Cook v. Woodard et al

Filing 49

REPORT AND RECOMMENDATIONS re 35 Defendant Ryan Woodard's Motion for Summary Judgment, 37 Defendant William Cool's Motion for Summary Judgment. IT IS RECOMMENDED THAT: (1) Defendant Woodard's motion for summary judgment 35 shou ld be GRANTED, with all claims to be dismissed against that Defendant; (2) Defendant Cool's motion for summary judgment 37 should be GRANTED IN PART as to Plaintiff's limited claim that Defendant engaged in retaliatory conduct shortly bef ore or during the RIB hearing, but shall be DENIED concerning Plaintiff's claim that Defendant charged him with a conduct report in retaliation for his exercise of his First Amendment rights; (3) If this Report and Recommendation is adopted, th e presiding district judge should set this case for trial. Objections to R&R due by 6/18/2019. Signed by Magistrate Judge Stephanie K. Bowman on 6/4/2019. (km)(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
JOHNNIE D. COOK,

Case No. 1:17-cv-532

Plaintiff,

Black, J.
Bowman, M.J.

v.

RYAN WOODARD, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff is an experienced pro se prisoner-litigant who has filed three lawsuits,
including this one, over the same incident.1 This Report and Recommendation (“R&R”)
addresses two separate dispositive motions in the above-captioned case: (1) Defendant
Ryan Woodard’s motion for summary judgment; and (2) Defendant William Cool’s motion
for summary judgment. (Docs. 35,37).

For the reasons that follow, the undersigned

recommends granting judgment to Defendant Woodard, but denying judgment to
Defendant Cool on all but one portion of Plaintiff’s retaliation claim.
I. Background
Plaintiff, who is currently incarcerated at the Southern Correctional Facility
(“SOCF”), filed this §1983 action alleging violations of his civil rights during his

1See,

e.g., Southern District of Ohio Case No. 1:17-cv-161 (original case against Defendant Claude
Woodard, voluntarily dismissed on 1/24/18); Case No. 1:17-cv-765 (case alleging Defendant Cool wrote
false conduct report for allegedly forging signature on subpoena; dismissed as frivolously duplicative of the
instant case); Case No. 1:18-cv-341 (claim relating to exercise limitation dismissed with prejudice on
screening as frivolous); Case No. 1:18-cv-743 (transferred to Eastern Division at Columbus and reopened
as Case No. 2:18-cv-1421). Plaintiff has also filed numerous state court cases, primarily in the Ohio Court
of Claims. (See Doc.35 at 22, n.1, listing 15 Ohio Court of Claims cases).

1

incarceration. Upon screening under the Prison Litigation Reform Act (“PLRA”), the
undersigned initially filed a Report and Recommendation (“R&R”) that recommended that
only a single claim against Defendant Correctional Officer Woodard be permitted to
proceed.
In pertinent part, Plaintiff’s original complaint alleged that he was involved in a fight
with another inmate on November 18, 2016 while inside the Inmate Dining Room.
Correctional Officer Brannigan, a non-party, was the first to respond and “tried to separate
the both of us.” (Doc. 3 at 5). Plaintiff alleges that “multiple Officers responded” shortly
thereafter. (Id.)

Plaintiff alleges that while he was “laying on my stomach in full

compliance and handcuffed behind my back, I heard C/O Ryan Woodard yell ‘use your
P.R.s’ then I felt a sharp pain on the right side of my temple.” (Id.) Although the Court
allowed an Eighth Amendment claim against Defendant Woodard to proceed, the R&R
recommended the dismissal of other claims and defendants, including a claim against
Defendant Cool that was based upon respondeat superior (which does not apply in §
1983 suits) and/or was otherwise insufficient to state any claim based on Plaintiff’s
allegations that Cool “was negligent… as the supervisor” or failed to conduct an adequate
“use of force” investigation and/or fully respond to Plaintiff’s grievance against C/O
Woodard. (Id. at 4-5).2
After the undersigned filed that first R&R, Plaintiff moved for leave to file an
amended complaint to add additional defendants and allegations, which the undersigned
construed as a supplement to the original complaint. While recommending dismissal of

2

The first R&R remains pending before the presiding district judge.

2

all claims against Larry Greene,3 the undersigned found that the new allegations were
sufficient to proceed with a retaliation claim against Defendant Cool. The second R&R
explained:
Plaintiff claims that during the discovery phase of a prior lawsuit filed in this
Court, 1 he sent three subpoenas to Warden Ron Erdos, Medical
Administrator Mrs. Warren, and defendant Cool. According to plaintiff, Cool
retaliated against him by writing a false conduct report stating that plaintiff
had forged the subpoenas. In preparation for contesting the conduct report
before the Rules Infraction Board, plaintiff claims that he requested Cool,
Erdos, and Warren as witnesses. However, on July 7, 2017, he claims he
was told that Erdos and Warren would not be called as witnesses and that
“I needed to dismiss my civil action or suffer consequences even possibly
lose my life.” (Id. at PageID 52). During the hearing, plaintiff claims that Cool
told the RIB chairperson “to find me guilty to show me who’s in charge and
that I have no rights at all.” (Id. at PageID 54). Plaintiff was ultimately found
guilty by the RIB and sentenced to twenty days in disciplinary control. (Id.
at PageID 54). Plaintiff unsuccessfully appealed the result of the RIB
hearing to defendant Larry Greene on the ground that his procedural due
process rights were violated and that he presented sufficient evidence to
overturn the RIB’s decision. (Id. at PageID 55).
(Doc. 15 at 4).
Following the conclusion of discovery in this case, both Defendant Woodard and
Defendant Cool filed separate motions for summary judgment. (Docs. 35, 37). Plaintiff
filed a response in opposition to Defendant Cool’s motion, but elected not to respond to
Defendant Woodard’s motion.
II. Pending Dispositive Motions
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” A dispute is “genuine” when “the

3

In other cases, Mr. Greene has been identified as an Assistant Warden or Deputy Warden at SOCF. See
Johnson v. Ervin, 2016 WL 4198204 at *2 (S.D. Ohio June 17, 2016).

3

evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). A
court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S. Ct. 1348 (1986). The moving party has the burden of showing an absence of
evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317,
325, 106 S. Ct. 2548 (1986).
Once the moving party has met its burden of production, the nonmoving party
cannot rest on the pleadings, but must present significant probative evidence in support
of his case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49.
The mere scintilla of evidence to support the nonmoving party’s position will be
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the
nonmoving party. Id. at 252. As Plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005). However, his
status as a pro se litigant does not alter his burden of supporting his factual assertions
with admissible evidence when faced with a summary judgment motion. Maston v.
Montgomery Cnty. Jail Med. Staff Personnel, 832 F. Supp. 2d 846, 851-52 (S.D. Ohio
2011) (citing Viergutz v. Lucent Techs., Inc., 375 Fed. Appx. 482, 485 (6th Cir. 2010) ).
B. Defendant Woodard’s Motion for Summary Judgment (Doc. 35)
Despite being granted multiple extensions of time, Plaintiff failed to file any
response to Defendant Woodard’s motion for summary judgment. The undersigned now
recommends granting that Defendant’s unopposed and well-supported motion.

4

1. Res Judicata (Claim Preclusion and Issue Preclusion)
Defendant Woodard first persuasively argues that both claim preclusion and issue
preclusion bar Plaintiff’s claims, because Plaintiff previously filed suit in the Ohio Court of
Claims against the Ohio Department of Rehabilitation and Correction (“ODRC”)
concerning the same incident, and that court granted summary judgment to ODRC. (See
Doc. 35-7, Court of Claims Case No. 2017-00104 (June 16, 2017)). A comparison of the
records confirms that Plaintiff’s state court suit included nearly identical allegations, that
Correctional Officer Woodard used his black night stick to strike plaintiff in the side of the
head after both he and another inmate had been separated and were being compliant
with staff orders. In granting summary judgment, the state court pointed out multiple
inconsistencies between Plaintiff’s account and the evidence of record. The state court
held that Plaintiff not only failed to prove assault, but that his allegations of unnecessary
or excessive force failed to demonstrate negligence. (Id. at 5). The state court concluded:
[P]laintiff’s characterization of the alleged injury sustained is inconsistent
with the medical evaluation conducted shortly after the incident of
November 18, 2016.
Furthermore, plaintiff asserted a complete
investigation was not conducted, however, a review of the case file reveals
an appropriate use of force investigation was properly conducted in
accordance with OAR 5120-9-01 and 5120-9-02.
(Id. at 7-8).
“[T]he res judicata effect of state-court decisions in § 1983 actions is a matter of
state law.” Young v. City of Radcliff, 561 F. Supp. 767, 779 (W.D. Ky. 2008) (quoting Heck
v. Humphrey, 512 U.S. 477, 480 n.2, 114 S.Ct. 2364 (1994) (additional citation omitted)).
Under claim preclusion, a final judgment on the merits bars any and all
claims by the parties or their privies based on the same cause of action, as
to every matter actually litigated, as well as every theory of recovery that
could have been presented. Id. Under issue preclusion, once an issue
actually is determined by a court of competent jurisdiction, that
5

determination is conclusive in subsequent suits based on a different cause
of action when used against any party to the prior litigation. Mont. v. United
States, 440 U.S. 147, 152–54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
Cedillo v. TransCor America, LLC, 131 F.Supp.3d 734, 740–41 (M.D. Tenn. 2015).
Because Plaintiff’s claims in the prior Court of Claims case were adjudicated on the merits
and involved privies to the same parties, his attempt to bring the same claims in this
federal court under a new legal theory is barred. McQueen v. Pyles, 2012 4108011 at *2
(S.D. Ohio Sept. 18, 2012), adopted at 2012 WL 4848910 (Oct. 11, 2012)); see also
Foster v. Ohio, 2018 WL 1516776 (S.D. Ohio Mar 28, 2018), adopted at 2018 WL
2287967 (May 18, 2018).
2. Suit Barred under the Leaman Doctrine
In addition to the doctrines of claim preclusion and issue preclusion, Plaintiff’s
current claims are subject to dismissal under Leaman v. Ohio Dept. of Mental Retardation
& Dev. Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc).

It is well established that

states are entitled to sovereign immunity from suit, absent an express waiver of that
immunity. “The Ohio Court of Claims Act waives the state’s sovereign immunity and
declares that the state consents to be sued in the Court of Claims.” Leaman v. Ohio Dept.
of Mental Retardation & Dev. Disabilities, 825 F.2d 946, 951 (6th Cir. 1987) (en banc),
cert. denied, 487 U.S. 1205 (1998). In relevant part, Ohio R.C. § 2743.02(A)(1) provides:
Except in the case of a civil action filed by the state, filing a civil action in
the court of claims results in a complete waiver of any cause of action,
based on the same act or omission, that the filing party has against any
[state] officer or employee, as defined in section 109.36 of the Revised
Code. The waiver shall be void if the court determines that the act or
omission was manifestly outside the scope of the officer's or employee's
office or employment or that the officer or employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner.

6

Plaintiff’s prior complaint in the Ohio Court of Claims contained similar allegations and
claims against the Ohio Department of Rehabilitation and Correction. As stated, the Ohio
Court of Claims case was decided on the merits, with summary judgment being granted
to the ODRC.
In Leaman, the Sixth Circuit Court of Appeals held that neither the legal basis for
the claim, nor the difference in the identity of the defendants (individuals versus the
ODRC) is sufficient to escape the waiver. Instead, filing suit in the Ohio Court of Claims
bars any later federal suit seeking monetary damages for the same conduct against an
individual state officer or employee. The Leaman court explained that O.R.C. §
2743.02(A)(1) constitutes “Ohio’s statutory offer to subject itself to suit in the Court of
Claims in exchange for a waiver of claims against individual state officials.” Id. at 957.
Thus, Plaintiff’s decision to sue the ODRC in the Ohio Court of Claims constitutes a waiver
of his right to sue Defendant Woodard in this Court under §1983 for the same conduct.
Id. “Where a claimant elects to sue the state in the Court of Claims, in other words, the
state's employees are given an affirmative defense which the federal court has both the
jurisdiction and the duty to recognize.” Id. at 954; see also Turker v. Ohio Dep’t of Rehab.
& Corr., 157 F.3d 453, 460 (6th Cir. 1998) (dismissing a plaintiff’s request for monetary
relief when she filed an identical complaint in the Ohio Court of Claims after initiating a
federal lawsuit); Thomson v. Harmony, 65 F.3d 1314, 1321 (6th Cir. 1995) (same).
The undersigned further concludes that Plaintiff’s status as a pro se litigant does
not preclude enforcement of the waiver, because Plaintiff has extensive litigation
experience in both state and federal courts. See Foster v. Ohio, 2018 WL 1516776 at
**8-9; accord Brown v. Mason, 2012 WL 2892036 (S.D. Ohio July 16, 2012) (applying
7

waiver to pro se prisoner plaintiff; Snead v. Mohr, 2015 WL 1208304 (S.D. Ohio March
16, 2016) (same); see also McDougald v. Ahmad, Civil Case No. 1:16-cv-500 (S.D. Ohio
April 26, 2017) (Doc. 27, R&R adopted by Order filed 09/8/17). Other courts have applied
the waiver against pro se prisoner plaintiffs with a less extensive litigation history. See,
e.g. Easley v. Bauer, Case No. 1:07-cv-37-SJD, 2008 WL 618642, at *1 (S.D. Ohio Feb.
29, 2008) (prisoner plaintiff who had filed up to ten other pro se actions was experienced
litigant and waived his federal right of action); Williams v. Smith, 2006 WL 2192470 at
**10-11 (S.D. Ohio Aug. 1, 2006) (pro se plaintiff involved in at least three lawsuits based
upon the same alleged facts indicated an “above-average understanding of the law for a
pro se litigant” and therefore supported application of the waiver). Like the plaintiff in
Williams, Cook’s complaints have all been properly captioned, organized into short and
clear paragraphs, contained requests for appropriate relief, and cited to federal law.
Therefore, the undersigned concludes that Plaintiff has waived his claims against the
Defendant Woodard.
3. Alternatively, Summary Judgment Should be Granted on the Merits
The undersigned alternatively concludes that Defendant Woodard is entitled to
judgment on the merits. Attached to Defendant Woodard’s motion are multiple affidavits
from witnesses that aver that Woodard did not use his P.R. stick on Plaintiff at any time
during the incident, as well as DVR video evidence that clearly refutes Plaintiff’s claims.
(See generally Docs. 35-1 through 35-10). Plaintiff filed no response to Defendant’s
motion, and has submitted no evidence that creates any genuine issue of material fact.
Therefore, even if a reviewing court were to disagree concerning the procedural bars of
res judicata and Leaman, Defendant Woodard still would remain entitled to summary
8

judgment on the merits.

Having recommended dismissal under res judicata and/or

Leaman, and having alternatively recommended that judgment be entered in Defendant
Woodard’s favor on the merits, the undersigned finds no need to review the additional
argument that Defendant Woodard is entitled to qualified immunity.
C. Defendant Cool’s Motion for Summary Judgment (Doc. 37)
Plaintiff’s retaliation claim against Defendant Cool is substantively distinct from his
claim against Defendant Woodard.

Of note, Plaintiff’s initial complaint included

allegations against Cool that were more closely related to the underlying excessive force
claim against Defendant Woodard, but were insufficient to state any claim. Instead,
Plaintiff initially alleged only “supervisory” liability and/or that Cool should be held liable
for failure to properly investigate and respond to his grievance about the November 2016
use of force by Defendant Woodard. The undersigned recommended dismissal of those
initial claims as frivolous.4 (Doc. 4 at 4-5).
In an amended complaint, however, Plaintiff brought entirely new allegations
against Defendant Cool based on alleged retaliatory conduct in June and July 2017.5
Specifically, Plaintiff’s amended complaint alleged that during the discovery phase of
Case No. 1:17-cv-161, Plaintiff served three subpoenas through the informal prison “kite”
system, requesting that Warden Ron Erdos, Medical Administrator Warren, and
Defendant Cool appear and produce documents relating to that case. Plaintiff alleges
that not only did Defendant Cool fail to respond to the subpoena, but he retaliated by filing

Allegations concerning Cool’s alleged failure to conduct a complete investigation were included in the
previously adjudicated state court case, and arguably also would have been barred by res judicata and/or
Leaman.
5
The retaliation claim that was permitted to proceed does not appear to parallel any claim filed in the
previously adjudicated state court case.
4

9

a false conduct report against Plaintiff, accusing him of forging this Court’s signature on
the referenced subpoena.
Plaintiff alleges that the conduct report was served on him on June 30, 2017. Prior
to the hearing held before the Rules Infraction Board (“RIB”), Plaintiff alleges that he
requested Cool, Erdos, and Warren to be called as witnesses, but was told he would not
be permitted to call Erdos or Warren, leaving Cool as his sole witness. He alleges that
he was told that “I needed to dismiss my civil action or suffer consequences even possibly
lose my life.” (Doc. 10 at 5). Plaintiff further alleges that during a break in the July 14,
2017 RIB proceedings, Cool told the RIB chair “to find me guilty to show me who’s in
charge and that I have no rights at all.” (Id. at 7). Both the conduct report and the related
events were considered to be sufficient to state a non-frivolous First Amendment
retaliation claim in this case.
Ultimately, Plaintiff was found guilty of the charge by RIB and sentenced to 20 days
in disciplinary control. Plaintiff appealed his disciplinary conviction but was unsuccessful.6
Defendant Cool’s motion for summary judgment on Plaintiff’s retaliation claim
argues that he is entitled to judgment based upon: (1) Plaintiff’s failure to exhaust his
administrative remedies; (2) a lack of any material issue of fact showing retaliation; and
(3) qualified immunity.

6

In his opposition to summary judgment, Plaintiff includes new allegations about the timing of when Larry
Greene signed off on the review of his appeal (allegedly the same day as the hearing), and other alleged
procedural irregularities, including the dismissal of his witnesses, a delay in conducting the hearing for
which no justification was provided, and the alleged lack of a digital recording of the hearing. (Doc. 47 at
15). No recording of the hearing has been filed with this Court. However, Plaintiff’s amended complaint
failed to state any claim against Greene, and there is no pending claim concerning alleged due process
violations at the RIB hearing. Therefore, the referenced allegations are not relevant to the claims at issue
in this case.

10

1. Whether Plaintiff Fully Exhausted Administrative Remedies
Defendant first argues that Plaintiff failed to fully exhaust his administrative
remedies, as required under the PLRA, prior to filing suit in federal court. See 42 U.S.C.
§ 1997e (“No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”)
(emphasis added); see also, generally Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983
(2002). “[E]xhaustion is mandatory under the PLRA and unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 201, 204 (2007). The PLRA requires “proper
exhaustion of all administrative remedies,” meaning all applicable procedures and
deadlines must be followed. Woodford v. Ngo, 548 U.S. 81, 88–90, 126 S.Ct. 2378,
(2002) (emphasis added). If a prisoner fails to exhaust available administrative remedies
before filing a complaint in federal court, or only partially exhausts them, dismissal of the
complaint is appropriate. Hopkins v. Ohio Dep't of Corr., 84 Fed. Appx. 526, 527 (6th
Cir.2003) (citing 42 U.S.C. § 1997e(a)); see also White v. McGinnis, 131 F.3d 593, 595
(6th Cir.1997).
Ohio provides a three-step grievance system to every inmate at each of its
institutions. See Ohio Admin. Code 5120–9–31(K).7 The first step allows inmates to
submit an informal complaint, commonly referred to as an “ICR,” to the supervisor of the
department or staff member directly responsible for the issue, no later than fourteen days
from the date of the event giving rise to the grievance. OAC § 5120–9–31(K)(1). Inmates
dissatisfied with the results of step one may proceed to step two by obtaining a Notification

7

The current procedure is located at Ohio Admin. Code 5120-9-31(J) and includes minor changes to the
original text, with an effective date of April 1, 2019.

11

of Grievance (“NOG”) from the Inspector of Institutional Services, and filing that form
within fourteen days from the date that the inmate receives a response to his step one
complaint. OAC § 5120–9–31(K)(2). If dissatisfied at step two, the inmate may proceed
to step three of the grievance process by requesting an appeal form from the Inspector
of Institutional Services, and submitting that final appeal to the Office of the Chief
Inspector at ODRC. OAC § 5120–9–31(K)(3). Decisions of the Chief Inspector are final
with no further means for appeal. OAC § 5120–9–31(K)(3).
The record presented demonstrates that Plaintiff initiated step one of the threestep grievance procedure by submitting an ICR addressed to Warden Erdos relating to
the alleged filing of a false conduct report by Defendant Cool in June 2017. In the ICR,
Plaintiff complains that Defendant Cook issued a conduct report on June 30, 2017,
alleging that Plaintiff had attempted to serve Defendant with a subpoena with a forged
signature, as “a form of retaliation due to [a] tort action case that I have in the Court of
Claims on the basis that the use of force investigation was not properly conducted and
Mr. Cool help[ed] cover up the excessive force against me.” (Doc. 37-3 at 1-2). As proof
of the absence of any forgery, Plaintiff cites to the fact that the Assistant Ohio Attorney
General responded to the subpoenas with other objections to production, without mention
of any forgery. Because that ICR was submitted on July 4, ten days prior to Plaintiff’s
hearing, it contains no reference to additional alleged retaliatory conduct at the July 14,
2017 RIB hearing.
Defendant has filed two copies of the ICR. The otherwise duplicate copies reflect
different dates of receipt8 and different responses. In the earlier dated response, Warden
The first copy bears a receipt stamp from the SOCF Warden’s Office dated July 12, 2017, with a second
receipt stamp from the SOCF Inspector dated July 13, 2017. (Doc. 37-3 at 1). The second copy also
8

12

Erdos responds “RIB issues not grievable per ARR 5120-9-31.” (Doc. 37-3 at 2). In the
second response, signed by Larry Greene, Mr. Greene states “You may exercise the
rights afforded to you during the disciplinary processes.” (Id. at 1). Defendant has
submitted uncontroverted evidence that Plaintiff submitted no other grievances relating
to his retaliation claim, and that Plaintiff never completed “step three” by appealing to the
Chief Inspector.9 Thus, it is clear that Plaintiff failed to fully exhaust all three steps of
Ohio’s administrative procedures for his retaliation claim.
That clear failure to exhaust does not end the matter, however, because an inmate
is only required to exhaust only “available” administrative remedies. Plaintiff persuasively
argues that the record fairly reflects that there were no administrative remedies “available”
for his complaints about Defendant Cool, because both responses to his ICRs essentially
stated that the allegations therein were not grievable.
In Ross v. Blake, 136 S.Ct. 1850, 1855 (2016), the Supreme Court rejected a
“freewheeling approach to exhaustion as inconsistent with the PLRA,” while underscoring
the limited circumstances in which exhaustion is excused by the express language of the
PLRA because a remedy is not “available.” The Court then explained the proof required
to demonstrate that remedies were not “available” in order to excuse the exhaustion
requirement.
[T]he Supreme Court laid out three circumstances providing an exception
to
the
PLRA's
exhaustion
requirement. Id. at 1859.
These
three circumstances are: 1) “when (despite what regulations or guidance
reflects two receipt stamps, but both are from the SOCF Inspector. The latter stamps are dated July 5 and
July 7, 2017. (Doc. 37-3 at 2).
9 Defendant also argues that Plaintiff did not complete step two. In his response in opposition, Plaintiff
argues that Institutional Inspector Ms. Mahlman refused his request for an NOG form at step two on the
grounds that conduct reports are not grievable. (Doc. 47 at 7-8). In a reply, Defendant Cool objects to that
explanation, noting that Plaintiff has offered it for the first time in opposition to Defendant’s motion, and that
the assertion is unsupported by an affidavit or other evidence of record. The undersigned finds no need to
examine whether Plaintiff exhausted at step two, given that he did not exhaust step three.

13

materials may promise) it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates”;
2) when “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use[—i.e.,] some mechanism exists to
provide relief, but no ordinary prisoner can discern or navigate it”; and
3) “when prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.”
Blissit v. Fiquris, 345 F.Supp.3d 931, 939-40 (S.D. Ohio 2018) (quoting Ross at 18591860, granting summary judgment where inmate failed to properly exhaust and did not
establish exception to exhaustion).
On similar facts, the undersigned previously concluded that when SDOH officials
clearly conveyed that a complaint was “not grievable,” the inmate sufficiently
demonstrated a lack of “available” administrative remedies to excuse his failure to
exhaust under the statutory exception as defined in Ross. See Brooks v. Dillow, 2016
WL 6493419 at **5-6 (S.D. Ohio Nov. 2, 2016), adopted at 2016 WL 7034241 (Dec. 2,
2016); (see also Doc. 47 at 26, Plaintiff’s Ex. 5 at 2, stating that grievances concerning a
hearing officer or an R.I.B. decision, or grievances concerning “[a]ny process that carries
its own appeal process, such as classification placements, reviews or P.C. hearings, are
not grievable.”). On the record presented, the undersigned also concludes that Defendant
Cool is not entitled to dismissal of the claims against him for failure to exhaust.
2. Whether Genuine Issues of Fact Remain on Retaliation Claim
The undersigned determined on initial screening that the additional allegations
against Defendant Cool in Plaintiff’s amended complaint were sufficient to state a nonfrivolous claim of retaliation under the First Amendment. The Sixth Circuit has “repeatedly
held that to succeed on a First Amendment retaliation claim, a plaintiff must show that:

14

(1) the plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two—that is, the adverse action was
motivated at least in part by the plaintiff's protected conduct.
Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) (citing Thaddeus–X v. Blatter, 175
F.3d 378, 394 (6th Cir. 1999) (en banc)). As a second basis in favor of granting summary
judgment, Defendant Cool now argues that Plaintiff cannot produce sufficient evidence to
prove all three elements of his claim. I disagree.
(a) Constitutionally Protected Activity
Plaintiff alleges that Defendant Cool filed his false conduct report and/or
encouraged his disciplinary conviction in retaliation for Plaintiff’s earlier civil lawsuit
against Claude Woodard. It is undisputed that Plaintiff has a constitutional right to file a
prison grievance or a civil lawsuit without fear of retaliation. See Smith v. Campbell, 240
F.3d 1032, 1037 (6th Cir. 2001); Bell v. Johnson, 308 F.3d 594, 607 (6th Cir. 2002).
Here, however, Defendant argues that the conduct that underlies the alleged
retaliation - Plaintiff’s filing of the prior federal lawsuit - Case No. 1:17-cv-161, was
“frivolous and meritless and not a protected activity.” (Doc. 37 at 14). Defendant is correct
that an inmate has no constitutional right to file frivolous grievances or lawsuits.
See Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (quoting Lewis v. Casey, 518
U.S. 343, 353 (1996) for the proposition that “[d]epriving someone of a frivolous claim ...
deprives him of nothing at all, except perhaps the punishment of Federal Rule of Civil
Procedure 11 sanctions.”). However, Defendant is mistaken in describing Plaintiff’s prior
lawsuit as “frivolous.” To the contrary, by virtue of the fact that summons was issued to
“Claude” Woodard (who filed an answer), Plaintiff’s Eighth Amendment claim was
15

deemed to be non-frivolous on initial screening.10 See Cook v. Woodard, Case No. 1:17cv-161 (Doc. 6; see also Doc. 8, setting pretrial deadlines).
Plaintiff alleges that he requested six subpoenas from this Court for the purpose
of conducting discovery in Case No. 1:17-cv-161. (See Doc. 10 at 5).11 Ordinarily, any
pro se plaintiff who is pursuing a non-frivolous civil lawsuit may request subpoenas from
this Court in order to prosecute his or her civil claims. While a prisoner-plaintiff may be
more restricted in the pursuit of civil discovery than a non-incarcerated individual, nothing
in this record suggests that Plaintiff here was precluded by security concerns from
seeking subpoenas for written discovery from the Clerk of Court.

Therefore, Plaintiff’s

request for subpoenas following the entry of a pretrial order authorizing discovery in Case
No. 1:17-CV-161 would amount to constitutionally protected conduct. As stated, Plaintiff’s
later motion to voluntarily dismiss Case No. 1:17-cv-161 does not render either his
request for discovery or the underlying case “frivolous.”12
In short, the undersigned concludes that Plaintiff had a First Amendment right to
file suit in Case No. 1:17-cv-161, and that his conduct in attempting to serve subpoenas
relating to that case was also subject to First Amendment protection. Accord Maben v.

Without citation to the record, Defendant asserts that “Claude” Woodard was not involved in the
November 18, 2016 incident. On July 3, 2017, Plaintiff moved to dismiss Case No. 1:17-cv-161 so that he
could refile a suit against “the correct person.” (Id., Doc. 15). Assuming that Plaintiff mistakenly sued
“Claude” Woodard in Case No. 1:17-cv-161 rather than “Ryan” Woodard, Plaintiff’s good faith error does
not render the prior suit “frivolous.”
11 Plaintiff does not identify the prior case number in the instant complaint, but he does not dispute that the
exhibit submitted by Defendant Cool in support of summary judgment, bearing Case No. 1:17-cv-161, is
the same subpoena that was served on Defendant Cool.
12 Plaintiff’s July 7, 2017 motion to voluntarily dismiss Case No. 1:17-cv-161 cited “retaliation” by prison
officials who had by then charged Plaintiff with a disciplinary violation based on the allegedly “forged”
subpoenas. (Id., Doc. 16 at 1). Plaintiff’s unopposed motion to dismiss was granted without comment.
(Id., Docs. 18, 19, 20).
10

16

Thelen, 887 F.3d 252, 264 (6th Cir. 2018). Therefore, the record contains sufficient
evidence of the first element of Plaintiff’s retaliation claim to survive summary judgment.
(b) Sufficiently Adverse Action
Defendant Cool next argues that because Plaintiff was convicted in the RIB
hearing, the charge cannot be viewed as false, and therefore is not an “adverse action”
sufficient to satisfy the second element of a retaliation claim. Citing Jackson v. Madery,
158 Fed. Appx. 656, 662 (6th Cir. 2005), Defendant asserts that the finding of guilt in the
RIB hearing “essentially checkmates [a] retaliation claim” (internal quotation marks and
additional citation omitted).
Defendant’s reliance on the unpublished Jackson case is unpersuasive. The Sixth
Circuit expressly rejected the “checkmate doctrine” last year in the published decision of
Maben v. Thelen, 887 F.3d at 262-263. When deciding whether the issuance of a
disciplinary charge rises to the level of an adverse action, the Sixth Circuit instructs trial
courts to “look to both the punishment [the plaintiff] could have faced and the punishment
he ultimately did face.” Id., 887 F.3d at 266 (citing Scott v. Churchill, 377 F.3d 565, 572
(6th Cir. 2004)). The filing of a disciplinary charge ordinarily will demonstrate a sufficiently
adverse action to deter “a person of ordinary firmness” from protected activity unless the
potential punishment is “de minimis” or “inconsequential.” Id., at 267. The record here
reflects that Plaintiff was confined to 20 days in disciplinary segregation, which is more
than a “de minimis” punishment. Moreover, the filing of the conduct report actually
deterred Plaintiff from continuing to pursue his case, insofar as he filed a motion to
voluntarily dismiss Case No. 1:17-cv-161 in part based on the alleged “retaliation.”

17

Cool presents additional argument that, even if the conduct report is considered to
be adverse, Cool’s later conduct at the RIB hearing cannot be considered to be adverse,
because Plaintiff first moved to dismiss Case No. 1:17-cv-161 more than a week prior to
the July 14 RIB hearing. Considering the close temporal proximity of the events in
question, there is little to suggest that Cool’s alleged retaliatory motive would entirely
dissipate the moment Plaintiff agreed to dismiss his prior suit.
However, Defendant has submitted evidence that challenges Plaintiff’s account of
his conduct prior to and at the RIB hearing (apart from the issuance of the conduct report
itself). In his amended complaint, Plaintiff alleges that after he requested three witnesses
to appear at his RIB hearing, on July 7, “I was told that Ron Erdos and Mrs. Warren will
not be called as witnesses and that I needed to dismiss my civil action or suffer
consequences even possibly lose my life. So I waived both Ron Erdos and Mrs. Warren.”
(Doc. 10 at 5). Importantly, Plaintiff does not identify Defendant Cool as the individual
who threatened him and/or told him that he would not be permitted to call additional
witnesses.13 Still, Plaintiff does allege that when Plaintiff presented evidence at the
hearing that an Assistant Ohio Attorney General had responded to the subpoenas without
objecting that they were “forged,” Defendant Cool suggested the Plaintiff “may have also
forged” the AG’s responses. (Doc. 10 at 7).14 After a “heated argument” during a brief
period that was off the record, Plaintiff further alleges that Defendant Cool “told the

13

In his memorandum in opposition to summary judgment, Plaintiff asserts that it was Sgt. McCroskey, the
hearing officer, who told Plaintiff that he did not need the extra witnesses, who allegedly appeared and the
hearing but were dismissed. (Doc. 47 at 3-4, 13).
14 The RIB disposition states: “The board believes that Inmate Cook did forge the name of the Clerk of
Courts of the United States District Court on a subpoena form and did distribute these to SOCF staff to
include Mr. Cool and try to pass them off as being genuine and legal. I contacted Ms. Bishop (SOCF legal
services) who told me that Ms. Ina Avalon at the AGs office was not aware at the time that the subpoenas
were forged and answered them but is now aware that they were not legitimate.” (Doc. 37-5 at 8).

18

Chairperson to find me guilty to show me who’s in charge and that I have no rights at all.”
(Id.).
Contrary to those allegations, Cool has submitted an affidavit in which he
unequivocally denies, at any time before or at the RIB hearing, that he
made any comments threatening Cook or …any comments referring to
being upset at his filing of lawsuits against other prison staff. Also during
the RIB hearing, I made no comments to the RIB Chairman directing him to
find inmate Cook guilty.
(Doc. 37-1 at ¶6).

Defendant also has filed the affidavit of David McCroskey, the

Chairperson who presided at the RIB hearing and adjudged Plaintiff guilty of the rule
violation. In his affidavit, Mr. McCroskey avers:
Mr. Cool did not tell me…to find inmate Cook guilty while off the record. In
general, Mr. Cool did not tell me to find inmate Cook guilty on or off the
record. Inmate Cook’s guilt was only determined in light of the evidence
presented before the RIB.
(Doc. 37-2 at ¶6).
In the face of these affidavits, Plaintiff may not rest on his pleadings but must
produce some evidence to create a genuine issue of material fact. Defendant’s affidavits
demonstrate a lack of any “adverse action” beyond the issuance of the conduct report
itself. Because Plaintiff has produced no evidence to support his allegations that Cool
engaged in additional retaliatory conduct before or at the RIB hearing, or to refute
Defendant’s contrary evidence concerning those events, Defendant Cook is entitled to
judgment as a matter of law concerning the limited issue of the alleged “adverse actions”
before or at the RIB hearing. By contrast, as set forth above, Plaintiff has put forth
sufficient evidence to defeat summary judgment by showing that the conduct report alone
was a sufficiently adverse action on which to proceed with his First Amendment claim.
19

(c) Causation
In a final argument that Plaintiff cannot produce sufficient evidence to support his
claim, Defendant Cool challenges Plaintiff’s ability to produce evidence of a “causal
connection” between the first two elements of his retaliation claim.
Under the third element, “the subjective motivation of the defendants is at
issue.” Id. at 399. “The analysis of motive in retaliation claims is welldeveloped” - “[o]nce the plaintiff has met his burden of establishing that his
protected conduct was a motivating factor behind any harm, the burden of
production shifts to the defendant.” Id. (citing Mount Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).
“If the defendant can show that he would have taken the same action in the
absence of the protected activity, he is entitled to prevail on summary
judgment.” Id. A defendant must make this showing by a preponderance of
the evidence. King v. Zamiara, 680 F.3d 686, 709 (6th Cir. 2012).
Maben, 887 F.3d at 262 (additional internal citations omitted). In Maben, the court noted
that although the question of causation is “usually…a factual issue to be resolved by
a jury,” “a court may grant summary judgment even in a causation inquiry, where it is
warranted.” Id., at 267 (internal quotation marks and additional citations omitted).
Plaintiff has presented evidence that Defendant Cool issued a conduct report
charging Plaintiff with forgery either on the same day or within a short period after Plaintiff
served Defendant Cool with the subpoena seeking civil discovery in Case No. 1:17-cv161. A copy of the Conduct Report states in full:
On June 19, 2017, I received a kite from I/M Cook…with a United States
District Court subpoena addressed to DWO William Cool for information
related to a Use of Force that occurred involving I/M Cook and I/M
Creech…. In the area for the Clerk or Deputy Clerk, there is a name
scribbled in the section but there is no seal or stamp from any court. This
subpoena was scanned to OSC Legal to ascertain the validity of the
subpoena and to determine if an answer was to be returned to the inmate.
I was advised that the subpoena was forged and to not answer it. Kite dated
6-14-17 and subpoena are submitted with this conduct report for a Rule 28,
Forging, possessing, or presenting forged or counterfeit documents.
20

(Doc. 37-5 at 1). Thus, not only was there temporal proximity between the protected
conduct and the allegedly retaliatory conduct report, but the subject matter of the conduct
charge was directly related to the prosecution of the prior civil case. Plaintiff has easily
met his burden of showing that his protected conduct played some role in the issuance of
the conduct report.
The only remaining issue is whether Cool has produced sufficient evidence on
summary judgment to demonstrate, by a preponderance, that Plaintiff’s protected conduct
actually played no role at all in the issuance of the conduct report. “If the defendant can
show that he would have taken the same action in the absence of the protected activity,
he is entitled to prevail on summary judgment.” Thaddeus-X v. Blatter, 175 F.3d at 399.
However, summary judgment is warranted only if, in light of the evidence viewed in favor
of the plaintiff, no reasonable juror could fail to return a verdict for the defendant. Dye v.
Office of the Racing Com’n, 702 F.3d 286, 294-295 (6th Cir. 2012). “Unlike in the
McDonnell Douglas burden-shifting framework, the burden does not shift back to a
plaintiff to show pretext in First Amendment retaliation claims.” Id. at 295.
In King v. Zamiara, 680 F.3d 686 (6th Cir. 2012), as here, the plaintiff had
established the first two elements of his retaliation claim – that he had engaged in
protected activity and that the defendant took an adverse action against him. In King, the
defendants increased the plaintiff’s security level after he engaged in protected activities
that included filing grievances and participating in a prior civil case against state prison
officials. The case went to trial solely on the issue of causation. The trial court ruled in
favor of the defendants, and the plaintiff appealed pro se. The Sixth Circuit reversed in

21

part, finding error in the trial court’s evaluation of the defendants’ “subjective motivation.”
The court’s analysis is instructive:
[P]rotected speech causes an adverse action if the speech motivates an
individual actor to take acts that then proximately cause an adverse action.
Subjective motivation appropriately enters the picture on a retaliation claim
because our concern is with actions by public officials taken with the intent
to deter the rights to free expression guaranteed under the First
Amendment. Block v. Ribar, 156 F.3d 673, 681-82 (6th Cir. 1998) (“[A]n act
taken in retaliation for the exercise of a constitutionally protected right is
actionable under § 1983 even if the act, when taken for a different reason,
would have been proper.”) (internal quotation marks omitted). Thus,
causation in retaliatory claims may really be considered a two-part inquiry:
A plaintiff must show both (1) that the adverse action was proximately
caused by an individual defendant's acts, Siggers–El v. Barlow, 412 F.3d
693, 702 (6th Cir.2005), but also (2) that the individual taking those acts
was “motivated in substantial part by a desire to punish an individual for
exercise of a constitutional right,” Thaddeus–X, 175 F.3d at 386.
King v. Zamiara, 680 F.3d at 695.
Considering the first prong of the two-part King inquiry, the undersigned concludes
that the adverse disciplinary consequences suffered by Cook were proximately caused
by Cool’s issuance of the conduct report. The only question that remains is whether Cool
has met his burden of production to prevail on the second prong, by proof that he was not
“motivated in substantial part” by retaliatory animus, such that no reasonable trier of fact
could find for the Plaintiff on the element of causation.15
On the one hand, because Plaintiff was charged with misconduct for what itself
was protected activity (serving a subpoena on the Defendant that facially purports to have
issued from this Court), it would seem difficult for Defendant Cool to produce evidence

In Thaddeus-X, the court set forth the plaintiff’s burden to show that the adverse action was “motivated
in substantial part” by the plaintiff’s constitutionally protected conduct. Id. at 386. “Substantial” is not defined.
However, Thaddeus-X also states that “ff the defendant can show that he would have taken the same action
in the absence of the protected activity, he is entitled to prevail on summary judgment.” Id. at 399. Arguably,
a defendant could prevail if he produces evidence that no genuine issue of material fact exists that his
motive to retaliate was “insubstantial,” even if not entirely absent.
15

22

that he would have charged Plaintiff with the same misconduct “in the absence of the
protected activity.” On the other hand, the undersigned considers whether the alleged
forgery should be viewed as a separate event based upon Cool’s non-retaliatory
explanation for the filing of the conduct report.

In other words, if this Court concludes

that no reasonable juror could disbelieve Cool’s proffered non-retaliatory reasons for
issuing the conduct report, might the “causation” link be broken?

Mindful that all

reasonable inferences are to be drawn in favor of the Plaintiff at this stage, the
undersigned concludes that a genuine issue of material fact remains concerning the
Defendant’s subjective motivation and/or whether his asserted motivation was
pretextual.16
“Rare is the case where a defendant testifies on the record that [he] intended to
retaliate against a prisoner for exercising a constitutional right.” King v. Zamiara, 680
F.3d at 701. The question for this Court is whether the Defendant’s affidavit, offering
testimony that Cool issued the conduct report based upon his own investigation and facts
from which he inferred the document was forged, satisfies Defendant’s burden of
production such that he is entitled to summary judgment.
In addition to noting that the subpoena lacks an official Court seal and/or stamp,17
Cool’s affidavit states as follows:
3. In this case, I received a subpoena from inmate Cook to appear at a
deposition and bring certain documents. I was confused after receiving the
subpoena I was alarmed because I had never received a subpoena from an
The focus, for purposes of the causation element of the retaliation claim, remains on the Defendant’s
motivation. From that perspective, whether Plaintiff actually forged the subpoena is not dispositive. Still,
evidence of forgery could indirectly support the reasonableness of Defendant’s proffered non-retaliatory
reasons for filing the conduct charge, just as evidence of authenticity might be probative of the lack of
reasonableness of the charge.
17 The Clerk of this Court uses an embossed (but not inked) seal at times, which presumably would not
appear on a xeroxed copy of a subpoena. Thus, no inference can be drawn in favor of the Defendant and
against the Plaintiff concerning the perceived absence of a stamp or seal.
16

23

inmate kite. Normally the legal office would receive them and sen[d] them
out. After receiving it, I contacted the legal office and Sherri Bishop to look
into it because it was not the normal channels used and issued a conduct
report based on the information that was present.
4. After receiving the advice from OSC Legal that the subpoena was forged
and that I should not answer it, I followed their advice. At this time, Inmate
Cook did not compel me to comply with the subpoena via a court order, etc.
5. I then created a Conduct Report…based on the knowledge that was
available to me by OSC Legal towards a Rule 28 violation…. The Conduct
Report wrote was an accurate rendition of the facts that led up until that
point.
(Doc. 37-1). Cool’s affidavit is unrebutted by any direct evidence submitted by Plaintiff.
However, on summary judgment, this Court may not rely solely on Defendant’s
evidence. Instead, the court must review the record as a whole, including circumstantial
evidence, while construing all inferences in favor of the Plaintiff.
Motive is often very difficult to prove with direct evidence in retaliation
cases. Bloch, 156 F.3d at 682–83. Circumstantial evidence may therefore
acceptably be the only means of establishing the connection between a
defendant's actions and the plaintiff's protected conduct. We have
previously considered the temporal proximity between protected conduct
and retaliatory acts as creating an inference of retaliatory
motive. Paige, 614 F.3d at 282–83; Muhammad v. Close, 379 F.3d 413,
417–18 (6th Cir.2004) (“[T]emporal proximity alone may be significant
enough to constitute indirect evidence of a causal connection so as to
create an inference of retaliatory motive.”) (internal quotation marks
omitted).
King v. Zamiara, 680 F.3d 686, 695-96 (6th Cir. 2012).
Here, the temporal proximity between service of the subpoena and the adverse
action was virtually immediate – Defendant’s own affidavit closely ties the receipt of the
subpoena to the conduct report. The contested subpoena itself, dated June 1, 2017,
yields additional circumstantial evidence. The subpoena appears to be a standard AO
Form 88A for a “Subpoena to Testify at a Deposition in a Civil Action,” which forms are
24

routinely issued by the Clerk of Court in civil cases. In addition to bearing a case caption
that denotes Case No. 1:17-cv-161, the exhibit of record appears to bear the signature of
Benjamin Codispoti, an employee of the Clerk of Court for the Southern District of Ohio.
(See Doc. 37-5 at 12; Case No. 1:17-cv-161, Doc. 17-1 at 2).18 Plaintiff alleges that he
forwarded a copy of the referenced subpoena to Cool (who was not a party in Case No.
1:17-cv-161) and to defense counsel, who responded with objections that the subpoena
to Mr. Cool and similar subpoenas were cumulative and duplicative of other requests.
To counter the inference of retaliatory motive that arises from the temporal
proximity alone in this case, Defendant points to other evidence that ostensibly supports
his belief that the subpoena was forged.

For example, in addition to his affidavit,

Defendant argues that the docket sheet in Case No. 1:17-cv-161 does not reflect either
the Plaintiff’s written request for subpoenas or the Clerk’s issuance of those subpoenas.
However, the Clerk of Court does not routinely docket requests for subpoenas or the
sending of blank subpoena forms to civil litigants. If a reviewing court would conclude
such judicial notice exceeds the authority of the undersigned, the undersigned would
alternatively find no record evidence to support Defendant’s hypothesis that the absence
of a docket notation reasonably supports a conclusion that the subpoena was a forgery.
Other circumstantial evidence concerning the Defendant’s motivation is either
ambiguous or favors the Plaintiff. Frankly, it is unclear what would motivate Plaintiff to
forge the Clerk’s signature on a facially legitimate subpoena form, when he easily could
have obtained an authentic version through a written request to the Court. In fact, Plaintiff

18

Curiously, the copy of the subpoena addressed to Mr. William Cool filed in Case No. 17-cv-161 and
served on defense counsel (Doc. 17-1 at 2) varies slightly from the copy (ostensibly of the same subpoena)
filed in this case. (Doc. 37-5 at 12).

25

has provided a copy of his written request for the subpoena as an exhibit, and the same
correspondence appears in Case No. 1:17-cv-161. (Doc. 47 at 22; see also Doc. 17-1 in
Case No. 1:17-cv-161). And, despite the allegedly unusual method of service, Defendant
does not point to any institutional rule or legal authority for the proposition that attaching
a copy of a subpoena to a kite renders a subpoena invalid. Ordinarily, if someone served
with a subpoena questions the method of service or its validity, he would appeal to the
issuing court for a protective order. Of course, in this instance, Ohio Assistant Attorney
General Avalon did not move for a protective order but instead filed a response to the
subpoena on Cool’s behalf. (Doc. 47 at 24). The undersigned further notes that although
Defendant’s affidavit refers to the subpoena as commanding his presence at a
“deposition,” the box on the subpoena form for “testimony” is not marked. However, a
date, time and location are set forth in the “testimony” section, along with two questions
it appears as if Plaintiff either intends to ask Cool or Plaintiff is requesting answers, by
way of declaration or affidavit. It is not clear. In addition, Plaintiff has checked a box to
reflect that the subpoena is seeking the production of certain documents. (Doc. 37-5 at
12).
Defendant Cool’s affidavit does not identify who at “OSC Legal” informed him “the
subpoena was forged,” or precisely when that occurred. Ms. Bishop, a paralegal at SOCF
who serves as “the litigation contact for the Ohio Attorney General’s Office,” submitted a
separate affidavit attesting to the authenticity of the RIB record exhibits, but her affidavit
is silent concerning any conversation with Defendant Cool or the AG’s office concerning
a determination that the subpoena was “forged.” (Doc. 37-4). Defendant does not
suggest that the Assistant Attorney General who responded to the subpoena had (or
26

communicated) any contemporaneous belief that the subpoena was forged, and
counsel’s response to the subpoena runs counter to any such belief.
Considering the record as a whole and drawing all reasonable inferences in favor
of Plaintiff as the non-moving party, the undersigned finds a genuine issue of material fact
remains as to whether the Defendant was subjectively motivated by Plaintiff’s protected
activity. Defendant has failed to show that he would have filed the same conduct report
in the absence of Plaintiff’s constitutionally protected prosecution of Case No. 1:17-cv161, even if he reasonably believed that the subpoena was forged. “It is well established
that government actions, which standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in substantial part by a desire to punish
an individual for exercise of a constitutional right.” Thaddeus-X, 175 F.3d at 386; accord
Block v. Ribar, 156 F.3d at 681-82. At trial, the factfinder may well believe Defendant’s
non-retaliatory explanation. However, when viewed in the context of summary judgment,
the undersigned concludes that a reasonable jury could return a verdict for the Plaintiff.
3. Qualified Immunity
Defendant Cool’s final argument in favor of summary judgment rests on his
assertion of qualified immunity. The purpose of qualified immunity is to provide
governmental officials with the ability “reasonably [to] anticipate when their conduct may
give rise to liability for damages.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012
(1984). Thus, a governmental official performing discretionary functions will be entitled
to qualified immunity unless his actions violate “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). A governmental official is
27

entitled to immunity if the facts alleged do not make out a violation of a constitutional right,
or if the alleged constitutional right was not clearly established at the time of the
defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808
(2009). Once a defendant has raised the defense of qualified immunity, the plaintiff bears
the burden of proof to show that the defendant is not entitled to that defense. See
Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005).
Defendant argues first that Plaintiff has failed to make out a violation of a
constitutional right. However, as discussed above, the undersigned finds that Plaintiff
had a constitutional right to file a non-frivolous claim in Case No. 1:17-cv-161.
The undersigned also finds unpersuasive Defendant’s assertion that “the act of
writing up a conduct report, or even a false one if we believe the Plaintiff, does not violate
a constitutional right of a Plaintiff inmate.” (Doc. 37 at 21). The critical distinction here
is Defendant’s alleged retaliatory motive in filing the false report, which does violate a
clearly established constitutional right. It has long been well established that “the First
Amendment bars retaliation for protected speech.” Crawford-El, 523 U.S. at 582, 118 S.
Ct. at 1594. The Mabin court similarly dispensed with the defendants’ contention that an
inmate’s right to be free of retaliatory charges was not clearly established:
[T]his Court has repeatedly recognized that if a prison officer “retaliated

against [a prisoner] for filing grievances,” the “alleged conduct also
comprises a violation of clearly established constitutional law.” Noble, 87
F.3d at 162 (citations omitted); King v. Zamiara, 150 Fed. Appx. 485, 493
(6th Cir. 2005) (“Charging an inmate with misconduct is an adverse action
because serious consequences can flow from erroneous charges.”); Scott,
377 F.3d at 572 (finding it clearly established that “the false issuance of a
misconduct charge is unconstitutional retaliation”); Bell, 308 F.3d at 612.
Id. at 269; see also id. at 270 (rejecting theory that an inmate’s rights for a retaliatory
“minor” misconduct charge were not as “clearly established” as rights concerning a
28

“major” misconduct charge). For similar reasons, the undersigned rejects Defendant’s
argument, as unsupported by controlling law, 19 that a “reasonable officer would have
believed Cool’s actions in writing the conduct report were reasonable.” (Doc. 31 at 21).
Defendant next broadly asserts that “there is no ‘established right’ for inmates to
serve subpoenas on upper-level prison officials demanding prison documents while
incarcerated in a maximum security prison.” (Doc. 37 at 21). There are two problems
with this argument. First, by defining the contours of the right in terms of a specific action
undertaken in the prosecution of a non-frivolous civil case – service of a document
subpoena on an upper-level official - the Defendant too narrowly limits the constitutional
right at issue. Based on the conduct report, Plaintiff has provided evidence that, if
believed, demonstrates that Defendant retaliated against him based on his exercise of
his clearly established First Amendment right to prosecute his non-frivolous civil case.
Second, even if the Defendant’s narrow definition of the constitutional right at issue
were to be accepted, none of the handful of cases cited by Defendant deny the existence
of a First Amendment right to pursue document discovery, such that a prison official may
charge an inmate for misconduct merely for attempting such a thing. To the contrary,
discussing the problem of potentially frivolous prisoner litigation in Crawford-El v. Britton,
523 U.S. 574, 598, 118 S. Ct. 1584, 1597 (1998), the Supreme Court stated that once a
plaintiff’s case “survives …initial hurdles and is otherwise viable, the plaintiff ordinarily will

19Defendant

cites numerous unpublished cases from outside the Sixth Circuit. The published law cited by
Defendant is valid for general principles, but is easily distinguished from the retaliation claim at issue. See
Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 328 (2012) (stating, in reviewing a constitutional
challenge to strip searches, that courts should defer to the officer’s “expert judgment” in matters of
institutional security). The cited unpublished cases concern due process claims relating to disciplinary
proceedings, not retaliation claims. See Lee v. Pauldine, 2013 WL 65111, 2013 U.S. Dist. LEXIS 1497,
*21 (S.D. Ohio 2013) (granting motion to dismiss procedural due process claim based on allegedly false
conduct report where plaintiff failed to allege irregularities at hearing that would state a claim).

29

be entitled to some discovery.” Defendant’s cited cases go no further than recognizing
that reasonable limits on that right may be enforced within prison walls, typically in the
context of oral depositions. See generally, In re Wilkinson, 137 F.3d 911, 914-915 (6th
Cir. 1998) (noting that courts may restrict the ability of inmates to attend oral depositions
based on security and safety concerns); Myers v. Andzel, 2007 WL 3256879, 2007 U.S.
Dist. LEXIS 79156 at *1 (S.D.N.Y. 2017) (denying motion for leave to take oral depositions
of non-parties by pro se, incarcerated litigant because oral depositions by prisoners on
the record presented are “disfavored in this District”). Not only is the right to pursue nonfrivolous civil litigation clearly established, but so too is the closely-related right to serve
written discovery requests in the pursuit of that litigation.
Returning to earlier arguments, Defendant Cool asserts that Plaintiff cannot show
that Cool violated his constitutional rights because, in Cool’s view, the conduct report
reflected an accurate charge. Defendant maintains that even if an inmate has a right to
pursue some discovery in a non-frivolous civil case, an inmate still would have no
constitutional right to serve a forged subpoena on a prison official, in the same manner
an inmate has no right to pursue a frivolous grievance or lawsuit. In other words, a valid
misconduct charge ostensibly would not violate a constitutional right, so long as it was
not issued in retaliation for any protected activity. See generally, Maben, 887 F.3d at
269-270.
As discussed, Mabin forecloses any argument that this Court must accept the RIB
finding of guilt on the forgery charge. However, in Mabin, the defendant similarly argued
that he was entitled to qualified immunity based on evidence that he reasonably believed
plaintiff to be guilty of misconduct because the plaintiff was causing a disturbance. The
30

appellate court rejected that argument because, on summary judgment, trial courts must
“assume the truth of all record-supported allegations by the non-movant.” Thus, the trial
court erred in crediting the defendant’s version of events. Id. at 269 (quoting Buys v.
Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017)); see also Griffin v. Condon, 744
Fed. Appx. 925, 928 (6th Cir. 2018) (rejecting qualified immunity defense because it was
“clearly established” that filing a false conduct charge for protected speech violates the
First Amendment). Under either prong of the qualified immunity analysis, “courts may not
resolve genuine disputes of fact in favor of the party seeking summary judgment.” Mabin,
at 269, quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)). Consistent with controlling
Sixth Circuit case law and based on the evidence in this record, the undersigned
concludes that Plaintiff has presented sufficient evidence to overcome Defendant’s
assertion of qualified immunity.
In Crawford-El, the Court noted that a defendant may still prevail on qualified
immunity in retaliation cases if there is “doubt as to the illegality of the defendant’s
particular conduct (for instance, whether a plaintiff’s speech was on a matter of public
concern).” Id., 118 S.Ct. at 1594, 523 U.S. at 593. But that exception has no application
here. The Court recognized one other possible qualified immunity defense to a First
Amendment retaliation claim:
[A]t least with certain types of claims, proof of an improper motive is not
sufficient to establish a constitutional violation—there must also be
evidence of causation. Accordingly, when a public employee shows that
protected speech was a “motivating factor” in an adverse employment
decision, the employer still prevails by showing that it would have reached
the same decision in the absence of the protected conduct.
Id. For the reasons explained in evaluating Plaintiff’s prima facie case on causation,
Defendant also cannot prevail on qualified immunity under this second exception.
31

The undersigned reiterates that at trial, a reasonable jury may yet believe the
Defendant’s non-retaliatory explanation and find in the Defendant’s favor. On the record
presented, however, genuine issues of material fact remain that preclude summary
judgment. See Marr v. Fields, 420 Fed. Appx. 499 (6th Cir. 2011) (holding that fact issues
precluded summary judgment where the defendant had failed to show she would have
taken the same disciplinary action in the absence of Plaintiff’s grievances, even though
she had issued an “authorized” penalty for misconduct); Griffin v. Berghuis, 563 Fed.
Appx. 411, 421 (6th Cir. 2014) (denying qualified immunity because, drawing inferences
in plaintiff’s favor, a reasonable prison official should have known that filing a false
misconduct charge in retaliation for exercise of First Amendment rights was
unconstitutional);
III. Conclusion and Recommendations
For the reasons stated, IT IS RECOMMENDED THAT:
1. Defendant Woodard’s motion for summary judgment (Doc. 35) should be
GRANTED, with all claims to be dismissed against that Defendant;
2. Defendant Cool’s motion for summary judgment (Doc. 37) should be
GRANTED IN PART as to Plaintiff’s limited claim that Defendant engaged in
retaliatory conduct shortly before or during the RIB hearing, but shall be
DENIED concerning Plaintiff’s claim that Defendant charged him with a conduct
report in retaliation for his exercise of his First Amendment rights.
3. If this Report and Recommendation is adopted, the presiding district judge
should set this case for trial.

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/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHNNIE D. COOK,

Case No. 1:17-cv-532

Plaintiff,

Black, J.
Bowman, M.J.

v.

RYAN WOODARD, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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