Kendrick v. Erdos et al

Filing 59

ORDER ADOPTING REPORT AND RECOMMENDATIONS: the Court OVERRULES 30 33 Plaintiff's Objections and ADOPTS IN FULL both the 15 September 7, 2021 R&R and 42 June 14, 2022 R&R. Consistent with the recommendations in each R&R, it is further ORD ERED that: the 13 Amended Complaint is DISMISSED with prejudice, pursuant to 28 U.S.C. § 1915A(b)(1), with the exception of Plaintiff's Count Two against Defendants Chambers-Smith, in her official capacity, Erdos, in his official capac ity, and Goodwin, in her individual capacity, and Plaintiff's Count Three against Defendants Conley and Ross, in their individual capacities; the Clerk of Court SHALL update this matter's docket sheet to reflect that Defendant Erdos is sue d in his official capacity only; Defendants Erdos, Chambers-Smith, Goodwin, Conley, and Ross SHALL file their Answers within twenty-one (21) days of the date of the issuance of this Order; Plaintiff's 28 Motion for Default Judgment, 34 Bri ef and Requests Due to Retaliation and Interference and Invasion of Privacy of Privileged Legal Mail, 35 Motion Inquiry to Judge Barrett, and 35 Brief and Requests, and 37 Motion Inquiry and Request for Court Documents are each DENIED; and t he Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a), that an appeal of this Order would not be taken in good faith and thus DENIES Plaintiff leave to appeal in forma pauperis. Signed by Judge Michael R. Barrett on 9/27/2022. (kkz)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Mark Kendrick,
Plaintiff,
v.
Warden Ronald T. Erdos, et al.,

Case No. 1:21-cv-00266
Judge Michael R. Barrett

Defendants.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge's September 7, 2021
Report and Recommendation ("First R&R") (Doc. 15) and June 14, 2022 R&R ("Second
R&R") (Doc. 42).
I.

STANDARD OF REVIEW
With respect to non-dispositive matters, "[w]hen a pretrial matter not dispositive of

a party's claim or defense is referred to a magistrate judge to hear and decide," and when
the Court receives timely objections to an R&R, "the district judge in the case must
consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law." FED. R. CIV. P. 72(a). The "clearly erroneous" standard
applies to the magistrate judge's factual findings and the "contrary to law" standard
applies to the legal conclusions. Sheppard v. Warden, Chillicothe Corr., Inst., 1:12-CV198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013). A factual finding is clearly erroneous
when, "although there is evidence to support it, the reviewing court on the entire evidence
is left with a definite and firm conviction that a mistake has been committed." Id. (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Legal conclusions should

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be modified or set aside if they "contradict or ignore applicable precepts of law, as found
in the Constitution, statutes, or case precedent." Id. (quoting Gandee v. Glaser,
785 F. Supp. 684, 686 (S.D. Ohio 1992)).
With respect to dispositive matters, and when the Court receives timely objections
to an R&R, 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). "The
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions." Id.
II.

ANALYSIS
Plaintiff filed this civil rights action as a self-represented, currently incarcerated

prisoner against Defendants Erdos, Chambers-Smith, Mahlman, Green, Goodwin,
Conley, Ross, Joseph, and Reuter—regarding events at the Southern Ohio Correctional
Facility 1 ("SOCF")—pursuant to 42 U.S.C. § 1983. (Doc. 13). Section 1983 creates no
substantive rights, but merely provides remedies for deprivations of rights established
elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808 (1985). Section 1983 has two basic
requirements: (1) state action that (2) deprived an individual of federal statutory or
constitutional rights. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340, 351 (6th Cir.
2001) (first citing Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); and then citing United
of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992)).
a. First R&R
The Magistrate Judge provided a complete review of Plaintiff's allegations in the
Amended Complaint and the same will not be repeated herein. The Magistrate Judge
1

Plaintiff was subsequently transferred to Ross Correctional Institution, where he now resides. (Doc. 32).

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recommends permitting Plaintiff's Second Count 2 and Third Court, 3 regarding Defendants'
alleged deliberate indifference regarding Plaintiff's medical care, to move forward and
dismissing Plaintiff's First Count 4 and Fourth Count, 5 regarding Defendants' actions
regarding SOCF's grievance procedures.
i. First Set of Objections (Doc. 30)
Plaintiff first objects to the recommendation that his claims against any Defendant
in his or her official capacity must be dismissed to the extent that Plaintiff seeks monetary
damages. Compare (Doc. 15 PageID 276-77), with (Doc. 30 PageID 342, 347-49).
Contrary to Plaintiff's objection otherwise, "[t]he Eleventh Amendment to the United
States Constitution bars claims for damages against a state, its agencies, and its
employees in their official capacities unless a state has a waived its immunity." Vick v.
Core Civic, 329 F. Supp. 3d 426, 447 (M.D. Tenn. 2018) (citing Quern v. Jordan, 440 U.S.
332, 337 (1979)). Each Defendant in this matter is an employee of Ohio and any
Defendant in this matter who is sued in his or her official capacity is entitled to Eleventh
Amendment immunity unless Ohio has waived that immunity. See id. at 450.

That Defendants Erdos and Chambers-Smith, in their official capacities only, Chambers-Smith, and
Goodwin, in her individual capacity only, were deliberately indifferent by promulgating a policy or custom
not to provide adequate medical care to inmates with documented medical conditions and to use
psychotropic or other experimental drugs for the treatment of pain.
2

3 That Defendants Conley and Ross, in their individual capacities only, were deliberately indifferent and
negligent, under state law, by: prescribing medications for ailments that Plaintiff did not have, which caused
injuries to Plaintiff; taking away his daily inhaler and continuing to deny that inhaler; denying Plaintiff an
emergency inhaler; failing to properly investigate Plaintiff's alleged injuries through an MRI; and, as to
Defendant Conley, by discontinuing the drug Imitrex for Plaintiff's migraines upon Plaintiff's arrival to SOCF.

That Defendants Erdos, Chambers-Smith, and Mahlman were deliberately indifferent by promulgating
policies or customs to obstruct Plaintiff's and other prisoners' access to the prison's grievance procedure.

4

That Defendants Erdos, Greene, Mahlman, Joseph, Goodwin, and Reuter were deliberately indifferent,
failed to protect Plaintiff, violated Plaintiff's due process rights, and denied him access to the courts by
obstructing and failing to respond to Plaintiff's grievances.
5

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Ohio has not waived that immunity, see Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir.
1999), and Plaintiff may not claim damages against any individual Defendant in his or her
official capacity. Plaintiff is correct that Eleventh Amendment immunity does not protect
Defendants against damages claims in their individual capacities, but the Magistrate
Judge did so find, hold, or recommend such protection. Compare (Doc. 15 PageID 27677), with (Doc. 30 PageID 342, 347-49).
Plaintiff next objects to the Magistrate Judge's recommendations that Plaintiff's
First Count and Fourth Count should each be dismissed. Compare (Doc. 15 PageID 27779), with (Doc. 30 PageID 343, 349-66). As Plaintiff addresses his objections regarding
his First and Fourth Counts in tandem, the Court will too. See (Doc. 30 PageID 343, 34966).
A review of Plaintiff's First Count reveals Plaintiff's allegations against Defendants
Erdos, Chambers-Smith, and Goodwin regarding their alleged development and
maintenance of customs or policies that exhibit "deliberate indifference to the
Constitutional rights of individuals held at SOCF." (Doc. 13 ¶¶ 56-58). Plaintiff then alleges
both that "[i]t was the custom or policy to obstruct access to administrative remedies and
deny meaningful assistance upon request in proper exhaustion of the grievance process
to delay or stop prisoners from accessing the Court and to create opportunity for
Defendants to have affirmative defense" and "[i]t was the custom or policy to fail to
properly create and execute specific plans to deal with staff whom abuse and obstruct the
grievance process." (Id. ¶¶ 59-60).
A review of Plaintiff's Fourth Count reveals Plaintiff's allegations against
Defendants Erdos, Greene, Mahlman, Joseph, Goodwin, and Reuter regarding their

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alleged "deliberate indifference, cruel and unusual punishment, failure to protect,
obstruction of grievance procedure, abuse of process, denied due process, obstruction
access to the Court" and violation of Plaintiff's "constitutional right." (Doc. 13 ¶¶ 78-80).
Plaintiff then alleges different ways that these Defendants allegedly obstructed and
abused the prison's grievance procedure "to stop Plaintiff from properly exhausting [his
administrative remedies] thereby delaying Plaintiff from accessing the Court for
5 months." (Id. ¶ 85).
The Magistrate Judge recommends dismissal of Count One and Count Four, as
inmates do not have a federal constitutional right to an effective grievance process.
(Doc. 15 PageID 277-79).
In his objections, Plaintiff states that he is not arguing about "what rights an
ineffective prison grievance systems allows [him] to have," and "is attempting to use" his
rights under the Eighth and Fourteenth Amendments. (Doc. 30 PageID 352). However,
Plaintiff fails to establish that he has an Eighth, Fourteenth, or any constitutional right
relating to grievance procedures at SOCF. And, it is well-settled that a prisoner has
neither a federal constitutional right to an effective grievance procedure nor a due process
interest in having his grievances resolved or investigated to his satisfaction. See, e.g.,
Clement v. Macomb Corr. Facility, No. 2:22-CV-10853, 2022 WL 2292720, at *2 (E.D.
Mich. June 24, 2022) (collecting cases). Without a constitutional right to point to, Plaintiff
cannot allege the denial of a constitutional right, a requirement for his claims under
Section 1983. See Monaco v. John Doe, No. 2:22-CV-2888, 2022 WL 4291781, at *8
(S.D. Ohio Sept. 16, 2022).

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Plaintiff also disagrees with the Magistrate Judge's holding that Count Four fails to
the extent that Plaintiff alleges that, because of Defendants' alleged obstruction and
abuse of the prison's grievance procedures, he is unable to exhaust his administrative
remedies and unable to file claims in federal courts. Compare (Doc. 15 PageID 278-79),
with (Doc. 30 PageID 352-54). The Magistrate Judge is correct. If an SOFC employee
dismisses a non-frivolous grievance by a plaintiff, then that plaintiff can appeal that
decision. See Paolone v. Altiere, No. 4:12-CV-1344, 2012 WL 5463871, at *3 (N.D. Ohio
Nov. 8, 2012). When that plaintiff has no other remedies available to him to exhaust his
grievance, a district court would then be able to hear a related federal claim, because all
possible administrative remedies would have been attempted. See id. "A corrections
officer therefore cannot prevent an inmate from proceeding to court by refusing to accept
a grievance or an appeal." Id. (emphasis added). 6
Finally, Plaintiff attaches 67 pages of exhibits to his first set of objections and asks
the Court to review these exhibits as "evidence to support policies and/or customs that
cause constitutional violations and documentation that Defendants were informed and
failed to act." (Doc. 30 PageID 354-66); (Doc. 30-1). The Court will not do so. This is new
evidence that was not presented to the Magistrate Judge at the time of the issuance of
the First R&R. Plaintiff can refer to such evidence for the Court's consideration later.

The merits of the question of whether Plaintiff properly exhausted Counts Two and Three against the
remaining Defendants is not yet before the Magistrate Judge or the undersigned. Cf. Wiley v. Kentucky
Dep't of Corr., No. 19-5368, 2020 WL 12933851, at *3 (6th Cir. Aug. 25, 2020); Ratliff v. Graves, 761 F.
App'x 565, 567 (6th Cir. 2019); Freeman v. Headley, No. 2:18-CV-00068, 2020 WL 1000338, at *4 (W.D.
Mich. Feb. 6, 2020) (explaining that, in rare circumstances, prisoners will be excused from the Prison
Litigation Reform Act's exhaustion requirement when the prisoner can show that (1) prison officials are
unable or consistently unwilling to provide relief and the exhaustion procedures may have provided relief,
or (2) "where prison administrators thwart inmates from taking advantage of a grievance [or other
administrative] process through machination, misrepresentation, or intimidation." (citing Ross v. Blake,
578 U.S. 632, 643-44 (2016))).
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ii. Second Set of Objections (Doc. 33)
Although Plaintiff's second set of objections to the First R&R are untimely, the
Court will review the arguments therein out of an abundance of caution. In short, though,
Plaintiff's filing comprises his general disagreement with the Sixth Circuit's precedent
regarding the dismissal of claims concerning prison grievance procedures at the
screening stage and his allegations that this precedent improperly "protects" Defendant
Mahlman from her alleged role in the alleged pattern of corruption regarding SOCF's
grievance procedures. See, e.g., (Doc. 33 PageID 451) ("Plaintiff has legitimate concerns
about the precedent being used to dismiss sections of his claim that also protect Inspector
Mahlman from litigation."). Plaintiff’s general policy arguments provide no ground for this
court to ignore binding Sixth Circuit precedent. To extent that he disagrees with the legal
determinations made by the Court in this case regarding the dismissal of his claims
regarding prison grievance procedures at the screening stage under current precedent,
he is free to raise such disagreements in whatever avenues for appeal that he may have.
Cf. Breckenridge v. Turner, No. CIV.A. 2:07-CV-988, 2008 WL 3200667, at *1 (S.D. Ohio
Aug. 6, 2008), report and recommendation adopted, No. 2:07-CV-988, 2008 WL 4114543
(S.D. Ohio Aug. 28, 2008) ("Plaintiff argues that the exhaustion requirement of the PLRA
is unconstitutional. However, the United States Supreme Court has upheld the exhaustion
requirement of the PLRA on more than one occasion." (first citing Jones v. Bock, 549 U.S.
199 (2007); then citing Woodford v. Ngo, 548 U.S. 81 (2006); and then citing Porter v.
Nussle, 534 U.S. 516 (2002))).

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Plaintiff also states that, "[i]n this case there is a bit more than just a break down
in [Defendant Mahlman]'s office services, and "[i]n light of [Defendant Mahlman]'s recent
retaliation against Plaintiff and new evidence," "Plaintiff believes there to be union
interference and an element of retaliation within portions of dismissed claims," and
requests "an opportunity to amend and add retaliation to his [Amended] Complaint." (Id.
PageID 455-56). However, "[a] prisoner cannot materially alter his complaint in his
objections to a magistrate judge's screening report; he must seek leave to amend the
complaint." Frazier v. Kisor, No. 19-12419, 2021 WL 3417920, at *4 (E.D. Mich. Aug. 5,
2021); cf. Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 483-84 (6th Cir. 2020) ("If
plaintiffs believe that they need to supplement their complaint . . ., they have a readily
available tool: a motion to amend the complaint under Rule 15 . . . Plaintiffs cannot . . .
ask the court to consider new allegations (or evidence) not contained in the complaint.");
see FED. R. CIV. P. 15(a).
b. Second R&R
In the Second R&R, the Magistrate Judge recommends that the Court deny the
following motions, each filed by Plaintiff: Motion for Default Judgment (Doc. 28); Brief and
Requests Due to Retaliation and Interference and Invasion of Privacy of Privileged Legal
Mail (Doc. 34); Motion Inquiry to Judge Barrett, and Brief and Requests (Doc. 35); and
Motion Inquiry and Request for Court Documents (Doc. 37).
Plaintiff first objects to the recommended denial of his Motion for Default Judgment.
Compare (Doc. 42 PageID 531-32), with (Doc. 57 PageID 632-65); see (Doc. 28). The
Court agrees with the Magistrate Judge that Plaintiff's Motion for Default Judgment is
without merit and should be denied in light of the December 8, 2021 Notation Order

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granting the Motion for an Extension of Time to Answer or Otherwise Plead, until after a
ruling on Plaintiff's objections to the First R&R, filed by Defendants Erdos, ChambersSmith, Goodwin, Ross, and Conley.
Even if the Court had not granted Defendants' Motion for an Extension of Time,
the Court notes that Section 1997e(g)(2) of the Prison Litigation Reform Act "has been
interpreted to mean that an incarcerated plaintiff is not entitled to default judgment against
defendants that have been properly served or waived service and have not filed an
answer or other response." Vontz v. Monroe, No. 2:19-CV-12735, 2021 WL 5629046, at
*1 (E.D. Mich. June 22, 2021), report and recommendation adopted, No. 2:19-CV-12735TGB-KGA, 2021 WL 5587339 (E.D. Mich. Nov. 30, 2021) (citing Macomb Cty. Jail,
No. 2:10-CV-11242-DT, 2011 WL 7665794, at *1 (E.D. Mich. Sept. 21, 2011) (collecting
cases), report and recommendation adopted, 2012 WL 1230271 (E.D. Mich. Apr. 12,
2012)); accord Butler v. Pickell, No. 1:21-CV-10817, 2022 WL 2835833, at *2 (E.D. Mich.
July 20, 2022) (explaining that prisoners are essentially foreclosed from obtaining a
default judgment under 42 U.S.C. § 1997e(g)(1)).
Plaintiff next objects to the recommended denial of the Notice of Constitutional
Challenge under Rule 5.1(a) of the Federal Rules of Civil Procedure. Compare (Doc. 42
PageID 534-35), with (Doc. 57 PageID 632-65); see (Doc. 29). "[T]he purpose of Rule 5.1
is to ensure that the United States has the opportunity to intervene in any case in which
a party files a pleading or other motion that calls into question the constitutionality of a
federal statute." Young v. Fox, No. CV-20-65-H-CCL, 2020 WL 6162201, at *3 (D. Mont.
Oct. 21, 2020). Plaintiff contends that the document that calls into question the
constitutionality of the Prison Litigation Reform Act's exhaustion requirement is his

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objections to the First R&R. (Doc. 29 PageID 337). However, for the reasons stated
above, the Court will overrule that document and Plaintiff's arguments therein. And, under
Rule 5.1(b), certification is only required "if the Court determines that it should consider
Plaintiff's constitutional challenge." Young, 2020 WL 6162201, at *3. As the Court will not
consider Plaintiff's constitutional challenge found in his first set of objections to the First
R&R, certification is not required.
Plaintiff then objections to the recommended denial of the Brief and Requests Due
to Retaliation and Interference and Invasion of Privacy of Privileged Legal Mail. Compare
(Doc. 42 PageID 532), with (Doc. 57 PageID 636); see (Doc. 34). However, Plaintiff's
objections ignore the Magistrate Judge's reasoning found in the Second R&R and,
instead, simply disagree with the fact that he had to file two lawsuits. The Court is not
persuaded.
III.

CONCLUSION
For the foregoing reasons, and after the respective proper review under Rule 72,

it is hereby ORDERED that the Court OVERRULES Plaintiff's Objections (Docs. 30, 33,
57) and ADOPTS IN FULL both the September 7, 2021 R&R (Doc. 15) and June 14,
2022 R&R (Doc. 42). Consistent with the recommendations in each R&R, it is further
ORDERED that:
•

the Amended Complaint (Doc. 13) is DISMISSED with prejudice, pursuant to
28 U.S.C. § 1915A(b)(1), with the exception of Plaintiff's Count Two against
Defendants Chambers-Smith, in her official capacity, Erdos, in his official capacity,
and Goodwin, in her individual capacity, and Plaintiff's Count Three against
Defendants Conley and Ross, in their individual capacities;

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•

the Clerk of Court SHALL update this matter's docket sheet to reflect that
Defendant Erdos is sued in his official capacity only;

•

Defendants Erdos, Chambers-Smith, Goodwin, Conley, and Ross SHALL file their
Answers within twenty-one (21) days of the date of the issuance of this Order;

•

Plaintiff's Motion for Default Judgment (Doc. 28); Brief and Requests Due to
Retaliation and Interference and Invasion of Privacy of Privileged Legal Mail
(Doc. 34); Motion Inquiry to Judge Barrett, and Brief and Requests (Doc. 35); and
Motion Inquiry and Request for Court Documents (Doc. 37) are each DENIED; and

•

the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a), that an appeal of this
Order would not be taken in good faith and thus DENIES Plaintiff leave to appeal
in forma pauperis.

IT IS SO ORDERED.
_/s Michael R. Barrett________
Michael R. Barrett, Judge
United States District Court

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