decision on this issue

should indicate the law as the Court perceives it and the basis

for its conclusion that the constitutional rights at issue were

clearly established.

In order for a constitutional right to be clearly

established, it is necessary that a decision of the Supreme

Court, the highest Court of the state where the case arose, or a

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Court of Appeals announce the constitutional principle. See

Robinson v. Bibb, 840 F.2d 349 (6th Cir. 1988). While, a single,

idiosyncratic decision from a Court of Appeals from another

circuit is not sufficient to establish clearly a constitutional

right, a wide variety of sources can provide defendants with fair

warning even if they are not authoritative. Barker v. Goodrich,

649 F.3d 428, 436 (6th Cir. 2011) (comparing Davis v. Holly, 835

F.2d 1175 (6th Cir. 1987) with Pearson, 555 U.S. at 244-45

(finding a doctrine clearly established based on precedent from

other circuits)). The inquiry as to whether the right was

clearly established, “must be undertaken in light of the specific

context of the case, not as a broad general proposition.” 

Moldowan v. City of Warren, 578 F.3d 351, 375 (6th Cir. 2009). 

But, “officials can still be on notice that their conduct

violates established law even in novel factual circumstances.” 

Hope v. Pelzer, 536 U.S. 730, 741 (2002). “The relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.” 

Moldowan, 578 F.3d at 375. If so, qualified immunity is

unavailable. See Dickerson v. McClellan, 101 F.3d 1151, 1157

(6th Cir. 1996). 

Here, the only claims that should survive the previous

challenges raised in Defendants’ motion to dismiss are Mr.

Hendricks’s §1983 claims against Defendant Hazzard for (1)

misusing force in disregard of Mr. Hendricks’s known medical

issues in violation of the Eighth Amendment and (2) destroying

legal material in retaliation for Mr. Hendricks’s exercise of his

First Amendment right to file non-frivolous grievances. While

Defendants do not specifically discuss the Eighth Amendment claim

in the context of their qualified immunity argument, they argue

that Mr. Hendricks has not stated any constitutional claim as to

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any Defendant. Accordingly, Mr. Hendricks’s Eighth Amendment

claim is discussed below. 

“The Eighth Amendment prohibition on cruel and unusual

punishment protects prisoners from the ‘unnecessary and wanton

infliction of pain.’” Barker, 649 F.3d at 434 (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986) (internal quotation marks

omitted)). Mr. Hendricks has asserted that Defendant Hazzard

violated the Eighth Amendment by misusing force and disregarding

his known medical issues. Regarding the alleged misuse of force,

whether a prison official’s conduct violates the Eighth Amendment

depends on “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically

to cause harm.” Barker, 649 F.3d at 434 (quoting Hudson v.

McMillian, 503 U.S. 1, 7 (1992) (internal quotations omitted)). 

In addition, the conduct of prison officials violates the Eighth

Amendment when it exhibits “deliberate indifference . . . to a

prisoner’s serious medical needs.” Thompson v. County. of

Medina, 29 F.3d 238, 242 (6th Cir. 1994) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). A prison official is

deliberately indifferent “only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.” Hall v.

Warren, No. 09-2400, 2011 WL 4916703, *8 (6th Cir. Oct. 18, 2011)

(citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). 

Taking the allegations in the complaint as true, Defendant

Hazzard knew that Mr. Hendricks had a prosthetic implant in his

left shoulder. Nevertheless, he jerked on Mr. Hendricks’s left

arm with such force that it loosened the implant and required

surgery that would create a permanent disability, as well as

inflicting severe pain. According to the complaint, Defendant

Hazzard did so without any need to maintain or restore

discipline, but rather did so unnecessarily and apparently in

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order to inflict pain. Such conduct, if it occurred, would

violate the Eighth Amendment’s prohibition on cruel and unusual

punishment. See, e.g., Carlton v. Turner, No. 05-1009, 2006 WL

955886, *3 (6th Cir. April 12, 2006) (citations omitted). 

Furthermore, Mr. Hendricks’s right to be free from the

unnecessary and wanton infliction of pain when he was handcuffed

and not resisting was clearly established before 2010 when the

conduct allegedly occurred. See, e.g., Hudson v. McMillian, 503

U.S. 1, 9 (1992). The Supreme Court in Hudson explained the law

as follows: 

When prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency

always are violated. This is true whether or not

significant injury is evident. Otherwise the Eighth

Amendment would permit any physical punishment, no

matter how diabolic or inhuman, inflicting less than

some arbitrary quantity of injury. Such a result would

have been as unacceptable to the drafters of the Eighth

Amendment as it is today. 

Id. (considering conduct by prison guards punching and kicking

the plaintiff while he was handcuffed and not resisting and

holding that “the blows directed at [the plaintiff], which caused

bruises, swelling, loosened teeth, and a cracked dental plate,

are not de minimis for Eighth Amendment purposes”). Accordingly,

it would have been clear to a reasonable officer in Defendant

Hazzard’s circumstances that his conduct was unlawful in the

situation he confronted. 

The remaining claim at issue is Mr. Hendricks’s claim that

Defendant Hazzard destroyed his legal materials in retaliation

for Mr. Hendricks’s grievances about his mistreatment in

violation of the First Amendment. In order to plead a

retaliation claim under §1983, a plaintiff must allege that (1)

the plaintiff engaged in protected conduct; (2) an adverse action

was taken against him that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) the

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adverse action was motivated at least in part by the protected

conduct. See Thaddeus-X v. Blatter, 175 F.3d 378, 394-95 (6th

Cir. 1999). The protected conduct alleged here is Mr.

Hendricks’s First Amendment right to file non-frivolous

grievances about mistreatment by Defendant Hazzard, and Mr.

Hendricks alleges that Defendant Hazzard took adverse action

against him by destroying his legal material in retaliation for

exercising his First Amendment rights. 

First, Mr. Hendricks alleged that he filed several

complaints about Defendant Hazzard’s conduct violating his Eighth

Amendment rights. This Circuit has held that “the filing of nonfrivolous grievances is protected conduct under the First

Amendment.” Scott v. Stone, 254 Fed. Appx. 469, 472 (6th Cir.

2007) (citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.

2000) (“An inmate has an undisputed First Amendment right to file

grievances against prison officials on his own behalf.”)). 

Taking Mr. Hendricks’s allegations as true, these grievances were

not frivolous and therefore, the filing of the grievances was

protected conduct under the First Amendment. 

Second, Mr. Hendricks alleged that in retaliation for those

grievances, Defendant Hazzard destroyed Mr. Hendricks’s legal

materials and subsequently threatened to physically harm him. 

The second element of a retaliation claim is satisfied if a

plaintiff alleges an adverse action that “would deter a person of

ordinary firmness from continuing to engage in [the protected]

conduct.” Thaddeus-X, 175 F.3d at 394-95. “[I]n most cases, the

question of whether an alleged retaliatory action poses a

sufficient deterrent threat to be actionable will not be amenable

to resolution as a matter of law . . . . Thus, unless the

claimed retaliatory action is truly ‘inconsequential,’ the

plaintiff's claim should go to the jury.” Bell v. Johnson, 308

F.3d 594, 603 (6th Cir. 2002) (citation omitted). In Bell, the

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Court of Appeals held that confiscation of the plaintiffs’ legal

papers and medical diet snacks in retaliation for a lawsuit he

filed was sufficient to meet his burden of demonstrating an

adverse action that would deter a person of ordinary firmness

from engaging in the protected conduct. Id. at 605. The Court

of Appeals further noted several cases from other circuits

holding that confiscating an inmate’s legal papers and other

property constitutes sufficient injury to support a First

Amendment retaliation claim. Id. at 604. 

Finally, as discussed in more detail in section B above, Mr.

Hendricks has alleged facts establishing that adverse action was

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

Hill v. Lappin, 630 F.3d 468, 475 (6th Cir. 2010). 

As early as 1994, “[i]t [had been] well recognized that it

is constitutionally impermissible to terminate even a unilateral

expectation of a property interest in a manner which violates

rights of expression protected by the First Amendment.” Bell,

308 F.3d at 609 (citing Newsom v. Norris, 888 F.2d 371 (6th Cir.

1989) (holding that a failure to reappoint a prisoner to a

position as inmate legal advisors was “impermissible, even where

there was no cognizable expectation of continued service, if

reappointment was denied because of the individual’s exercise of

First Amendment rights”)). Thus, “a reasonable official would

have been aware that, under the Gibbs and Newsom standard,

conducting harassing cell searches and confiscating an inmate’s

legal papers and medical dietary supplements in retaliation for

the inmate’s exercise of his right of access to the courts would

give rise to constitutional liability,” because those actions

were comparable in seriousness “to the warden’s refusal to

reappoint a prisoner as an inmate legal advisor that was at issue

in Newsom, 888 F.2d 371.” Bell, 308 F.3d at 612. Likewise, the

destruction of legal materials here is comparable in seriousness

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to the warden’s refusal to reappoint a prisoner as an inmate

legal advisor. Accordingly, Mr. Hendricks’s right to be free

from retaliation of the type alleged in the complaint was clearly

established by 2010 when the initial retaliatory conduct was

alleged to have taken place. 

IV. Recommended Order

It is therefore recommended that Defendants’ Motion to

Dismiss (#10) be granted in part and denied in part as follows. 

Defendants’ Motion should be granted as to Defendant Wessell,

Defendant Lt. Doe, Defendant Harris, and Defendant Lawrence. In

addition, Defendants’ Motion should be granted as to the state

law claims against Defendant Hazzard, and those claims should be

dismissed without prejudice. Defendants’ Motion should be denied

as to the remaining claims against Defendant Hazzard. 

V. Procedure on Objections

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

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Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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