Morgan v. Beightler et al

Filing 34

Order granting Defendant's Motion to Dismiss Case (Related Doc # 28 ); denying Plaintiff's Motion for Default Judgment (Related Doc # 29 ); denying Defendant's Motion for judgment on the pleadings (Related Doc # 13 ); denying Defendant's Motion for summary judgment (Related Doc # 13 ). Signed by Judge Solomon Oliver, Jr on 5/26/2011. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JIMMY LEWIS MORGAN, Pro Se,

)
)
Plaintiff
)
)
v.
)
)
WARDEN MAGGIE BEIGHTLER, et al., )
)
Defendants
)

Case No.: 1:09 CV 2190

JUDGE SOLOMON OLIVER, JR.

ORDER

Pro se Plaintiff Jimmy Lewis Morgan (“Plaintiff”) filed this action under 42 U.S.C. § 1983
against Defendants Marion Correctional Institution Warden Maggie Beightler (“Beightler” or
“Defendant”) and the Ohio Department of Rehabilitation and Correction (“ODRC”) (ECF No. 1).
Pursuant to this court’s previous Order, the only remaining claim is a First Amendment retaliation
claim against Beightler (ECF No. 9). Currently pending before the court are Plaintiff’s Motion for
Judgment on the Pleadings and Motion for Summary Judgment (ECF No. 13), Plaintiff’s Petition
to the Court for Judgment by Default of the Defendant (ECF No. 29), and Defendant’s Motion to
Dismiss for Failure to Exhaust Administrative Remedies (ECf No. 28). For the reasons stated
herein, the court grants Defendant’s Motion and denies Plaintiff’s Motions.

I. BACKGROUND
Plaintiff was incarcerated in the Marion Correctional Institution when he was involved in

an altercation with another inmate on October 1, 2008.1 He and inmate Sammie Sledge had been
arguing. He indicates that he turned to leave and was attacked from behind by Mr. Sledge. Mr.
Sledge was indicted by the Marion County Grand Jury on charges of felonious assault and
possession of a deadly weapon while under detention. Both Plaintiff and Mr. Sledge were found
guilty by prison officials for the infraction of fighting. Plaintiff’s security classification status was
raised, and he was transferred to the Mansfield Correctional Institution.
Plaintiff states that he was housed with inmates who utilized walkers or wheelchairs for
mobility, who may have hindered his egress during a fire. (Am. Compl. at 2.) He reported his
concerns to the Fire Marshal and as a result, these inmates were removed from his block. Plaintiff
asserts that the Defendant was upset about this inquiry, and that the subsequent transfer was
retaliation for exercising his First Amendment right to initiate contact with the Fire Marshal.
On September 21, 2009, Plaintiff filed this action against both Beightler and the ODRC (ECF
No. 1). On November 13, 2009, Plaintiff filed an Amended Complaint, solely asserting claims
against Beightler (ECF No. 4). On October 18, 2010, this court dismissed the Eighth and Fourteenth
Amendment claims, the negligence claims, and all claims against ODRC. The only remaining claim
is a First Amendment retaliation claim under § 1983 against Beightler. On November 18, 2010,
Plaintiff filed a Motion for Judgment on the Pleadings and a Motion for Summary Judgment. (ECF
No. 13.)

On May 10, 2011, Beightler filed a Motion to Dismiss for Failure to Exhaust

Administrative Remedies. (ECF No. 28.) On May 13, 2011, Plaintiff filed a Petition to the Court
for Judgment by Default of the Defendant. (ECF No. 29.)
II. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
1

Mr. Morgan is serving a sentence of 20 years to Life imprisonment for
aggravated murder.
2

The entry of defaults and default judgments is governed by the Federal Rules of Civil
Procedure. Federal Rule of Civil Procedure 55(a) states “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and
that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.”
Federal Rules of Civil Procedure 12(a)(1)(A) requires a defendant to serve an answer “within twenty
days after being served with the summons and complaint . . . .” Federal Rules of Civil Procedure
55(b)(2) provides for a party to apply to the court for a default judgment in cases that do not involve
a sum that can be made certain by computation.
Plaintiff asserts that he is entitled to default judgment because Defendant had 21 days, from
the service of the Complaint upon her, to answer, but failed to do so. Plaintiff uses the date of
April 11, 2011 as the date of service. However, the docket indicates that Defendant was served on
April 19, 2011 (ECF No. 27). Therefore, Defendant had 21 days from April 19, 2011, until May 10,
2011, to “plead or otherwise defend.” FED.R.CIV.P. 12(a), 55(a). Defendant filed a Motion to
Dismiss Case for Failure to Exhaust Administrative Remedies on May 10, 2011. (ECF No. 28.) The
Certificate of Service indicates that a copy of the Motion was mailed to Plaintiff.

(Id. at 6.)

Defendant’s filing of the Motion to Dismiss is an appropriate response to Plaintiff’s Complaint, and
under FED.R.CIV.P. 12(a)(4), tolls the time period for it to file an answer. Rule 12(a)(4) states in
pertinent part: “serving a motion under this rule alters these periods as follows: (A) if the court
denies the motion or postpones its disposition until trial, the responsive pleading must be served
within 14 days after notice of the court’s action . . . .” Id; See also Wrenn v. Gould, 816 F.3d 683
(Table), 1987 WL 36949, at *1 (6th Cir. Apr. 3, 1987) (“The district court properly denied plaintiff’s
motion [for partial summary judgment and/or default judgment] because Rule 12(a) clearly states

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that the time within which a defendant must file its answer is altered and extended where the same
defendant moves to dismiss the case under Rule 12(b)(6)”). Defendant’s Motion was filed within
the appropriate time frame. Under Rule 12(a)(4), Defendant is not required to file an Answer unless
her Motion to Dismiss is denied.
Plaintiff argues that he is entitled to default judgment because Defendant’s Motion was not
mailed to him until May 11, 2011, and therefore it was a day late, since service was not complete
until it was mailed. (Reply at 1, ECF No. 33.) Plaintiff contends that he is not considered served
until the Motion was mailed out, based on the Mailbox Rule. On this point, Plaintiff is correct.
Service was not complete until the Motion was mailed. However, serving Plaintiff one day late still
does not entitle him to default judgement under the Federal Rules of Civil Procedure. Under Rules
12(a) and 55(a) of the Federal Rules of Civil Procedure, Defendant had 21 days from April 19, 2011,
until May 10, 2011, to “plead or otherwise defend.” However, Rule 6(d) of the Federal Rules of
Civil Procedure allows for three additional days to be added “after the period would otherwise
expire,” if service was made on Defendant in one of the four specified ways. One of the specified
ways is service by mail under FED.R.CIV.P 5(b)(2)(c), “mailing [a paper] to the person’s last known
address.” Defendant was served by mail. (ECF No. 27.) Further, Plaintiff states that determining
when service was complete was based on “Civ. R. 5(c) mailing it to the person’s last known addressin which event ser[vice] is Complete UPON Mailing.” (Reply at 1(emphasis in original).)
Therefore, Plaintiff is in agreement that service was made in one of the four specified ways.
Defendant had three additional days, or until May 13, 2011, to “plead or otherwise defend.”
FED.R.CIV.P. 55(a). Thus, Defendant’s mailing of her Motion on May 11, 2011, was done within
the appropriate time frame, and Plaintiff’s Motion for Default Judgment must be denied.

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III. DEFENDANT’S MOTION TO DISMISS
A. Pro Se Pleadings
Plaintiff has filed the instant suit pro se. Pleadings drafted by pro se litigants are “held to
a less stringent standard than those prepared by an attorney.” Urbina v. Thomas, 270 F.3d 292, 295
(6th Cir. 2001) (citing Cruz v. Beto, 405 U.S. 319 (1972)). However, pro se litigants are given no
further special treatment beyond this latitude afforded in their pleadings. The Supreme Court has
“never suggested that procedural rules in ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel.” McNeil v. U.S., 508 U.S. 106, 113 (1980).
The Supreme Court further stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980), “in the long
run, experience teaches that strict adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of the law.” Therefore, with the
exception of the court giving Plaintiff greater leeway in the drafting of his pleadings, he will be
given no further special treatment, especially as it relates to procedural requirements.
B. 12(b)(6) Standard
The court examines the legal sufficiency of the plaintiff’s claim under Federal Rule of Civil
Procedure 12(b)(6). See Mayer v. Mulod, 988 F.2d 635, 638 (6th Cir. 1993). The Supreme Court
in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and recently in Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949-50 (2009) clarified the law regarding what the plaintiff must plead in order to survive
a Rule 12(b)(6) motion.
When determining whether the plaintiff has stated a claim upon which relief can be granted,
the court must construe the Complaint in the light most favorable to the plaintiff, accept all factual
allegations as true, and determine whether the Complaint contains “enough facts to state a claim to

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relief that is plausible on its face.” Twombly, 550 U.S. at 570. The plaintiff’s obligation to provide
the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. at 555. Even though a Complaint need not contain
“detailed” factual allegations, its “[f]actual allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the allegations in the Complaint are true.” Id. A
court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
The Court in Iqbal, 129 S.Ct. at 1949, further explains the “plausibility” requirement, stating
that “[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.”
Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant acted unlawfully.” Id. This determination is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 1950.
The Sixth Circuit has held that a court may consider allegations contained in the Complaint,
as well as exhibits attached to or otherwise incorporated in the Complaint, all without converting
a motion to dismiss to a motion for summary judgment. Fed. R. Civ. P. 10(c); Weiner v. Klais &
Co., 108 F.3d 86, 89 (6th Cir. 1997).
C. Analysis
Defendant has moved for dismissal of Plaintiff’s Complaint under Fed. R. Civ. P. 12(b)(6)
for failure to exhaust administrative remedies before filing suit as required by the Prison Litigation

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Reform Act of 1995 (PLRA).2 42 U.S.C. § 1997e(a). Although Plaintiff properly described the
grievance process he had engaged in prior to filing his Complaint, his grievances are insufficient to
proceed in a suit against the warden.
The Supreme Court has stated that “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its procedures,” in discussing
the PLRA’s requirement that plaintiff exhaust administrative remedies before bringing a federal suit.
Woodford v. Ngo. 548 U.S. 81, 88-90 (2006). These procedural rules are defined by the prison
grievance process, and not the PLRA. See Jones v. Bock, 549 U.S. 199, 218 (2007). Ohio’s
Administrative Code lays out the inmate grievance procedure. See Ohio Admin Code 5120-9-31
(2011). Section M of Ohio Admin Code 5120-9-31 states that
[g]rievances against the warden or inspector of institutional services
must be filed directly to the office of the chief inspector within thirty
calendar days of the event giving rise to the complaint. Such
grievances must show that the warden or inspector of institutional
services was personally and knowingly involved in a violation of law,
rule or policy, or personally and knowingly approved or condoned such
a violation.
(emphasis added). Therefore, Plaintiff needed to show in his grievances that Defendant was
“personally and knowingly involved in violation of law, rule, or policy, or personally and knowingly
approved or condoned such a violation.” Id. Plaintiff has included all of his grievances with his
Complaint. (ECF No. 1-1.) A review of Plaintiff’s grievances demonstrates that he mentions the
Defendant’s name in introducing his claim, but fails to provide any facts on how she was “personally

2

Since the court is granting Defendant’s Motion to Dismiss under Fed. R. Civ. P.
12(b)(6), it need not address Defendant’s Motion under Rule 12(b)(1).
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and knowingly involved in a violation of a law, rule, or policy, or personally and knowingly
approved or condoned such a violation.” Ohio Admin Code 5120-9-31. He alleges that his security
status was raised in retaliation for informing the Fire Marshall of fire code hazards, but neither
explains how Defendant was personally or knowingly involved in this alleged act of retaliation, nor
how she personally approved or condoned such acts. (Exhibits A, E, ECF No. 1-1.) Therefore,
Plaintiff has failed to properly exhaust his remedies through the inmate grievance procedure by his
failure to state his grievance with particularity. See Tate v. Williams, No. 2:06-cv-47, 2007 WL
781657 (S.D. Ohio Mar. 12, 2007) (finding plaintiff failed to exhaust administrative remedies and
dismissal of claim based in part on Plaintiff’s failure to identify the warden and show how he was
“personally and knowingly involved in a violation of law, rule or policy, or personally and
knowingly approved or condoned such a violation.”)
Plaintiff argues that his Complaint should not be dismissed because he did file a grievance
against the Warden to the Office of the Chief Inspector. (Reply to Defendant’s Motion to Dismiss
for Failure to Exhaust Administrative Remedies, ECF No. 31.) However, Plaintiff misconstrues
Defendant’s argument. Defendant has not alleged that Plaintiff did not file a grievance against the
Warden with the Office of the Chief Inspector. Instead, Defendant is alleging that Plaintiff failed
to state any facts that demonstrate Defendant was “personally and knowingly involved in a violation
of the law, rule or policy, or personally and knowingly condoned such a violation,” and thereby
failed to exhaust his administrative remedies. Ohio Admin Code 5120-9-31. Since Plaintiff’s
argument is misplaced, it fails to change the court’s analysis regarding Plaintiff’s failure to exhaust

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administrative remedies.3
The Sixth Circuit has stated that a plaintiff’s complaint must be dismissed where he files his
“federal complaint before allowing the administrative process to be completed.” Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999). Thus, Plaintiff’s Complaint must be dismissed for
failure to exhaust his administrative remedies.
IV. PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION
FOR SUMMARY JUDGMENT
In light of the foregoing, the court denies Plaintiff’s Motions for Judgment on the Pleadings
and Motion for Summary Judgment (ECF No. 13) as moot. In any event, even if the court were to
consider Plaintiff’s Motions on the merits, they would still be denied. To succeed on his Motions,
Plaintiff would have to show that there is no issue of material fact regarding any of the elements of
a First Amendment retaliation claim. Plaintiff’s Motions, however, merely reassert the allegations
of his Complaint, without citing facts or law to support them. Since he is unable to demonstrate that
no issue of material fact remains, he is not entitled to judgment on the pleadings or summary
judgment.
V. CONCLUSION
For the foregoing reasons, the court hereby grants Defendant’s Motion to Dismiss (ECF No.
28), denies Plaintiff’s Petition to the Court for Judgment by Default of the Defendant (ECF No. 29),
and denies as moot Plaintiff’s Motion for Judgment on the Pleadings and Motion for Summary
Judgment (ECF No. 13).
IT IS SO ORDERED.
/S/ SOLOMON OLIVER, JR.
CHIEF JUDGE

3

Plaintiff also reiterates his argument regarding Defendant’s failure to file an
answer, contained within his Motion for Default Judgment. However, for the
reasons stated above, this argument is meritless.
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UNITED STATES DISTRICT COURT
May 26, 2011

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