03 (6th Cir. 2001). The Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3).

When conducting an initial screen under 28 U.S.C. § 1915(e)(2), courts apply the same
standard that they use when considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Ransom v. Owens-Illinois, Inc., No. 2:14-cv-1845, 2014 WL 7184412, at *1
(S.D. Ohio Dec. 16, 2014). Under Rule 12(b)(6), a court will dismiss an action that fails to state a
claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). Such an action will be
dismissed where “there is no law to support the claims made” or where “the facts alleged are
insufficient to state a claim.” Stew Farm, Ltd. v. Nat. Res. Conservation Serv., No. 2:12-cv-299,
2013 WL 4517825, at *3 (S.D. Ohio Aug. 26, 2013) (citing Rauch v. Day & Night Mfg. Corp.,
576 F.2d 697, 702 (6th Cir. 1978)). When deciding a motion to dismiss, a court must construe
the complaint in the light most favorable to the plaintiff and accept all of the complaint’s well-
pleaded factual allegations as true. Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). The
Court may consider the complaint and any attached exhibits, public records, items appearing in
the record of the case, and exhibits attached to the defendant’s motion to dismiss as long as the
exhibits are referenced in the complaint and are central to the plaintiff's claims. Bassett v. Nat'l
Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

A complaint will survive a motion to dismiss if it contains sufficient factual allegations to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). 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 v. Iqbal, 556 U.S. 662, 678 (2009). A complaint will not “suffice if it tenders


rationally related to that objective; (3) whether inmates have alternative means of exercising the
right; and (4) the impact that accommodation of the right will have on the prison’s inmates and
guards.”).
lll.
For these reasons, the Court OVERRULES IN PART and SUSTAINS IN PART
Plaintiff s Objection (ECF No. 9). Plaintiff's due process claims are DISMISSED, but his First
Amendment retaliation claim may proceed.

IT IS SO ORDERED.

U~ )%-2013

DATE oe eres JR.
CHIEK UNHED STATES DISTRICT JUDGE

10


incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); see Rowe v. Ward, No.
4:16-cv-P39, 2016 WL 3875954, at *2 (W.D. Ky. July 13, 2016).

Here, Plaintiff was punished with the loss of telephone and email use for thirty days and
the loss of three commissary privileges. (Compl. at 4, ECF No. 7.) In his Objection, Plaintiff
clarifies that this punishment resulted in “disconnection from family for [thirty days] and a
tarnishment of i[n]stitutional record which directly affects housing, security level, and future
parole hearings.” (Obj. at 2.) But temporary loss of communication and commissary privileges
and generalized harm to an institutional record did not alter Plaintiff's terms of imprisonment or
constitute an atypical and significant hardship on Plaintiff in relation to the ordinary incidents of
prison life. See, e.g., Alexander v. Vittitow, No. 17-1075, 2017 WL 7050641, at *3 (6th Cir. Nov.
9, 2017) (“The sanction imposed for Alexander’s misconduct charge—thirty days’ loss of
privileges—did not implicate a protected liberty interest because it did not affect the length of his
sentence and did not amount to an atypical and significant hardship.”); Rowe v. Ward, No. 4:16-
cv-P39, 2016 WL 3875954, at *3 (W.D. Ky. July 13, 2016) (“Plaintiff's loss of phone privileges
for one week is .. . not an ‘atypical and significant hardship’ under the Sandin analysis.”); Parks
v. Anderson, No. 6:10-355, 2014 WL 4854570, at *34 (E.D. Ky. Sept. 29, 2014) (“[A] prisoner
does not have a constitutional right to commissary or telephone privileges.”); Polston vy. Shartle,
No. 09 CV 2896, 2010 WL 2044867, at *3 (N.D. Ohio May 21, 2010) (“Petitioner’s infraction
resulted only in the temporary loss of telephone, visitation and commissary privileges, none of
which implicate a protected liberty interest.”). And consequently, irrespective of whether the
photographs were processed correctly or whether Plaintiff was told which rule he allegedly
violated, Plaintiff's due process claims fail because they do not implicate a constitutionally

protected liberty interest.


‘naked assertion{s]’ devoid of ‘further factual enhancement’” or “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements.” Jd. (quoting Twombly,
550 U.S. at 557). Determining whether a complaint states a plausible claim for relief is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” /d. at 679.

When, as here, a litigant proceeds pro se, the Court construes his pleadings liberally and
holds them to less stringent standards than pleadings drafted by lawyers. Haines v. Kerner, 404
U.S. 519, 520-21 (1972). This does not mean though that a pro se litigant can ignore “basic
pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

B. Due Process Claims

Plaintiff first objects to the recommendation that his due process claims be dismissed.
(Obj. at 1-2, ECF No. 9.) Plaintiff reiterates that he was not told which rule he violated by
ordering the Nudist Lifestyle photographs. (/d. at 1.) And Plaintiff insists that the ten withheld
photographs were processed incorrectly because, despite coming from a publisher, they were
treated as minor contraband rather than printed materials. (See id.) These arguments fail to
salvage Plaintiff's due process claims.

A prisoner claiming a due process violation under the Fourteenth Amendment must
demonstrate that he has been deprived of a liberty or property interest by arbitrary governmental
action. Williams v. Bass, 63 F.3d 483, 485 (6th Cir. 1995). A prisoner only has a constitutionally
protected liberty interest—and, thus, can only contend that he was deprived of due process—in
two situations: (1) when the prisoner’s terms of imprisonment are altered and (2) when a prison

restraint “imposes atypical and significant hardship on the inmate in relation to the ordinary


Construing these allegations in the light most favorable to Plaintiff, the Court can plausibly infer
that Defendants punished Plaintiff not for violating institutional rules but, rather, for engaging in
constitutionally protected conduct."

In concluding that Plaintiff's First Amendment retaliation claim survives the initial
screen under 28 U.S.C. § 1915(e)(2), the Court expresses no opinion on the merits of any
additional arguments, not addressed here, that Defendants might raise in a motion to dismiss.
Nor is the Court’s conclusion a determination that Plaintiff has a constitutional right to receive
any type of pornographic image. Cf Ward v. Jones, 64 F. App’x 422, 424 (6th Cir. 2003) CA
prisoner’s right to receive mail may be limited by policies that are ‘reasonably related to
legitimate penological interests.’” (quoting Turner v. Safley, 482 U.S. 78, 89 (1987))). The
photographs at issue are not attached to the Complaint, and, consequently, the Court did not
review them in conducting the initial screen. Whether Plaintiff has a constitutional right to
receive the photographs he ordered and whether Defendants retaliated against Plaintiff for
ordering those photographs are issues of fact that will need to be resolved through summary
judgment or at trial after the parties have developed the record in this case. Cf, Thomas v. Croft,
No. 2:10-cv-74, 2010 WL 4809227, at *2 (S.D. Ohio Nov. 18, 2010) (““[WJhen a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.’ [ Turner, 482 U.S. at 89.] The four factors to be
considered in making a reasonableness determination include (1) whether the governmental

objective underlying the regulation is legitimate and neutral; (2) whether the regulation is

‘Although Plaintiff challenges the result of a prison disciplinary hearing, Plaintiffs First Amendment
retaliation claim is not barred by Heck v. Humphrey, 512 U.S. 477 (1994), because the claim does not
raise any implication about the validity of Plaintiff's underlying conviction or the duration of Plaintiff's
sentence. See Muhammad v. Close, 540 U.S. 749, 751, 754-55 (2004); see also Taylor v. Lantagne, 418
F. App’x 408, 411 (6th Cir. 2011) (permitting a First Amendment retaliation claim to proceed where the
prisoner “sought expungement of disciplinary time, which would not affect the fact or duration of his

confinement”).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION
JAMES RYAN BOYD,
Plaintiff, Case No. 2:17-ev-1003
CHIEF JUDGE EDMUND A. SARGUS, JR.
v. Magistrate Judge Kimberly A. Jolson

CHILLICOTHE CORRECTIONAL
INSTITUTION, et al.,

Defendants.
OPINION AND ORDER

This matter is before the Court on Plaintiff James Ryan Boyd’s Objection (ECF No. 9) to
the United States Magistrate Judge’s Report and Recommendation (ECF No. 8) recommending
that the Court dismiss Plaintiff's claims. For the following reasons, the Court OVERRULES IN
PART and SUSTAINS IN PART Plaintiff's Objection.

I.

A. Factual Background

Plaintiff, a prisoner at Chillicothe Correctional Institution (CCI), received twenty “Nudist
Lifestyle” photographs from Acme Publications on September 11, 2017. (Compl. at 4, ECF No.
7.) Plaintiff contends that these photographs complied with the institution’s mail policy because
they were commercially produced and distributed and not “nude personal photographs.” (See id.
at 3-4, 22.) CCI, however, allegedly withheld eleven of the photographs. (/d. at 4.) Plaintiff
received a “Notice of withholding [form DRC 4147] for one photo containing ‘male genitalia’
not in a state of arousal”; he received “form DRC 4225” for the other ten photographs. (/d.) The
next day, Plaintiff “was called to Sgt. Steinbeck’s office for a conduct report hearing for

violation of ‘Mail Rules’ and ‘Written prison rules.”” (/d.)


Cc. First Amendment Retaliation Claim

Plaintiff also objects to the recommendation that his First Amendment retaliation claim
be dismissed. (Obj. at 2, ECF No. 9.) Plaintiff contends that he did not violate the mail policy
and that his punishment was motivated, at least in part, by his decision to order the photographs.
(/d.) Plaintiff asserts that Defendants’ retaliation is evidenced by him being punished even
though “no rule or policy was violated.” (/d.) These arguments have merit.

A First Amendment retaliation claim has three elements: (1) the plaintiff engaged in
constitutionally protected speech or conduct; (2) an adverse action was taken against him that
would deter a person of ordinary firmness from continuing to engage in the protected speech or
conduct; and (3) there is a causal connection between the first two elements—that is, the adverse
action was motivated at least in part by the plaintiff's protected speech or conduct. Dye v. Office
of the Racing Comm'n, 702 F.3d 286, 294 (6th Cir. 2012).

Plaintiff alleges that he did not violate the institution’s mail policy and that Defendants
concocted the purported rule violations as a pretext to punish him for his engagement in First
Amendment protected conduct (i.e., ordering Nudist Lifestyle photographs). (See Compl. at 4-5,
ECF No. 7.) Ordering the photographs did not violate any rules, Plaintiff alleges, because the
photographs “were commercially produced and distributed and mailed directly from the
publisher.” (/d. at 4.) Although “[n]ude personal photographs” are treated as minor contraband
under ODRC Policy 75-MAL-02, “professionally produced materials intended for commercial
distribution” are not. (/d. at 3.) Professionally produced materials, such as the Nudist Lifestyle
photographs, are subject to review and withholding under the general printed material policy,
O.A.C. § 5120-9-19(C). (See id.) And the withholding of printed material under that policy does

not generate a conduct report or disciplinary proceedings, Plaintiff alleges. (See id. at 4.)


that Defendants’ actions were unconstitutional; (ii) the removal of the conduct report from his
institutional record; (iii) an order directing Defendants to properly enforce the ODRC’s mail
policy; (iv) fees and costs under 42 U.S.C. § 1988; and (v) any other award or relief that the
Court finds justified. (/d. at 6.) Plaintiff brings this action pro se and in forma pauperis. (R. & R.
at 1, ECF No. 8.)

The Magistrate Judge conducted an initial screen of Plaintiff's Complaint under 28
U.S.C. § 1915(e)(2). The Magistrate Judge interpreted the Complaint as raising (1) due process
claims and (2) a First Amendment retaliation claim. (R. & R. at 4, 6.) The due process claims are
not cognizable, the Magistrate Judge concluded, because Plaintiff's punishment for the purported
tule violations—the loss of telephone, email, and commissary privileges—was not sufficient to
implicate a constitutionally protected liberty interest and because Plaintiff has no constitutionally
protected right to an effective grievance procedure. (See id. at 5-6.) The Magistrate Judge
concluded that the First Amendment retaliation claim fails because Plaintiff has not adequately
pleaded that Defendants retaliated against him and that the punishments he suffered were
motivated, at least in part, by his decision to order the photographs. (Jd. at 6-7.) For these
reasons, the Magistrate Judge recommended that the Court dismiss Plaintiff's claims. (d. at 1,
7.)

Plaintiff now objects to this recommendation. (Obj. at 1-2, ECF No. 9.)

Il.

A. Legal Standard

If a party objects within the allotted time, the district court must make a de novo
determination of those portions of the report and recommendation to which objection is made. 28

U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); see United States v. Curtis, 237 F.3d 598, 602—


material includes “sexually explicit material that by its nature or content poses a threat to the
rehabilitation of inmates, the security, good order, or discipline of the institution, or facilitates, or
encourages criminal activity.” Jd. § 5120-9-19(C)(6).

ODRC Policy 75-MAL-02 clarifies the application of these regulations. And as relevant
here, the policy provides guidance on the permissibility of receiving “nude photographs,” which
are

snapshots, photos, photocopied or digitally produced pictures, etc. of an adult,

child, or infant who is nude or partially nude above or below the waist and is

displaying breasts, buttocks, or genitals. It does not include magazines, calendars

or other professionally produced materials intended for commercial distribution.

Such commercial materials do remain subject to review under the procedures for

withholding printed materials.

ODRC Policy 75-MAL-02, at 1-2. The possession of nude photographs, the policy states,
“constitutes a threat to the security, order, and discipline of our institutions[,] is disruptive to
institutional operations[,] and is detrimental to the objectives of rehabilitation of inmates.
Therefore, inmates are not permitted to receive nude photographs.” /d. at 5. The policy indicates
that “[n]Jude personal photographs may be handled as minor contraband” but that material “that
does not meet the definition of ‘nude personal photographs’ is subject to review and
withholding” pursuant to O.A.C. § 5120-9-19(C), which, as noted above, describes the types of

materials that the institution may exclude.

B. Procedural Background

Plaintiff is suing CCI and several of the institution’s employees—Charlotte Jenkins (the
Warden), Ms. Hamilton (the Warden’s Assistant), Sandra Furniss (a mail room employee), and
Sgt. Simmons (a corrections officer and member of the RIB)—for their alleged violation of his
First, Eighth, and Fourteenth Amendment rights. (Compl. at 1-2, ECF No. 7.) Plaintiff is suing

the individual Defendants only in their official capacities. (/d. at 2.) He seeks (i) a declaration


The Rule Infraction Board (RIB) held a hearing on September 27, 2017, and found that
Plaintiff had violated two prison rules. (Compl. at 4.) According to Plaintiff, the RIB found him
guilty of the rule violations because he admitted to ordering the photographs. (/d.) Plaintiff
complains that he was found guilty of the rule violations “without having any actual rule
violation presented to him.” (/d.) Plaintiff further alleges that the RIB was biased against him
because one of its members, Sgt. Simmons, stated during the hearing: “Leave them fucking kids
alone.” (/d.) As punishment, Plaintiff was “denied use of telephones and email for 30 days and
the loss of 3 commissary privileges.” (/d.)

Plaintiff also alleges that he filed an informal complaint with CCI about the ten
photographs “withheld under DRC form 4225.” (Compl. at 4.) CCI’s response to the informal
complaint stated that “staff have been directed to follow policy 75-MAL-02, [and] handle these
items as minor contraband.” (/d.) This response was late, Plaintiff contends. (/d.) And on the
same day that he received the response, Plaintiff alleges that he also received “a correct notice of
withholding form DRC 4147” for the ten photographs. (/d.)

Plaintiff outlines in his Complaint the relevant Ohio Department of Rehabilitation and
Corrections (ODRC) regulations, which are codified in the Ohio Administrative Code (O.A.C.).
Under O.A.C. § 5120-9-19(A), “printed materials” means “any publication, document or record
including, but not limited to, the following: Newspapers, magazines, pamphlets, books,
photographs, drawings, and prerecorded magnetic audiotapes.” O.A.C. § 5120-9-19(A). Printed
materials are subject to security inspection and review by the institution. Jd. § 5 120-9-19(B)(1).
And under 0.A.C. § 5120-9-19(C), the institution may exclude printed materials if they are
“deemed to be detrimental to, or to pose a threat to the rehabilitation of inmates; the security of

the institution; or, the good order or discipline of the institution.” Id. § 5120-9-19(C). Excludable