GERALD BULLOCKS, 

Plaintiff, 

vs. 

LINNEA MAHLMAN, 

Defendant. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

Case No. 1: 18-cv-565 

Black, J. 

Litkovitz, M.J. 

REPORT AND 

RECOMMENDATION 

Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), brings this pro 

se prisoner civil rights action pursuant to 42 U.S.C. § 1983 against defendant Linnea Mahlman. 

By separate Order, plaintiff has been granted leave to proceed informa 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 Refonn 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 

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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)(l). 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 

4 70-71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to 

state a claim" under §§ l 9 l 5A(b )(I) 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. 

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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, 55 l U.S. at 93 (citations omitted). 

In the complaint, plaintiff alleges that he was retaliated against by defendant Mahlman 

for filing a civil Jaw suit in the Ohio Court of Claims in May or June 201 7 and for successfully 

appealing a grievance decision decided by her. (See Doc. 1, Complaint at PageID 14). From 

the Memorandum Decision issued in the Ohio Court of Claims case, 1 it appears that plaintiff 

purchased a guitar and amplifier through a SOCF music program prior to being transferred to 

segregation on December 26, 2015. Upon his release from segregation in July of 2017, 

plaintiff was informed that his music equipment was contraband because SOCF no longer had 

a music program and was given the choice to have the equipment mailed home or destroyed. 

On July 14, 2017, plaintiff was issued a conduct report by officer Brian Felts. (Id. at 

PageID 16). The report indicated that Felts researched the issue with defendant Mahlman and 

they concluded that the guitar and amplifier "were not approved for his possession while at 

SOCF." (Id. at PageID 19). According to plaintiff, Deputy Warden Cool subsequently "ruled 

in plaintiff's favor stating according to policy plaintiff 'is' allowed to possess the instruments." 

(Id. at PageID 16). In support of his retaliation claim against Mahlman, plaintiff claims that 

Cool's reversal of Mahlman's decision "mean[s] Ms. Mahlman had it out for plaintiff." (Id.). 

1 Viewed through the Ohio Court of Claims online case search (https://ohcourtportal.tylerhost.net/Portal/) under case 

number 2017-00761 AD. This Court may take judicial notice of court records that are available online to members 

of the public. See l ynch v. leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 

n.3 (6th Cir. 1999)). 

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Plaintiff further alleges that, following Cool' s decision, Mahlman authorized staff to 

break the guitar string in retaliation. (Id. at PageID 15, 17). Plaintiff was awarded $10 for the 

damages to his guitar in the Ohio Court of Claims case. (Id. at PageID 16). 

For relief in this case, he seeks $350,000 in punitive damages. (Id. at PagelD 15). 

Plaintiffs complaint is subject to dismissal for failure to state a claim upon which relief 

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

As an initial matter, the complaint should be dismissed as to defendant in her official 

capacity to the extent that plaintiff seeks monetary damages. (See Doc. 1 at PageID 1 ). Absent 

an express waiver, a state is immune from damage suits under the Eleventh Amendment. P.R. 

Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139 (1993); Edelman v. Jordan, 415 U.S. 

651 (1974). The State of Ohio has not constitutionally nor statutorily waived its Eleventh 

Amendment immunity in the federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 

(6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982). 

The Eleventh Amendment bar extends to actions where the state is not a named party, but where 

the action is essentially one for the recovery of money from the state. Edelman, 415 U.S. at 663; 

Ford Motor Company v. Dept. of Treasury, 323 U.S. 459, 464 (1945). A suit against defendant 

in her official capacity would, in reality, be a way of pleading the action against the entity of 

which defendant is an agent. Monell, 436 U.S. at 690. Thus, actions against state officials in 

their official capacities are included in this bar. Will v. Michigan Dept. of State Police, 491 U.S. 

58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). See also Colvin v. Caruso, 605 F.3d 

282, 289 (6th Cir. 2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009) (" [A]n 

official-capacity suit against a state official is deemed to be a suit against the state and is thus 

barred by the Eleventh Amendment, absent a waiver." (citation and ellipsis omitted)). Therefore, 

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defendant is immune from suit in her official capacity to the extent that plaintiff seeks monetary 

damages. 

Plaintiffs retaliation claims should also be dismissed. A prisoner's claim ofretaliation 

for engaging in protected conduct is grounded in the First Amendment. Jones v. Caruso, 421 F. 

App'x 550, 553 (6th Cir. 2011) (citing Thaddeus-Xv. Blatter, 175 F.3d 378, 388 (6th Cir. 1999) 

(en bane)). A retaliation claim has three elements: (1) the prisoner engaged in protected conduct; 

(2) an adverse action was taken against the prisoner that '"would deter a [prisoner] of ordinary 

firmness from continuing to engage in that conduct"'; and (3) the prisoner's protected conduct, at 

least in part, motivated the adverse action. Id. (quoting Thomas v. Eby, 481 F.3d 434, 440 (6th 

Cir. 2007), in tum quoting Thaddeus-X, 175 F.3d at 394). 

In this case, plaintiffs conclusory retaliation claims are subject to dismissal because 

plaintiff has not alleged any facts suggesting a causal connection between the alleged adverse 

actions and protected activity. As noted above, plaintiff claims that Mahlman retaliated against 

him by initially finding that he was not permitted to have musical equipment and, after her 

decision was reversed by Cool, authorizing staff to break his guitar string. However, plaintiff 

provides no factual support for his claims that Mahlman was motivated by his protected conduct 

or that she played any role in the broken guitar string other than his conclusory allegations that 

she "had it out for plaintiff' and "authorized staff' to break the guitar string. "[C]onclusory 

allegations of retaliatory motive ' unsupported by material facts will not be sufficient to state ... 

a claim under§ 1983. '" Harbin v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (quoting Gutierrez 

v. Lynch, 826 F.2d 1534, 1538- 39 (6th Cir. 1987)). "[N]ot every claim ofretaliation by a 

disciplined prisoner, who either has had contact with, or has filed a lawsuit against prison 

officials, will state a cause of action for retaliatory treatment. Rather, the prisoner must allege a 

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chronology of events from which retaliation may plausibly be inferred." Cain v. Lane, 857 F.2d 

1139, 1143 n.6 (7th Cir. 1988) (citing Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985) (noting 

that "alleging merely the ultimate fact of retaliation is insufficient")). Without any "further 

factual enhancement" plaintiffs conclusory allegations are simply insufficient to state an 

actionable claim for relief. Twombly, 550 at 555- 57. See also Whiteside v. Collins, No. Civ.A. 

2:08-cv-875, 2009 WL 4281443, at *9 (S.D. Ohio Nov. 24, 2009) (finding the plaintiff's 

retaliation claim was subject to dismissal, noting that "conclusory allegations of retaliatory 

motive and temporal proximity alone are insufficient to establish his retaliation claim") (Report 

and Recommendation), adopted, 2010 WL 1032424 (S.D. Ohio Mar. 17, 2010). Cf Brow v. 

Carpenter, 889 F.Supp. I 028, 1034 (W.D. Tenn. 1995) ("A plaintiff cannot bootstrap a frivolous 

complaint with a conclusory allegation of retaliation."). 

Plaintiff's claim that the temporary confiscation of his guitar and the broken string 

amounted to cruel and unusual punishment under the Eighth Amendment should also be 

dismissed. Plaintiffs allegations simply do not rise to the level of a constitutional violation. See 

Thomas v. NM Corr. Dep 't., 272 F. App'x 727, 730 (10th Cir. 2008) (finding that the 

deprivation of personal property does not rise to the level of an Eighth Amendment violation, 

which applies "[w]hen inmates are deprived 'of the minimal civilized measure of life's 

necessities' as measured under a contemporary standard of decency") (quoting Rhodes v. 

Chapman, 452 U.S. 337, 347 (1981)). A prisoner "cannot state a claim under the Eighth 

Amendment for deliberate indifference to the security of his property." Hunter v. Sherman, 49 

F. App' x 611, 612 (6th Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (stating 

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

serious harm")); Wa-Gino v. Arizona Dep 't of Corr., No. 95-16931 , 1995 WL 467701 , at *1 (9th 

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Cir. Aug. 16, 1996) (same). See also Sloan v. Durkin, No. 94 C 5833, 1996 WL 139245, at *2 

(N .D. Ill. Mar. 26, 1996) (the loss of an arrestee's property, " regardless of the cause, does not 

constitute cruel and unusual punishment under the eighth amendment"). Therefore, plaintiffs 

allegations do not rise to the level of a constitutional violation under the Eighth Amendment. 

Finally, plaintiff's claim that Mahlman violated his right to equal protection "when 

defendant failed to advise Brian Felts that plaintiff ' was' allowed to possess his property under 

'grandfather clause[]' policy" should be dismissed. (Doc. I, Complaint at PageID 18). "The 

Equal Protection Clause prohibits discrimination by goverrunent which either burdens a 

fundamental right, targets a suspect class, or intentionally treats one differently than others 

similarly situated without any rational basis for the difference. " Rondigo, L.L.C. v. Twp. of 

Richmond, 641 F.3d 673, 681 -82 (6th Cir. 2011) (citing Radvansky v. City of Olmsted Falls, 395 

F.3d 291, 312 (6th Cir. 2005)). To state a claim for discrimination under the equal protection 

clause, plaintiff must allege sufficient facts to show that a state actor intentionally discriminated 

against him because of his membership in a protected class. Simpson v. Ameji, 57 F. App'x 238, 

239 (6th Cir. 2003) (citing Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 

1990)). Plaintiff fails to allege any facts that he is a member of a protected class, that defendant 

discriminated against him, or that he was treated differentl y than others similarly situated. 

Therefore, plaintiff's equal protection claim should also be dismissed. 

Accordingly, in sum, the complaint should be dismissed pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and 1915A(b)(l) because plaintiff has failed to state a claim upon which relief 

may be granted. 

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IT IS THEREFORE RECOMMENDED THAT: 

I. The plaintiff's complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) and l915A(b)(l). 

2. The Court certify pursuant to 28 U.S.C. § l 915(a)(3) that for the foregoing reasons an 

appeal of any Order adopting this Report and Recommendation would not be taken in good faith 

and therefore deny plaintiff leave to appeal informa pauperis. See McGore v. Wrigglesworth, 

114 F.3d 601 (6th Cir. 1997). 

Date: 

Karen ~~ L. Litkovitz 

United States Magistrate Judge 

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GERALD BULLOCKS, 

Plaintiff, 

vs. 

LfNNEA MAHLMAN, 

Defendant. 

UNITED STA TES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

Case No. I: I 8-cv-565 

Black, J. 

Litkovitz, M.J. 

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 oflaw 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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