IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ADAM CHASTEEN,

Plaintiff,

vs. Civil Action 2:12-cv-229 

 Judge Marbley

Magistrate Judge King

ROD JOHNSON, et al.,

Defendants.

OPINION AND ORDER

On March 26, 2012, the United States Magistrate Judge performed an

initial review of the Complaint and recommended that certain claims and

defendants be dismissed. Report and Recommendation, Doc. No. 9. This

matter is now before the Court on plaintiff’s objections to that

recommendation. Objection, Doc. No. 17.

Plaintiff first objects to the dismissal of any claim or defendant

at this early stage of the proceedings. However, federal law requires

that, under the circumstances presented in this action, the Court conduct

an initial screen of the complaint and sua sponte dismiss any claim that

“fails to state a claim on which relief may be granted . . . .” 28

U.S.C. § 1915(e)(2)(B)(ii). See also 28 U.S.C. § 1915A(b)(1). The

Magistrate Judge did not err in conducting that initial screen and

recommending dismissal of certain claims and defendants.

The Magistrate Judge recommended that plaintiff’s state law claims,

asserted against state officials and employees, be dismissed. Report and

Recommendation, p. 2. Plaintiff objects to that recommendation, arguing

that the Court may exercise supplemental jurisdiction over any state law

claims and that defendants are not entitled to qualified immunity as to

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those claims. The Court notes that, first, the Magistrate Judge did not

base her recommendation on the notion of qualified immunity. Moreover,

Ohio law makes clear that there is no cause of action against a state

employee unless and until the Ohio Court of Claims has considered the

issue of immunity under state law. See O.R.C. §9.86. Haynes v.

Marshall, 887 F.2d 700, 704 (6th Cir. 1989); Grooms v. Marshall, 142

F.Supp. 2d 927, 932 (S.D. Ohio 2001). The Magistrate Judge did not err

in this recommendation.

The Magistrate Judge next recommended that plaintiff’s claims

against certain defendants, and based solely on their supervisory

capacities, be dismissed. Report and Recommendation, pp. 2-3. As the

Magistrate Judge noted, liability on the part of a supervisor must be

based on “active unconstitutional behavior.” Combs v. Wilkinson, 315

F.3f 548, 554 (6th Cir. 2002), citing Bass v. Robinson, 167 F.3d 1041,

1048 (6th Cir. 1999). Plaintiff objects that the allegations of the

Complaint meet that standard. In particular, plaintiff argues that the

supervisors’ independent culpability is evidenced by their subordinates’

misconduct and by the supervisors’ alleged failure to investigate that

misconduct. Objection, p. 6. This Court disagrees. Plaintiff has not

alleged that the defendant supervisors “at least implicitly authorized,

approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.’” Combs, quoting Hays v. Jefferson County, 668 F.2d

869, 874 (6th Cir. 1982). Plaintiff also argues that, because he intends

to pursue injunctive relief,1 the claims against all supervisory

1

Plaintiff refers to the request in the Complaint that the Court enjoin

defendants and their agents from “further violating the rights, privileges and

immunities guaranteed to the Plaintiff under the Constitution of the United

States of America, including retaliation for his filing of this action.” 

Complaint, p. 29(B)(3).

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defendants named in their official capacities may not be dismissed. A

claim against a state employee named in his or her official capacity is,

in actuality, a claim against the State. Kentucky v. Graham, 473 U.S.

159, 165 (1985). However, a state is responsible under 42 U.S.C. § 1983

only when the “execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury . . . .” Monell v. Dept

of Soc. Servs., 436 U.S. 658, 694 (1978). The Complaint contains no

suggestion of a custom or policy of the State of Ohio or of any of the

individual supervisory defendants that may have resulted in the claimed

deprivation of plaintiff’s constitutional rights. In short, this Court

agrees that plaintiff’s claims based only on the supervisory capacity of

certain defendants must be dismissed.

The Magistrate Judge also recommended the dismissal of claims based

on alleged inadequacies of the proceedings relating to plaintiff’s

grievances, including allegedly insufficient investigation of plaintiff’s

complaints. Report and Recommendation, pp. 3-4. Plaintiff objects to

that recommendation, arguing that “[i]t is too early for the Court to

make this determination . . . .” Objection, p. 8. Again, the Court

disagrees. The Constitution of the United States does not guarantee an

effective prison grievance process. See, e.g., Walker v. Michigan Dept.

of Corrections, 126 Fed. Appx. 441, 2005 WL 742743, **3 (6th Cir. April

1, 2005). The fact that plaintiff believes that “[a]n adequate, unbiased

investigation of [his] grievance concerning the excessive use of force

by Defendants Marcus and Officer John Doe would’ve uncovered the

exculpatory [sic] evidence of the vicious, unprovoked assault against

Plaintiff,” id. at 8 (emphasis in original), does not state a separate

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constitutional claim, nor would such facts, even if proven, render the

officials charged with resolving plaintiff’s grievances liable for such

claimed “assault.” Plaintiff’s objection in this regard is without

merit.

The Magistrate Judge recommended that claims based on a cell

assignment with which plaintiff disagreed be dismissed. Report and

Recommendation, pp. 4-5. In his objections, plaintiff does not disagree

with the Magistrate Judge’s reasoning that inmates have no

constitutionally protected liberty interest in a particular cell

assignment. Objection, p. 9. The Magistrate Judge also recommended the

dismissal of plaintiff’s claim of retaliation in this regard, based on

plaintiff’s allegation that defendant Gilliam retaliated against him in

refusing to reverse the cell assignment “out of her dislike of

Plaintiff.” Report and Recommendation, p. 5 (quoting Complaint, ¶ 122). 

Plaintiff objects to this recommendation, apparently arguing that – taken

as a whole – the Complaint contains sufficient allegations of unlawful

retaliation on the part of defendant Gilliam. In an excess of caution,

this Court agrees and will permit the claim of retaliation on the part

of defendant Gilliam in connection with her alleged refusal to reverse

plaintiff’s cell assignment to proceed. The Court rejects, for the

reasons stated supra, plaintiff’s claim against defendant McConnell,

Gilliam’s supervisor, merely because of his supervisory capacity. The

Court likewise rejects plaintiff’s contention that the cell assignment

was unconstitutional because it posed a risk to his safety. Plaintiff

alleges only that he was falsely accused of a rule infraction that should

rightfully have been charged against his cell mate; that allegation does

not, in the estimation of this Court, amount to risk to plaintiff’s

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safety.

The Magistrate Judge recommended the dismissal of plaintiff’s claims 

of denial of due process in connection with his conviction by the prison

rules infraction board and consequent assignment to segregation. In

particular, the Magistrate Judge reasoned that placement in segregation

does not impose an atypical and significant hardship in relation to the

ordinary incidents of prison life, see Sandin v. Conner, 515 U.S. 472

(1995), and that plaintiff therefore was vested with no due process

rights in connection with those disciplinary proceedings. Report and

Recommendation, pp. 5-6. Plaintiff disagrees with that conclusion,

arguing that the “conditions for Plaintiff during his confinement in

segregation may have been atypical as well,” considering that inmates in

the general population “would’ve had better access to treatment and

care,” and considering that “many other” inmates – unlike plaintiff – 

were released from segregation early. Objection, p. 11. In the view of

this Court, plaintiff simply has not alleged conditions that amount to

the atypical and significant hardship in relation to the ordinary

incidents of prison life that would give rise to a constitutionally

protected liberty interest. Plaintiff also objects that his assignment

to segregation impacted his educational programming and the possibility

of his early release from prison. Id. However, plaintiff had no

constitutionally protected liberty interest in an educational program or

early release. See Bradley v. Evans, 229 f. 3d 1150 (Table), 2000 WL

1277229, *8 (6th Cir. Aug. 23, 2000). Under these circumstances, this

Court agrees that plaintiff has failed to state a claim for relief in

connection with the disciplinary proceedings against him.

In short, plaintiff’s Objection, Doc. No. 17, is DENIED in part and

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GRANTED in part. The Report and Recommendation, Doc. No. 9, is ADOPTED

AND AFFIRMED in part. Specifically, plaintiff’s claims under state law,

the claims against defendants Johnson, Mohr and Stanforth, the claims

based on the dispositions of plaintiff’s grievances, the claims against

defendant McConnell based on plaintiff’s cell assignments and the claims

of denial of due process in connection with plaintiff’s rules infractions

conviction are DISMISSED. The retaliation claim against defendant Gilliam

arising out of plaintiff’s cell assignment may proceed, as may

plaintiff’s claims of excessive force, denial of medical care and other

claims of retaliation.

 s/Algenon L. Marbley 

 Algenon L. Marbley

 United States District Judge 

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