Whiteside v. Collins et al

Filing 164

OPINION AND ORDER denying Motion for order to show cause 153 and Motion to Strike [ 159]. Signed by Magistrate Judge Norah McCann King on 5/18/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NORMAN V. WHITESIDE,
Plaintiff,
vs.

Civil Action 2:08-CV-875
Judge Graham
Magistrate Judge King

TERRY COLLINS, et al.,
Defendants.

OPINION AND ORDER
The only claims remaining in this action are those of plaintiff
Norman V. Whiteside, who is currently incarcerated at the Warren
Correctional Institution (“WCI”), against officials and employees of
the Madison Correctional Institution (“MaCI”) and the Ohio Department
of Rehabilitation and Correction (“ODRC”), alleging that certain
prison rules, i.e., Ohio. Admin. Code. § 5120-9-06(C)(28), (50) and
(51), are vague and lack fair notice and therefore violate
constitutional notions of due process.
No. 66.

See Opinion and Order, Doc.

This matter is before the Court on plaintiff’s Motion for

Order to Show Cause, Doc. No. 153 (“Motion for Order to Show Cause”)
and Defendants Lambert, Williangham, Terrill, Perry, Stanley, Gossard,
Collins, Clark, Lazaroff, Haskins, Workman’s Motion to Strike
Plaintiff’s Reply and/or to File a Response Instanter, Doc. No. 159
(“Motion to Strike”).
Plaintiff represents that he has attempted to obtain

“declarations and affidavits” in order to oppose defendants’ motion
for summary judgment and to support his own motion for summary
judgment that he intends to file.
1.

Motion for Order to Show Cause, p.

According to plaintiff, defendants “and or their agents” at Warren

Correctional Institution (“WCI”) “are unlawfully withholding
Plaintiff’s mail which contains inter alia, declarations he needs to
effectively prosecute his case.”

Id. (quoting Wilson v. Lane, No.

95-4185, 1996 U.S. App. LEXIS 11631, at *2-3 (6th Cir. April 17, 1996)
(“The confiscation of Wilson’s mail was based on a prison policy that
forbade prisoners from possessing the legal documents of other inmates
in their cells. . . . [However,] there is no reasonable expectation
that Wilson’s mail will be confiscated based on the disputed policy in
the future, as it has been rescinded.”)).

In support of this

position, plaintiff asserts that he sent a declaration to another
inmate, Michael Johnson, in December 2011.

Id.; Exhibit A (unsigned

declaration for Michael Johnson’s signature that refers to the instant
litigation), attached thereto (“the Johnson declaration”).

Plaintiff

“presumes that Johnson signed and returned” the declaration because
WCI issued a notice to plaintiff dated January 4, 2012, advising that
plaintiff received an unauthorized item from Michael Johnson.

Motion

for Order to Show Cause, p. 1; Exhibit B (describing the contraband as
“another inmates [sic] legal paperwork” and advising that plaintiff is
“not authorized to do other inmates [sic] legal work”) (emphasis in
original), attached thereto.

Plaintiff seeks an order requiring that

defendants “and/or their [WCI] agents” show cause why they are
interfering with plaintiff’s access to the Court “in contravention of
what was held in” Wilson.

Id.
2

In response, defendants deny that they have interfered with
plaintiff’s access to the courts, contending that plaintiff
incorrectly presumed that defendants seized a declaration signed by
Michael Johnson.

Defendants’ Memorandum in Opposition to Plaintiff’s

Motion for Order to Show Cause, Doc. No. 155, pp. 1-2 (“Memo. in
Opp.”).

In support of their position, defendants offer the sworn

declaration of Marty E. Jones, a lieutenant and supervisor of the mail
room at WCI.

Declaration of Marty E. Jones, ¶ 2 (“Jones

Declaration”), attached as Exhibit A to Memo. in Opp.

Lieutenant

Jones avers that on January 4, 2012, Mr. Johnson sent plaintiff a
letter seeking legal advice.
attached thereto).

Id. at ¶ 4 (citing to Exhibit A-1,

Lieutenant Jones further avers that the Johnson

declaration attached as Exhibit A to the Motion for Order to Show
Cause “was not part of the letter seized on January 4, 2012.”

Id.1

On

January 4, 2012, plaintiff was sent a notice of an unauthorized item
received, Exhibit A-1.

Id.; Exhibit A-2, attached thereto.

Plaintiff

had ten days to respond to the notice and could have requested that
the material be destroyed or could have asked that the material be
sent to another location.

Jones Declaration, ¶ 5.

In addition, if

plaintiff believed that the material received was not unauthorized, he
could have filed a grievance.

Id.

According to Lieutenant Jones,

plaintiff “did not respond to the notice in any manner” even though
plaintiff knew of the appropriate procedures to follow because he had
previously utilized them.

Id. at ¶¶ 5-6.

1

However, on March 28, 2012, plaintiff’s cell was searched because he
“was suspected of having a large amount of unauthorized materials” and
unsigned copy of the Johnson declaration was removed from plaintiff’s cell.
Id. ¶¶ 4, 9.

3

Plaintiff, in reply, declares under penalty of perjury that WCI
staff or “Defendants’ agents” retaliated against plaintiff because
they were angry at plaintiff after the Court issued Order, Doc. No.
154 (directing defendants to respond, if at all, to the Motion for
Order by a certain date).

Plaintiff’s Reply to Defendants’ Document

#155 Per Order (Document 154), Doc. No. 158 (“Reply”).

More

specifically, plaintiff avers that WCI staff retaliated against him by
searching his cell on March 28, 2012 after the Order was issued,
confiscating certain materials, charging him with violating Rule 50
and placing him in isolation.

Reply, pp. 1-3.

Plaintiff also insists

that the intercepted mail, Exhibit A-1, is not a letter from Michael
Johnson, but a letter written by inmate Michael Gover, which does not
seek legal advice from plaintiff.

Id. at 3-4.

According to

plaintiff, “Defendants’ agents have been, and still are, unlawfully
withholding legal materials” and have blocked plaintiff’s “access to
legal materials he needs to formulate his summary judgment motion[.]”
Id. at 5.

In addition to seeking a show cause order, plaintiff asks

this Court to issue an order staying his “unlawful cell isolation”
until the Court rules on the merits of his remaining claims.

Id.

Defendants have moved to strike the Reply and/or for leave to
file a response instanter, contending that plaintiff’s Reply is
actually a motion for injunctive relief.

In responding to the Motion

to Strike, plaintiff withdraws his request for a stay.

Plaintiff’s

Memorandum Opposing Defendants’ Motion to Strike Plaintiff’s Reply
and/or to File a Response Instanter (Doc. #159), Doc. No. 161 (“Memo.
in Opp. to Motion to Strike”), pp. 1, 4.

Plaintiff also “announces

his intent to file a motion for summary judgment and merely states his
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need to have affidavits and other evidentiary materials which have
been withheld by Defendants’ agents. . . . Plaintiff simply wants the
documents he is allowed by law to have. . . so that Plaintiff can file
a cross motion for summary judgment.”

Id. at 4.

In light of

plaintiff’s withdrawal of his request for injunctive relief as to his
cell isolation, the Motion to Strike is moot.
Plaintiff alleges that defendants and/or WCI staff have withheld
a declaration signed by inmate Michael Johnson.

However, defendants

have offered sworn testimony that the Johnson declaration was not
withheld from plaintiff.

Jones Declaration, ¶ 4.

While plaintiff

disputes that the letter offered by defendants was written by Michael
Johnson and that it requested legal services for payment to plaintiff,
Exhibit A-1 attached to Jones Declaration, he offers no evidence
establishing that defendants or WCI staff are withholding a
declaration signed by Mr. Johnson.

Therefore, as to the Johnson

declaration, the Motion for Order to Show Cause is without merit.
Other than the Johnson declaration, plaintiff has not
specifically identified any other documents necessary to this
litigation that have allegedly been withheld by defendants and/or
their “agents” at WCI.

Instead, he generally refers to declarations,

affidavits and “legal materials” that he needs to oppose defendants’
motion for summary judgment and to file his own motion for summary
judgment.

Although the Court has no basis for ordering WCI

individuals who are not parties in this case to produce withheld
documents and/or to explain the basis for withholding any documents,
the allegation that defendants may be withholding documents necessary
to summary judgment affects the disposition and progress of this case.
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Therefore, within seven (7) days of the date of this Opinion and
Order, plaintiff is ORDERED to identify under penalty of perjury2 as
specifically as possible, i.e., by description, date, author, etc.,
any and all documents that are necessary to oppose defendants’ motion
for summary judgment and/or necessary to file his own motion for
summary judgment that are being withheld by defendants.

Plaintiff is

ADVISED that his declaration or affidavit must explain why the
identified documents are material to summary judgment, i.e., what
material facts these documents contain.

Plaintiff is FURTHER ADVISED

that conclusory descriptions that do not permit this Court to identify
a particular document and/or to understand why that document is
necessary to plaintiff’s opposition to defendants’ motion for summary
judgment and/or to the filing of his own motion for summary judgment
will not be well-received.

Within five (5) days of the date that

plaintiff has identified such documents, if any, the named defendants
are ORDERED to respond, under penalty of perjury, indicating whether
or not the named defendants have withheld documents identified by
plaintiff and, if so, to explain the basis for withholding them.
Finally, the Motion for Order to Show Cause appears to also seek
an order as to documents and issues unrelated to this litigation,
i.e., mail/legal materials/college homework/art supplies/individuals
who are not parties to this litigation/interpretation and/or
confirmation of plaintiff’s interpretation of case authority, etc.
Such documents appear to be unnecessary to plaintiff’s ability to

2

Plaintiff may submit either an affidavit witnessed by a notary public
or a declaration executed in conformity with 28 U.S.C. § 1746.

6

respond to defendants’ motion for summary judgment or to file his own
motion for summary judgment in this case.

Separate and independent

claims such as these are not properly raised for the first time in the
motion presently before the Court. Accordingly, plaintiff’s request
for an order as to documents, issues, individuals and claims unrelated
to defendants’ motion for summary judgment or to the filing of
plaintiff’s own motion for summary judgment is without merit.
WHEREUPON, the Defendants Lambert, Williangham, Terrill, Perry,
Stanley, Gossard, Collins, Clark, Lazaroff, Haskins, Workman’s Motion
to Strike Plaintiff’s Reply and/or to File a Response Instanter, Doc.
No. 159, is DENIED as moot. Plaintiff’s Motion for Order to Show
Cause, Doc. No. 153, is DENIED as to a declaration signed by inmate
Michael Johnson and as to documents, individuals and issues unrelated
to defendants’ motion for summary judgment or to the filing of
plaintiff’s own motion for summary judgment.

To the extent that

plaintiff seeks documents necessary to his response to defendants’
motion for summary judgment or to the filing of his own motion for
summary judgment, plaintiff must supplement his request consistent
with the foregoing.

May 18, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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