UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KEITH M. WHITAKER, SR., Case No. 1:18-CV-546

Plaintiff,

Black, J.

vs. Bowman, M.J.

C.O. VOIERS, ORDER AND REPORT AND 

Defendant. RECOMMENDATION

Plaintiff, a pretrial detainee at the Scioto County Corrections Center, in Portsmouth, 

Ohio, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 against defendant “C.O. 

Voiers.” (Doc.1-1, at PageID 12). By separate Order, plaintiff has been granted leave to 

proceed in forma pauperis. 

This matter is before the Court for a sua sponte review of the complaint (Doc. 1-1) 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). 

I. Screening of Complaint

A. Legal Standard

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 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 1 of 11 PAGEID #: 49
2

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 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 wellCase: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 2 of 11 PAGEID #: 50
3

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).

B. Plaintiff’s Complaint 

Plaintiff, who alleges that he is “a fifty-two (52) year old disabled person” (Doc. 1-1, at 

PageID 19), asserts that defendant Voiers disregarded plaintiff’s safety and well-being between 

November 2015 and February 2016, and from April 19, 2018 to the present (Doc. 1-1, at 

PageID 15). 

More specifically, plaintiff alleges that between April 19, 2018 and April 24, 2018,

when he tried to “make amends to have a better future between Voiers and himself,” Voiers 

stated that he “never forgives and forgets,” that he “could not stand plaintiff because plaintiff 

was ‘a piece of shit,’” and “many other things.” (Doc. 1-1, at PageID 15). 

Plaintiff alleges that on or about April 24, 2018, Voiers “either made fun of plaintiff’s 

attempting suicide by hanging, or was encouraging him to do it again, or was threatening to 

hang plaintiff when he was walking up the stairs . . . and made a hanging motion and laughed 

at plaintiff.” (Doc. 1-1, at PageID 15).

Plaintiff alleges that on or about April 25, 2018, Voiers told other inmates outside of 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 3 of 11 PAGEID #: 51
4

plaintiff’s housing unit that Voiers “hated” plaintiff and “could not wait to do something to 

him.” Plaintiff alleges that Voiers then went into plaintiff’s cell and yanked plaintiff’s 

medically ordered mattress out from underneath him, causing plaintiff to fall to the floor, injure 

his hip and back, and damage his glasses. Plaintiff also alleges that Voiers took the mattress, 

but plaintiff was able to get it back within ten minutes from C.O. Aldridge, who is not named 

as a defendant in this action. (Doc. 1-1, at PageID 16).

Plaintiff alleges that on or about April 25, 2018, he requested to go to medical for his 

hip and back but that C.O. Charlton, who is not named as a defendant, denied the request. 

Plaintiff states that he later filed a medical request form, but “received no results” and “has no 

idea if it ever made it to medical.” (Doc. 1-1, at PageID 16).

Plaintiff alleges that on or about May 2, 2018, Voiers took plaintiff’s blanket and t-shirt 

when plaintiff was on his way back from recreation in order to harass him. Plaintiff asserts 

that Voiers was “made to give them back 10 minutes later.” (Doc. 1-1, at PageID 16).

Plaintiff claims that he repeatedly told Captain Carter, who is not named as a defendant, 

that he was in fear of his safety and wellbeing based on Voiers’s alleged actions. Plaintiff also 

claims to have filed grievances to that effect. (Doc. 1-1, at PageID 16). 

On or about May 26, 2018, plaintiff alleges, Voiers shut a door on plaintiff’s back and 

shoved him into his housing unit even though plaintiff was already on his way inside. (Doc. 1-

1, at PageID 17).

Plaintiff alleges that Voiers exploded into a rage on or about June 2, 2018 at the door to 

plaintiff’s housing unit because plaintiff looked at Voiers’s identification badge to get the 

correct spelling of his name. Voiers allegedly said: “I’m tired of your shit! I hope you die!” 

Voiers allegedly also made other comments, including: “You keep it up! I’ll give you a reason 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 4 of 11 PAGEID #: 52
5

to sue me!” Plaintiff alleges that Voiers then went into plaintiff’s cell, “tore it up,” took “little 

things,” and threatened “his life and safety.” (Doc. 1-1, at PageID 17).

Plaintiff alleges that on or about June 6, 2018, Voiers retaliated against him by not 

letting him go to recreation and again “tearing up” his cell. (Doc. 1, at PageID 17). According 

to plaintiff, Voiers again “tore up” his cell on or about July 6, 2018, while plaintiff was at 

recreation, taking an extra blanket that the doctor had ordered for plaintiff to elevate his head to 

relieve acid reflux. (Doc. 1-1, at PageID 18). Plaintiff claims that Voiers refused to verify 

plaintiff’s need for the blanket and plaintiff was left without the blanket for two nights, causing 

him to “suffer hacking acid out of his lungs.” (Doc. 1-1, at PageID 18). 

Plaintiff alleges that on one occasion Captain Carter had to get involved because Voiers 

said that plaintiff had swallowed something when Voiers was “tearing up” plaintiff’s cell. 

Voiers allegedly humiliated plaintiff by taking him to be x-rayed and strip-searched. Plaintiff 

claims that nothing was found. (Doc. 1-1, at PageID 19). 

Plaintiff alleges that he requested to file criminal charges against Voiers and to be 

separated from Voiers but his requests were denied. He further alleges that he lives in 

“constant fear” of Voiers and will not go to recreation when Voiers is on duty out of fear 

Voiers will do something to his cell or food. (Doc. 1-1, at PageID 19). 

For relief, plaintiff seeks monetary and injunctive relief. (Doc. 1-1, at PageID 14). 

C. Analysis

Through the Due Process Clause of the Fourteenth Amendment, pretrial detainees are 

entitled to the same Eighth Amendment rights as are other inmates. Thompson v. Cty. of 

Medina, Ohio, 29 F.3d 238, 242 (6th Cir. 1994). “Thus, Supreme Court precedents governing 

prisoners’ Eighth Amendment rights also govern the Fourteenth Amendment rights of pretrial 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 5 of 11 PAGEID #: 53
6

detainees.” Ruiz-Bueno v. Scott, 639 F. App’x 354, 358 (6th Cir. 2016). Further, prisoners, 

including pretrial detainees, “possess the First Amendment right to lodge peaceful complaints 

about prison conditions without retaliation.” Chapman v. Troutt, No. 3:10-1009, 2011 WL 

4396189, at *3 (M.D. Tenn. Sept. 21, 2011). See also McBee v. Campbell Cty. Detention 

Center, Nos. 17-5481/5943, 2018 WL 2046303, at *3-5 (6th Cir. Mar. 15, 2018).

Liberally construed, plaintiff’s complaint states a harassment and/or excessive-force 

claim against defendant Voiers for allegedly pulling the mattress out from underneath plaintiff 

on April 25, 2018, and an excessive-force claim against Voiers for allegedly shutting a door on 

plaintiff’s back on May 26, 2018. Plaintiff also states a retaliation claim against defendant 

Voiers for allegedly conducting a cell search, taking things from plaintiff’s cell, and threatening 

plaintiff on June 2, 2018, denying plaintiff recreation and conducting another cell search on June 

6, 2018, and conducting a third cell search and taking plaintiff’s extra-blanket on July 6, 2018, 

because plaintiff attempted to bring legal action against Voiers. At this stage in the proceedings, 

without the benefit of briefing by the parties to this action, the undersigned concludes that these 

claims are deserving of further development and may proceed at this juncture. See 28 U.S.C. 

§§ 1915(e)(2)(B) & 1915A(b). However, plaintiff’s remaining claims should be dismissed for 

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

First, any claim against Voiers in his official capacity must be dismissed to the extent that 

plaintiff seeks monetary damages. 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). An action against a state official in 

his or her official capacity is the equivalent of an action against the State he or she represents. 

Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 70-

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 6 of 11 PAGEID #: 54
7

71 (1989). Therefore, Voiers in his official capacity is immune from suit to the extent that 

plaintiff seeks monetary damages. 

Next, plaintiff’s allegations that between November 2015 and February 2016 defendant 

Voiers disregarded plaintiff’s safety and well-being are devoid of sufficient factual assertions 

to state a claim. See Twombly, 550 U.S. at 555-57. Such allegations also appear to be outside 

of the applicable two-year statute of limitations. See Collyer v. Darling, 98 F.3d 211, 220 (6th

Cir. 1996) (applying two-year statute of limitations to civil-rights claims brought under 42 

U.S.C. § 1983).

Furthermore, plaintiff’s allegations that Voiers violated his constitutional rights by 

making disparaging comments between April 19, 2018 and April 24, 2018, and on June 2, 2018, 

do not state a claim upon which relief may be granted. While such behavior, if true, is 

despicable and unprofessional, it does not rise to the level of a constitutional violation. See

Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (“Verbal harassment 

or idle threats by a state actor do not create a constitutional violation and are insufficient to 

support a § 1983 claim for relief.”); Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (“Not 

every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and 

unusual punishment within the meaning of the Eighth Amendment.”). 

Similarly, plaintiff’s allegation that Voiers made a hanging gesture with his hand on April 

24, 2018, does not state a claim for relief. See Ivey, 832 F.2d at 954; see also Russell v. Mooney, 

No. 17-cv-570-JPG, 2017 WL 2473279, at *4 (S.D. Ill. June 7, 2017) (finding that a defendant’s 

jokes and mocking comments about the plaintiff’s suicide attempt, while distressing, did not rise 

to the level of a constitutional violation); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) 

(finding that mere threatening language and gestures did not violate constitution). 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 7 of 11 PAGEID #: 55
8

Plaintiff’s allegation that on May 2, 2018, Voiers took plaintiff’s blanket and t-shirt for 

ten minutes also does not state a claim for relief. See Hunt v. Reynolds, 974 F.2d 734, 735 (6th 

Cir. 1992) (finding that the Eighth Amendment does not protect prisoners from conditions that 

cause mere discomfort or inconvenience). Likewise, plaintiff’s allegation that he was without 

his medically ordered mattress for ten minutes on April 25, 2018, does not state a claim. See 

id.

Nor does plaintiff state a claim for relief with his conclusory allegations that Voiers 

humiliated plaintiff by taking him, on an unspecified occasion, to be x-rayed and stripsearched. “[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)). See also 

Twombly, 550 U.S. at 555-57.

Finally, plaintiff’s allegations that he lives in constant fear of Voiers and will not go to 

recreation when Voiers is on duty out of fear that Voiers will do something to his cell or food 

are merely speculative and do not state a claim for relief. See Laird v. Tatum, 408 U.S. 1, 14

(1972) (finding that allegations of subjective harm “are not an adequate substitute for a claim 

of specific present objective harm or a threat of specific future harm”).

Accordingly, in sum, plaintiff may proceed with his harassment and/or excessive-force 

claim against defendant Voiers for allegedly pulling the mattress out from underneath plaintiff 

on April 25, 2018, his excessive-force claim against defendant Voiers for allegedly shutting a 

door on plaintiff’s back on May 26, 2018, and his retaliation claim against defendant Voiers for 

allegedly conducting a cell search, taking things from plaintiff’s cell, and threatening plaintiff on 

June 2, 2018, denying plaintiff recreation and conducting another cell search on June 6, 2018, 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 8 of 11 PAGEID #: 56
9

and conducting a third cell search and taking plaintiff’s extra-blanket on July 6, 2018, because 

plaintiff attempted to bring legal action against Voiers. However, the remainder of plaintiff’s 

complaint should be dismissed. 

IT IS THEREFORE RECOMMENDED THAT:

The complaint (Doc. 1-1) be DISMISSED with prejudice pursuant to 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff’s harassment and/or excessiveforce claim against defendant Voiers for allegedly pulling the mattress out from underneath 

plaintiff on April 25, 2018, his excessive-force claim against defendant Voiers for allegedly

shutting a door on plaintiff’s back on May 26, 2018, and his retaliation claim against defendant 

Voiers for allegedly conducting a cell search, taking things from plaintiff’s cell, and threatening 

plaintiff on June 2, 2018, denying plaintiff recreation and conducting another cell search on June 

6, 2018, and conducting a third cell search and taking plaintiff’s extra-blanket on July 6, 2018, 

because plaintiff attempted to bring legal action against Voiers. 

IT IS THEREFORE ORDERED THAT: 

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

Order issued granting the plaintiff in forma pauperis status, and this Order and Report and 

Recommendation upon defendant Voiers.

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

upon defendant’s attorney, 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 defendant or defendant’s 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 

Case: 1:18-cv-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 9 of 11 PAGEID #: 57
10

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-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 10 of 11 PAGEID #: 58
11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KEITH M. WHITAKER, SR., Case No. 1:18-CV-546

Plaintiff,

Black, J.

vs. Bowman, M.J.

C.O. VOIERS,

Defendant.

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-00546-TSB-SKB Doc #: 4 Filed: 08/28/18 Page: 11 of 11 PAGEID #: 59