Brown v. Mohr et al

Filing 111

ORDER adopting Report and Recommendations re 72 Report and Recommendation denying 65 Motion; denying 79 Motion; denying 82 Motion; overruling 75 Objection - 59 is granted and Plaintiff's amended complaint is stricken; adopting [9 7] Report and Recommendation; denying 92 Motion for; granting 100 Motion; overruling 103 Objection to Magistrate Judge Order; granting 106 Motion. Plaintiff is ordered to file a third amended complaint which complies with the terms of the Court's previous 12 & 49 Orders. Signed by Judge Michael R. Barrett on 3/11/15. (ba1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Steven S. Brown,
Plaintiff,

Case No. 1:12cv583

v.

Judge Michael R. Barrett

Director Mohr, et al.
Defendants.
OPINION & ORDER
This matter is before the Court upon the following Orders and Report and
Recommendations (“R&R”) entered by the Magistrate Judge:
•

August 7, 2014 R&R (Doc. 72)

•

August 7, 2014 Order granting Plaintiff’s Motion to Provide Case History;
denying Plaintiff's Motion to Rejoin the Initial Claims; granting Defendants’
Motion to Strike the Amended Complaint; denying as moot Plaintiff's
Motion to Stay; denying as moot Plaintiff's Motion to Lift Requested Stay
(Doc. 73)

•

November 6, 2014 Order denying Plaintiff's Motion to Appoint Counsel;
denying Defendants' Motion to Strike Plaintiff's sur-replies in support of
Objections to Magistrate Judge's R&R (Doc. 96)

•

November 6, 2014 Supplemental R&R (Doc. 97)
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C),

including notice that the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947
(6th Cir. 1981). Plaintiff filed timely objections to the Magistrate Judge’s Orders and
R&Rs. (Docs. 75, 76, 102, 103). Defendants filed replies to the objections. (Docs. 80,
107).

Plaintiff has filed a Motion to Supplement his Motions (Doc. 100) and Motion
Supplementing Motions for Appointment of Counsel, Motion to Consolidate, Motion to
Order Debited Copies, Preliminary Injunction, Objection to Prepare and Serve a Third
Amended Complaint (Doc. 106), which are hereby GRANTED.
Also before the Court are Plaintiff’s Motion for Order to the Defendants to Debit
Plaintiff’s Account for Copies and Postage so he can Access the Courts. (Doc. 92).
Defendants filed a Response (Doc. 99) and Plaintiff filed a Reply (Doc. 104) and Plaintiff
has now been permitted to supplement the motion (See Doc. 106).
I.

BACKGROUND
Plaintiff is an inmate currently housed at Southern Ohio Correctional Institute

(“SOCF”) in Lucasville, Ohio. Plaintiff is proceeding pro se.
A.

Magistrate Judge’s August 7, 2014 R&R and Supplemental R&R

In her August 7, 2014 R&R, the Magistrate Judge recommends denying Plaintiff’s
Motion for Order to Protect Plaintiff’s Legal Papers. (Doc. 65). The Magistrate Judge
noted that Plaintiff did not allege when Defendants Morgan and Goodman ordered his
papers destroyed.
Plaintiff filed objections to the R&R (Doc. 76); an Addendum to his Motion for
Order to Protect Plaintiff’s Legal Papers (Doc. 79); Further Proof of Retaliation in
Support of the Motion (Doc. 82); a Motion Supplementing his Motion (Doc. 100).
Plaintiff has also filed two declarations which appear to be in support of his motions.
(Docs. 87, 91). Defendants filed responses to Plaintiff’s objections and Motions. (Doc.
80, 81, 83). Plaintiff filed a Reply. (Doc. 88).
In these filings, Plaintiff claims that all his legal papers were taken when he

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arrived at SOCF. Plaintiff claims that in addition, his legal supplies were taken away
after he asked for an informal complaint.

Plaintiff claims that the Ohio Attorney

General’s Office has attempted to declare him a vexatious litigator in retaliation for
criminal affidavits he filed. Plaintiff also claims that ODRC has been restricting his
access to the grievance process, withholding his legal mail and failing to file his legal
documents. Plaintiff claims that he has been denied any further copies of the complaint
to serve because he is indigent.

Finally, Plaintiff claims that certain doctors have

refused to treat his medical problems and have taken his breathing machine. 1
After these filings by Plaintiff, the Magistrate Judge issued a Supplemental R&R.
(Doc. 97). The Magistrate Judge found that Plaintiff has failed to demonstrate a strong
likelihood of success on the merits.

The Magistrate Judge explained that ODRC

inmates are prohibited from possessing more than 2.4 cubic feet of personal property,
including legal materials. The Magistrate Judge explained that courts have routinely
held that enforcement of prison rules is not retaliation. The Magistrate Judge also
explained that while Plaintiff is limited to filing more than two grievances per week, he
still has access to the prison grievance process. Finally, the Magistrate Judge found
that Plaintiff has failed to show irreparable injury through the destruction of his legal
materials.
Plaintiff filed objections to the Supplemental R&R. (Doc. 102). Plaintiff claims
that he was previously permitted to retain an extra tub of legal materials, and now that
his claims are against SOCF, officials stole the evidence they need from him. Plaintiff
explains the loss of these documents is irreparable because even if he is able to
1

These claims appear to have been addressed in Plaintiff’s case pending in the Eastern
Division of this Court. See Steven S. Brown v. Director Mohr, et al., Case No. 2:13cv6, Doc. 87.
3

recover damages in a future suit, this case would be over. Plaintiff also claims that
Allyson Aldridge, a paralegal who worked with Plaintiff to get his legal materials into
compliance, threatened to go through his materials without him if he “said one more
thing.”
B.

Magistrate Judge’s August 7, 2014 Order

In her August 7, 2014 Order (Doc. 73), the Magistrate Judge ordered that
Defendants’ Motion to Strike the Amended Complaint be granted.

The Magistrate

Judge ordered Plaintiff to file a third amended complaint which complies with the terms
of the Court’s previous Orders. Plaintiff was notified that the failure to comply may
result in the recommendation that this matter be dismissed.
The Magistrate Judge also addressed three motions filed by Plaintiff. First, the
Magistrate Judge granted Plaintiff’s Motion Requesting an Order to the Clerk to provide
a Case History and Forms. The Clerk was directed to provide Plaintiff with summons
and United States Marshal forms to serve the third amended complaint, as well as a
copy of the docket sheet in this matter. 2 Second, the Magistrate Judge denied Plaintiff’s
Motion Requesting the Court Except Jurisdiction for Both Cases. The Magistrate Judge
noted that upon initial screening of this matter, Plaintiff’s complaint was bifurcated into
two separate actions and there was no legal basis to reconsider the issue. Finally, the
Magistrate Judge denied as moot Plaintiff’s Motion to Stay because Plaintiff later moved
to lift the stay.
Plaintiff filed objections to the Magistrate Judge’s Order (Doc. 75) and
Defendants filed a response to those objections (Doc. 80).

Plaintiff repeats his

arguments as to why his cases should be consolidated after they were ordered
2

The records of the Clerk’s Office show that this was completed on 8/7/14.
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bifurcated. Plaintiff also indicates that he is waiting to file an amended complaint in both
cases after his cases are consolidated again.
Plaintiff states that he is unable to afford copies or to pay to serve his third
amended complaint. Plaintiff also claims that he is not permitted to keep discovery
documents in his cell. Plaintiff also states that he is not receiving mail and his mail is
not being sent. Finally, Plaintiff explains that his access to the law library is being
limited.
C.

November 6, 2014 Order

The Magistrate Judge denied Plaintiff's Motion to Appoint Counsel; and denied
Defendants' Motion to Strike Plaintiff's sur-replies in support of Objections to Magistrate
Judge's R&R. (Doc. 96).
Plaintiff filed an objection to the Magistrate Judge’s Order. (Doc. 102). Plaintiff
argues that he has a constitutional right to counsel. Plaintiff explains that he needs the
assistance of counsel because Defendants have suppressed his right to court access.
II.

ANALYSIS
A.

Standard of Review

When objections are made to a report and recommendation of a magistrate
judge, the district court reviews the case de novo.

Fed. R. Civ. P. 72(b).

When

objections are made to a nondispositive order of a magistrate judge, the district court
will reconsider the order “where it has been shown that the magistrate judge's order is
clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).
B.

Right to counsel

As the Magistrate Judge explained, there is no right to counsel in prisoner civil
rights cases. Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996). Appointment of
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counsel in a civil case “is a privilege that is justified only by exceptional circumstances.”
Lavado v. Keohane, 992 F.2d 606 (6th Cir. 1993).

“When evaluating whether

appointment of counsel is warranted, courts generally examine the nature of the case,
the plaintiff's ability to prosecute the case in a pro se capacity, and the ‘complexity of the
factual and legal issues involved.’” Shavers v. Bergh, 516 F. App'x 568, 571 (6th Cir.
2013) (quoting Lavado, 992 F.3d at 606). The Magistrate Judge found that Plaintiff’s
complaint is legible and articulate and he has adequately represented himself. The
Court finds no error in this decision, and therefore Plaintiff’s objections (Doc. 103) to the
Magistrate Judge’s November 11, 2014 Order denying Plaintiff’s Motion to Appoint
Counsel (Doc. 96) are OVERRRULED.
C.

Preliminary Injunction

The Magistrate Judge explained that Plaintiff was not entitled to injunctive relief
based on his claims that prison officials were destroying his legal materials. In a case
cited by the Magistrate Judge, the Sixth Circuit found that the plaintiff’s First
Amendment right to access the courts was not proscribed when prison officials forced
the plaintiff to make a decision regarding excess legal materials found in his cell.
Whiteside v. Parrish, 387 F. App'x 608, 612 (6th Cir. 2010).

The court found that

officials were not retaliating against the plaintiff for his First Amendment activities, but
were enforcing the prison regulations that require all inmates to store their property
within a 2.4 cubic foot space. Id.
The record in this case shows that Defendants are enforcing ODRC policies
which are applicable to all inmates. Defendants submitted the declaration of Allyson
Aldridge, a paralegal employed by ODRC. Aldridge explains that when Plaintiff arrived

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at SOCF in July of 2014, he had three large boxes filled with documents he referred to
as “legal work.”

(Doc. 83-1, Allyson Aldridge Decl. ¶ 7).

Aldridge explains she

supervised Plaintiff over the course of three days as he went through these materials.
(Id.)

Aldridge explained that with few exceptions, inmates are prohibited from

possessing more than 2.4 cubic feet of personal property, including both personal legal
materials and general legal materials. (Id., ¶ 5). The applicable policies are attached to
Aldridge’s declaration. (See Doc. 83-2). In order to come into compliance with these
policies, Plaintiff was given the choice of disposing of the excess materials or sending
them outside the prison at his own cost to a third party. (Aldridge Decl., ¶ 8). Plaintiff
chose to dispose of the materials. (Id.)
Accordingly, Plaintiff’s objections (Docs. 76, 102) to the Magistrate Judge’s
August 7, 2014 R&R denying Plaintiff’s Motion for Order to Protect Plaintiff’s Legal
Papers (Doc. 65) and the Magistrate Judge’s Supplemental R&R (Doc. 97) are
OVERRULED.

For the same reasons, Plaintiff’s Motion Supplementing his Motion

(Doc. 100) is DENIED.
B.

Filing the third amended complaint

Plaintiff states that he is unable to file the third amended complaint as ordered by
the Magistrate Judge because he only gets 50 pieces of paper and one pen per month.
Plaintiff states that he receives $9.00 per month but sometimes he sells his food to
other inmates to get paper and postage.
The Court notes that since Plaintiff was ordered to file the third amended
complaint on August 7, 2014, Plaintiff has filed approximately twenty documents in this
matter.

This volume is inconsistent with Plaintiff’s claims that he has inadequate

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resources to comply with the order. Therefore, Plaintiff’s objections to the Magistrate
Judge’s Order (Doc. 75) are OVERRULED.
To the extent that Plaintiff seeks reconsideration of this Court’s order severing
certain claims and transferring those claims to the Eastern Division of this Court, a
motion for reconsideration is warranted for one of only three reasons: “(1) an intervening
change in the controlling law has occurred; (2) evidence not previously available has
become available; or (3) it is necessary to correct a clear error of law or to prevent
manifest injustice.” Gascho v. Global Fitness Holdings, LLC, 918 F. Supp. 2d 708, 714
(S.D. Ohio 2013).

In this instance, Plaintiff has not shown there is a basis for

reconsideration, and therefore, the claims transferred to the Eastern Division will remain
there.
D.

Plaintiff’s Motion to Debit his account

Plaintiff has filed a Motion for Order to the Defendants to Debit Plaintiff’s Account
for Copies and Postage so he can Access the Courts.

(Doc. 92).

Plaintiff

supplemented his Motion. (See Doc. 106). Plaintiff claims that ODRC refuses to make
legal copies or mail legal documents. Plaintiff also claims that he is not permitted to
access any official person other than a court of law. Plaintiff clarifies that he is not
asking for free copies, but asks that his prison account be debited.
Defendants respond to Plaintiff’s Motion as if he were seeking injunctive relief.
Defendants argue that Plaintiff cannot show that has been unable to access the court.
Defendants point out the number of motions and memoranda Plaintiff has filed in this
case since he was transferred to SOCF. Defendants explain that Plaintiff is entitled to
free postage for his filings with the court, but there is no constitutional right to free

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postage for non-legal mail. Defendants also point out that courts have held that inmates
do not have a right to receive photocopies on credit.
The Sixth Circuit has explained that there is no generalized right to litigate which
is protected by the First Amendment. Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th
Cir.1999). An inmate claiming that he was denied his right to the courts must show that
he suffered an actual litigation related injury or legal prejudice because of the actions of
the defendants. Lewis v. Casey, 518 U.S. 343, 349-51 (1996). Plaintiff has not made
the requisite showing of prejudice resulting from the SOCF’s policy on refusing to allow
credit for photocopies. See Tinch v. Huggins, 210 F.3d 372 (6th Cir. 2000) (noting that
it is well-settled that inmates do not enjoy a federally protected right in free
photocopying services and the plaintiff must demonstrate that the deprivation of
photocopying services prejudiced his inability to pursue his complaint). Accordingly,
Plaintiff’s Motion for Order to the Defendants to Debit Plaintiff’s Account for Copies and
Postage so he can Access the Courts is DENIED.
Based on the foregoing, it is hereby ORDERED that:
1. The Magistrate Judge’s August 7, 2014 R&R (Doc. 72) and Supplemental R&R
(Doc. 97) are hereby ADOPTED;
a. Plaintiff’s Motion for Order (Doc. 65) is DENIED;
b. Plaintiff’s Addendum to his Motion for Order to Protect Plaintiff’s Legal
Papers (Doc. 79) is DENIED;
c. Plaintiff’s Further Proof of Retaliation in Support of the Motion (Doc. 82) is
DENIED;
2. Plaintiff’s Objection to the Magistrate Judge’s August 7, 2014 Order (Doc. 75) is
OVERRULED;
a. Defendants’ motion to strike (Doc. 59) is well taken and GRANTED.
Plaintiff’s amended complaint is herein STRICKEN from the active docket
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of this Court.
b. Plaintiff is ORDERED to file a third amended complaint which complies
with the terms of the Court’s previous Orders. (See Docs. 12, 49).
c. Plaintiff’s failure to fully comply with terms of this ORDER may result in a
Report and Recommendation to the District Judge that this matter be
dismissed for failure to comply with the Court’s orders.
d. Plaintiff’s motion to rejoin the initial claims (Doc. 54) is DENIED.
e. Plaintiff’s motion to stay as well as his motion to lift requested stay (Docs.
63, 66) are DENIED as MOOT.
3. Plaintiff’s Motion for Order to the Defendants to Debit Plaintiff’s Account for
Copies and Postage so he can Access the Courts (Doc. 92) is DENIED.
4. Plaintiff’s Motion to Supplement his Motions (Doc. 100) is GRANTED;
5. Plaintiff’s Objection (Doc. 103) to the Magistrate Judge’s November 6, 2014
Order denying Plaintiff’s Motion to Appoint Counsel (Doc. 96) is OVERRULED;
6. Plaintiff’s Motion Supplementing Motions for Appointment of Counsel, Motion to
Consolidate, Motion to Order Debited Copies, Preliminary Injunction, Objection to
Prepare and Serve a Third Amended Complaint (Doc. 106) is hereby GRANTED.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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