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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARVIN E. MYERS, 

 

 Plaintiff, 

 v. Civil Action 2:12-cv-255 

 Judge Graham 

 Magistrate Judge King 

DeCARLO BLACKWELL, et al., 

 Defendants. 

REPORT AND RECOMMENDATION 

 

 Plaintiff, a state inmate, brings this civil rights action under 

42 U.S.C. § 1983, claiming a denial of his rights under the Eighth and 

Fourteenth Amendments to the United States Constitution in connection 

with the alleged loss of plaintiff’s television and size 20 shower 

shoes. This matter is now before the Court on defendants’ motions to 

dismiss, Doc. Nos. 23, 38. 

 The Amended Complaint alleges that, following his transfer from 

the Chillicothe Correctional Institution to the London Correctional 

Institution {“LoCI”], plaintiff discovered that his RCA color TV and 

shower shoes were not included in his property. Amended Complaint, 

Doc. No. 12, PAGEID #102. Defendant Blackwell, a corrections officer 

at LoCI, allegedly failed to properly investigate plaintiff’s 

complaint but instead charged plaintiff with a rule infraction. Id.

Plaintiff also alleges that, without shower shoes, he is “subjected to 

the possibilities of contracting staph” when he showers in communal 

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showers. Id., PAGEID #106. Also named as defendants are the Director 

of the Ohio Department of Rehabilitation and Correction [“ODRC”], 

LoCI’s warden and deputy warden, LoCI’s institutional inspector, 

ODRC’s chief inspector and assistant chief inspector, a Major at LoCI, 

LoCI’s Health & Safety Director and LoCI’s Health Care Administrator. 

The Amended Complaint seeks declaratory, injunctive and monetary 

relief. 

 All defendants have moved to dismiss for failure to state a claim 

upon which relief can be granted. A complaint may be dismissed for 

failure to state a claim if “‘it fails to 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. 544, 555 (2007) (quoting 

Conley v. Gibson, 355 U.S. 41, 45-46(1957)). Although a complaint need 

not contain detailed factual allegations, a plaintiff's allegations 

must include more than labels and conclusions. Twombly, 550 U.S. at 

555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals 

of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice”). A court must determine whether the 

complaint contains “enough facts to state a claim to relief that is 

plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Ashcroft, 556 U.S. at 678. Although the 

plausibility standard is not equivalent to a “‘probability 

requirement,’ ... it asks for more than a sheer possibility that a 

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 

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556). “[W]here the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint has 

alleged -- but it has not ‘show[n]’ -- that the pleader is entitled to 

relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a) (2)). 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 

the violation of a right secured by the federal Constitution or laws 

and must show that the deprivation was committed by a person acting 

under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); 

Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996). 

Because § 1983 is a method for vindicating federal rights, not itself 

a source of substantive rights, the first step in an action under § 

1983 is to identify the specific constitutional right allegedly 

infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994). 

Plaintiff does not allege that any of the named defendants stole 

his property; rather, plaintiff appears to allege that, by their 

failure to properly investigate the loss of plaintiff’s property and 

to replace that property, defendants have subjected plaintiff to a 

denial of his right to due process under the Fourteenth Amendment and 

have been deliberately indifferent to his welfare in contravention of 

the Eighth Amendment. 

Procedural Due Process 

To the extent that plaintiff intends to assert a claim of denial 

of property without procedural due process of law, that claim cannot 

proceed. Plaintiff does not allege that the loss of his property was 

the result of the execution of an official governmental policy. 

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However, the random, unauthorized deprivation of property is not 

actionable under § 1983 if the state provides an adequate, postdeprivation remedy to cure the claimed deprivation. Garrison v. 

Walters, 18 Fed.Appx. 329, *332 (6th Cir. Aug. 24, 2001) (citing Hudson 

v. Palmer, 468 U.S. 517, 533-36 (1984)). See also Parratt v. Taylor, 

451 U.S. 527, 543-44 (1981), overruled in part by Daniels v. Wiliams, 

474 U.S. 327 (1986). Defendants contend that the Ohio Court of Claims 

offers just such a remedy. See Lillie v. McGraw, 132 F.3d 33 33, *2 

(6th Cir. Dec. 12. 1997); Buerger v. Ohio Dept. of Rehabilitation and 

Correction, 762 F.2d 1006, *1 (6th Cir. March 18, 1985). 

Plaintiff in fact pursued claims based on the loss of his shower 

shoes and television in the Ohio Court of Claims. Exhibits, attached 

to Complaint, Doc. No. 3. However, plaintiff contends that the Ohio 

Court of Claims does not offer an adequate remedy. In connection with 

plaintiff’s claims involving the loss of his shower shoes, that court 

held that plaintiff’s claim under the Ohio Administrative Code failed 

to state a claim upon which relief can be granted, that plaintiff’s 

claim against the State of Ohio under § 1983 failed to state a claim 

because the state is not a “person” within the meaning of § 1983 and 

that that court lacks jurisdiction over constitutional claims under § 

1983. Id. at PAGEID #55-57. In connection with plaintiff’s claims 

involving the loss of his television, that court held, in addition, 

that plaintiff had failed to establish ownership of a television. Id. 

at PAGEID #59-61. 

This Court concludes that the Ohio Court of Claims offers an 

adequate post-deprivation remedy sufficient to cure the claimed 

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deprivation of plaintiff’s property interests. The fact that the Ohio 

Court of Claims concluded that the claims actually asserted by 

plaintiff were not valid or had not been established by him does not 

render the remedy offered by that court inadequate.1

 The Court 

therefore concludes that plaintiff has failed to state a claim based 

on a denial of procedural due process. 

Deliberate Indifference 

Plaintiff also alleges that, in failing to provide him shower 

shoes, defendants have been deliberately indifferent to his welfare 

and safety. Plaintiff specifically argues that, because he must 

shower in communal showers without shower shoes, he is at risk of 

infection and falling. 

Prison officials have a duty to provide humane conditions of 

confinement: “[O]fficials must ensure that inmates receive adequate 

food, clothing, shelter, and medical care, and must ‘take reasonable 

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 

511 U.S. 825, 832 (1994)(quoting Hudson v. Palmer, 468 U.S. 517, 526-

27 (1984)). In order to establish a claim under the Eighth Amendment, 

a prisoner must first allege a deprivation that is objectively 

serious; “a prison official’s act or omission must result in the 

denial of the minimal civilized measure of life’s necessities.” Id. 

at 834. Second, the inmate must allege facts tending to show that the 

prison official’s “state of mind [was] one of ‘deliberate 

 

1 Moreover, plaintiff’s pursuit of claims in the Ohio Court of Claims likely 

resulted in a waiver of his right to pursue his claims under § 1983 in this 

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indifference’ to inmate health or safety.” Id. (quoting Wilson v. 

Seiter, 501 U.S. 294, 302-03 (1991)). 

This Court concludes that, as it relates to plaintiff’s lack of 

shower shoes, the Amended Complaint fails to allege a deprivation that 

is of such objective seriousness as to give rise to a constitutional 

claim. See Chambers v. Simonet, 1995 WL 330903, *1 (10th Cir. May 25, 

2005)(jail’s failure to issue shower shoes does not violate the Eighth 

Amendment); Clarke v. Collins, 1993 WL 391362, ** 1-2 (5th Cir. Sept. 

20, 1993)(allegation that deprivation of shower shoes caused exposure 

to disease amounted to negligence, which is not actionable under § 

1983); Puranda v. Kellett, 2011 WL 674298, *4 (E.D. Va. Dec. 22, 

2011)(“Shower shoes are not a basic human need”); Brown v. Goodman, 

2010 WL 2202515, *6 (S.D. Ala. Apr. 19, 2010)(denial of shower shoes 

does not constitute the deprivation of a basic human need); Hodges v. 

Briley, 2005 WL 241466, *2 (N.D. Ill Feb. 1, 2005)(use of prison 

showers without shower shoes does not give rise to Eighth Amendment 

violation). But see Gonzalez v. Mullen, 2011 WL 3099101, *1 (9th Cir. 

July 26, 2011)(claim of exposure to infection because of lack of 

shower shoes states a claim under the Eighth Amendment). Because 

plaintiff has failed to allege an objectively serious deprivation, the 

Court concludes that the Amended Complaint fails to state a colorable 

claim of deliberate indifference under the Eighth Amendment. 

 It is therefore RECOMMENDED that defendants’ motions to dismiss, 

Doc. Nos. 23, 38, be granted. 

 Court. See Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 

825 F.2d 946, 952 (6th Cir. 1987)(en banc). 

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If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must 

be filed within fourteen (14) days after being served with a copy 

thereof. 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 of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 

 s/Norah McCann King_____ 

 Norah McCann King 

 United States Magistrate Judge 

December 13, 2012 

(Date)

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