Post v. Mohr
| Decision Date | 10 January 2012 |
| Docket Number | CASE NO. 1:11 CV 1533 |
| Parties | Ronald R. Post, et al., Plaintiffs, v. Gary C. Mohr, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Memorandum of Opinion and Order
Pro se plaintiff Ronald R. Post, on behalf of himself and his fiancé Tracy Lynch a.k.a. Tracy Post, filed this action under 42 U.S.C. § 1983 against Ohio Department of Rehabilitation and Correction ("ODRC") Director Gary C. Mohr, Mansfield Correctional Institution ("MANCI") Warden Terry Tibbals, MANCI Assistant Warden Scott Basquin, MANCI Unit Manager Administrator Marva Allen, MANCI Case Manager Greg Morrow and MANCI John/Jane Does. Mr. Post asserts numerous causes of action based on the conditions of his confinement. He seeks monetary and injunctive relief.
Mr. Post's Complaint consists of a narration of unrelated events that occurred from 2006 to the present date. He is a prisoner on death row at MANCI. On August 28, 2006, Mr. Postrequested a porcelain toilet to replace the stainless steel one provided to death row inmates. He alleges he is obese and finds it difficult to use the stainless steel model installed in his cell. His request was denied on September 12, 2006 for security reasons. He reiterated his request for a porcelain toilet in August 2007. This request was also denied.
Mr. Post claims he suffered a heart attack in February 2007. His cardiologist recommended gastric by-pass surgery as a method of weight loss. He submitted a request for the surgery. It was denied in November 2007. He also suggests he would benefit from knee replacement surgery. This procedure cannot be performed until he loses weight.
Tracy Lynch, a resident of the United Kingdom, began to correspond with Mr. Post. She contacted Case Manager Greg Morrow and obtained approval to visit Mr. Post in prison. A series of visits took place in November and December 2007. During one of those visits, Mr. Post asked Ms. Lynch to marry him and she agreed to do so. Mr. Post was told by both the Chaplain and Warden Stuart Hudson that death row inmates could not marry. He requested a copy of the relevant policy and discovered that the law library in death row had been closed. He finally received a copy of the policy from the law library in the general prison population. Based on the information he obtained, Mr. Post instructed Ms. Lynch to write to the Warden and ask for permission to marry Mr. Post.
Mr. Post and Ms. Lynch exchanged a number of letters on the topic of marriage. In one letter, Ms. Lynch told Mr. Post about a couple in England who were in a similar predicament. The husband was incarcerated on a fifteen year sentence and the couple wanted to conceive a child. The husband in that case sought to facilitate artificial insemination by smuggling genetic material to his wife during a prison visitation. Ms. Lynch then asked if MANCI would allow them to have a childin this manner. Mr. Morrow provided the answer to this question on February 7, 2008 by immediately terminating Ms. Lynch's visitation privileges. Mr. Post attempted to reverse this decision by informing the authorities that he was rendered sterile by his medications. He filed numerous grievances, all of which were denied. Mr. Post contends that the termination of Ms. Lynch's visitation privileges was excessive. He claims inmates that attempt to smuggle drugs into the prison are given only temporary sanctions.
On October 20, 2009, Mr. Post requested "special visits" with Ms. Lynch for the purpose of getting married.1 He states Ms. Lynch received a letter from Warden Smith telling her that Mr. Post could request a special visit if he did not have any conduct reports. Mr. Post does not indicate whether he made such a request. It appears from the Complaint that he became seriously ill for a period of time after Ms. Lynch received the letter.
Mr. Post next claims he was sexually assaulted by corrections officers working the third shift. He claims he was awakened at approximately 3:00 a.m. on February 7, 2009 by individuals who pushed his face down into his pillow and assaulted him sexually. As his assailants were exiting his cell, he claims he was able to see the face of one of the guards. He reported the incident to the second shift officers. A statement was taken from him and he was offered protective custody. He declined the placement. He was taken to the prison clinic and examined. The nurse at the clinic suggested that Mr. Post be taken to a local hospital to allow a rape kit to be taken, but the warden refused to allow him to leave the prison. Ms. Lynch contacted the Highway Patrol to report theincident. He alleges evidence collected after the assault was not properly handled by the prison.
Mr. Post contends he had a dental appointment on August 13, 2009. He claims that because his hands were cuffed in front of him during the appointment, he could not lift himself out of the wheelchair and into the dental chair. The dentist had to examine Mr. Post in his wheelchair.
Finally, Mr. Post includes several miscellaneous claims in his Complaint. He contends that when Mr. Tibbals was hired as the warden at MANCI, he upheld the decision of the previous wardens concerning visitations with Ms. Lynch. He also contends his requests for an exercise bicycle, contact visits with family members, and law books have been denied.
The Complaint lists thirty causes of action; however, several of them are repetitive. Mr. Post asserts that his Eighth Amendment rights were violated when:
He claims he was denied Due Process when:
He contends he was denied equal protection because death row inmates caught smuggling drugs into prison had only temporary sanctions imposed while his visits with Ms. Lynch were terminated.
Mr. Post asserts a denial of his First Amendment rights to marry, freedom of speech, and access to the courts. He claims Warden Tibbals retaliated against him. Mr. Post asserts the defendants violated Title II of the Americans with Disabilities Act ("ADA") by denying him the right to marry, terminating his visitations with Ms. Lynch, denying his request for an exercise bicycle, and removing the law library from death row. He asserts Mr. Mohr violated the ADA by not responding to his letters.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.2 Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in the Complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). The factual allegations in the pleadingmust be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).
As an initial matter, Ms. Lynch is not a proper party to this action. In general, a party may plead and conduct his or her case in person or through a licensed attorney. See 28 U.S.C. § 1654; Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991).3 An adult litigant who wishes to proceed pro se must personally sign the Complaint to invoke this Court's jurisdiction. See 28 U.S.C. § 1654. Only Mr. Post's signature appears on the Complaint. He is not a licensed attorney and therefore his signature alone is insufficient to bring Ms. Lynch's claims before the Court. She, therefore, is dismissed as a party in the action. The Court will address only thoseclaims that pertain to Mr. Post.
Mr. Mohr also is not a proper party to this suit. Mr. Post cannot establish the liability of any defendant absent a clear showing that the defendant was personally involved in the activities which form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept....
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