UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William E. Martin,

Plaintiff,

V. Case No. 2:18-cv-270

Zamvir Zariwala, et al., Judge Michael H. Watson

Defendants. Magistrate Judge Deavers

OPINION AND ORDER

William E. Martin ("PiaintifT) is a prisoner proceeding pro se. He sues

Roger Wiison ("Wiison"), Chief Inspector for the Ohio Department of

Rehabilitation and Correction ("ODRC"), and the following employees at Madison

Correctionai institution ("MaCI"): Zamvir Zariwaia ("Zariwaia"). Randaii Hawk

("Hawk"), Unit Secretary Conn ("Conn"), Rhonda R. Richard ("Richard"), Zachery

Gould ("Gould"), Unit Manager Chie Workman ("Workman"), Maicoim Heard

("Heard"), and Deputy Warden Welch ("Deputy Warden Welch") under 42 U.S.C.

§ 1983 for purported violations of Plaintiffs civil rights.

On an initialscreening under 28 U.S.C. § 1915 and § 1915A, Magistrate

Judge Deavers issued a Report and Recommendation ("R&R") recommending

the Court dismiss all claims against aii Defendants except for Zariwaia. R&R 1-

2, ECF No. 3. The R&Rfurther recommended dismissing some of the ciaims

against Zariwaia and aiiowing others to proceed. Id.
Specifically, although Plaintiffs Complaint did not Indicate In which

capacity he sought to sue Defendants, the R&R recommended dismissing any

§ 1983 claims brought against Defendants In their official capacities because

"[s]tate officials acting In their official capacity are not 'persons' under § 1983."

Id. at 4-5 (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)).

The R&R also concluded that Plaintiff could not bring class claims In this

lawsuit. Id. at 5-6. Itstated that although the Complaint contained a handwritten

note that Itwas being brought as a class action and that Itwas being brought

pursuant to Rule 23, the Complaint was devoid of any class allegations. Further,

the R&R stated that Plaintiff, as a non-attorney, pro se litigant was unable to

represent a class. Id.

The R&R next considered Plaintiffs Individual-capacity claims against

each Defendant. The R&R concluded that Plaintiff failed to allege that Hawk

violated any of Plaintiffs constitutional rights and Instead alleged only that Hawk

conspired with Zariwala to file a false work evaluation In order to fire Plaintiff from

his prison job. In violation of a state law or state administrative rule. Id. at 6-9.

The R&R noted that, absent a separate and actionable constitutional Injury,

Plaintiff cannot state a claim for conspiracy under § 1983. Id. Further, it

concluded that even If Plaintiff had alleged such an Injury, the Complaint failed to

plead conspiracy with particularity as required by Federal Rule of Civil Procedure

9(b). Id. at 9.

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With respect to Zariwaia, the R&R recommended dismissing (forthe same

reasons just discussed) Plaintiffs conspiracy claim and any claim based on the

filing of a false work evaluation. Id. it recommended permitting Plaintiffs

remaining claims against Zariwaia to proceed. Id.

The R&R recommended dismissing Plaintiffs claims against Conn

because Plaintiff alleged that Conn reciassified Plaintiff as a porter in violation of

various Ohio Revised Code sections and a policy statement, and his allegations

of violations of state laws and rules cannot serve as the basis of a § 1983 claim.

Id. at 9-10. To the extent Plaintiff sought to bring a § 1983 due process claim

against Conn, the R&R explained that Plaintiff had no protected liberty or

property interest in prison employment. Id. at 10. it further recommended

dismissing Plaintiffs conspiracy claim against Conn for the same reasons

addressed above, /cf. at 10-11.

With respect to Workman, because Plaintiff alleged only that he filed three

informal complaint resolutions ("ICR") with Workman "to no avail," his Complaint

failed to state a claim. Id. at 11.

The R&R quoted the entirety of Plaintiffs allegations against Gould,

Wilson, Heard, Richard, and Deputy Warden Welch, which consisted of

allegations that Plaintiff filed grievances with these Defendants but that Gould

and Wilson failed to do their jobs and condoned the wrongs done against Plaintiff

by Conn, Hawk, and Zariwaia, and that Heard, Richard, and Deputy Warden

Welch failed to correct the same. Id. at 11 (quoting Compi., ECF No. 1-1). The

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R&R concluded that the Complaint was devoid of factual allegations that Gould

and Wilson failed to do their jobs or condoned the actions of other Defendants.

Id. It concluded that the allegations against Heard, Richard, and Deputy Warden

Welch failed to state a claim for conspiracy and likewise failed because Plaintiff

has no constitutionally protected right to an effective grievance procedure. Id. at

12.

Finally, the R&R denied without prejudice Plaintiffs motion for appointment

of counsel.

The R&R notified Plaintiff of his right to object to the same and notified

Plaintiff that appellate review of Issues not specifically raised In the objection

would be waived. Id. at 13-14.

Plaintiff timely objected. He argues that he stated a claim because he

added "42 U.S.C. § 1983" to page one of his Complaint, that the Court cannot

dismiss any of his claims prior to service of the Complaint on Defendants, that

Plaintiff has sought appointment of counsel to pursue his class claims, and that

discovery will flesh out his claims against all of the Defendants whom Magistrate

Judge Deavers recommended dismissing. Obj. 1-2., ECF No. 7.

Two standards of review apply to PlalntlfTs objections. The Court reviews

Magistrate Judge Deavem' denial of Plaintiffs motion to appoint counsel under

the standard set forth In Federal Rule of Civil Procedure 72(a} and will set aside

that Order only IfIt Is clearly erroneous or contrary to law.

Case No. 2:18-cv-270 Page 4 of 7
The Court reviews the recommendations concerning dismissal of Plaintiffs

claims under the standard in Rule 72(b). Under that standard, the Court must

determine de novo any part of the Magistrate Judge's disposition that has been

properly objected to. Fed. R. Civ. P. 72(b)(3). The Court may accept, reject, or

modify the R&R, receive further evidence, or return the matter to the Magistrate

Judge with instructions. Id.

The Court OVERRULES Plaintiffs objection to the denial of his motion to

appoint counsel. There is "no constitutional right to appointed counsel in a civil

case." See Abdur-Rahman v. Mich. Dep't of Corr., 65 F.3d 489, 492 (6th Cir. 1995)

(citation omitted). Accordingly, prisoners have no right to the appointment of

counsel in order to pursue a prisoner civil rights case, whether brought as an

individual action or whether class certification is sought. Indeed, the most a Court

can do is assist a civil litigant in obtaining pro bono counsel. Herrerra v. Mich. Dep't

ofCorr., Case No. 5:10-DF-11215, 2011 WL 3862640, at *6 (E.D. Mich. July 22,

2011) (citation omitted), R&R adopted at 2011 WL 3862390 (E.D. Mich. Sept. 1,

2011); 28 U.S.C. § 1915(e)(1). Thus, Plaintiffs objection to Magistrate Judge

Deavers' denial of appointment of class counsel is OVERRULED. Further, because

Plaintiff cannot represent, pro se, a class in this case. Magistrate Judge Deavers

properly concluded that the Court must dismiss the class allegations.

Likewise, the R&R properly recommended dismissing all claims against all

Defendants except for Zariwala as well as the conspiracy claim and the claim

based on the filing of a false work evaluation against Zariwala. Plaintiffs sole

Case No. 2:18-cv-270 Page 5 of 7
objection on this point isthat he included the phrase "42 U.S.C. § 1983" on the

Complaint, but Plaintiff does not argue thatMagistrate Judge Deavers incorrectly

analyzed his claims under the § 1983 framework. Amere citation to § 1983 does

not properly state a claim under thatstatute, and as Plaintiff has not objected to

Magistrate Judge Deavers' analysis ofwhether the facts alleged in the Complaint

state a claim under § 1983, the Court ADOPTS the same.

This ruling is not altered by Plaintiffsstatement that discovery would

"changethe facts ofthe case." Obj. 2, ECF No. 7. It is Plaintiffs burden to plead

sufficientfacts in the Complaint to state a claim for relief. Plaintiffs may not make

conciusory allegations in a complaintand use discovery as a fishing expedition in

an attempt to find support for allegations already made. Northampton Restaurant

Grp., Inc. V. FIrstmerIt Bank, N.A., Case No. 10-4056, 2012 WL 2608807, at *3

(6th Cir. July 5, 2012) ("the language of Iqbalspecifically directs that no

discovery may be conducted in cases such as this, even when the information

needed to establish a claim ... is solely within the purview of the defendant...."

(quoting NewAlbany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046,1051

(6th Cir. 2011)); Patterson v. Novartis Pharm. Corp., 451 F. App'x 495,498 (6th

Cir. 2011) ("The Supreme Court's decisions in Twombly and Iqbal do not permit a

plaintiff to proceed past the pleading stage and take discovery in order to cure a

defect in a complaint.").

Finally, the Court is not prohibited from dismissing Plaintiffs claims priorto

serving Defendants in this case, in fact, 28 U.S.C. § 1915A directs the Court to

Case No. 2:18-cv-270 Page 6 of 7
review a prisoner civil rights complaint prior to docketing it, when possible, and to

dismiss any portion ofthe complaint that fails to state a claim. § 1915(a); (b)(1);

see also 28 U.S.C. § 1915(e)(2)(ii).

Accordingly, Plaintiffs objections are OVERRULED, the R&R is

AFFIRMED and ADOPTED, and the Court dismisses all claims against all

Defendants except for Zariwala. The Court further dismisses Plaintiffs

conspiracy claim and any claim based on the filing of a false work evaluation

against Zariwala. The Court dismisses the class claims.

Finally, Plaintiff moves for relieffrom judgment from the R&R, stating that

all Defendants except Zariwala were dismissed on that date. Mot. Relief

Judgment, ECF No. 8. That motion is DENIED. The R&R recommended

dismissal of the remaining Defendants but did not actually dismiss them. This

Order does so.

The Clerk shall terminate ECF Nos. 3 and 8 from the Court's pending

motions list and shall terminate Hawk, Conn, Wilson, Richard, Gould, Workman,

Heard, and Deputy Warden Welch as Defendants in this case.

IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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