UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL P. HARGROVE, Case No. 1:17-cv-748

Plaintiff,

Dlott, J.

vs. Bowman, M.J.

CAPT. FRISBY, et al., ORDER AND REPORT

Defendants. AND RECOMMENDATION

Plaintiff, an inmate at the Lebanon Correctional Institution (LeCI) in Lebanon, Ohio, has 

filed a pro se civil rights complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against 

defendants “Capt. Frisby,” “Lt. Couch,” “Chapl[ain]Taylor,” “Chapl[ain] Palmer,” and “C.O. 

Whitlow.”1 (Doc.1, at PageID 2). Plaintiff also has filed a “Motion to Add Defendant” (Doc. 7)

as well as a miscellaneous, untitled document that the Clerk of Court has appropriately filed as a 

notice (Doc. 8). By separate Order, plaintiff has been granted leave to proceed in forma 

pauperis. 

This matter is before the Court for a sua sponte review of the complaint (Doc. 1) to 

determine whether the complaint or any portion of it should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28 

U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Also before the Court is plaintiff’s 

Motion to Add Defendant. (See Doc. 7).

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In his request for relief, petitioner asserts “the Warden would be included in this case due to he blocked me 

from filing the rest of the steps of the grievance procedure by blocking me from getting on the computer.” (Doc. 1, 

at PageID 2). Plaintiff states that he will seek monetary damages from the Warden. Therefore, for purposes of this 

screening, the Court will assume that plaintiff intended to also name the Warden as a party to this case.

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I. Screening of Complaint (Doc. 1)

A. Legal Standard

In enacting the original in forma pauperis statute, Congress recognized that a “litigant 

whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an 

economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton 

v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). 

To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in 

forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see 

also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as 

frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or 

law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 

1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is 

immune from suit or when plaintiff claims a violation of a legal interest which clearly does not 

exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations 

are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 

32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are 

“fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 

468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328). 

Congress also has authorized the sua sponte dismissal of complaints that fail to state a 

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A 

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent 

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 

(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, 

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however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 

470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to 

state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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.” 

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a 

factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide 

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 

at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a 

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 

555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual 

enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . . 

claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

B. Plaintiff’s Complaint (Doc. 1)

First, plaintiff asserts that defendants Frisby and Couch violated the First, Fourth, and 

Eighth Amendments by allegedly subjecting plaintiff to two body-cavity searches. (Doc. 1, at 

pageID 1). Plaintiff alleges that, on the evening of October 18, 2017, “at about 6:30 p.m., [he] 

was walking down the hallway coming from dinner and was subject to a body cavity strip 

search because a guy was talking too loud in the hallway.” (Doc. 1, at PageID 1). Plaintiff

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claims that he was subjected to the body-cavity search even though “the guy” told Frisby that 

plaintiff was not the person who was talking loudly. (Id.). Plaintiff further alleges that “as he 

was trying to leave, he was called back by [Couch] to be cavity searched” again. (Id.). 

Plaintiff claims that the body-cavity searches were in retaliation for his filing a lawsuit against 

the Warden and for filing grievances and constituted sexual harassment. (Doc. 1, at PageID 1).

Next, plaintiff asserts that defendants Taylor and Palmer violated the First Amendment 

and the Religious Land Use and Institutionalized Persons Act (RLUIPA). (Doc. 1, at PageID 

1). Plaintiff alleges that he was refused religious services for “about 3 months” while living in 

a “disciplinary dorm.” (Doc. 1, at PageID 1). Plaintiff alleges that he wrote Taylor “several 

k[i]tes” asking to be put on “the Jumuah and Taleem list,” but was informed that “since [he] 

was in a[] disciplinary dorm, he couldn’t go on the Taleem list.” (Doc. 1, at PageID 1). 

Plaintiff contends that he also wrote Palmer and was informed that plaintiff “couldn’t go to 

Taleem because he was in a[] disciplinary dorm but . . . could go to Jumuah.” (Doc. 1, at 

PageID 2). Plaintiff asserts that “both parties should scrap the rule because the Christians get 

to go to all services and they are in the same dorm as [him].” (Doc. 1, at PageID 2). 

Plaintiff asserts that defendant Whitlow violated the Eighth Amendment when he 

“refused to give [plaintiff] new state issued blankets and sheets” and instead gave plaintiff 

blankets and sheets that were “old and been slept in already.” (Doc. 1 at PageID 2). 

Finally, as set forth above in footnote one, plaintiff alleges that the Warden “blocked 

[plaintiff] from filing the rest of the steps of the grievance procedure by blocking [him] from 

getting on the computer.” (Doc. 1, at PageID 2). 

As relief, plaintiff seeks monetary damages against the defendants. (See Doc. 1, at 

PageID 2). Plaintiff arguably also seeks injunctive relief as to his First Amendment Free 

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Exercise and RLUIPA claims, to the extent he seeks to “scrap the rule” he asserts prevents him 

from attending religious services. (Doc. 1, at PageID 2). 

C. Analysis

Liberally construed, plaintiff’s complaint states a claim against defendants Frisby and 

Couch under the Fourth Amendment and against Taylor and Palmer under the First 

Amendment and, to the extent the complaint seeks injunctive relief, under RLUIPA. At this 

stage in the proceedings, without the benefit of briefing by the parties to this action, the 

undersigned concludes that these claims are deserving of further development and may proceed 

at this juncture. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). However, plaintiff’s remaining 

claims should be dismissed for failure to state a claim upon which relief may be granted. 

First, plaintiff’s claims against the individual defendants in their official capacities must 

be dismissed to the extent that plaintiff seeks monetary damages. An action against a state 

official in his or her official capacity is the equivalent of an action against the State he or she 

represents. Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Michigan Dep’t. of State Police, 491 

U.S. 58, 70-71 (1989). Therefore, all the individual defendants in their official capacities are 

immune from suit to the extent that plaintiff seeks monetary damages. 

Plaintiff’s claims should also be dismissed against any defendant plaintiff seeks to sue 

under a respondeat superior theory. It is well-settled that the doctrine of respondeat superior

does not apply in § 1983 lawsuits to impute liability onto supervisory personnel. See, e.g.,

Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (citing Polk Cty. v. 

Dodson, 454 U.S. 312, 325 (1981)). “In order to find supervisory personnel liable, a plaintiff 

must allege that the supervisors were somehow personally involved in the unconstitutional 

activity of a subordinate, . . . or at least acquiesced in the alleged unconstitutional activity of a 

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subordinate.” Id. (citing Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Bellamy v. 

Bradley, 729 F.2d 416, 421 (6th Cir. 1984)); see also Colvin v. Caruso, 605 F.3d 282, 292 (6th 

Cir. 2010) (quoting Cardinal v. Metrish, 564 F.3d 794, 803 (6th Cir. 2009)) (to succeed on claim 

against supervisory state prison officials, the plaintiff must show the officials “at least implicitly 

authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending 

officers”). Therefore, plaintiff’s claims should be dismissed against any defendant that plaintiff 

seeks to hold liable under a respondeat superior theory.

Plaintiff’s Eighth Amendment claim against Frisby and Couch should be dismissed. 

“The Eighth Amendment . . . prohibits conduct by prison officials that involves the ‘unnecessary 

and wanton infliction of pain.’” Jackson v. Corrections Corp. of Am., No. 4:11-cv-859, 2011 

WL 3862078, at *3 (N.D. Ohio Aug. 31, 2011) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 

(1981)). Plaintiff’s allegations do not contain facts suggesting that the alleged body-cavity 

searches involved the “unnecessary and wanton infliction of pain.” Chapman, 452 U.S. at 346.

Plaintiff’s First Amendment claim against Frisby and Couch is based on conclusory 

allegations of retaliation and should also be dismissed. See Iqbal, 556 U.S. at 678; Twombly, 

550 U.S. at 555, 557. See also Adams v. Jones, 52 F. App’x 744, 746 (6th Cir. 2002) (“Bare 

allegations of malice do not suffice to establish a constitutional claim.”) (citing Crawford-El v. 

Britton, 523 U.S. 574, 588 (1998); Thaddeus-X v. Blatter, 175 F.3d 378, 399 (6th Cir. 1999) (en 

banc)). 

Plaintiff’s RLUIPA claim against defendants Taylor and Palmer should be dismissed to 

the extent plaintiff seeks monetary damages because there is no cause of action for damages 

under RLUIPA. See Hendricks v. Aramark, Inc., No. 2:14-cv-2015, 2015 WL 1809361, at *4 

(S.D. Ohio Apr. 21, 2015) (citing cases). 

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Plaintiff Eighth Amendment claim against Whitlow should be dismissed because 

Whitlow’s alleged refusal to issue plaintiff new blankets and sheets does not rise to the level of 

an Eighth Amendment violation. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (finding that 

extreme deprivations are required to state a conditions-of-confinement claim). 

Finally, plaintiff’s claims against the Warden regarding the grievance process should be 

dismissed because “[p]rison inmates do not have a constitutionally protected right to a grievance 

procedure.” Miller v. Haines, No. 97–3416, 1998 WL 476247, at *1 (6th Cir. Aug. 03, 1998) 

(citations omitted).

II. Analysis of plaintiff’s Motion to Add Defendant (Doc. 7)

Plaintiff seeks to add “Mr. Tom Schweitzer” as a defendant. (Doc. 7, at PageID 25). 

Plaintiff alleges that “the Muslims in K block for the last 3 weeks was not allowed to attend 

any religious services due to the officers in K block would not let the petitioner out of the cells 

nor anyone for that matter.” (Doc. 7, at PageID 25). Plaintiff claims that Schweitzer “was 

notified [but] did not do anything when informed of the biasness of his security staff.” (Doc. 7, 

at PageID 25). Plaintiff also alleges that “the staff or Mr. Taylor on the maintenance staff 

refused to fix the heat in the dorm and it has been unsuitable living conditions due to the 

coldness in violation of the Human Rights Act and the 8th Amendment’s Cruel and Unusual 

Punishment Clause.” (Doc. 7, at PageID 25).

Plaintiff’s “Motion to Add Defendant” (Doc. 7) should be denied. “Supervisory 

liability under § 1983 cannot attach where the allegation of liability is based upon a mere 

failure to act.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999) (citing Leach v. Shelby 

Cty. Sheriff, 891 F.2d 1241, 1246 (1989)). Rather the supervisors or employers must have 

actively engaged in the unconstitutional behavior. Id. This same analysis applies to claims 

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brought under RLUIPA. See Greenberg v. Hill, No. 2:07-cv-1076, 2009 WL 890521, at *3

(S.D. Ohio Mar. 31, 2009). Plaintiff does not allege that Schweitzer actively engaged in 

behavior that violated his rights.

Further, plaintiff’s claims regarding unspecified staff members’ and Mr. Taylor’s alleged 

failure to fix the heat in his cell and the allegedly cold temperatures in his cell are too conclusory 

for the Court to infer any violation of his Eighth Amendment Rights. “To prove an Eighth 

Amendment violation, an inmate must show that he has been deprived of the minimum civilized 

measures of life’s necessities.” Estep v. Million, No. 98-6322, 1999 WL 776202, at *1 (6th Cir. 

Sept. 24, 1999) (citing Rhodes, 452 U.S. at 347). Plaintiff’s conclusory allegations fail to present 

facts from which the Court can infer that plaintiff was deprived of the minimum civilized 

measures of life’s necessities. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555, 557.

Because plaintiff’s proposed amendment to his complaint does not state a plausible 

claim for relief against “Mr. Tom Schweitzer” or “the staff or Mr. Taylor on the maintenance 

staff,”2 the Motion to Add Defendant (Doc. 7) should be denied as futile. See, e.g., Milstead v. 

Bedford Cty. Sheriff’s Dep’t, No. 4:12-cv-52, 2014 WL 420395, at *9 (E.D. Tenn. Feb. 4, 

2014) (citing LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013)).

IT IS THEREFORE RECOMMENDED THAT:

The complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff’s Fourth Amendment 

individual capacity claim against defendants Frisby and Couch and plaintiff’s First Amendment 

 2

Although plaintiff’s Motion to Amend Defendant expressly seeks to add “Mr. Schweitzer” as a defendant, 

plaintiff also seeks to add allegations against “the staff or Mr. Taylor on the maintenance staff” for allegedly 

“refus[ing] to fix the heat.” (See Doc. 7, at PageID 25). Therefore, for purposes of plaintiff’s Motion to Add 

Defendant (Doc. 7), the Court will assume that plaintiff also moves to add unspecified staff members and Mr. Taylor 

as parties to this case.

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individual capacity Free Exercise claim and, to the extent it seeks injunctive relief, plaintiff’s 

RLUIPA claim against defendants Chaplain Taylor and Chaplain Palmer.

It is further recommended that plaintiff’s Motion to Add Defendant (Doc. 7) be 

DENIED.

IT IS THEREFORE ORDERED THAT: 

1. The United States Marshal shall serve a copy of the complaint, summons, the separate 

Order issued granting the plaintiff in forma pauperis status, and this Order and Report and 

Recommendation upon defendants Frisby, Couch, Chaplain Taylor, and Chaplain Palmer.

2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, 

upon defendants’ attorney, a copy of every further pleading or other document submitted for 

consideration by the Court. Plaintiff shall include with the original paper to be filed with the 

Clerk of Court a certificate stating the date a true and correct copy of any document was mailed 

to s or defendants’ counsel. Any paper received by a district judge or magistrate judge which has 

not been filed with the Clerk or which fails to include a certificate of service will be disregarded 

by the Court.

3. To the extent that plaintiff has filed a miscellaneous, untitled document (Doc. 8), 

which the Clerk of Court has appropriately docketed as a notice, this Court notes that the 

document does not conform to the requirements of the Federal Rules of Civil Procedure. See, 

e.g., Fed. R. Civ. P. 7(b) (stating that “[a] request for a court order must be made by motion . . . 

be in writing . . . state with particularity the grounds for seeking the order; and . . . state the relief 

sought”). Thus, no further action as to document 8 is required.

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4. Plaintiff shall inform the Court promptly of any changes in his address which may 

occur during the pendency of this lawsuit.

s/ Stephanie K. Bowman

Stephanie K. Bowman 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL P. HARGROVE, Case No. 1:17-cv-748

Plaintiff,

Dlott, J.

vs. Bowman, M.J.

CAPT. FRISBY, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

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

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