Brown v. Mohr et al

Filing 124

ORDER adopting in part Report and Recommendation re 120 Report and Recommendations and finding as moot 118 Motion to Lift Stay of Discovery. Signed by Judge Michael R. Barrett on 3/23/16. (ba)(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 Magistrate Judge’s October 8, 2015
Report and Recommendation (“R&R”) recommending that Plaintiff's complaint be
dismissed without prejudice for failure to obey the Court’s Orders and directives; and all
pending motions be denied as moot. (Doc. 120).
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 objections to the Magistrate Judge’s R&R. (Doc. 121).
Plaintiff also filed an addendum to his Objections and a Second Supplement to his
Objections. (Docs. 122, 123).
Also before the Court is Plaintiff’s Motion to Lift Stay of Discovery. (Doc. 118).
I.

BACKGROUND
Plaintiff is an inmate currently housed at the Ohio State Penitentiary in

Chillicothe, Ohio. Plaintiff is proceeding pro se. In his original complaint, Plaintiff set
forth constitutional claims pursuant to 42 U.S.C. § 1983 which can be grouped into three

categories: (1) claims based on actions allegedly taken by Defendants in connection
with a $5,000 settlement offer which Plaintiff claims he was “forced” to accept in a prior
civil case before this Court, Brown v. Voorhies, et al., Case No. 1:07-cv-463 (S.D. Ohio)
(Beckwith, J.; Bowman, M.J.); (2) claims challenging the conditions of confinement and
incidents which allegedly occurred when Plaintiff was housed at Southern Ohio
Correctional Facility (“SOCF”); and (3) claims based on the conditions of confinement
and incidents which have allegedly taken place at Ross Correctional Institution (“RCI”).
The claims in the first category were dismissed pursuant to the Prison Litigation
and Reform Act of 1995, 28 U.S.C. § 1915A (“PLRA”) for a failure to state a claim. The
third category of claims—those related to RCI—were severed and transferred to the
Eastern Division of this Court for further proceedings. See Brown v. Mohr, et al, Case
No. 2:13-cv-6 (Frost, J.; Kemp, M.J.).

Only the second category of claims—those

related to Plaintiff’s confinement at SOCF—remain pending before this Court.
These claims have gone through several amendments. This Court dismissed the
following claims from the original complaint: (1) constitutional violation based on
Defendants’ failure to provide Plaintiff with requested inmate grievance forms; (2)
constitutional violation based on the alleged denial of Rules Infraction Board (“RIB”)
hearings; (3) claims for damages brought against Defendants in their official capacity;
and (4) claims against Defendants “Lt. Ison,” Tracy Boyd and Ashlee Rutherford.
Plaintiff filed an Amended Complaint.

(Doc. 17)

The Amended Complaint

identified Defendant “Lt. Ison” as one of the John Doe correctional officers referred to in
the original Complaint, and therefore, Ison was not dismissed as a Defendant.
However, certain claims in the Amended Complaint were dismissed for the failure to

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state a claim: (1) claims for damages against the state defendants in their official
capacities as being barred by the Eleventh Amendment; and (2) a claim against Ashlee
Rutherford as being barred by prosecutorial immunity. (Doc. 49)
Plaintiff’s claims which were allowed to proceed were as follows: that while
Plaintiff was at SOCF, he was subject to retaliatory behavior, assaults and the use of
excessive force by SOCF correctional officers, the denial of medical care,
unconstitutional living conditions, unsafe placements, the denial of access to the courts,
and the destruction of his property and legal materials. The claims are brought against
ODRC Director Gary Mohr; SOCF’s Warden, Donald Morgan; SOCF’s former Warden,
Edwin Voorhies; SOCF’s Deputy Warden, D.W. Cadogan; ODRC attorneys Stout, Trout
and Clark; Mary Anne Reese, and Ryan Dolan, who are attorneys at the Ohio Attorney
General’s Office; ODRC employee Dr. Eddy; “John and Jane Doe” ODRC employees
who have responsibility over the medical policies and directives applied at SOCF; and
SOCF employees and/or correctional officers: Capt. Bell, Sgt. Bear, C/O Kelly, Sgt.
McCrosky, C/O Riggs, Larry Green, Ms. Highfield, Inspector Goodman, Inspector
Mahlman, C/O Perdis, Sgt. Hunt, Capt. Cool, C/O Burke, Sgt. Messer, Lt. Dillon, Lt. Ison
and “John Doe” correctional officers.
Defendants filed an unopposed Motion for a More Definite Statement. (Doc. 41).
The Court granted the motion, noting that “it would make practical sense to allow
Plaintiff to organize and clarify the claims and parties in this case.” (Doc. 49). Plaintiff
was ordered to file a Second Amended Complaint. (Id.)
Plaintiff filed a Second Amended Complaint, but Defendants moved to have it
struck because it included claims and allegations against parties that the Court had

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explicitly dismissed from this case. The Magistrate Judge granted Defendants’ motion,
and ordered Plaintiff to file a third amended complaint which complies with the terms of
the Court’s previous Orders. (Doc. 73). The Magistrate Judge’s Order included the
following notice: “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.” (Id.) Plaintiff objected to the Magistrate
Judge’s Order, explaining that he was unable to file the Third Amended Complaint
because he is only provided 50 pieces of paper and one pen per month. (Doc. 75).
This Court overruled Plaintiff’s objections, noting the number of filings filed by Plaintiff
since being ordered to file the Third Amended Complaint. (Doc. 111). The Court again
ordered Plaintiff to file his Third Amended Complaint and notified Plaintiff that the failure
to comply may result in an R&R recommending dismissal. (Id.)
The Magistrate Judge also denied Plaintiff’s “Motion Requesting the Court
Except [sic] Jurisdiction for Both Cases.” (Doc. 73). Plaintiff objected to this Order.
(Doc. 75). This Court overruled the objections, and held that to the extent that Plaintiff
was seeking reconsideration of this Court’s order that Plaintiffs claims related to RCI be
severed and transferred to the Eastern Division of this Court, there was no basis for
reconsideration.
On June 19, 2015, Plaintiff filed his Third Amended Complaint. (Doc. 116). On
October 8, 2015, the Magistrate Judge entered a R&R which noted that the Third
Amended Complaint was forty-nine handwritten pages. (Doc. 120). The Magistrate
Judge also noted that in the Third Amended Complaint, Plaintiff raises twenty causes of
action, names an additional nineteen defendants for a total of thirty-nine defendants,

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and includes one hundred and three fact paragraphs. The Magistrate Judge concluded
that because the Third Amended Complaint adds new parties, claims, and causes of
action, Plaintiff failed to comply with the Court’s orders to “organize and clarify the
claims and parties in this case.”

The Magistrate Judge found that Plaintiff’s failure to

reply warranted dismissal of Plaintiff’s complaint under Federal Rule of Civil Procedure
41(b).
Plaintiff objects by explaining that his Third Amended Complaint was “done to the
best of his ability under his severe circumstances.” (Doc. 121, PAGEID #829). Plaintiff
claims that these circumstances include being repeatedly transferred, being denied
medical care and having his legal papers destroyed. Plaintiff maintains that he has not
been responsible for the delay in this case, and instead, the delay is attributable to the
Court or Defendants. Plaintiff explains that he did ask for an extension of time to file the
Third Amended Complaint, but that the extension was necessary because he had
operations on both hands. Finally, Plaintiff explains that he was unable to comply with
the Court’s Order to “organize and clarify the claims” because he could not include
dates and times in his complaint because his legal papers were destroyed. Plaintiff
claims that he is paranoid that “he will not put in enough facts in his complaint” and
therefore “[i]f anything there is to [sic] much information.” (Doc, 121, PAGEID #835).
In the addendum to his objections, Plaintiff explains that Defendants moved to
dismiss his claims in Brown v. Mohr, et al, Case No. 2:13-cv-6 based on the Magistrate
Judge’s October 8, 2005 R&R in this case. Plaintiff explains that the Magistrate Judge
in Brown v. Mohr, et al, Case No. 2:13-cv-6 found that Plaintiff’s current amended
complaint reads as an attempt to comply with the Court’s previous order to amend.

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II.

ANALYSIS
When objections to a magistrate judge’s report and recommendation are

received on a dispositive matter, the assigned district judge “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). After review, the district judge “may accept, reject, or modify the
recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
“When contemplating dismissal under Rule 41(b), a court must consider: (1)
whether the party's failure to cooperate is due to willfulness, bad faith, or fault; (2)
whether the adversary was prejudiced by the dilatory conduct of the party; (3) whether
the dismissed party was warned that failure to cooperate could lead to dismissal; and
(4) whether less drastic sanctions were imposed or considered before dismissal was
ordered.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 615 (6th Cir. 1998) (citing
Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 153-55 (6th Cir.
1988)).
Plaintiff has certainly been warned that his failure to file a Third Amended
Complaint “which complies with the terms of the Court’s previous Orders” may result in
dismissal of his claims.

(Doc. 73, PAGEID #471).

While Plaintiff’s filings are

exasperating, it does not appear that Plaintiff’s failure to cooperate is due to willfulness.
The Court cannot discern any prejudice to Defendants as the result of Plaintiff’s nonconforming Third Amended Complaint. Because it does not appear from the record that
less drastic sanctions were imposed or considered, the Court will now strike any
portions of the Third Amended Complaint which do not comply with the Court’s previous

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orders.
Plaintiff has captioned his Third Amended Complaint as a “Supplemental
Pleading.” Plaintiff’s Motion to Supplement his Amended Complaint was denied. (Doc.
78). Moreover, Plaintiff was transferred from SOCF on December 23, 2014. (Doc. 109,
PAGEID #713). Plaintiff’s claims are limited to events which took place while he was
housed at SOCF. There is no need for Plaintiff to supplement his pleadings. Similarly,
Plaintiff is not permitted to incorporate any facts from his first or second complaint.
Plaintiff names the following new, or previously dismissed parties in his Third
Amended Complaint: Deputy Warden Oppi, Dr. Ahmed, Dr. Morford, Dr. Hyd, Nurse
Hill, Mona Parks, Jane Doe Nurse, Sgt. Sammons, C/O Brenner, Lt. Kant, Sgt. Dillon,
Major Warren, Sgt. Hunter, Director Moore, John Doe Nutritionist, and ARAMARK John
Does. (Doc. 116, PAGEID # 769-440). The claims against these parties are struck.
Paragraph 16 of the Third Amended Complaint is struck because it pertains to
events which occurred at Ross Correctional Facility. Paragraph 69 is struck because it
describes events which occurred at Toledo Correctional Institution. Paragraphs 73-74
are struck because they contain allegations pertaining to Dr. Ahmed, who is not a party
in this case. Paragraphs 82-86 are struck because they contain allegations pertaining
to Unit Manager Sparks and Lt. Kant, who are not parties in this case. Paragraphs 9092 are struck because Plaintiff appears to be attempting to bring a new claim of
constitutional violations which occurred as part of the criminal charges filed by Plaintiff
in Ross County. Paragraph 98 is struck because it contains allegations pertaining to Lt.
Kant, who is not a party in this case.
Because Plaintiff was housed at SOCF during several periods of time, Plaintiff’s

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basis for his claims of retaliation are unclear. To the extent that Plaintiff bases these
claims of retaliation on actions taken by Defendants in Brown v. Voorhies, et al., Case
No. 1:07-cv-463 (S.D. Ohio) (Beckwith, J.; Bowman, M.J.), those claims have been
dismissed. In addition, the Court notes that Plaintiff is bringing claims against ODRC
defendants Mohr, Trevor Clark, Greg Trout, Austin Stout, Ryan Dolan and Ed Voorhies
both here and in Case No. 2:13-cv-6 (S.D. Ohio) (Frost, J.; Kemp, M.J.). To the extent
that there is overlap in the allegations against these parties in this case and that case,
those claims are dismissed.
Based on the foregoing, it is hereby ORDERED that Magistrate Judge’s October
8, 2015 Report and Recommendation (“R&R”) recommending that Plaintiff's complaint
be dismissed without prejudice for failure to obey the Court’s Orders and directives; and
all pending motions be denied as moot (Doc. 120) is ADOPTED in PART.
Accordingly, Plaintiff’s Motion to Lift Stay of Discovery (Doc. 118) is DENIED as
MOOT.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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