Opinion
Case No. 2:09-cv-638.
June 4, 2010
ORDER AND REPORT AND RECOMMENDATION
Plaintiff James Mobley, a state prisoner, brings this action under 42 U.S.C. § 1983 for alleged deprivation of his constitutional rights while he was incarcerated at the Chillicothe Correctional Institution ("CCI") and the London Correctional Institution (LoCI"). Mr. Mobley has filed a motion for reimbursement of legal expenses (#17); three motions to enter exhibits (##18, 19, 21); a motion to have the Court serve defendants Rhonda Gray, Mona Parks, Dr. Owens, and John Doe, the institutional inspector at CCI (#20); and a motion to enter four waivers of summons signed by Melissa Montgomery, Assistant Attorney General (#22). Defendants Noble, Taylor, Timmerman-Cooper, and Blackwell (the "LoCI Defendants") have moved to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted, and Mr. Mobley has responded to that motion. For the following reasons, the Court will deny Mr. Mobley's motions and recommend that his amended complaint be dismissed as to the LoCI Defendants.
I. Plaintiff's Motion for Reimbursement of Legal Expenses
Mr. Mobley seeks reimbursement for all legal expenses incurred in filing this civil action, including filing fees, court costs, copying of legal materials, postage, typing paper, and any other expense, if the Court rules in his favor. This motion is clearly premature. Local Rule 54.1(a) provides that taxation of costs shall not occur until a final judgment has been entered by the Court. This local rule is consistent with Fed.R.Civ.P. 54(d) and the practice of federal courts generally.See 10 Wright, Miller Kane, Federal Practice and Procedure § 2679 (3d ed.). Because the Court has not rendered final judgment in this case in Mr. Mobley's favor, his motion for reimbursement of legal expenses (#17) is denied.
II. Plaintiff's Motions to Enter Exhibits
Mr. Mobley's March 30, 2010 motion seeks to admit exhibits which purportedly show that envelopes he mailed to Dr. Owens and Rhonda Gray at CCI were returned to him for unknown reasons and that the returned envelopes each contained an unsigned waiver of service. On April 6, 2010, Mr. Mobley filed a motion seeking to admit withdrawal requests he made to the prison cashier for postage on envelopes addressed to Mona Parks, Deborah Timmerman-Cooper, DeCarlo Blackwell, Jeff Noble, Stanley Taylor, the LoCI institutional inspector, Dr. Owens, and Ms. Gray. Finally, on May 4, 2010, Mr. Mobley filed a third motion to enter as an exhibit an envelope with an unsigned waiver and complaint that had been sent to Ms. Parks on March 11, 2010. The envelope bears the stamp "Attempted Not Known" and a handwritten notation by Mr. Mobley that the returned envelope was received by a corrections officer on April 28, 2010, while Mr. Mobley was in the hole.
Rule 4(c) of the Federal Rules of Civil Procedure governs service of process. Under this subsection, the plaintiff is responsible for serving the summons and complaint and providing the necessary copies to the person making service. Rule 4(d) permits the plaintiff, before attempting service, to notify a defendant that an action has been commenced and to request that the defendant waive service. If the plaintiff follows the proper procedure for requesting a waiver and the defendant, without good cause, fails to sign and return the waiver, the Court must order the defendant to pay both the expenses incurred in making service and the costs of any motion required to collect those expenses. The rules, however, do not require the defendant to waive service at the plaintiff's request.
In this case, Mr. Mobley apparently followed the procedure outlined in Rule 4(d) to request a waiver of service by each defendant. The record reflects that counsel for four of the defendants signed the waivers and returned them to Mr. Mobley. The other defendants did not. Mr. Mobley has yet to make service on the defendants who failed to sign and return their waivers. Until he does so, the fact that he attempted to obtain waivers of service from these defendants is not relevant to any issue before the Court. His motions to enter as exhibits the envelopes he used in his efforts to obtain waivers of service (## 18, 19, 21) are therefore denied.
III. Plaintiff's Motion to Have Court Serve Defendants
Mr. Mobley notes that he attempted to obtain waivers of service from each of the defendants and that he received waivers from only four of the eight. He now wishes the Court to serve the other four defendants in order to proceed with his § 1983 action. In its order (#15) entered March 4, 2010, the Court advised Mr. Mobley that because he is not proceeding in forma pauperis, he is not entitled to take advantage of the provisions of 28 U.S.C. § 1915(d) which authorize officers of the Court to make service of process for indigent plaintiffs. The Court instructed Mr. Mobley that he is responsible for making service or obtaining waivers of service. Consequently, his motion to have the Court serve defendants Gray, Owens, Doe, and Parks (#20) is denied.
Any person who is eighteen years or older and not a party to the lawsuit may serve the summons and complaint. As a party, Mr. Mobley may not serve the summons and complaint on the remaining defendants. He may, however, elect to use certified mail service on those defendants as prescribed under Ohio law. If Mr. Mobley chooses this option, he needs to address an envelope to each of the defendants to be served and place a copy of the complaint and summons in that envelope. He also must affix to the back of each envelope the domestic return receipt card, PS Form 3811 (the "green card") showing the name of the sender as "Clerk, United States District Court, Southern District of Ohio" at the appropriate address, with the certified mail number affixed to the front of the envelope. Mr. Mobley must also affix adequate postage to each envelope and send the envelopes in a separate package addressed to the Clerk. The Clerk will then mail the envelopes to the defendants as addressed by the plaintiff.
IV. Plaintiff's Motion to Enter Signed Waivers
Mr. Mobley apologizes for the delay in presenting the waivers of service signed on behalf of the LoCI Defendants and asks the Court to enter these waivers, as well as a copy of defendant Timmerman-Cooper's resolution of his informal complaint filed on April 14, 2010. There is no need for the Court to "enter" the waivers. Mr. Mobley was required to file the waivers with the Court once the defendants returned them to him. The record reflects that he has done so and that the LoCI Defendants have responded to the complaint by filing a motion to dismiss. The informal complaint concerned Mr. Mobley's request that he be returned to his former bunk upon his release from isolation. The staff at LoCI apparently moved him to another bunk, and Warden Timmerman-Cooper declined to take any further action. Because Mr. Mobley does not have a protected interest in any particular bunk assignment, the resolution of his informal complaint does not implicate any constitutional right. For each of these reasons, the Court denies his motion to enter the waivers and his informal complaint (#22).
V. LoCI Defendants' Motion to Dismiss
The LoCI Defendants have moved to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. They argue that Mr. Mobley has failed to allege that they were personally involved in the alleged constitutional violations, and that liability under § 1983 cannot be imposed under a theory of respondeat superior.
A. Standard of Review
A motion to dismiss under Fed.R.Civ.P 12(b)(6) should not be granted if the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). All well-pleaded factual allegations must be taken as true and be construed most favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Rule 8(a) admonishes the Court to look only for a "short and plain statement of the claim," however, rather than requiring the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89 (2007).A 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief.See Rauch v. Day Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978). Rule 12(b)(6) must be read in conjunction with Fed.R.Civ.P. 8(a) which provides that a pleading for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Wright Miller, Federal Practice and Procedure § 1356 (1990). The moving party is entitled to relief only when the complaint fails to meet this liberal standard. Id.
On the other hand, more than bare assertions of legal conclusions is required to satisfy the notice pleading standard.Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). "In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high standard; we recognize the policies behind rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist."Id. It is with these standards in mind that the motion to dismiss will be decided.
B. Liability of Individual Defendants Under § 1983
Allegations of direct involvement in constitutional deprivations, rather than attempts to impose liability by virtue of the doctrine of respondeat superior, are necessary in order to hold an individual defendant liable under § 1983. Monell v. Department of Social Services, 436 U.S. 658 (1978). Although there are other legal claims that can properly be asserted against a supervisor simply because someone under his or her supervision may have committed a legal wrong, liability for constitutional deprivations under 42 U.S.C. § 1983 cannot rest on such a claim. Consequently, unless the plaintiff's complaint affirmatively pleads the personal involvement of a defendant in the allegedly unconstitutional action about which the plaintiff is complaining, the complaint fails to state a claim against that defendant and dismissal is warranted. See also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). This rule holds true even if the supervisor has actual knowledge of the constitutional violation as long as the supervisor did not actually participate in or encourage the wrongful behavior. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be held liable under § 1983 for failing to respond to grievances which alert them of unconstitutional actions); see also Stewart v. Taft, 235 F.Supp.2d 763, 767 (N.D.Ohio 2002) ("supervisory liability under § 1983 cannot attach where the allegation of liability is based upon a mere failure to act").
C. Analysis
Claim two of the amended complaint alleges that after Mr. Mobley's transfer from CCI to LoCI, money comprised of his disability payments from April, May, and June 2009 was diverted from his account to pay a non-mandatory court cost. On July 7, 2009, Mr. Mobley filed an informal complaint with defendant Noble, who as Deputy Warden of Administration was the prison cashier's supervisor. Mr. Mobley contended that the disability payments were exempt, but defendant Noble decided after reviewing the account that the funds were not exempt. Mr. Mobley then filed a complaint with Warden Timmerman-Cooper regarding the same deductions from his account. In response, he was advised to address his concerns with the cashier's office and/or the court that issued the order to collect the debt.
Claim three alleges that Warden Timmerman-Cooper, Institutional Inspector Blackwell, and Major Taylor were aware of three strip searches conducted at LoCI by the Security Response Team. This team was allegedly made up of various corrections officers from other prisons around the State of Ohio. During these searches, Mr. Mobley and other prisoners were forced to stand naked on urinated, dirty bathroom floors. The team went on to destroy the unit where Mr. Mobley was housed, overturning beds, locker-boxes and making a total mess of the sleeping area. After the third search, Mr. Mobley returned to his cell to find red spots on his pillowcase, and a towel that did not belong to him on his bed. He was concerned that the red spots might be contaminated with hepatitis, tuberculosis, or AIDS. He advised Major Taylor of his health concerns. Major Taylor took the red-stained pillowcase and gave him another, but left the towel. Mr. Mobley filed an informal complaint regarding the searches. Deputy Warden Curtis Wingard, who is not a party to this lawsuit, responded that plaintiff should provide his suggestions for future shakedowns to the Major's office for review and that the staff had followed proper procedure.
In support of claim two, Mr. Mobley maintains that defendants Timmerman-Cooper, Blackwell, and Noble acted with deliberate indifference in violation of his constitutional rights, presumably because they did not resolve the informal complaint in his favor. As for claim three, Mr. Mobley asserts that defendants Timmerman-Cooper, Blackwell, and Taylor acted with deliberate indifference to his health, safety, and well-being, but never describes what their actions were. In his memorandum in opposition, he asks the Court to deny the motion to dismiss because the defendants are supervisors at LoCI where the constitutional violations occurred.
It is clear from both the amended complaint and his memorandum opposing dismissal that Mr. Mobley is proceeding under a theory of respondeat superior. Because liability under § 1983 may not arise under this theory, but requires direct action on the part of the state officials, the Court recommends that the defendants' motion to dismiss for failure to state a claim be granted.
VI. Conclusion
Based on the foregoing reasons, the Court denies Mr. Mobley's motion for reimbursement of legal expenses (#17); three motions to enter exhibits (##18, 19, 21); motion to have the Court serve defendants Rhonda Gray, Mona Parks, Dr. Owens, and John Doe, the institutional inspector at CCI (#20); and motion to enter the four waivers of summons signed by Melissa Montgomery, Assistant Attorney General (#22). The Court further recommends that the motion to dismiss filed by defendants Noble, Taylor, Timmerman-Cooper, and Blackwell (#23) be granted.VII. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. Section 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).