David v. Lake Erie Corr. Inst.David v. Lake Erie Corr. Inst.
Civil Appeal from the Court of Common Pleas, Case No. 2008 CV 754.
Judgment: Affirmed.
Marc David, pro se, PID: A490-395, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH 44030-8000 (Plaintiff-Appellant).
Lawrence A. Sutter and Stuart D. Baker, Sutter, O’Connell & Farchione, 3600 Erieview Tower, 1301 East Ninth Street, Cleveland, OH 44114 (For Defendants-Appellees).
MARY JANE TRAPP, P.J.
{¶1} Marc David, pro se, appeals from a judgment of the Ashtabula County Court of Common Pleas which denied his motion for summary judgment and granted summary judgment in favor of Lake Erie Correctional Institution (“LECI”) and its employees regarding a civil rights action in which Mr. David alleged LECI violated his various rights and sought money damages. For the following reasons, we affirm.
{¶2} Substantive and Procedural History
{¶4} A “Rule Violation-Inmate Right” form signed by Mr. David on February 2, 2008, indicates he was advised of his rights regarding the conduct report. The document reflects that he checked a box to indicate he waived his right to request witnesses to testify at the Rules Infraction Board hearing.
{¶5} The matter was then reviewed by a hearing officer, who found a rule violation had occurred and referred the matter to the Rules Infraction Board. Linda Obeshaw, an officer at the board, reviewed the matter and affirmed the hearing officer’s decision to have the matter heard by the board.
{¶6} The board heard the case on February 6, 2008. It considered Mr. David’s denial that he took the drug and his claim that the medications he was taking caused him to test positive, as well as the conduct report in which Mr. Belaney stated he checked with the medical department and learned Mr. David was not prescribed any
{¶7} Mr. David then appealed to the Director of Ohio Department of Rehabilitation and Correction pursuant to
{¶8} Mr. David then filed an action, pro se, pursuant to
{¶9} Mr. David filed a motion for summary judgment claiming he was entitled to judgment as a matter of law as his constitutional rights were violated when he was placed in administrative segregation, ordered to wear a yellow uniform and attend a substance abuse program, and lost his prison job when LECI retaliated against him for
{¶10} The trial court granted LECI summary judgment and denied Mr. David summary judgment. It found none of the deprivations of rights alleged by Mr. David, i.e., placement in administrative segregation and a substance abuse program, a change in his uniform color, and loss of institutional employment, involved a constitutionally protected liberty interest or property interest. Regarding his retaliation claim, the court determined he had not alleged any facts in support of the claim. Regarding the issue of failure to exhaust administrative remedies, the court noted that there was a prior conduct report issued on December 8, 2007, and Mr. David never appealed from the Board’s decision; it determined Mr. David was barred from bringing any claims regarding that incident but he had a right to file claims arising from the February 2, 2008 conduct report because he did exhaust his administrative remedies regarding this incident.
{¶11} Mr. David now appeals, presenting us with six assignments of error.
{¶12} “[1.] The lower court improperly granted summary judgment in favor of the appellees without applying the standard of review in granting motion for summary judgment.
{¶13} “[2] The trial court erred in dismissing plaintiff[’s] civil claims based on failure to exhaust administrative remedies. Pasty v. Board of Regent of Florida, 40 Ohio St.3d. 152 [sic].
{¶15} “[4.] Plaintiff is entitled to summary judgment as a matter of law in Claim two (2) of Plaintiff’s action where the RIB was reckless in its determination of [the] matter before the Board.
{¶16} “[5.] Plaintiff is entitled to summary judgment as a matter of law in Claim three (3) of plaintiff’s action, where plaintiff was retaliated against for exercising his constitutional right to redress of his grievances. Thaddeus-X [v. Blatter,] 175 F.3d 378 (6th Cir. 1999).
{¶17} “[6.] Plaintiff[’s] cause of action against L.A.E.C.I. on the basis of failure to train/inadequate training, failure to properly supervise and creating/allowing unconstitutional practices amounted to ‘deliberate indifference to the rights’ of this appellant, who is under the supervision [of] first appellee, (L.A.E.C.I.) See City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989), citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694(1978).”
{¶18} Section 1983 Claims
{¶19} In his complaint, Mr. David alleged violations of his civil rights and sought damages pursuant to
{¶20} To establish a section 1983 claim, a plaintiff must show “(1) the deprivation of a right secured by the Constitution or laws of the United States and (2) the deprivation was caused by a person acting under color of state law.” Simescu v. Emmet Cty. Dept. of Social Servs. (C.A. 6, 1991), 942 F.2d 372, 374, citing Flagg Bros., Inc. v. Brooks (1978), 436 U.S. 149, 155.
{¶21} Turning now to the assignments of error presented by Mr. David, we summarily overrule the first assignment of error, because our review of the trial court’s decision indicates the court correctly cited and applied the proper standard for summary judgment. Likewise we overrule the second assignment of error, in which Mr. David claims the court erred in dismissing his claim on the ground of a failure to exhaust administrative remedies. This claim is curious because the trial court determined that, although he did not exhaust the administrative remedies regarding the December 8, 2007 conduct report, he did exhaust the administrative remedies regarding the February 2, 2008 conduct report, the only subject matter of the instant action.
{¶22} Regarding the remaining assignments of error, we have difficulties understanding the errors Mr. David alleges, not only because of the disconnect between the assignments of error and the arguments under them, but also because of the incoherent and incongruous claims made within the arguments. However, as we typically afford considerable leeway to pro se litigants, Robb v. Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, ¶5, we will address Mr. David’s arguments to the best of
{¶23} Due Process Claim
{¶24} Mr. David alleges due process violations in the Rules Infraction Board’s proceedings on the ground that he was not permitted to call witnesses to challenge the result of the drug test.
{¶25} First, the record reflects Mr. David expressly waived his right to call witnesses at the Rules Infraction Board’s hearing. He checked a box in a form titled “Rule Violation – Inmate Rights” indicating he waived his right to call witnesses to testify at the hearing.
{¶26} Second, even if he had not waived the right to call witnesses and was not permitted to call witnesses, his due process claim still cannot stand. This is because before an individual is afforded due process rights, he must first establish that a right or protected interest exists. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979), 442 U.S. 1. The United States Supreme Court has made it clear that there is no constitutionally protected liberty interest in remaining free from administrative segregation. Sandin v. Conner (1995), 515 U.S. 472, 480. The United States Supreme Court recognized that “prisoners do not shed all constitutional rights at the prison gate,” but “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Id. at 485. The court noted specifically that with respect to confinement in administrative segregation, there is no right to remain in general population, because the due process clause “standing alone confers no liberty interest in freedom from state
{¶27} See, also, State ex rel. Larkins v. Wilkinson (1997), 79 Ohio St.3d 477, 479 (“[a]bsent evidence that the challenged institutional action would affect the inmate’s duration of confinement, an inmate has no liberty interest in being free of disciplinary or administrative segregation because such segregation does not impose an atypical and significant hardship on the inmate”); Collmar v. Wilkinson (C.A.6, 1999), 1999 U.S. App. LEXIS 22803, *8 (“there is no due process right to be housed in any particular facility, or not to be transferred to a more restrictive institution”).
{¶28} Here, Mr. David’s term of imprisonment was not altered because of the conduct report. His placement in administrative segregation for 15 days and the wearing of a uniform in a different color does not present the type of “atypical and significant hardship” to constitute a deprivation of a constitutionally protected interest triggering due process protections.
{¶29} As to the loss of his institutional employment, inmates do not possess a property right in such employment. See Phillips v. Barnes, 10th Dist. No. 91AP-1202, 1992 Ohio App. LEXIS 2171, *4, citing Newsom v. Norris (C.A. 6th, 1989), 888 F.2d 371.
{¶30} Given the well-established case law, Mr. David failed to allege the deprivation of a constitutionally protected liberty or property interest and, therefore, his due process claim fails. As he cannot establish “the deprivation of a right secured by
{¶31} Retaliation Claim
{¶32} “[R]etaliation against a prisoner by prison officials for the prisoner’s exercise of a constitutionally protected right states a