UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOHN PEROTTI, et al.,

Plaintiffs,

vs.

CHIEF INSPECTOR ROGER WILSON, 

et al.,

Defendants.

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 Case No. 1:18-cv-482

 Judge Timothy S. Black

 Magistrate Judge Karen L. Litkovitz

DECISION AND ENTRY 

ADOPTING THE REPORTS AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE JUDGE (Docs. 18, 34)

This case is before the Court pursuant to the Order of General Reference to United 

States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate 

Judge reviewed the pleadings filed with this Court and, on September 11, 2018, 

submitted a Report and Recommendation (the “First R&R”). (Doc. 18). Plaintiff John 

Perotti filed timely objections on September 21, 2018. (Doc. 21).

Subsequently, on September 25, 2018, Plaintiff Perotti filed an amended 

complaint, which added Peter Ortiz as a plaintiff. (Doc. 24).1

 On November 11, 2018, 

the Magistrate Judge submitted a second Report and Recommendation (the “Second 

R&R”). (Doc. 34). Plaintiffs filed untimely objections to the Second R&R on December 

 1 The amended complaint in this action supersedes the original complaint for all purposes. See 

In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 589 (6th Cir. 2013). 
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10, 2018.2

 (Doc. 38).

After reviewing the First and Second R&Rs, Plaintiffs’ objections, and the record 

in this case, the Court finds that Plaintiffs’ objections are not well-taken. 

First, Plaintiffs object to the Second R&R’s finding that Plaintiffs Perotti and 

Ortiz’s claims in Count Five should be dismissed without prejudice. (Doc. 38 at 1–5). 

Count Five, which was added in the amended complaint, alleges that Defendant Jenkins 

improperly confiscated grievances belonging to Ortiz and issued Perotti a conduct report 

based upon an Ohio Department of Rehabilitation and Correction policy that prohibits an

inmate from possessing legal papers belonging to another inmate. The Magistrate Judge 

found that the claims in Count Five did not arise “out of the same transaction, occurrence, 

or series of transactions or occurrences; and . . . any question of law or fact common to 

all defendants will arise in the action,” see Fed. R. Civ. P. 20(a)(2), and therefore could 

not be joined in this action. Plaintiffs argue that that dismissing Count Five without 

prejudice denies them access to the courts and forces pro se plaintiffs to pay the $400.00 

filing fee whenever they wish to supplement or amend their complaint. This argument 

lacks merit and the Court agrees with the Magistrate Judge’s finding that “Count Five is 

not sufficiently related to the other claims in this action.” (Doc. 34 at 11). Therefore, 

dismissal of Count Five without prejudice is appropriate.

 2 Plaintiffs filed a motion for extension of time to file objections to the Second R&R on 

November 21, 2018. (Doc. 37). That motion, which is denied as moot, requested an extension 

until December 3, 2018. However, even if that motion had been granted, Plaintiffs’ December 

10, 2018 objections to the Second R&R were untimely.
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Second, Plaintiff Perotti objects to the Magistrate Judge’s finding that Count One 

should be dismissed as to Defendant Wilson. Perotti argues that Defendant Wilson 

should be held liable for the constitutional violations allegedly committed by his 

subordinates. (Doc. 21 at 2; Doc. 38 at 5–7). Perotti states that he informed Defendant 

Wilson of ongoing violations and “Wilson took no steps to make it stop, thus he is just as 

liable as the other defendants.” (Doc. 38 at 5). Yet the Report and Recommendation 

correctly found that (1) the amended complaint fails to allege any facts that Defendant 

Wilson had any involvement in the incidents giving rise to the claims in Count One; (2) 

Prison officials whose only role involves “denial of administrative grievances and their 

failure to remedy the alleged [unconstitutional] behavior,” such as Wilson, cannot be held 

liable under § 1983, Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); and (3) Perotti 

fails to state a claim for relief against Wilson because “[p]rison inmates do not have a 

constitutionally protected right to a grievance procedure.” Miller v. Haines, 1998 WL 

476247, at *1 (6th Cir. Aug. 3, 1998) (citations omitted). Accordingly, the Magistrate 

Judge properly found that Count One should be dismissed as to Defendant Wilson.

Finally, Perotti argues that the Magistrate Judge erred in recommending the denial 

of his motion for temporary restraining order and preliminary injunction, which seeks an 

order from the Court enjoining Defendants Erdos from destroying stored case files and 

discovery documents belonging to Perotti. (Doc. 38 at 7–10). However, the Court agrees 

with the Magistrate Judge’s analysis that Perotti has not demonstrated a substantial 

likelihood of success on the merits on his constitutional claims and Perotti’s allegations 

fail to demonstrate the he will suffer irreparable harm absent a preliminary injunction. 
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(Doc. 34 at 12–14). Accordingly, the Court agrees with the Second R&R’s finding that 

Perotti’s motion for a temporary restraining order (Doc. 2) should be denied.

 As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has 

reviewed the comprehensive findings of the Magistrate Judge and considered de novo 

all of the filings in this matter. Upon consideration of the foregoing, the Court does 

determine that Plaintiff’s objections (Docs. 21, 38) should be and are hereby 

OVERRULED and the Reports and Recommendations (Docs. 18, 34) should be and are 

hereby ADOPTED in their entirety.

Accordingly, for the reasons stated above:

1) Pursuant to 28 U.S.C. § 1915A(b)(1), Plaintiff’s amended complaint is 

DISMISSED with prejudice, with the exception of: 

a. Plaintiff Perotti’s First Amendment access-to-courts claim against 

Defendants Erdos, Edwards, and Mahlman in Count One;

b. Plaintiff Perotti’s Eighth Amendment deliberate-indifference claim 

against Defendants Erdos, Edwards, Mahlman, and Wilson in Count 

Four; and

c. Plaintiff Perotti’s claim under the First and Fourteenth Amendments 

against Defendants Erdos, Edwards, Mahlman, and Wilson in Count 

Five for their alleged mishandling of Plaintiff’s mail.

2) Plaintiffs Perotti and Ortiz’s joint claim in Count Five is DISMISSED without 

prejudice to refiling in a separate lawsuit should Plaintiffs choose to pursue 

this claim.
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3) As Count Five is dismissed, which contains Ortiz’s sole claim and the sole 

claim against Defendant Jenkins, Plaintiff Ortiz and Defendant Jenkins are 

DISMISSED as parties to this action.

4) Plaintiff Ortiz’s motion to proceed in forma pauperis (Doc. 25) is DENIED as 

moot.

5) Plaintiff Perotti’s motion for temporary restraining order (Doc. 2) is DENIED.

6) Defendants Wilson, Erdos, Edwards, and Mahlman’s motion for leave to 

answer Plaintiff Perotti’s initial complaint out of time (Doc. 30) is DENIED as 

moot.

7) Defendants Wilson, Erdos, Edwards, and Mahlman’s motion to strike the 

amended complaint (Doc. 31) is DENIED.

8) Plaintiff’s motion for extension of time until 12/3/2018 to file objections to the 

Report and Recommendation (Doc. 37) is DENIED as moot.

IT IS SO ORDERED.

Date: 

Timothy S. Black

United States District Judge

1/18/19