UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SEAN GILMORE, Case No. 1:17-cv-729

Plaintiff,

Black, J.

vs Bowman, M.J.

SGT. BLANKETSHIP, et al., REPORT AND

Defendants. RECOMMENDATION

On October 31, 2017, plaintiff, an inmate at the Warren Correctional Institution, filed a 

prisoner civil rights action against Sgt. Blanketship alleging that Blanketship violated his Eighth 

Amendment rights. On November 9, 2017, the undersigned issued an Order finding that 

plaintiff should be permitted to proceed with his claim against Blanketship. However, because 

plaintiff failed to provide the necessary service documents plaintiff was ordered to submit a 

completed summons form and United States Marshal form so that service of process may be 

made in this case. (Doc. 4). To date, plaintiff has failed to comply with the Order. 

On November 13, 1017, plaintiff filed an amended complaint adding defendants “Mr. 

Turner Warden,” Inspector Alexander, and Investigator Shuler. (Doc. 5). 

This matter is now before the Court for a sua sponte review of the complaint, as amended,

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). 

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 

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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, 

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 

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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 

well-pleaded 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).

In plaintiff’s original complaint, he alleged that defendant Sgt. Blanketship failed to protect 

him from a known threat, resulting in plaintiff’s being attacked with an aluminum can and 

sustaining injuries to his face, back, shoulder, and elbow. (Doc. 3). Consistent with the Court’s 

November 9, 2017 Order, the undersigned finds that at this stage in the proceedings, plaintiff be 

permitted to proceed with this claim. (See Doc. 4). However, the remaining claims against 

defendants Mr. Tuner Warden, Inspector Alexander, and Investigator Shuler should be dismissed 

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

Plaintiff seeks to hold Warden Turner liable based on his supervisory position. Plaintiff 

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named defendant Turner based on his alleged “declaration (sic) of duty of his staff.” (Doc. 3 at 

Page ID 23). However, 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, 499 F. App’x at 

455 (citing Polk Cnty. 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 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, in the absence of any such allegation, plaintiff’s claims 

brought against Turner or any other defendant in their supervisory capacity are simply insufficient 

to give rise to an actionable § 1983 claim. 

Plaintiff’s claims against defendants Inspector Alexander and Investigator Shuler should 

also be dismissed. Plaintiff claims these defendants violated his due process rights by failing to 

respond to several complaints requesting a camera inspection and for their failure to discipline the 

named aggressors. (Doc. 5 at PageID 28). However, prison officials whose only roles “involve 

their denial of administrative grievances and their failure to remedy the alleged [unconstitutional] 

behavior’” cannot be liable under § 1983. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). 

Nor does a prison official’s alleged failure to adequately investigate claims of misconduct rise to 

the level of “encouragement” that would make the official liable for such misconduct. Knop v. 

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Johnson, 977 F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 

1984). Plaintiff’s claims relating to the failure of defendants to properly investigate and/or 

respond to his complaints regarding a camera investigation should be dismissed because “[t]here is 

no statutory or common law right, much less a constitutional right, to an investigation.” Mitchell 

v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007); see also Daniels v. Lisath, No. 2:10-cv-968, 2011 

WL 2710786, at *2 (S.D. Ohio July 13, 2011). Therefore, the complaint should be dismissed as 

to defendants Alexander and Shuler. 

IT IS THEREFORE RECOMMENDED THAT:

The complaint, as amended, be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff’s Eighth Amendment failure to 

protect claim against defendant Sgt. Blanketship. 

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

SEAN GILMORE, Case No. 1:17-cv-729

Plaintiff,

Black, J.

vs Bowman, M.J.

SGT. BLANKETSHIP, et al., 

Defendants.

NOTICE 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections 

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served 

with a copy thereof. That period may be extended further by the Court on timely motion by either 

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, 

and shall be accompanied by a memorandum of law in support of the objections. A party shall 

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy of 

those objections. 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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