Dodson v. Berenson et al

Filing 59

Opinion & Order signed by Judge James S. Gwin on 11/30/17. The Court, for the reasons set forth in this entry, denies plaintiff's motion to stay and grants defendants' motion for summary judgment. (Related Docs. 45 and 51 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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RICARDO DODSON,
:
:
Plaintiff,
:
:
vs.
:
:
DAVID BERENSON, et al.,
:
:
Defendant.
:
:
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CASE NO. 1:17-CV-327

OPINION & ORDER
[Resolving Docs. No. 45, 51]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Ricardo Dodson, proceeding pro se, brings a 42 U.S.C. § 1983 claim for
violations of his First, Sixth, and Fourteenth Amendment rights.1 This Court previously
dismissed all but Plaintiff’s Fourteenth Amendment equal protection claim.2 Defendants David
Berenson and Jennifer Whitten move for summary judgment on this remaining claim.3
For the following reasons, the Court GRANTS Defendants’ motion for summary
judgment.
I. Background
Plaintiff Dodson was previously incarcerated at the Grafton Correctional Institution
(“Grafton”).4 At Grafton, Dodson was enrolled in the Comprehensive Sex Offender Treatment
Program (“CSOP”) there.5 Defendant Berenson is the Director of Sex Offender Services for the

1

See Doc. 4-2.
Doc. 42.
3
Doc. 45. Plaintiff opposes. Doc. 55. Defendants reply. Doc. 56. Plaintiff has previously sought a stay
of these summary judgment proceedings. Doc. 51. The Court DENIES that request.
4
Doc. 4-2 at 3. Plaintiff is currently incarcerated at the Richland Correctional Institution. Id.
5
Doc. 45-1 at 1-2.
2

Case No. 1:17-CV-327
Gwin, J.
Ohio Department of Rehabilitation and Correction.6 Defendant Whitten is a Sex Offender
Program Administrator at Grafton.7
Plaintiff Dodson participated in CSOP group sessions.8 Inmates began each session with
a “check-in,” where they said something about themselves.9
As his check-in for one session, Dodson told the other inmates in the session about an
encounter he had with a female food service employee in the prison.10 He stated that this food
service employee told him that she looked up Dodson’s conviction, and that she knew Dodson
was convicted of rape.11 She then told Dodson – and Dodson told his groupmates – that she was
a sexual assault victim.12
At this point, Defendant Whitten, who led the group, made Plaintiff Dodson stop talking
and moved on to another inmate’s check-in.13 Dodson claims that had he been able to finish the
story, he would have said that after her initial statement, the food service worker confessed to
him that she was not actually a sexual assault victim.14 In fact, Dodson says the food service
worker only wanted to see how a convicted rapist would respond to being confronted by a
victim.15
After this session, Defendant Whitten removed Plaintiff Dodson from the CSOP group
that he previously participated with.16 She did not, and did not have the power to, remove him

6

Doc. 45-4 at 1.
Doc. 45-1 at 1.
8
Id.
9
Doc. 45-4 at 2.
10
Id.
11
Id.
12
Id.
13
Id.
14
Doc. 55-2 at 2.
15
Id.
16
Doc. 45-1 at 3-4.
7

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Case No. 1:17-CV-327
Gwin, J.
from the CSOP entirely.17 She then spoke with Defendant Berenson about Plaintiff Dodson’s
actions.18
After meeting with Plaintiff Dodson, Defendants Whitten and Berenson entirely removed
Dodson from the CSOP.19 Defendant Berenson, however, told Dodson that Dodson could
potentially re-enter the program if he wrote Defendant Berenson a letter about his desire to
continue treatment.20 To date, Dodson has not requested to re-enter the program.21
Later, Dodson learned that a white inmate was also punished for making an arguably
similar statement in a CSOP group session.22 This white inmate told the CSOP group that a
female parole board member exposed her genitals to male prisoners in an attempt to cause them
mental anguish.23 Defendant Whitten removed this white inmate from that CSOP session.24 But,
after meeting with him, she allowed the white inmate to remain in the CSOP.25
Dodson argues that these differing outcomes occurred because he is African American
and the other inmate is white.26 He states that both he and the white inmate were referred to the
CSOP by the parole board, in spite of Defendants’ statements to the contrary.27 Additionally, he
argues that both men were disciplined for reporting sexually related misconduct by prison
employees during a group session.28

17

Id.
Id.
19
Id. at 2.
20
Id.
21
Doc. 45-4 at 2.
22
Doc. 55-2 at 2.
23
Id.
24
Id.
25
Id. at 2-3.
26
Id. at 2.
27
Id. at 2-3.
28
Id. at 2.
18

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Case No. 1:17-CV-327
Gwin, J.
Defendants state that the substance of the two men’s statements, as well as their reactions
to the initial reprimand and past performance in the CSOP, explain the seemingly disparate
punishments.29 Defendants assert that Plaintiff Dodson’s statement put the food service
employee at risk in a way the white inmate’s statement did not endanger the parole board
member.30
They argue that Dodson’s CSOP performance was worse than the white inmate.31 They
also say that Dodson refused to admit that his statement was improper or accept responsibility
for his actions while the white inmate showed remorse.32 Finally, Defendants say that their
decision was motivated in part by the similarity between Dodson’s actions in his story about the
food service employee and the events that led to his imprisonment.33
II. Legal Standard
Under Federal Rule of Civil Procedure 56, “[s]ummary judgment is proper when ‘there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.’”34 The moving party must first demonstrate that there is an absence of a genuine dispute as
to a material fact entitling it to judgment.35
Once the moving party has done so, the non-moving party must set forth specific facts in
the record—not its allegations or denials in pleadings—showing a triable issue.36 The existence
of some doubt as to the material facts is insufficient to defeat a motion for summary judgment.37

29

Doc. 45-1 at 3-4; Doc. 45-4 at 2-3.
Doc. 45-1 at 3-4; Doc. 45-4 at 2-3.
31
Doc. 45-1 at 3-4; Doc. 45-4 at 2-3.
32
Doc. 45-1 at 3-4; Doc. 45-4 at 2-3.
33
Doc. 45-1 at 3.
34
Killion v. KeHE Distribs., LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
35
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
36
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
37
Id. at 586.
30

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Case No. 1:17-CV-327
Gwin, J.
The Court views the facts and all reasonable inferences from those facts in favor of the nonmoving party.38
III. Discussion
To make a claim under 42 U.S.C. § 1983, a plaintiff must show a deprivation of his
constitutional rights committed under color of state law.39 Plaintiff Dodson alleges that
Defendants Berenson and Whitten violated his Fourteenth Amendment right to equal protection
of the laws.40
A. Exhaustion of Intra-Prison Grievance Procedures
As a threshold issue, Defendants argue that Plaintiff Dodson did not exhaust the intraprison grievance procedures prior to bringing this suit, in violation of the Prison Litigation
Reform Act.41 Specifically, they allege that Plaintiff Dodson did not file an informal
complaint.42
Although Dodson may have failed to exhaust some of his previously dismissed claims, he
properly exhausted his equal protection claim. Ohio Administrative Code 5120-9-31 details the
inmate grievance procedure. 5120-9-31(K)(1) allows an inmate to skip filing an informal
complaint when their grievance is raised under 5120-9-04, which deals with staff members
taking discriminatory actions against inmates because of their race.
Dodson explicitly invoked this exemption when completing the remainder of the intraprison grievance procedure.43 His claim is therefore properly before this Court.

38

Killion, 761 F.3d at 580 (internal citation omitted).
Barkovic v. Hogan, 505 F. App’x 496, 499 (6th Cir. 2012).
40
Doc. 55-1 at 1.
41
42 U.S.C. § 1997e(a).
42
See Ohio Admin. Code 5120-9-31.
43
See Doc. 55-3 at 20.
39

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Case No. 1:17-CV-327
Gwin, J.
B. Equal Protection Claims
Defendants argue that Dodson was not similarly situated to the white inmate he compares
himself to, and that even if he were, there is no evidence that they removed Dodson from the
CSOP because of his race.
“The Equal Protection Clause prohibits discrimination by government which . . . targets
a suspect class, or intentionally treats one differently than others similarly situated without any
rational basis for the difference.”44 In order to state an equal protection claim, a plaintiff must
first prove disparate treatment, meaning that he was treated differently from someone similarly
situated to himself.45 Then, he must prove discriminatory intent, meaning that the Defendants’
made their decision at least in part because they sought to discriminate based on a protected
characteristic, i.e. race.46
Dodson has not presented sufficient evidence to survive summary judgment on either
prong.
1. Similarly Situated Analysis
Dodson points to a white inmate in the CSOP as similarly situated to himself.47 During a
CSOP group session, this inmate stated that a female parole board member would expose herself
to potential parolees before denying them parole in an effort to cause them mental distress.48

44

Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 682 (6th Cir. 2011).
See Kennedy v. Tallio, 20 F. App’x 269, 471 (6th Cir. 2001).
46
Id.
47
Doc. 55-2 at 2.
48
Id.
45

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Case No. 1:17-CV-327
Gwin, J.
Like Dodson, the white inmate was reprimanded for telling his story,49 and had been
referred to the CSOP by the parole board.50 But, Defendants allowed this white inmate to
continue in the CSOP.51
In spite of these facial similarities, there is no dispute of material fact as to whether
Dodson and this white inmate were actually similarly situated. They were not.
As an initial matter, the substance of the two men’s statements materially differed.
Dodson’s statement placed the female food service employee at risk because it exposed personal
information about her to a group of sex offenders that would have the opportunity to interact
with her. These offenders were all at a sufficiently high risk of reoffending that the Ohio
Department of Rehabilitation and Correction placed them in the CSOP.52 This is true regardless
of whether the food service employee was actually a sexual assault victim. By contrast, the
white inmate’s statement involved a relatively anonymous parole board member that the group
members would have minimal, if any, contact with.
Beyond this, uncontroverted affidavits from Defendants Whitten and Berenson show that
Plaintiff Dodson and the white inmate had noticeably different reactions to their verbal
reprimands. The white inmate accepted Defendants’ contention that his group session story
about the parole board member was inappropriate and expressed remorse for telling his story.53

49

Id.
Id.; see also Doc. 55-3 at 8 (stating that, to the best of her knowledge, the white inmate was also
referred to the CSOP by the parole board).
51
Doc. 55-2 at 2.
52
See Ohio Dep’t Rehab. & Correction Policy 67-MNH-12(VI)(B) (requiring CSOP participation from
inmates who score as “high risk or medium-high risk to sexually reoffend” while requiring only “Basic
Education programming” from lower risk inmates).
53
Doc. 45-1 at 3-5, 8.
50

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Case No. 1:17-CV-327
Gwin, J.
Dodson, however, refused to accept responsibility for his actions and did not express any
understanding that his story about the food service employee was inappropriate.54 Defendants
found this especially troubling because Dodson’s encounter with the food service employee had
similarities to a past rape that he committed.55
Defendants also contend that Dodson was not otherwise performing well in the CSOP
while the white inmate was.56 Dodson responds that he was performing well, and provides
evaluation records to support this argument.57 These records show that while Dodson performed
well in some parts of the CSOP, he was only average in other parts of the program.58
Ultimately, this minor factual dispute between the parties does not rise to the level of
creating a genuine dispute of material fact about whether Plaintiff Dodson was similarly situated
to this white inmate. He was not.
2. Discriminatory Intent
“It is incumbent on one asserting a Fourteenth Amendment equal protection claim to
prove the existence of some purposeful discrimination.”59 “The [P]laintiff’s subjective objections
to the actions of the Defendants and his personal belief that they were motivated by racial
prejudice is simply insufficient to support an Equal Protection claim.”60

54

Id.
Id. at 3.
56
Doc. 45-1 at 5 (declaration from Defendant Whitten). Id. at 6-12 (CSOP incident reports).
57
Doc. 55-3 at 11-18.
58
See id. (noting that Dodson received high scores for his behavior in CSOP sessions, but only average
scores for his participation during those sessions).
59
LaFountain v. Simasko, 38 F.3d 1216, at *3 (6th Cir. 1994) (citing McCleskey v. Kemp, 481 U.S. 279,
292 (1987)).
60
Huddleston v. Bledsoe, 2015 WL 1393217, at *4-5 (M.D. Tenn. Mar. 25, 2015), adopted by, 2015 WL
1879657 (M.D. Tenn. Apr. 23, 2015) (citing Armour v. Gundy, 107 F.3d 870 (6th Cir. 1997)).
55

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Case No. 1:17-CV-327
Gwin, J.
Dodson argues that Defendants Whitten and Berenson removed him from the CSOP
because of his race. He provides no direct evidence from his interactions with either Defendant
that suggests racial animus motivated their decision.
As circumstantial evidence of discriminatory intent, Dodson recounts a story of a
different CSOP staff member using a racial slur against African Americans. 61 He says that
Defendant Whitten approved of, or at least did not punish, this staff member’s actions.62
Defendant Whitten responds that the event involved a staff member repeating a racial slur used
by an inmate in the process of telling the CSOP group that such language was inappropriate.63
Plaintiff Dodson also states that he has witnessed African Americans being
disproportionately punished in the CSOP.64 Finally, he argues that Defendants lied when they
explained that the white inmate could stay in the CSOP because that inmate’s participation was
mandatory while Dodson’s was not.65
Even taking Dodson’s account of the staff member using a racial slur as true, none of
these examples create a genuine issue of material fact regarding any discriminatory intent by
Defendants. As an initial matter, none of Dodson’s examples involve Defendant Berenson.
Further, none of these examples are sufficiently connected to Dodson’s dismissal from the CSOP
to suggest that race played a role in Defendants’ decision.

61

Doc. 55-2 at 2.
Doc. 55-2 at 2.
63
Doc. 55-3 at 7.
64
Doc. 55-2 at 3. Plaintiff Dodson also received documentation from the government about inmate
dismissals from the CSOP over the last five years. See Doc. 58. These dismissals of other inmates are
too attenuated to undermine Defendants’ non-discriminatory justifications for Dodson’s dismissal. See,
e.g., Keene v. Mitchell, 525 F.3d 461, 464 (6th Cir. 2008) (requiring that a party asserting an equal
protection violation offer specific evidence from his own case to suggest that race played a part in the
adverse decision against him).
65
Doc. 55-2 at 3.
62

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Case No. 1:17-CV-327
Gwin, J.
Dodson provides no documentation regarding punishment rates in the CSOP.
Additionally, he provides zero examples of African Americans receiving differing punishment
during any of that program’s sessions. Dodson’s one specific example of a racially tinged
action, a staff member using a racial slur, was at worst a singular event that did not directly
involve either Defendant.66
Finally, Defendants did mistakenly tell Dodson that the white inmate remained in the
CSOP because his participation was mandatory, while the parole board referred Dodson to the
CSOP and so Dodson’s participation was not.67 In her response to Dodson’s discovery requests,
however, Defendant Whitten states that the parole board referred both Dodson and the white
inmate to the CSOP.68 Therefore, Dodson’s and the white inmate’s mandatory or non-mandatory
status in the CSOP would be the same. Defendants have not offered any explanation for why
they misinformed Dodson.
Regardless of whether Defendants’ statements about Dodson’s and the white inmate’s
participation status were malicious or simply negligent, they do not create a genuine issue of
material fact about whether Defendants acted with discriminatory intent. Defendants have
offered numerous non-discriminatory reasons for Dodson’s termination and these reasons are
supported by the record. Dodson has not provided evidence to undercut them.
Defendants state that they terminated Dodson from the CSOP because they viewed
Dodson’s story as inappropriate for a CSOP group session, and because Dodson was unrepentant

Cf. Fletcher v. Chartrand, 869 F.2d 1490 (Table), at *1 (6th Cir. 1989) (unpublished) (“The pleadings
and accompanying evidentiary material before us demonstrate, at most, one isolated incident of uneven
enforcement of a prison disciplinary regulation. Absent more, no purposeful discrimination is apparent.”).
67
See Doc. 55-3 at 24 (“Ms. Whitten also explained that it was not mandatory for you to be in the
comprehensive sex offender program . . . . The other inmate that you were referring to is mandated to take
the . . . program.”).
68
Id. at 8 (stating that, to the best of Defendant Whitten’s knowledge, the white inmate was also referred
to the CSOP by the parole board).
66

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Case No. 1:17-CV-327
Gwin, J.
about his actions.69 Defendants found Dodson’s lack of remorse especially concerning because
of the similarity between his story about the food service worker and the background of
Dodson’s rape conviction.70 Finally, they did not believe that Dodson was performing well in
the CSOP even before this event.71
Dodson’s evidence does not rebut these explanations. The Court finds that there is no
genuine dispute of material fact. Defendants are entitled to judgment as a matter of law because
Dodson has not presented anyone similarly situated to himself and has failed to provide evidence
of discriminatory intent.
Therefore, the Court GRANTS Defendants’ motion for summary judgment.72
C. Qualified Immunity
Qualified immunity protects government officials from damages unless they violate a
clearly established constitutional or statutory right.73 When determining qualified immunity, the
Court must determine whether a constitutional violation occurred, and if so, whether the violated
constitutional right was clearly established at the time government officials acted.74 Once a
government official raises the defense of qualified immunity, “the plaintiff then bears the burden
of showing facts that, if true, defeat the assertion of the doctrine.”75

69

See Doc. 56-1 at 2; Doc. 56-2 at 1-2.
See Doc. 56-1 at 2; Doc. 56-2 at 2.
71
See Doc. 45-1 at 5.
72
Because the Court finds that no constitutional violation occurred, the Court also GRANTS Defendants’
motion for summary judgment on Plaintiff’s conspiracy claim.
73
See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
74
See France v. Lucas, 836 F.3d 612, 625 (6th Cir. 2016) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)).
75
Meyers v. City of Cincinnati, 979 F.2d 1154, 1156 (6th Cir. 1992).
70

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Case No. 1:17-CV-327
Gwin, J.
Here, had Plaintiff proven that Defendants intentionally punished him because of his
race, that action would violate Plaintiff’s clearly established constitutional right to equal
protection of the laws.76 But, Plaintiff Dodson has not proven that any intentional discrimination
occurred.
At most, Plaintiff Dodson has provided evidence that Defendants prevented him from
reporting a prison employee’s misconduct to them, 77 and that they lied about one of the reasons
underlying why they terminated him from the CSOP.78
These actions were not an equal protection violation. Even if these actions did somehow
violate Dodson’s constitutional rights, Dodson has provided no argument suggesting that the
violated right was clearly established.
Therefore, the Court finds that Defendants are alternatively entitled to qualified immunity
because no violation of a clearly established constitutional right occurred.
D. Dodson’s Request for Additional Discovery
In his opposition to summary judgment, Dodson requests additional discovery on racerelated complaints against CSOP staff.79 Dodson, however, has not shown good cause for this
additional discovery.80

See, e.g., Rose v. Mitchell, 443 U.S. 545, 554 (1979) (“Discrimination on account of race was the
primary evil at which the Amendments adopted after the War Between the States, including the
Fourteenth Amendment, were aimed. The Equal Protection Clause was central to the Fourteenth
Amendment’s prohibition of discriminatory action by the State[.]”).
77
Notably, Plaintiff Dodson had the ability to tell his full story to other prison officials during the
investigation of his complaints. See, e.g., Doc. 55-3 at 25-26 (recounting to the Office of the Chief
Inspector, in Plaintiff Dodson’s own words, the events leading to his termination from the CSOP).
78
As discussed above, Defendants offered numerous other non-discriminatory reasons for terminating
Dodson from the CSOP.
79
See Fed. R. Civ. P. 56(d).
80
See Summers v. Leis, 386 F.3d 881, 887 (6th Cir. 2004) (“[A party] must state with ‘some precision the
materials he hopes to obtain with further discovery, and exactly how he expects those materials would
help him in opposing summary judgment.’” (quoting Simmons Oil Corp. v. Tesoro Petroleum Corp., 86
F.3d 1138, 1144 (Fed.Cir.1996))).
76

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Case No. 1:17-CV-327
Gwin, J.
He alleges that there have been at least four other complaints regarding racial slurs used
by CSOP staff, but he makes no argument that these complaints were against either Defendant
Whitten or Defendant Berenson. Indeed, even if these complaints do exist, Dodson makes no
attempt to connect them either temporally or substantively to his own dismissal from the
program.
The Court therefore DENIES Dodson’s request for further discovery.
IV. CONCLUSION
For the reasons stated above, the Court GRANTS Defendants’ motion for summary
judgment.

IT IS SO ORDERED.

Dated: November 30, 2017

s/
James S. Gwin___________
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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