Clark v. Johnston et al
Filing
131
Memorandum Opinion and Order: For the reasons discussed, all of plaintiff's objections are overruled. The Court need not modify either of the Orders issued by the Magistrate Judge (Doc. Nos. 123 and 126 ) and they, therefore, stand as written. Judge Sara Lioi on 10/7/2011. (P,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID E. CLARK,
PLAINTIFF,
vs.
N. JOHNSTON, et al.,
DEFENDANTS.
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CASE NO. 4:07CV0941
JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER
Before the Court are objections filed by plaintiff with respect to two orders issued
by the Magistrate Judge, namely, Doc. Nos. 123 and 126, wherein he ruled and then clarified that
“the only issue to be addressed by this Court on remand is the confiscation of Plaintiff’s legal
and personal property in retaliation for his participation in a class action lawsuit and filing of
other complaints and grievances.” (Doc. No. 126 at 8.)1 There has been no opposition to the
objections.
Under Fed. R. Civ. P. 72, when objections are filed to a Magistrate Judge’s Order
on a non-dispositive matter, the district court must consider the objections and “modify or set
aside any part of the order that is clearly erroneous or is contrary to law.” See also 28 U.S.C. §
636(b)(1)(A).
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The Magistrate Judge was actually ruling on two motions filed by the plaintiff, one to reinstate all of the
defendants and the other for leave to file a second amended complaint. He concluded that the motion to reinstate
was moot “because no defendant has been dismissed from this case[.]” (Doc. No. 123 at 6.) He permitted the second
amended complaint, with limitations. Specifically, he noted that the second amended complaint was helpful to the
Court and to the defendants because it “identifies each of the defendants as well as their alleged involvement in each
alleged constitutional violation [... and] reveals that at least three of the defendants are not alleged to have played
any role in the remaining retaliation claims.” (Id. at 7.) However, the Magistrate Judge made quite clear that, to the
extent the second amended complaint attempted to “cure the deficiencies in his amended complaint, and, thereby,
revive the failed claims[,]” that was “in no way permitt[ed].” (Doc. No. 123 at 10, 11.)
I. DISCUSSION
Plaintiff’s objections are in the nature of factual objections. Except for some
limited interpretation of the Sixth Circuit’s opinion on appeal, he has made no arguments based
on law. Therefore, under Rule 72, this Court’s review addresses only whether any of the
Magistrate Judge’s factual findings to which plantiff objects are “clearly erroneous.”
Objection I
The plaintiff’s first objection is that the Magistrate Judge incorrectly determined
that his second amended complaint is attempting to refashion his argument to revive dismissed
constitutional claims. He points to allegations in both his original and his first amended
complaint for the proposition that his retaliation claim is much broader than just the confiscation
of his personal and legal property. In particular, he identifies a litany of allegations in the original
complaint relating to defendants’ breaking his television, threatening him, confiscating his
personal and legal property, writing false conduct reports against him, and placing him in
segregation. He insists that the following paragraph from his original complaint sweeps all of
these allegations within his retaliation claim:
14.) All of these actions taken against me, as a whole, constitute CRUEL
& UNUSUAL PUNISHMENT, and CONSPIRACY to violate my constitutional
rights in retaliation, violating my First Amendment Rights.
(Doc. No. 1, p. 10) (capitalization in original).
He further points to a paragraph in his first amended complaint for the same
proposition:
1.) This action involves various malicious acts of harassment and
retaliation by various OSP staff acting under color of State law in a conspiracy to
violate my constitutional rights both for my participation and testimony in federal
court in a class action against OSP, and for my complaints against some of them
individually.
(Doc. No. 3, p. 2.)
Notwithstanding plaintiff’s current objection, the Sixth Circuit, when it
considered his appeal from this Court’s dismissal of his action, made quite clear that plaintiff had
alleged retaliation claims based on two forms of protected conduct: one based on the exercise of
his First Amendment rights and the other based on his participation in a federal class action and
his criticism of prison officials by way of complaints and grievances. The court stated
unequivocally that no First Amendment retaliation claim survived which was premised on the
complaints plaintiff made about OSP officials to an ODRC official, see Doc. No. 101, at 12-13,2
and that the dismissal of his remaining claims (identified by the Circuit as due process claims,
claims of cruel and unusual punishment and denial of access to the courts, plus violations of the
First and Sixth Amendments) must be affirmed, but that his “other retaliation claim must be
reinstated.” Id. at 2. The court identified the “other” retaliation claim as being “based on his
participation in a class action lawsuit and the filing of other complaints and grievances, which
allegedly led to the confiscation of his personal and legal property. (Id. at 16.) This latter
retaliation claim was the only one that survived on appeal.
Therefore, plaintiff’s first objection is overruled and the Magistrate Judge’s Order
is affirmed to the extent it clarifies the exact nature of the only claim remaining for resolution.
Objection II
Plaintiff asserts that his complaint to an ODRC official was not predicated on his
previous protected conduct of participating in a class action or his filing of other complaints and
grievances prior to the confiscation of his property.
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The Sixth Circuit also made clear that, because an amended complaint had been filed, the allegations of the
original complaint should no longer be considered. (Doc. No. 101, at 12.)
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This objection is overruled because the Sixth Circuit made clear that any
complaints plaintiff made to an ODRC official were part of the properly dismissed First
Amendment retaliation claim. (Doc. No. 101, at 12-13.)
Objection III
The third objection is:
The Clark Court’s opinion does not, as claimed, support the magistrate’s
contention that its reference to “previous grievances”, references the “other
complaints and grievances” associated with the remanded retaliation claim; but
rather demonstrates the exact opposite.
Plaintiff argues in this objection that the Magistrate Judge, at page 4 of Doc. No.
126, has somehow “attempt[ed] to limit the defendants’ liability for retaliation against [plaintiff]
by writing false conduct reports [...] and having [plaintiff] improperly placed in segregation” by
stating that the Sixth Circuit had found these claims properly dismissed “because [he] failed to
demonstrate that [his] previous grievances, which were the subject of the complaints to the
ODRC official, were not frivolous.”
This objection has no merit. The Magistrate Judge was not limiting anything. He
was merely pointing out that the Sixth Circuit had rejected all of plaintiff’s constitutional claims,
including his retaliation claim based on complaints he made to an ODRC official about the job
performance of OSP officials and about their alleged failure to answer his previous grievances.
The Sixth Circuit, not the Magistrate Judge, stated that plaintiff’s surviving retaliation claim did
not encompass any allegations of false conduct reports or improper placement in segregation,
adverse actions which he had alleged were retaliation for his complaint to the ODRC official.
This objection is overruled.
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Objection IV
Plaintiff asserts that the Magistrate Judge “reli[ed] on a “typo” in a footnote of the
Sixth Circuit’s opinion to limit the defendant’s liability” for retaliation connected to plaintiff’s
protected conduct of participating in a class action and filing other grievances and complaints.
Plaintiff specifically points to footnote 5 of the Sixth Circuit opinion as containing
a “typo.” It states:
The district court differentiated between Clark’s retaliation claims based on the
adverse actions taken—confiscation of Clark’s personal and legal property, and
Clark’s placement in segregation. However, this opinion differentiates between
Clark’s retaliation claims based on the protected conduct alleged—Clark’s
participation in a class action lawsuit and his filing of other complaints and
grievances, and Clark’s complaint to an ODRC official. For clarification, the
retaliation claim regarding Clark’s participation in a class action lawsuit and his
filing of other complaints and grievances also alleges that his personal and legal
property were confiscated because of these actions. Meanwhile, the retaliation
claim regarding Clark’s complaint to an ODRC official also alleges that he was
placed in segregation because of his actions.
(Doc. No. 101 at 16-17, n.5) (bolding added by plaintiff.)
Plaintiff declares:
the Sixth Circuit meant to say “only” in the second instance of the use of “also”,
in the last sentence; because if you go with “also”, you’re still supporting my
position, only saying it in a different way; because you would be saying that,
because of my complaint to an ODRC official I was placed in segregation in
addition to something else; but the question becomes, in addition to what?
(Objections at 6) (bolding in original). To read this otherwise, according to the plaintiff, “one
would have to completely ignore everything the Court said, and then specifically argue that the
[Judges] that have made it to the Sixth Circuit are idiots[.]” (Id. at 7.)
Plaintiff is completely misreading the section quoted above from the Sixth
Circuit’s opinion. The panel was merely pointing out a nuance, namely, that it had evaluated his
retaliation claims based on his two forms of protected conduct: participation in
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lawsuits/complaints/grievances and complaining to an ODRC official, whereas this Court had
evaluated the claims based on the adverse actions taken: confiscation of legal/personal property
and placement in segregation. The Sixth Circuit then went on to clarify that confiscation had
been the adverse action for the first form of protected activity. It also noted that segregation had
been the adverse action for the second form of protected activity; however, that claim of
retaliation had already been rejected by the Circuit in an earlier portion of its opinion.
This objection has no merit and is overruled.
Objection V
In this objection, plaintiff argues that the Sixth Circuit connected his surviving
retaliation claim to the confiscation of his property only by way of example, not by way of
limiting the adverse actions he could use in order to prove the retaliation claim. In other words,
he continues to insist that he be allowed to identify other forms of adverse action besides the
confiscation of his legal and personal property, in connection with his claim of retaliation for his
involvement in the class action lawsuit and other grievances.
The Sixth Circuit very clearly linked each of plaintiff’s two retaliation claims (one
dismissed on summary judgment and the other dismissed on a motion to dismiss, but surviving
on remand) to very particular forms of adverse actions. In determining that the latter retaliation
claim should have survived on the standard for a motion to dismiss, the Circuit quite clearly
stated in its remand order: “Thus, Clark adequately pleaded retaliation [for purposes of
withstanding a motion to dismiss], through confiscation of his property, for his involvement in a
class action lawsuit and his filing of other complaints and grievances.” (Doc. No. 101 at 19.) In a
footnote, the Circuit also noted: “This does not mean that Clark would survive a motion for
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summary judgment by defendants on this claim, but the district court did not rule upon this
particular retaliation claim at the summary judgment stage.” (Id., n. 7.)
This objection has no merit and is overruled.
II. CONCLUSION
For the reasons discussed above, all of plaintiff’s objections are overruled. The
Court need not modify either of the Orders issued by the Magistrate Judge (Doc. Nos. 123 and
126) and they, therefore, stand as written.
IT IS SO ORDERED.
Dated: October 7, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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