Tolliver v. Collins et al

Filing 139

ORDER denying 117 Motion for Leave to File Amended Complaint and to Appoint Counsel; denying 130 Motion to Stay and Status Conference. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/14/2011. (sr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN A. TOLLIVER, et al.,
Plaintiffs,
Civil Action 2:08-cv-722
Judge Edmund A. Sargus, Jr.
Magistrate Judge E.A. Preston Deavers

v.

TERRY COLLINS, Director
O.D.R.C., et al.,
Defendants.

ORDER
This is a civil rights action in which Plaintiff, Kevin A. Tolliver, a state-prison inmate
proceeding without the assistance of counsel, alleges that Defendants1 exposed him, against his
will, to secondhand smoke in violation of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. This matter is before the Court for consideration
Plaintiff’s Motion for Leave to Amend Complaint and Appoint Counsel (ECF No. 117),
Plaintiff’s Motion Requesting Stay of Proceedings and Status Conference (ECF No. 130), and
Defendants’ Memoranda in Opposition (ECF Nos. 128 and 132). For the reasons that follow,
Plaintiff’s Motions are DENIED.

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Plaintiff Tolliver names in his Complaint the following Defendants in their individual
and official capacities: Terry Collins, Director of Ohio Department of Rehabilitation and
Correction (“ODRC”); Michael Sheets, Warden of Ross Correctional Institute (“RCI”); Charlene
Payne, RCI’s Unit Manager for Inmate Housing Facility Number Seven, which was a nonsmoking facility at the time this action was filed; and unnamed corrections officers and staff
members. (Tolliver Compl. ¶¶ 5, 13–17, 32.)

I.

BACKGROUND

More than three years ago, on August 6, 2008, Plaintiff filed the instant action against
Defendants based on his alleged involuntary exposure to high levels of environmental tobacco
smoke (“ETS”). On August 6, 2010, the Court denied the parties’ cross motions for summary
judgment. Plaintiff now seeks appointment of counsel and to amend his Complaint to add
additional claims and defendants. He did not attach a proposed amended complaint. He did,
however, specify that his amended complaint would include claims against unidentified
individuals for their failure to diagnose and treat him, as well as retaliation claims for complaints
he has filed. Plaintiff also asks this Court to hold a status conference and to stay the case until
such time the conference is held. Plaintiff asserts that a conference is necessary because
Defendants transferred him to a location where it is more difficult for visitations to take place
with his daughters in retaliation for his filing of grievances and this action.
Defendants oppose Plaintiff’s Motions. Defendants assert that permitting Plaintiff to
amend at this late stage “would unreasonably delay and unduly prejudice them in their
opportunity to file dispositive motions . . . .” (Defs.’ Mem. in Opp. 2, ECF No. 128.)
Defendants add that Plaintiff’s proposed claims are only “loosley connected” and would “require
evidence on an entirely different set of facts.” (Id.) Defendants further maintain that denial is
appropriate because his proposed claims are not plausible and would not survive a motion to
dismiss. Defendants oppose Plaintiff’s request for a status conference and stay, asserting that his
transfer did not constitute retaliatory conduct.
II. PLAINTIFF’S MOTION TO APPOINT COUNSEL
At this juncture, Plaintiff’s Motion to Appoint Counsel is DENIED WITHOUT

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PREJUDICE to refiling following the disposition of dispositive motions, if any. A plaintiff
does not have a constitutional right to counsel in a civil matter. Lavado v. Keohane, 992 F.2d
601, 605–06 (6th Cir. 1993) (citation omitted). Although the Court has the statutory authority to
appoint counsel in civil cases under 28 U.S.C. § 1915(e), the exercise of this authority is limited
to extraordinary situations. Id. at 606. The Court has evaluated whether such exceptional
circumstances exist in this case, and has determined that the appointment of counsel is not
warranted at this juncture.
III.

PLAINTIFF’S MOTION FOR A STAY AND A CONFERENCE

Plaintiff’s Motion Requesting Stay of Proceedings and Status Conference is DENIED.
(ECF No. 130.) Plaintiff’s transfer to another institution does not compel this Court to stay the
case and schedule a conference. A plaintiff has no liberty interest in being confined to any
particular correctional facility. Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (“[A]n inmate
has no justifiable expectation that he will be incarcerated in any particular prison . . . .”);
Meachum v. Fano, 427 U.S. 215, 224 (1976) (“The Constitution does not . . . guarantee that the
convicted prisoner will be placed in any particular prison . . . .”). Further, such a transfer,
without the existence of foreseeable consequences inhibiting a plaintiff’s ability to access courts,
does not qualify as an adverse action sufficient to sustain a First Amendment retaliation claim.
See Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (setting forth the elements of a First
Amendment retaliation claim, including the requirement that there be an adverse action), and
Siggers–El v. Barlow, 412 F.3d 693, 701–02 (6th Cir. 2005); Smith v. Yarrow, 78 F. App’x 529,
543 (6th Cir. 2003) (quoting Mandela v. Campbell, No. 97-5712, 1999 WL 357825, at *3 (6th
Cir. May 26, 1999)) (“We have repeatedly held that transfer from one prison to another prison

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‘cannot rise to the level of an “adverse action” because it would not deter a person of ordinary
firmness from the exercise of his First Amendment rights.’”).
IV.

PLAINTIFF’S MOTION TO AMEND

The Court exercises its discretion to DENY Plaintiff’s Motion to Amend. In considering
a motion to amend, the Court generally will “freely give leave when justice so requires” pursuant
to Federal Rule of Civil Procedure 15(a). “Nevertheless, leave to amend ‘should be denied if the
amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to
the opposing party, or would be futile.’” Carson v. U.S. Office of Special Counsel, 633 F.3d
487, 495 (6th Cir. 2011) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995)); Seals v.
Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008) (citing Wade v. Knoxville Utils. Bd., 259
F.3d 452, 459 (6th Cir. 2001)) (“Factors that may affect [a Rule 15(a)] determination include
undue delay in filing, lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendment, undue prejudice to the opposing
party, and futility of the amendment.”).
In this case, allowing Plaintiff to amend his Complaint at this late stage to assert entirely
new, unrelated, or only tangentially-related claims against new defendants would require the
parties to engage in additional discovery, causing unreasonable delay and undue prejudice to
Defendants. Plaintiff filed his Complaint more than three years ago. Further, Plaintiff’s motion
is not sufficiently particular as required by Federal Rule of Civil Procedure 7(b). Plaintiff has
offered no explanation or justification for his delay in seeking to amend his Complaint. See
Wade v. Knoxville Utilities Bd., 259 F.3d 452, 459 (6th Cir. 2001) (citing Duggins v. Steak ‘N
Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)) (“When amendment is sought at a late stage in

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the litigation, there is an increased burden to show justification for failing to move earlier.”) Nor
did he attach a proposed amended complaint. See Patterson v. Novartis Pharm. Corp., No. 105886, 2011 WL 3701884, at *3–4 (6th Cir. Aug. 23, 2011) (concluding that the district court did
not abuse its discretion in dying the plaintiff’s motion to amend his complaint where the request
for leave was not sufficiently particular because the plaintiff had not included a proposed
amended complaint or set forth the grounds for the amendment).
V.

DISPOSITION

For the reasons set forth above, Plaintiff’s Motion for Leave to Amend Complaint and
Appoint Counsel (ECF No. 117) and his Motion Requesting Stay of Proceedings and Status
Conference (ECF No. 130) are DENIED.
IT IS SO ORDERED.

Date: October 14, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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