UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MAURICE LEE SOLEDAD, R., Case No. 1:18-cv-126

Plaintiff,

Barrett, J.

vs. Bowman, M.J.

LT. WEBB, et al., ORDER AND REPORT 

Defendants. AND RECOMMENDATION

Plaintiff, an inmate at the Warren Correctional Institution, brings this civil rights action 

pursuant to 42 U.S.C. § 1983. By separate Order, plaintiff has been granted leave to proceed in 

forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte 

review of the complaint 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 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 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 1 of 21 PAGEID #: 146
2

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 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. 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 2 of 21 PAGEID #: 147
3

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).

Plaintiff, who is proceeding pro se, brings this § 1983 action against defendants Mr. 

Berry, C/O McCoy, Ms. Kennedy, Sgt. Bradly, Captain Richardson, Major Hogan, C/O Fryer, 

Mr. Blackwell, Warden Justus, Sgt. Sherill, C/O Farby, C/O Moore, Mr. Craft, Warden Harris, 

Lt. Nelson, and Lt.Webb. (Doc. 1, Complaint at PageID 4). The forty-two page complaint, with 

ninety pages of exhibits, includes allegations spanning several years from both the London 

Correctional Institution (LoCI) and Warren Correctional Institution (WCI). 

In the complaint, plaintiff first alleges that on September 27, 2015, while at LoCI, he was 

escorted to the captain’s office because of a conduct report written against him for disobeying a 

direct order. Plaintiff alleges that defendant Lt. Webb repeatedly asked him “What are you?” 

once at the captain’s office, eventually stating that plaintiff was not a human being, but “a[n]

inmate and you do what you [are] . . . told by any officer.” (Id. at PageID 6). Webb told plaintiff 

he would be going to “ABBR Seg,” and that “his friends would make sure [plaintiff] enjoyed 

[his] stay in ABBR.” (Id.). Plaintiff indicates that he felt threatened by the comment. 

Plaintiff next alleges that he went to the Rules Infraction Board (RIB) on October 6, 

2015. (Id. at PageID 7). Plaintiff claims that he plead not-guilty and was ultimately found guilty 

of the infraction. The complaint appears to allege that Webb provided false information in the 

conduct report. Plaintiff claims that defendant local control chairman Berry determined that his 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 3 of 21 PAGEID #: 148
4

presence in general population “is likely to seriously disrupt the orderly operation of the 

institution.” (Id.). Plaintiff further alleges that defendant Sgt. Bradly signed the “RIB Designee 

Signature” although he was not on the RIB Panel. (Id. at PageID 8). 

Plaintiff alleges that he was later released from local control, and that he “laid low” 

because he felt threatened by Lt. Webb. However, on June 7, 2017, plaintiff claims he received a 

conduct report from defendant Sgt. K. Sherrill. (Id. at PageID 9). According to plaintiff the 

conduct report resulted from plaintiff having his radio on his TV stand. 

Plaintiff claims he went to the captain’s office to talk to defendant Captain Richardson. 

Apparently during plaintiff’s conversation with Richardson “Lt. Killian had something she 

wanted to say,” but plaintiff “told her to shut-up bitch.” (Id. at PageID 10). Plaintiff further 

alleges that after informing another inmate that Killian lies, plaintiff was escorted to the 

segregation unit. Plaintiff claims he was found guilty at a subsequent RIB proceeding. 

Plaintiff indicates that he has named Killian as a defendant1 because “my property, my 

laundry detergent was poured over my clothing while under her care, my I.D. was missing and 

my lock was missing.” (Id. at PageID 11). With respect to defendant Richardson, the complaint 

includes allegations that plaintiff filed a complaint against her under the Prison Rape Elimination 

Act (PREA) for sexual misconduct and that Richardson “still made her way around me once 

placing herself in position to be 10’ away from 3 time during my dinner meal.” (Id.). 

Plaintiff next lists the conduct reports he has received from defendants Sherill, 

Richardson, Killian, Web, Bradly, Capt. Gause, Officer Fryer, and Officer Sharrock. Plaintiff 

 1 Killian is not actually named as a defendant in this action. (See Doc. 1, Complaint at PageID 4). Plaintiff has also 

included allegations against Sgt. Gause and Officer Sharrock, who are also not named as defendants to this action. 

In any event, for the reasons stated below, plaintiff has failed to state a claim for which relief may be granted against 

these individuals. 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 4 of 21 PAGEID #: 149
5

claims these individuals are “all subordinates of Lt. Webb.” (Id. at PageID 11–12). 

Plaintiff claims that defendant Killian is in charge of inmate mail at LOCI. (Id. at PageID 

13). He complains that the majority of his letters have been returned to him, marked return to 

sender or “no one at this address by that name.” (Id.). 

Plaintiff claims that he was transferred to the Warren Correctional Institution (WCI) on 

December 6, 2017. Plaintiff claims that defendant case manager Ms. Kennedy made him wait 

for thirty minutes, before dismissing him and telling him to send her a kite. (Id. at PageID 14). 

Plaintiff claims he wanted to be transferred, but Kennedy neglected to keep her appointments 

with him and “was not dutyful (sic) toward me.” (Id.). Plaintiff claims he wrote the ODRC 

central office regarding a transfer. He claims he waited until July of 2017, only to learn that his 

security review was held without him. 

Plaintiff next complains that defendants Fryer and Kennedy, as well as officer Reaver, 

took his radio and headphones. (Id. at PageID 17). He further alleges that Fryer escorted him to 

the captain’s office. During this time, plaintiff claims Fryer “kept twisting my wrist” and “while 

walking in mid-stride . . . shove me into the door frame, and when regain my balance with abrupt 

movement he shoved me into the door frame again.” (Id.). According to plaintiff, Webb and 

Reaver escorted him to the transportation hold cell and asked plaintiff to fill out a statement of 

events. 

Plaintiff claims that on August 3, 2017, he was found guilty by the RIB, presumably in 

connection with the incident. Plaintiff claims that Lt. Webb stated “inmate if you come back in 

front of me this year for anything, I am going to raise your security level to a level #3 and place 

you in a cell by yourself until you leave.” (Id. at PageID 18). 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 5 of 21 PAGEID #: 150
6

Next, plaintiff claims that on November 20, 2017, Captain Gause approached him in the 

cafeteria during breakfast. Plaintiff claims that he asked Gause when he would respond to his 

kite documents. Gause allegedly told him that he would not respond to them. According to 

plaintiff, plaintiff then told Gause “you [are] not as strong as you think you are all muscle, no 

brian (sic).” (Id. at PageID 20). After an argument, plaintiff claims he told Gause “you know 

what leave me alone I am trying to eat.” (Id.). According to plaintiff, Gause told him to take his 

feet off of the chair in front of plaintiff. It appears from the complaint that plaintiff claims that 

he complied with Gause’s order, but that he received a conduct report for his failure to comply 

with the order. Plaintiff alleges that he unsuccessfully appealed the RIB decision to the warden’s 

office. According to plaintiff, Webb entered a not guilty plea without his consent, imposed six 

days of restrictive housing status, and recommended security level three review. (Id. at PageID 

21–22). 

Plaintiff claims he was subsequently transferred to a holding cell in segregation, patted 

down, stripped searched, given a uniform, and escorted to a single man cell. (Id. at PageID 23). 

He claims the temperature in the cell was cold, he was restricted to a metal “slab-plate grate-like” 

bunk, and was not provided a blanket. (Id.). According to plaintiff, he requested a blanket from 

defendant McCoy who responded “when one become[s] available.” (Id.). According to plaintiff, 

McCoy never provided the blanket, “so I remain reduced to two sheets.” (Id. at PageID 25). 

Plaintiff complains about the water pressure in the shower and sink, that the cell floor was “dirty 

with heavy dust bunnies,” and that the wall had graffiti and dried spit on it. (Id. at PageID 24). 

He further contends that he was overlooked for dinner and was denied outside recreation on 

occasion. (Id. at PageID 25). Finally, regarding his cell conditions, plaintiff claims that a third 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 6 of 21 PAGEID #: 151
7

shift officer would shine a flashlight on him every fifteen minutes, disrupting his sleep. (Id. at 

PageID 26). 

Plaintiff next alleges that he tried to report officer Fryer for pushing him into the door 

frame and filing a false conduct report. However, plaintiff claims that defendant Blackwell told 

him he needed to file an Informal Complaint Resolution with the shift captain. (Id. at PageID 

27). Plaintiff appears to complain that Blackwell neglected to conduct a use of force interview. 

(See id.). Later in the complaint, plaintiff also claims to have brought the issue to the attention of 

defendant Hogan. (Id. at PageID 31). 

Next, plaintiff alleges that he was improperly charged for a replacement ID on June 6, 

2017 at LoCI. To the best of the Court’s ability,2 it appears that plaintiff claims that defendant 

Sherrill took his ID in order to issue a conduct report against him, but failed to return it to 

plaintiff. (See id. at PageID 29). Plaintiff claims that he did not receive a satisfactory response 

to his kite regarding the ID—as well as a request plaintiff made for laundry detergent and a 

lock—and that he was charged $5.00 for a new ID. (Id. at PageID 30–31). 

Without explanation, the complaint next quotes a memorandum concerning inmate 

appearance and grooming. (Id. at PageID 29). It appears that plaintiff filed a grievance with 

Hogan regarding the memorandum. 

Plaintiff indicates that he unsuccessfully filed kites and/or grievances regarding many of 

the above issues. He further claims that he also sought further review of the denial of his 

grievances with defendants Berry and Harris, as well as Gary Mohr, the director of the Ohio 

Department of Rehabilitation and Correction. (See id. at PageID 35–37). 

 

2 The complaint quotes at length correspondence between plaintiff and various officers concerning the incidents 

alleged in the complaint. (See, e.g., id. at PageID 27–29; 95–99). 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 7 of 21 PAGEID #: 152
8

According to plaintiff, he was subsequently transferred to WCI and claims that his 

personal items were taken from him. (Id. at PageID 38). Plaintiff claims he unsuccessfully filed 

an appeal to the WCI warden defendant Harris, explaining that he was unable to pack up his 

property. (Id. at PageID 37–38). During the transfer, plaintiff further alleges that defendant 

Farby “place[d] [his] left arm under [plaintiff’s] left arm and [his] right hand on [plaintiff’s] left 

shoulder.” (Id. at PageID 37). 

Next, plaintiff complains that on December 17, 2017, defendant officer Moore wrote a 

conduct report against him, stating that he saw plaintiff punch another inmate. (Id. at PageID 

38). Plaintiff states that Moore ordered him to stop fighting twice, that plaintiff complied with 

his orders, and that Moore stated “I’m going to take you down.” (Id.). Plaintiff alleges that 

Moore subsequently “grabbed me by both arms around my waist take a couple steps and body 

slams me to the ground, I hit my head on the cement floor, and my side of my left eye socket 

bridge near my temple is bust wide open.” (Id.). According to plaintiff, defendant Lt. Nelson 

took a picture of his injuries and “a use of force was conduct by a Capt. Walker, he held a 

disposition (sic).” (Id.). 

Plaintiff claims that following the incident, he wrote defendant Harris to place an 

institutional separation between him and Moore. (Id. at PageID 39). Plaintiff argued that he was 

not safe at WCI in light of the incident. Plaintiff alleges that defendant Mr. Craft informed him 

that “an institution separation was no policy for a correctional officer misconduct other than 

sexual misconduct.” (Id.). 

Finally, plaintiff makes several allegations regarding his laundry and difficulty obtaining 

legal materials. (See id. at PageID 40). Plaintiff claims that he was told that he had to wash his 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 8 of 21 PAGEID #: 153
9

sheets with his clothing. He claims that on three occasions his laundry has been returned to him 

wet. With respect to his legal materials, plaintiff alleges that he had to contact the institutional 

inspector in order to get his legal work. 

For relief, plaintiff seeks injunctive relief and monetary damages. (Id. at PageID 42). 

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

action, the undersigned concludes that plaintiff may proceed with his excessive force claim 

against defendant Moore, based on his allegation that on December 17, 2017 Moore slammed his 

face into the concrete floor, resulting in injuries to his left eye socket. Out of an abundance of 

caution plaintiff may also proceed with his excessive force claim against defendant Fryer, based 

on his allegation that Fryer twisted his wrist and shoved him into a door frame repeatedly. See 

Thomas v. Eby, 481 F.3d 434 (6th Cir. 2006). However, plaintiff’s remaining claims should be 

dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 

First, to the extent plaintiff seeks to bring a claim against Lt. Webb based on threats 

made in September 27, 2015, he has failed to state a viable claim under § 1983, which requires 

a showing of a deprivation of “a right secured by the United States Constitution or a federal 

statute.” See Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir. 2003). It is well-settled that 

“[v]erbal harassment or idle threats by a state actor do not create a constitutional violation and 

are insufficient to support a section 1983 claim for relief.” Wingo v. Tennessee Dep’t of Corr., 

499 F. App’x 453, 455 (6th Cir. 2012) (per curiam) (citing Ivey v. Wilson, 832 F.2d 950, 955 

(6th Cir. 1987)); see also Chilcott v. Erie Cnty. Domestic Relations, 283 F. App’x 8, 11 (3rd 

Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases cited therein). Cf. Johnson v. Unknown 

Dellatifa, 357 F.3d 539, 545–46 (6th Cir. 2004). Therefore, plaintiff’s claims that defendant 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 9 of 21 PAGEID #: 154
10

Webb or any other named defendant threatened him should be dismissed. 

To the extent that plaintiff contends that all the factual allegations presented in the 

complaint are the result of a conspiracy stemming from Lt. Webb’s September 27, 2015 

comment that his friends would make sure plaintiff enjoyed his stay in segregation, this claim 

should be dismissed. Plaintiff claims that “Lt. Webb is the key element” and the other named 

defendants are all his subordinates or friends. (See Doc. 1, Complaint at PageID 11, 40). 

However, it is well-settled in the Sixth Circuit that conspiracy claims must be pleaded with “with 

some degree of specificity, and vague and conclusory allegations unsupported by material facts 

are not sufficient to state a claim.” Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 

2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez 

v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of conspiracy claims under 42 

U.S.C. § 1983 because the plaintiff failed to plead the claims with the “requisite specificity”). 

Here, construing the complaint liberally, plaintiff’s factual allegations are insufficient to suggest 

that the defendants shared a conspiratorial objective or otherwise planned together to deprive him 

of a constitutionally-protected right. Therefore, plaintiff’s vague, unsubstantiated and conclusory 

claim based on a conspiracy theory lacks the requisite specificity to state a cognizable claim 

under 42 U.S.C. § 1983.

The complaint should also be dismissed against Warden Harris and Warden Justus. 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) (per curiam) (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 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 10 of 21 PAGEID #: 155
11

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), and 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”). Plaintiff has 

not alleged any facts even remotely suggesting that these defendants directly participated in the 

alleged violations of plaintiff’s constitutional rights. With respect to the defendant wardens, 

plaintiff alleges that he appealed to their offices from RIB proceedings and they failed to take 

corrective action. (See Doc. 1, Complaint at PageID 18, 21, 35, 39, 41). The mere fact that these 

defendants hold supervisory positions is not enough to impose liability on them under section 

1983.3

 Plaintiff has otherwise failed to make any allegation that these individuals violated his 

constitutional rights. 

Plaintiff’s claims against various defendants in connection with the RIB hearings or his 

allegations that defendants provided false information in conduct reports should also be 

dismissed. Plaintiff fails to state a viable constitutional claim under the Fourteenth 

Amendment in connection with the RIB hearing, because the challenged disciplinary actions 

did not amount to a deprivation of a constitutionally protected liberty interest. In Sandin v. 

 3 Plaintiff’s conclusory allegations in the complaint that these defendants failed to supervise or properly train their 

employees without any “further factual enhancement” is simply insufficient to state an actionable claim for relief 

against them. See Twombly, 550 U.S. at 555-57. 

The same is true for defendant Killian, who plaintiff claims is in charge of inmate mail at LoCI. Plaintiff claims that 

many of his letters were returned marked “no one at this address by that name.” (See Doc. 1, Complaint at PageID 

13). However, plaintiff does not include any factual allegations of wrongdoing on the part of Killian with respect to 

his mail. 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 11 of 21 PAGEID #: 156
12

Conner, 515 U.S. 472 (1995), the Supreme Court held that the Fourteenth Amendment confers 

on prisoners only a “limited” liberty interest “to freedom from restraint which . . . imposes 

atypical and significant hardship on the inmate in relation to the ordinary incidents of prison 

life,” or which “will inevitably affect the duration of his sentence.” Sandin, 515 U.S. at 484, 

487; see also Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998); Williams v. Wilkinson, 51 F. 

App’x 553, 556 (6th Cir. 2002). The Sixth Circuit has held that confinement in segregation 

generally does not rise to the level of an “atypical and significant” hardship implicating a 

liberty interest except in “extreme circumstances, such as when the prisoner’s complaint 

alleged that he is subject to an indefinite administrative segregation” or that such confinement 

was excessively long in duration. Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010) 

(citing Harden-Bey v. Rutter, 524 F.3d 789, 795 (6th Cir. 2008)) (emphasis in original); see 

also Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir.) (holding that the prisoner’s 8-year 

confinement in segregation was of “atypical duration” and thus “created a liberty interest that 

triggered his right to due process”), cert. denied, 133 S.Ct. 429 (2012). Cf. Wilkinson v. Austin, 

545 U.S. 209, 223-24 (2005) (ruling that an inmate’s transfer to Ohio’s “supermax” prison 

“imposes an atypical and significant hardship” given the combination of extreme isolation of 

inmates, prohibition of almost all human contact, indefinite duration of assignment, and 

disqualification for parole consideration of otherwise eligible inmates).

Here, plaintiff has not alleged that the challenged disciplinary proceedings resulted in the 

lengthening of his prison sentence, the withdrawal of good-time credits, or the deprivation of any 

necessities of life. Moreover, plaintiff has not alleged any facts to suggest that he was subjected 

to a lengthy disciplinary placement amounting to an atypical or significant hardship that would 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 12 of 21 PAGEID #: 157
13

trigger constitutional concerns. Accordingly, because plaintiff does not have a protected liberty 

interest under the circumstances alleged herein, any claim against the defendant for their conduct 

in the disciplinary proceedings fails to state a cognizable federal claim under the Fourteenth 

Amendment’s Due Process Clause.

Plaintiff has also not stated a constitutional claim to the extent he has alleged that 

defendants Webb, Sherill, Richardson, Killian, Fryer, Gause, Sharrock, and Moore wrote false 

conduct reports which resulted in disciplinary sanctions imposed by the RIB. Erroneous or even 

fabricated allegations of misconduct by an inmate, standing alone, do not constitute a deprivation 

of a constitutional right. See, e.g., Reeves v. Mohr, No. 4:11cv2062, 2012 WL 275166, at *2 

(N.D. Ohio Jan. 31, 2012) (and cases cited therein) (holding that the prisoner failed to state a 

claim upon which relief may be granted to the extent that he claimed he had “a constitutional 

right to be free from false accusations”). “A constitutional violation may occur, if as a result of 

an accusation, the Plaintiff was deprived of a liberty interest without due process.” Reeves, 

supra, 2012 WL 275166, at *2 (citing Sandin v. Conner, 515 U.S. 472, 485 (1995)). However, 

as noted above, plaintiff’s allegations are insufficient to trigger constitutional concerns because 

he has not alleged any facts even remotely suggesting that the challenged disciplinary action 

deprived him of a protected liberty interest. 

Plaintiff’s allegations that defendants failed to respond to his kites and/or grievances or 

failed to conduct investigations of his complaints are also subject to dismissal at the screening 

stage. As noted above, plaintiff claims that Gause and Hogan neglected to respond to his kites 

and Blackwell failed to conduct a use of force investigation. However, “[t]here is no statutory or 

common law right, much less a constitutional right, to an investigation.” Mitchell v. McNeil, 487 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 13 of 21 PAGEID #: 158
14

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). Furthermore, to the extent that plaintiff claims that the grievance 

procedure failed to produce the correct outcome, this cannot give rise to a § 1983 claim 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). 

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. Johnson, 977 F.2d 996, 1014 (6th Cir.

1992); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

To the extent plaintiff alleges he was deprived of his ID, laundry detergent, radio, 

headphones, or other property without due process of law, his allegations are insufficient to state 

an actionable § 1983 claim. In order to assert such a claim, plaintiff must first “plead . . . that 

state remedies for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062, 1066 

(6th Cir. 1983). See also Hudson v. Palmer, 468 U.S. 517 (1984); Parratt, 451 U.S. 527 (1981). 

“If satisfactory state procedures are provided in a procedural due process case, then no 

constitutional deprivation has occurred despite the injury.” Jefferson v. Jefferson County Pub. 

Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004). Accordingly, in order to state a procedural due 

process claim under section 1983 “the plaintiff must attack the state’s corrective procedure as 

well as the substantive wrong.” Meyers v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) 

(quoting Vicory, 721 F.2d at 1066). A plaintiff “may not seek relief under Section 1983 without 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 14 of 21 PAGEID #: 159
15

first pleading and proving the inadequacy of state or administrative processes and remedies to 

redress [his] due process violations.” Jefferson, 360 F.3d at 588.

Plaintiff has not alleged any facts even remotely indicating that his remedies under Ohio 

law to redress the wrong of which he complains are inadequate. Plaintiff’s complaint fails to 

explain why a state tort remedy for conversion would not suffice to address his claim. See Fox v. 

Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). Therefore, he fails to state a due process 

claim that is actionable in this § 1983 proceeding.

The undersigned further finds that plaintiff’s allegations regarding the prison conditions 

do not rise to the level of a constitutional violation. The Eighth Amendment requires prison

officials “to provide humane conditions of confinement” and to “ensure that inmates receive 

adequate food, clothing, shelter, and medical care. . . .” Farmer v. Brennan, 511 U.S. 825, 832

(1994). “Not every unpleasant experience a prisoner might endure while incarcerated constitutes 

cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson,

832 F.2d 950, 954 (6th Cir. 1987). Rather, “[t]he Eighth Amendment is concerned only with 

‘deprivations of essential food, medical care, or sanitation,’ or ‘other conditions intolerable for 

prison confinement.’” Richmond v. Settles, 450 F. App’x 448, 455–56 (6th Cir. 2011) (quoting 

Rhodes v. Chapman, 452 U.S. 337, 348 (1981)). Therefore, to establish an Eighth Amendment

violation, a plaintiff must first demonstrate objectively the unique deprivation of “the minimal 

civilized measure of life’s necessities.” Id. at 454 (quoting Rhodes, 452 U.S. at 347); see also 

Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer, 511 U.S. at 834) (“[T]he 

inmate must show that he is incarcerated under conditions posing a substantial risk of serious 

harm.”). He then must subjectively show the defendant acted “wantonly,” with “deliberate 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 15 of 21 PAGEID #: 160
16

indifference to the plaintiff’s serious needs.” Richmond, 450 F. App’x at 455 (citing Farmer,

511 U.S. at 834).

In this case, plaintiff’s allegations do not rise to the level of an Eighth Amendment 

violation. First, to the extent that plaintiff bases his claim on his confinement in disciplinary 

segregation, he has failed to state a claim upon which relief may be granted. “Because 

placement in segregation is a routine discomfort that is a part of the penalty that criminal 

offenders pay for their offenses against society, it is insufficient to support an Eighth 

Amendment Claim.” Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir.2003) (citing 

Hudson v. McMillan, 503 U.S. 1, 9 (1992)). Furthermore, plaintiff’s complaints about the metal

bed, his only being provided with two sheets, the water pressure, and other allegations regarding 

his cell do not amount to a deprivation of “the minimal civilized measure of life’s necessities.” 

Moreover, the discomfort experienced by a prisoner when some meals are denied over a 

short period of time does not rise to the level of “wanton infliction of pain” so long as the 

prisoner continues to receive adequate nutrition. Richmond, 450 F. App’x at 456. Although 

plaintiff claims he was overlooked for dinner on occasion, this does not amount to cruel and 

unusual punishment under the Eighth Amendment. See Cunningham v. Jones, 667 F.2d 565, 566 

(6th Cir. 1982) (serving a prisoner one meal per day for fifteen days did not violate the prisoner’s 

Eighth Amendment rights where that meal was sufficient to maintain normal health for the 15–

day time period). See, e.g., Wilson v. Johnson, 385 F. App’x 319, 320 (4th Cir. 2010) (finding 

that the plaintiff stated a cognizable Eighth Amendment claim regarding inadequate nutrition 

when he asserted that he lost twelve pounds in a month because of inadequate portions). 

Plaintiff has neither alleged that he was denied adequate nutrition, nor has he alleged any harm as 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 16 of 21 PAGEID #: 161
17

a result of the allegations in the complaint. See, e.g., Price v. Jones, Case No. 1:12-cv-360, 2012 

WL 1854299, at *4 (S.D. Ohio May 4, 2012) (Report and Recommendation) (Dlott, J.; Litkovitz, 

M.J.) (recommending dismissal of Eighth Amendment claim based on the plaintiff’s failure to 

allege that his health suffered as a result of alleged inadequacies in the prison meal plan), 

adopted 2012 WL 2269265, at *1 (S.D. Ohio June 18, 2012); White v. Gregory, 1 F.3d 267, 269 

(4th Cir. 1993) (finding the allegation that the plaintiff was forced to go without food for 

eighteen hours on the weekends failed to rise to a violation of the Eighth Amendment without 

any showing of deleterious effects of the meal plan).

Plaintiff’s allegations that defendant Farby “place[d] [his] left arm under [plaintiff’s] left 

arm and [his] right hand on [plaintiff’s] left shoulder” in the course of transporting him to a new 

cell (see Doc.1, Complaint at PageID 37) is also insufficient to state an excessive force claim 

under the Eight Amendment. “Not every malevolent touch by a prison guard gives rise to a 

federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. 

McMillian, 503 U.S. 1, 9 (1992)). “The Eighth Amendment’s prohibition of cruel and unusual 

punishment necessarily excludes from constitutional recognition de minimis uses of physical 

force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id.

at 38 (internal quotation marks and citation omitted). “An inmate who complains of a push or 

shove that causes no discernible injury almost certainly fails to state a valid excessive force 

claim.” Id. Therefore, plaintiff’s claim that Farby placed his hand on him should be dismissed.

Plaintiff’s allegation that he was denied an institutional separation between him and 

defendant Moore also fails to state a claim for deliberate indifference to safety under the Eighth 

Amendment. Plaintiff claims that he requested a separation from Harris and Craft following the 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 17 of 21 PAGEID #: 162
18

December 17, 2017 attack. However, to state an Eighth Amendment claim against prison 

officials based on their failure to protect him from an attack, plaintiff must allege facts showing 

that defendants’ conduct amounted to “deliberate indifference” to a known risk of harm to 

plaintiff. Farmer v. Brennan, 511 U.S. 825, 828 (1994); see also Vaughn v. Ricketts, 859 F.2d 

736, 741 (9th Cir. 1988) (finding that a prison administrator’s indifference to brutal behavior of 

guards towards inmates is sufficient to state an Eight Amendment claim), overruled on other 

grounds by Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995). A prison official may be held liable 

for his failure to protect inmates from attacks only if he knows that an inmate faces “a substantial 

risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 

Farmer, 511 U.S. at 847. Plaintiff’s complaint fails to allege any facts showing that defendants 

were aware that defendant Moore posed a future threat to plaintiff’s safety following the 

incident, yet failed to take reasonable actions to prevent the assault. In the absence of such 

allegations, the complaint fails to state a claim for relief under the Eighth Amendment.

Finally, to the extent that plaintiff intends to bring a First Amendment claim in 

connection with his allegations that he experienced difficulty accessing his legal materials, this 

claim should also be dismissed. An inmate must plead and demonstrate that the lack of legal 

materials or the shortcomings in the prison legal assistance program have hindered, or are 

presently hindering, his efforts to pursue a nonfrivolous legal claim. Lewis v. Casey, 518 U.S. 

343, 351-53 (1996); see also Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). “Examples 

of actual prejudice to pending or contemplated litigation include having a case dismissed, being 

unable to file a complaint, and missing a court-imposed deadline.” Harbin-Bey v. Rutter, 420 

F.3d 571, 578 (6th Cir. 2005).

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 18 of 21 PAGEID #: 163
19

In addition, when bringing a denial of access to the courts claim, “the underlying cause of 

action, whether anticipated or lost, is an element that must be described in the complaint, just as 

much as allegations must describe the official acts frustrating the litigation.” Christopher v. 

Harbury, 536 U.S. 403, 415 (2002). “[T]he predicate claim (must) be described well enough to 

apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the underlying claim is 

more than hope.” Id. In other words, “only prisoners with non-frivolous underlying claims can 

have standing to litigate an access-to-courts action.” Hadix v. Johnson, 182 F.3d 400, 405-406 

(6th Cir. 1999) (citing Lewis, 518 U.S. at 353 & n. 3). 

Plaintiff fails to allege any facts showing that he suffered an actual injury in any 

nonfrivolous legal proceeding as a result of the alleged inadequacies of the jail facilities and/or 

access to his legal materials. Without such allegations, plaintiff’s complaint fails to state a claim 

for relief for a denial of access to the courts under the First Amendment.4

Accordingly, in sum, plaintiff may proceed with his excessive force claims against 

defendants Moore and Fryer. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Having found that 

the remaining allegations in the complaint fail to state a claim upon which relief may be granted, 

plaintiff’s remaining claims should be dismissed. 

IT IS THEREFORE RECOMMENDED THAT:

The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 

and 1915A(b)(1), with the exception of plaintiff’s excessive force claims against defendants 

 

4 The undersigned finds that plaintiff’s remaining allegations do not rise to the level of a constitutional violation. 

Plaintiff claims that defendant Richardson came within ten feet of him during dinner, despite plaintiff having filed a 

PREA complaint against her and that Kennedy made him wait for thirty minutes, neglected to keep her 

appointments, and was not dutiful toward him. Absent any other allegations of wrongdoing on the part of these 

defendants, the complaint fails to plausibly allege that these individuals violated plaintiff’s rights. 

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 19 of 21 PAGEID #: 164
20

Moore and Fryer. 

IT IS THEREFORE ORDERED THAT:

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

granting plaintiff in forma pauperis status, and this Order and Report and Recommendation 

upon defendants Moore and Fryer as directed by plaintiff, with costs of service to be advanced 

by the United States. 

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

upon defendants’ attorney(s), 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 defendants 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. 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

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 20 of 21 PAGEID #: 165
21

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MAURICE LEE SOLEDAD, R., Case No. 1:18-cv-126

Plaintiff,

Barrett, J.

vs. Bowman, M.J.

LT. WEBB, 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).

Case: 1:18-cv-00126-MRB-SKB Doc #: 5 Filed: 05/01/18 Page: 21 of 21 PAGEID #: 166