Hasan v. Sheldon et al

Filing 28

Memorandum of Opinion and Order For the reasons set forth herein and those that have been articulated in the memorandum of points and authorities on which Defendants rely, Defendants' Motion for Summary Judgment (ECF No. 24 ) is granted. There is no genuine issue as to any material fact and the movants are entitled to a judgment as a matter of law. Judge Benita Y. Pearson on 9/28/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SIDDIQUE ABDULLAH HASAN,
a/k/a CARLOS A. SANDERS,
Plaintiff,
v.
WARDEN RICHARD A. BOWEN, JR.,1
et al.,
Defendants.

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CASE NO. 4:16CV2239

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 24]

Pending is Defendants’ unopposed2 Motion for Summary Judgment (ECF No. 24), filed
on April 17, 2017. Defendants move the Court to enter summary judgment in their favor on the
Amended Complaint (ECF No. 20). The Court has been advised, having reviewed the record, the
memorandum in support, the deposition of Defendant Imam Said Ismail (ECF No. 23), the

1

Warden Ed Sheldon was an original Defendant. He was sued in an official
capacity as a public officer. According to the Ohio Department of Rehabilitation and
Correction website (http://www.drc.ohio.gov/osp (last visited September 28, 2017)),
Richard A. Bowen, Jr. currently is the Warden at that facility. Pursuant to Fed. R. Civ. P.
25(d), Bowen’s name has been automatically substituted as a party.
2

Plaintiff’s memorandum in opposition was to have been filed no later than
May 17, 2017. See Order (ECF No. 26).
It is the law of the Sixth Circuit that Fed. R. Civ. P. 56 requires a court, even
where a motion for summary judgment is unopposed, to determine that the moving party
has established a right to relief as a matter of law and that no genuine issue of material
fact exists before the court can award summary judgment. Donlin v. Watkins, 814 F.2d
273, 277 (6th Cir. 1987); Kendall v. Hoover Co., 751 F.2d 171, 173-74 (6th Cir. 1984).
Moreover, the pre-filing written exchange required by ¶ 14 of the Case
Management Plan (ECF No. 21 at PageID #: 124) should have obviated the need for the
Court’s attention to be drawn to unopposed arguments.

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Declaration of Marc D. Bratton (ECF No. 24-1), and the applicable law. For the reasons set forth
below, Defendants’ motion is granted.
I.
Plaintiff Siddique Abdullah Hasan, a/k/a Carlos A. Sanders, an inmate in state custody at
the Ohio State Penitentiary,3 by and through counsel, brings this civil rights complaint pursuant
to 42 U.S.C. § 1983 against Defendants Warden Richard A. Bowen, Jr., Imam Said Ismail, and
Lt. K. Sample. Plaintiff has spoken with the media regarding “his views on the inappropriateness
of utilizing prison labor under conditions which he equates with slavery.” ECF No. 20 at PageID
#: 105, ¶ 6. He claims that on September 9, 2016, “inmates in institutions across the country and
their supporters staged peaceful protests concerning the conditions under which inmates are
obliged to work in prison facilities across the United States.” ECF No. 20 at PageID #: 105, ¶ 5.
Plaintiff had intended to continue speaking with the media about the topic of prison labor. ECF
No. 20 at PageID #: 105, ¶ 6.
On August 1, 2016, Defendant Said Ismail, a Contract Imam who provides religious
services to Islamic inmates at the Penitentiary where Plaintiff is housed, wrote an incident report
against Plaintiff. ECF No. 20 at PageID #: 104, ¶ 3; PageID #: 105, ¶ 7. The Conduct Report,
dated August 15, 2016 (ECF No. 20-1), alleges that on July 22, 2016, Plaintiff repeatedly
suggested to the Imam that he should carry out a suicide mission at the Ohio State Penitentiary by

3

Plaintiff was convicted in March of 1996 of aggravated murder, attempted
murder, felonious assault, kidnapping, and robbery. Upon his conviction for aggravated
murder, the trial court imposed a sentence of death. State v. Sanders, No. C-020077,
2002 WL 31127540, at *1 (Ohio App. 1st Dist. Sept. 27, 2002).
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wearing a bomb laden vest into the Penitentiary. The Conduct Report (ECF No. 20-1) charged
Plaintiff with a violation of Rule 59 of the Inmate Rules of Conduct.4 ECF No. 20 at PageID #:
105-106, ¶ 7; ECF No. 23 at PageID #: 138, 149, 163. An investigation ensued. Plaintiff denies
that he engaged in this conduct. ECF No. 20 at PageID #: 106, ¶ 8. The Rules Infraction Board
(“RIB”) held a hearing on the conduct report on August 18, 2016. ECF No. 20 at PageID #: 106,
¶ 10. The RIB found Plaintiff guilty of the conduct alleged, and suspended Plaintiff’s telephone
and JPay email privileges for 30 days. Disposition of the RIB (ECF No. 20-2 at PageID #: 112);
ECF No. 20 at PageID #: 106, ¶ 10; PageID #: 107, ¶ 12.
Nearly three weeks later and two days before the nationwide inmate protest – on
September 7, 2016 – Plaintiff filed this action asserting that Defendants suspended his privileges
in retaliation for Plaintiff exercising his First Amendment rights, and to prohibit him from
speaking with the media during the protest on September 9, 2016. ECF No. 20 at PageID #: 104,
¶ 1; PageID # 107, ¶ 13. Plaintiff concurrently filed a Motion for Temporary Restraining Order
(ECF No. 3) in which he asserted “[i]n order to prevent [Plaintiff] from [speaking to the media
about the subject of prison labor], the defendants have trumped up a charge against him which
they believe permits them to order a suspension of his right to communicate with the media or
anyone else, except his attorney.” ECF No. 4 at PageID #: 26. Plaintiff stated that he was
pursuing his administrative remedies, “but they will not be resolved until after the 9th which

4

Rule 59 prohibits “[a]ny act . . . knowingly done which constitutes a threat to
the security of the institution, its staff, other inmates, or to the acting inmate. Ohio
Admin. Code 5120-9-06(C)(59).
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would deprive Plaintiff of any chance to have this Court remedy the violation of his rights.” ECF
No. 4 at PageID #: 27.
On September 8, 2016, the Court denied Plaintiff’s Motion for Temporary Restraining
Order (ECF No. 3). See Memorandum of Opinion and Order (ECF No. 8).
II.
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
resolved by a jury.” Cox v. Ky. Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The
non-moving party must, to defeat the motion, “show that there is doubt as to [whether] the
material facts and that the record, taken as a whole, does not lead to a judgment for the movant.”

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Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the court must view the
evidence in the light most favorable to the non-moving party when deciding whether a genuine
issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
The United States Supreme Court, in deciding Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1986), stated that in order for a motion for summary judgment to be granted, there must be
no genuine issue of material fact. Id. at 248. The existence of some mere factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment. Scott v. Harris, 550 U.S. 372, 380 (2007). A fact is “material” only if its resolution
will affect the outcome of the lawsuit. In determining whether a factual issue is “genuine,” the
court must decide whether the evidence is such that reasonable jurors could find that the
non-moving party is entitled to a verdict. Id. Summary judgment “will not lie . . . if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id. To withstand
summary judgment, the non-movant must show sufficient evidence to create a genuine issue of
material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). The existence of a
mere scintilla of evidence in support of the non-moving party’s position ordinarily will not be
sufficient to defeat a motion for summary judgment. Id.
III.
A. Exhaustion of Administrative Remedies
Section 1997e of the Prison Litigation Reform Act (“PLRA”) provides that “[n]o action
shall be brought with respect to prison conditions under section 1983 of this title, or any other

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Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Indeed, alleged
violations of the First Amendment are subject to the PLRA’s exhaustion requirement. Treesh v.
Taft, 122 F. Supp.2d 887, 890-91 (S.D. Ohio 2000) (inmate’s free speech challenge to state
corrections department’s policy prohibiting death row inmates from making oral final statements
audible to spectators just before execution related to “prison conditions” and was thus subject to
PLRA exhaustion requirement). Although prisoners “are not required to specially plead or
demonstrate exhaustion in their complaints,” Jones v. Bock, 549 U.S. 199, 216 (2007), “[t]here is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be
brought in court,” id. at 211. In a claim by a prisoner, failure to exhaust administrative remedies
under the PLRA is an affirmative defense that must be established by the defendants. Id. at 204.
In Ohio, prisoners must follow a three-step grievance procedure. See Ohio Admin. Code
5120-9-31(K). See Troche v. Crabtree, 814 F.3d 795, 799 (6th Cir. 2016). Plaintiff alleges “it
would appear that [he] has exhausted his administrative remedies. ECF No. 20 at PageID #: 107,
¶ 14. However, according to the Bratton Declaration, dated April 17, 2017 (ECF No. 24-1):
8. I have reviewed the grievance records regarding Carlos Sanders, R 130-559
(aka “Siddique Abdullah Hasan”), as well as his complaint filed in the instant
lawsuit. I attest that a true and accurate copy of Inmate Sanders’s Grievance
History is attached hereto. [See ECF No. 24-1 at PageID #: 190-91.] Inmate
Sanders’s Grievance History is kept in the normal course of business in the Chief
Inspector’s office of the ODRC.
9. According to his records, Inmate Sanders has not exhausted his administrative
remedies with respect to allegations his First Amendment rights were violated
when his telephone and JPay email privileges were restricted for thirty days in
August and September 2016. Inmate Sanders only submitted two grievances in
that time period both pertaining to complaints about his ability to worship[.]

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10. Inmate Sanders’s First Amendment claim is grievable under Ohio’s inmate
grievance procedure, however, Inmate Sanders failed to follow any of the three (3)
mandatory steps set forth in Ohio Admin. Code 5120-9-31 and thus, has failed to
exhaust his administrative remedies.
Plaintiff’s claims are barred due to lack of exhaustion. Hopkins v. Ohio Dep’t of Corr.,
84 Fed.Appx 526, 527 (6th Cir. 2003) (holding that dismissal of a prisoner civil rights complaint
is appropriate where a prisoner “fails to exhaust his administrative remedies before filing a civil
rights complaint in federal court, or only partially exhausts administrative remedies.” ).
B. The Amended Complaint (ECF No. 20) Fails to State a Claim
Upon Which Relief Can be Granted
Plaintiff alleges that Defendants retaliated against him in violation of his First
Amendment rights. Retaliation based upon a prisoner’s exercise of his constitutional rights
violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en
banc). However, because safety and order are necessarily considered to be the highest priority,
First Amendment rights, like many others, are circumscribed in the prison setting. Id. at 390. In
order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was
engaged in protected conduct; (2) an adverse action was taken against him that would deter a
person of ordinary firmness from engaging in that conduct; and (3) the adverse action was
motivated at least in part by the protected conduct. Id. at 394. Plaintiff has the burden on all
three elements. See Murray v. Unknown Evert, 84 Fed.Appx. 553, 556 (6th Cir. 2003).
Although false disciplinary reports have been found to constitute adverse action, Smith v.
Craven, 61 Fed.Appx. 159, 162 (6th Cir. 2003), to succeed on a First Amendment retaliation
claim, a prisoner must establish that he exercised his rights “in a manner consistent with his

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status as a prisoner.” Griffin v. Berghuis, 563 Fed.Appx. 411, 416 (6th Cir. 2014) (quoting
Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 (5th Cir. 2004)). Thus, “no claim
can be stated when the alleged retaliation arose from discipline imparted for acts that a prisoner
was not entitled to perform.” Henderson v. Baird, 29 F.3d 464, 469 (1994) (quoting Orebaugh v.
Caspari, 910 F.2d 526, 528 (8th Cir. 1990)). Moreover, “if a prisoner violates a legitimate
prison regulation, he is not engaged in ‘protected conduct,’ and cannot proceed beyond step one.”
Thaddeus-X, 175 F.3d at 395. By threatening the security of the institution, the Court determines
that Plaintiff has not engaged in protected conduct under the First Amendment.
Even if an inmate establishes his protected conduct was a motivating factor in the adverse
action, the defendant prison official “may thwart the retaliation claim by showing that [he] would
have taken the same action even without the protected activity.” Thomas v. Eby, 481 F.3d 434,
441-42 (6th Cir. 2007) (citing Mt. Healthy School Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274
(1977)). The Court concludes Defendants have thwarted the retaliation claim in the case at bar
by showing that they would have taken the same action even without the protected activity. First,
the Conduct Report (ECF No. 20-1) would have been written as a consequence of Plaintiff’s
repeated suggestion that Imam Ismail don a suicide vest regardless of any alleged protected
conduct to speak with media representatives about prison work conditions. Second, Plaintiff
would have been found guilty of threatening the security of the institution regardless of any
alleged protected conduct to protest the utilization of prison labor.
Plaintiff also fails to state a claim against Defendants because he was convicted of the
misconduct charge. A finding of guilt based upon some evidence of a violation of prison rules

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“essentially checkmates [a] retaliation claim.” Jackson v. Madery, 158 Fed.Appx. 656, 662 (6th
Cir. 2005) (quoting Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)). The Disposition of
the RIB written by the Chairperson shows that there was some evidence to support the violation
of Rule 59 based on Imam Ismail’s description of the event. See ECF No. 20-2 at PageID #: 112.
Finally, although the Amended Complaint generally alleges “Defendants have acted to
deny him access to both telephone privileges and the use of the JPay email system for a period of
30 days,” ECF No. 20 at PageID #: 105, ¶ 6, nowhere does Plaintiff establish the existence of
genuine issues of material fact that any Defendant did any such thing. Defendants are granted
judgment as a matter of law on all of Plaintiff’s claims because Plaintiff has failed to demonstrate
that each Defendant was personally involved in the alleged deprivation of his constitutional
rights. Heyerman v. Cty. of Calhoun, 680 F.3d. 642, 647 (6th Cir. 2012) (“Persons sued in their
individual capacities under § 1983 can be held liable based only on their own unconstitutional
behavior.”).
C. Defendants are Entitled to Qualified Immunity on All Claims
Defendants also seek summary judgment on the ground of qualified immunity. In order
to overcome qualified immunity, Plaintiff must establish that: (1) Defendants’ conduct violated a
constitutional right; and (2) the right was clearly established at the time of its violation. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court may address either requirement first,
id. at 236, and the failure to establish either requirement is fatal to a plaintiff’s case, see Brosseau
v. Haugen, 543 U.S. 194, 197-98 (2004). “The plaintiff carries the burden of proof to show that

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the defendant is not entitled to qualified immunity.” See v. City of Elyria, 502 F.3d 484, 491 (6th
Cir. 2007) (citing Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991)).
Since Plaintiff has shown no violation of a clearly established right protected by the
Constitution or the laws of the United States against each defendant, Defendants are entitled to
qualified immunity as a matter of law on all of Plaintiff’s claims. See Neiman v. Reid, No.
1:12CV1645, 2015 WL 1476779, at *18-19 (N.D. Ohio March 31, 2015) (McHargh, M.J.)
(concluding that defendant was entitled to qualified immunity when court had not found a
constitutional violation).
IV.
For the reasons set forth above and those that have been articulated in the memorandum
of points and authorities on which Defendants rely, Defendants’ Motion for Summary Judgment
(ECF No. 24) is granted. There is no genuine issue as to any material fact and the movants are
entitled to a judgment as a matter of law.

IT IS SO ORDERED.

September 28, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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