Whiteside v. Collins et al

Filing 196

OPINION AND ORDER granting 157 Motion for Summary Judgment; denying 182 Motion for Summary Judgment; denying 188 Motion to Strike ; granting 194 Motion for Extension of Time. Signed by Judge James L Graham on 9/25/12. (ds)

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, a state inmate proceeding without the assistance
of counsel, against defendants associated with the Madison
Correctional Institution (“MaCI”) and the Ohio Department of
Rehabilitation and Correction (“ODRC”), alleging that Ohio
Administrative Code (“O.A.C.”) § 5120-9-06, Rules (C)(28), (50) and
(51), are vague and lack fair notice.

Opinion and Order, Doc. No. 66.

This matter is before the Court on Defendants’ (Lambert, Willingham,
Terrill, Perry, Stanley, Gossard, Collins, Clark, Lazaroff, Haskins,
Workman) Motion for Summary Judgment, Doc. No. 157 (“Defendants’
Motion for Summary Judgment”), Plaintiff’s Summary Judgment Motion,
Doc. No. 182 (“Plaintiff’s Motion for Summary Judgment”), Plaintiff’s
Motion to Strike Defendants’ Reply (Doc #184), Doc. No. 188
(“Plaintiff’s Motion to Strike”), and Plaintiff’s Motion for
Extension, Doc. No. 194.

I.

ALLEGED DEFICIENCIES IN DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In opposing Defendants’ Motion for Summary Judgment, plaintiff

first argues that defendants’ motion is “Not Consistent With Court’s
Instructions/Order[,]” that the declarations attached thereto are not
“valid” and that defendants’ motion should therefore be denied.
Plaintiff’s Memorandum Opposing Defendants’ Summary Judgment Motion,
Doc. No. 183 (“Plaintiff’s Memo. in Opp.”), pp. 1-2.
By way of background, on March 12, 2012, the United States
Magistrate Judge detailed the lengthy procedural history of this case,
including defendants’ multiple mistakes and their failure to track
certain case deadlines.
148, p. 9.

Order and Report and Recommendation, Doc. No.

Stating that “the Court will not tolerate defendants’

continued inattention to the litigation[,]” the Magistrate Judge
ordered certain defendants to respond to plaintiff’s discovery
requests “to enable him [plaintiff] to respond to a motion for summary
judgment.”

Id. at 9.

Anticipating those forthcoming discovery

responses, the Magistrate Judge recommended that defendants’ first
motion for summary judgment be denied without prejudice to renewal:
Because this Court has provided additional time for limited
discovery, it is RECOMMENDED that the Motion for Summary
Judgment be DENIED without prejudice to refiling within 30
days of the date of this Order and Report and
Recommendation. Defendants are REMINDED that any renewed
motion for summary judgment must clearly articulate
legal arguments and provide detailed evidentiary support
rather than conclusory arguments based on boilerplate
language.
Id. at p. 10 (emphasis in original).

After detailing the requirements

under Fed. R. Civ. P. 56(d), the Magistrate Judge also noted
plaintiff’s failures to comply with that rule.

2

Id. at 10-11.

The

Magistrate Judge went on to warn plaintiff that the Court would not
overlook such failures in the future:
Notwithstanding this Court’s prior lenience related to this
pro se plaintiff’s failure to comply with Rule 56(d), see,
e.g., Opinion and Order, Doc. No. 106, plaintiff is
specifically ADVISED that he must comply with that rule, if
applicable, in all future filings. Stated differently, the
Court will no longer overlook any failure on plaintiff’s
part to comply with the requirements of Rule 56(d) should
plaintiff request any future extension of time to respond to
a renewed motion for summary judgment based on a need for
additional discovery.
Id. at 11 (emphasis in original).

This Order and Report and

Recommendation was later adopted and affirmed without objection.
Order, Doc. No. 156.
Defendants thereafter filed Defendants’ Motion for Summary
Judgment.

The initial supporting memorandum is identical to

defendants’ earlier summary judgment motion, which the Court denied
without prejudice to renewal.
Judgment, p. 1 n.1.

Defendants’ Motion for Summary

Plaintiff then moved under Rule 56(d) for

additional time to conduct discovery in which to respond to
defendants’ renewed motion.
Court denied that motion.

Doc. No. 160.

On June 22, 2012, the

Opinion and Order, Doc. No. 173. Although

plaintiff failed, once again, to comply with Rule 56(d), (because his
supporting declaration was not dated1), the Court went on to analyze
and explain why plaintiff’s motion nevertheless failed on the merits.
Id.
Now, plaintiff takes the position that the Order and Report and

1

The Court commented that, “in light of the Court’s specific warning and
considering plaintiff’s extensive litigation experience, it is difficult to
conclude that plaintiff’s failure to comply with the express requirements of
Rule 56(d) was inadvertent.” Id. at 4 n.4.

3

Recommendation, Doc. No. 148, “suggests” that defendants’ first motion
for summary judgment was deficient and that, by re-filing that motion,
defendants “simply ignored what Your Honor requested.”
Memo. in Opp., p. 1.

Plaintiff’s

Plaintiff specifically argues that the more

recently filed Defendants’ Motion for Summary Judgment “contains no
valid supporting affidavits.”

Id.

Because the declarations attached

to defendants’ current motion for summary judgment bear a date of
2011, i.e., well before the Court’s Order and Report and
Recommendation, Doc. No. 148, plaintiff argues that the “declarations
are neither original, nor valid, [and] they cannot lawfully be used to
support” defendants’ current motion.

Plaintiff’s Memo. in Opp., p. 2.

It is unthinkable that the same court [that warned it would
not overlook plaintiff’s failure to comply with Rule 56(d)]
will now allow defendants to violate Rule 56 by not
attaching valid, original affidavits/declarations to their
current motion, especially when the copies of the
affidavits/declarations attached come from a motion that has
already been denied by the Court. . . .[Providing defendants
additional time to correct this alleged deficiency] would go
against the court’s orders wherein the court stated it would
no longer overlook procedural violations from any party.
Plaintiff’s Declaration in Opposition to Defendants’ Motion for
Summary Judgment (“Plaintiff’s First Declaration”), ¶ 2 (emphasis in
original), attached to Plaintiff’s Memo. in Opp.

See also Plaintiff’s

Memo. in Opp., p. 2 (arguing that filing the same motion for summary
judgment “is no different than Plaintiff failing to put the date
executed on his declaration” that was filed in support of a prior Rule
56(d) motion, which was denied by the Court).
Plaintiff’s arguments are not well taken.

The Court denied

defendants’ first motion for summary judgment without prejudice to
renewal only because the Court permitted plaintiff to conduct

4

additional discovery and not because of a substantive deficiency or
failure to comply with Rule 56.

Stated differently, the Court did not

review and reject defendants’ first motion for summary judgment on the
merits, but rather denied the motion without prejudice to re-filing in
order to provide plaintiff additional time and information to respond
to the substance of the motion.

See Order and Report and

Recommendation, Doc. No. 148, pp. 9-10.

Although the Court reminded

defendants that a renewed motion “must clearly articulate legal
arguments and provide detailed evidentiary support rather than
conclusory arguments based on boilerplate language[,]” id. at 10, the
Court did not prohibit defendants from later filing a motion that
presented the same substantive arguments.

Id. at 10-12; Order, Doc.

No. 156.
Plaintiff also argues that the declarations attached to
Defendants’ Motion for Summary Judgment “cannot lawfully be used to
support” defendants’ motion.

Plaintiff’s Memo. in Opp., p. 2.

In so

contending, plaintiff asserts that the declarations are not “valid”
because the same declarations were filed in connection with the first
motion for summary judgment.

Id.; Plaintiff’s First Declaration, ¶ 2.

However, as discussed supra, the Court did not review and reject the
substance of the first motion for summary judgment or of the
supporting declarations, nor did the Court otherwise forbid defendants
from refiling the same motion and evidence.

Indeed, the Court finds

nothing “invalid” or “unlawful” about defendants’ supporting
declarations simply because they were dated prior to this Court’s
Order and Report and Recommendation, Doc. No. 148.
Finally, plaintiff takes the position that defendants’ renewed
5

motion for summary judgment is on a par with plaintiff’s past failure
to comply with Rule 56(d).

This Court again disagrees.

The Court

expressly found that plaintiff’s Rule 56(d) motion did not comply with
the requirements of that rule and explicitly warned plaintiff that it
would “no longer overlook any failure on plaintiff’s part to comply
with the requirements of Rule 56(d).”
Recommendation, pp. 10-11.

Order and Report and

In other words, although the Court did not

prohibit defendants from filing a motion for summary judgment that
raised the same substantive arguments, the Court expressly advised
plaintiff that his prior motions did not comply with Rule 56(d)
requirements and warned plaintiff that future motions must comply with
the requirements of the rule.

Plaintiff’s attempt to recast the Order

and Report and Recommendation, and therefore bar consideration of the
evidence attached to Defendants’ Motion for Summary Judgment, is
unpersuasive.

Accordingly, this Court must reject plaintiff’s request

to deny Defendants’ Motion for Summary Judgment merely because it
presents the same substantive arguments as did defendants’ first
motion for summary judgment, Doc. No. 117.
II.

PLAINTIFF’S MOTION TO STRIKE
Plaintiff also asks the Court to strike Defendants’ (Lambert,

Willingham, Terrill, Perry, Stanley, Gossard, Collins, Clark,
Lazaroff, Haskins, Workman) Reply to Plaintiffs’ Memorandum Opposing
Defendants’ Summary Judgment, Doc. No. 184 (“Defendants’ Reply”).
Plaintiff’s Motion to Strike.

The Court previously ordered that

defendants’ opposition to this motion, if any, be filed no later than
September 5, 2012, and that plaintiff’s reply, if any, be filed no

6

later than September 12, 2012.

Order, Doc. No. 190.

Although

defendants’ opposition was timely filed, Doc. No. 192, plaintiff did
not file a reply memorandum by September 12, 2012.

However,

plaintiff’s subsequent motion for an extension of time, seeking leave
to file his reply instanter, Doc. No. 194, is GRANTED.

This matter is

now fully briefed and ripe for resolution.
Plaintiff asks this Court to strike Defendants’ Reply because
defendants raised for the first time in that memorandum the argument
that plaintiff “‘must demonstrate that a liberty interest was violated
in order to demonstrate there was a constitutional violation.’”
Plaintiff’s Motion to Strike, p. 1 (quoting Defendants’ Reply, p. 1).
In opposing the motion to strike, defendants note that this argument,
and their reference to Sandin v. Conner, 515 U.S. 472, 486 (1995),
merely responds to plaintiff’s assertion, made in Plaintiff’s Memo. in
Opp., that defendants violated plaintiff’s “‘clearly established
constitutional rights.’” Doc. No. 192, pp. 1-2 (quoting Plaintiff’s
Memo. in Opp., p. 1).

Plaintiff replies that, by raising for the

first time in their reply an argument based on Sandin, defendants have
effectively waived the argument. Doc. 193, p.

Plaintiff therefore

asks that this Court strike Defendants’ Reply in support of their
motion for summary judgment pursuant to Fed. R. Civ. P. 12(f).

Id. at

2.
This Court agrees that defendants’ reply properly addresses an
argument presented by plaintiff in his memorandum in opposition to the
motion for summary judgment.

Moreover, although defendants’ opening

memorandum does not specifically refer to Sandin, the memorandum does

7

claim the protection of qualified immunity and argues that defendants
have not violated a clearly established right.

Defendants’ Motion for

Summary Judgment, p. 8.
In any event, plaintiff has, through his Motion to Strike, taken
the opportunity to address the challenged argument, id. at 1-2; Doc.
No. 193, and even addresses, once again, matters raised from the
outset of the motion for summary judgment.

Plaintiff even attaches

new evidentiary materials to his Motion to Strike.

Under all these

circumstances, Plaintiff’s Motion to Strike is DENIED.

The Court

will, however, consider plaintiff’s substantive arguments and evidence
raised in his Motion to Strike and supporting reply memorandum, Doc.
No. 193, in its resolution of Defendants’ Motion for Summary Judgment.
III. FACTUAL BACKGROUND
A.

Procedures Governing Inmate Rules of Conduct, Conduct
Reports and Disciplinary Proceedings

In his remaining claims, plaintiff alleges that defendants
violated his due process rights when they charged him, while he was
incarcerated at MaCI, with violation of O.A.C. § 5120-9-06, Rules
(C)(28), (C)(50) and (C)(51), because these rules lack “fair notice.”2
Section 5120-9-06 of the Ohio Administrative Code sets forth inmate
rules of conduct that impact the security, safety or operation of ODRC
institutions:
The disciplinary violations defined by this rule shall
address acts that constitute an immediate and direct threat

2

Plaintiff does not expressly allege in the Verified Complaint that
O.A.C. § 5120-9-06(C)(51) lacks fair notice, see Verified Complaint, ¶¶ A, 24,
26 and 32; it is only in later filings that plaintiff does so. See Doc. No.
29, pp. 11-12. The Court liberally construed the Verified Complaint to
include a claim in connection with Rule (C)(51). Order and Report and
Recommendation, Doc. No. 54, p. 8 n.9.

8

to the security or orderly operation of the institution, or
to the safety of its staff, visitors and inmates (including
the inmate who has violated the rule,) as well as other
violations of institutional or departmental rules and
regulations.
O.A.C. § 5120-9-06(A) (2006).3

In particular, Section 5120-9-06

provides in pertinent part:
(C) Rule violations. . .
*

*

*

*

(28) Forging, possessing, or presenting forged or
counterfeit documents.
*

*

*

*

(50) Possession of property of another.
(51) Possession of contraband, including any article
knowingly possessed which has been altered or for
which permission has not been given.
O.A.C. § 5120-9-06(C) (2006) (collectively, “Rules of Conduct,” and
individually, “Rule 28,” “Rule 50" and “Rule 51," respectively).
Section 5120-9-06 also specifies when an inmate may be found guilty of
violating a rule of conduct:
No inmate shall be found guilty of a rule of conduct without
some evidence of the commission of an act and the intent to
commit the act.
(1) The act must be beyond mere preparation and be
sufficiently performed to constitute a substantial
risk of its being performed.
(2) “Intent” may be express, or inferred from the
facts and circumstances of the case.
O.A.C. § 5120-9-06(C)(2006).

3

The Court will refer to the version of the O.A.C. that was in effect in
2006, i.e., the year that plaintiff was charged with violating the rules at
MaCI. See Exhibit B-1, attached to Declaration of Melody Haskins (“Haskins
Declaration”), attached as Exhibit B to Defendants’ Motion for Summary
Judgment.

9

ODRC employees may issue conduct reports for rule violations:
(B) Report: Any department employee who has reason to
believe that an inmate has violated an inmate rule (or
rules) of conduct may set forth such allegation on the form
designated for that purpose.
(1) The conduct report shall contain a description of
the specific behavior constituting each rule
violation, cite the name and number of each applicable
rule of conduct, and be signed by the staff member
making the conduct report.
(2) The staff member issuing the conduct report shall
indicate whether he or she wishes to appear before the
RIB when the conduct report is heard.
O.A.C. § 5120-9-07(B) (2006).
Hearing officers, who are staff members designated by the warden
and who have completed rules infraction board (“RIB”) training, review
conduct reports for form and content. O.A.C. § 5120-9-07(C), (D)
(2006).

Hearing officers’ duties in this regard specifically include

determin[ing] whether the conduct report cites the correct rule,
identifies the charged inmate and cites sufficient facts to
support the charged violation. The hearing officer is authorized
to accept, modify, withdraw or return a conduct report to the
staff member for correction or revision.
O.A.C. § 5120-9-07(D)(1) (2006).

The hearing officer also meets with

the inmate named on the conduct report, provides the inmate a copy of
the report and “inform[s] the inmate of the rule violation alleged,
the behavior constituting the violation, and the right of the inmate
to make a statement regarding the violation.”

O.A.C. § 5120-9-07(E)

(2006).
The hearing officer “may decide and dispose of violations where
the alleged conduct is amenable to the dispositions under this
paragraph.”

O.A.C. § 5120-9-07(F).

More specifically,

(1) [t]he hearing officer shall ask the inmate to admit or
deny the violation and ask for the inmate’s statement
10

regarding the violation.
(2) The hearing officer may interview staff or other inmates
regarding the violation.
(3) If the staff member issuing the conduct report has
indicated that he or she wishes to appear at the hearing of
the conduct report, the hearing officer shall contact the
staff member before making any determination in the case.
(4) If the inmate waives participation in the hearing or
refuses to participate in the hearing, the hearing officer
shall make a written record documenting the waiver or
refusal. The hearing officer may then either proceed under
this paragraph or refer the matter to the RIB.
(5) The hearing officer shall determine whether a violation
has occurred, [i]f the hearing officer finds that there are
some facts to support the conclusion that the inmate
violated a rule, the hearing officer may impose any of the
following dispositions:
(a) The hearing officer may refer the inmate for
treatment, counseling, or other programming.
(b) The hearing officer may recommend a change in
housing or job assignment.
(c) The hearing officer may issue a warning or
reprimand.
(d) The hearing officer may recommend to the warden
that the inmate be required to make restitution.
(e) The hearing officer may recommend to the warden
that contraband be disposed of in a manner consistent
with rule 5120-9-55 of the Administrative Code.
(f) The hearing officer may restrict privileges or
assign up to four hours of extra work duty for each
rule violation.
O.A.C. § 5120-9-07(F)(1)-(5) (2006).
When a hearing officer disposes of a rule violation, the hearing
officer records the hearing officer’s findings and any sanctions
imposed and signs the disposition form.

O.A.C. § 5120-9-07(G) (2006).

A hearing officer’s disposition “shall be submitted to the RIB chair
for an administrative review to determine substantial compliance with
11

applicable policies, procedures, and to determine that the disposition
was proportionate to the conduct charged”
(2006).

O.A.C. § 5120-9-07(G)(3)

After reviewing the disposition, the RIB chair “may approve

the disposition, modify it, or return it to the hearing officer with
instructions to refer the matter to the RIB for formal disposition.”
O.A.C. § 5120-9-07(G)(4) (2006).
The hearing officer may also refer a conduct report to the RIB
for formal disposition.

O.A.C. § 5120-9-07(H) (2006).

In doing so,

the hearing officer must, inter alia, advise the inmate of his or her
procedural rights and of the possible consequences.

Id.

The hearing

officer must also decide whether or not to recommend staff assistance
for the inmate.

Id.

Three staff members, who are designated by the warden and who
have completed RIB training, comprise the RIB panel.
08(B) (2006).

O.A.C. § 5120-9-

“No staff member shall be permitted to sit as an RIB

panel member who wrote the report, witnessed the alleged rule
violation, or participated in the investigation of the alleged rule
violation.”

Id.

Similarly, if a personal interest exists, a staff

member “assigned to an RIB shall disqualify himself or herself from
the panel[.]”

Id.

The RIB panel holds a hearing “as soon as practicable” after the
hearing officer has interviewed the inmate.
(2006).

O.A.C. § 5120-9-08(C)

The RIB proceedings, except for deliberations relating to

guilt or the imposition of penalties, are recorded.
08(D) (2006).

O.A.C. § 5120-9-

During the hearing, certain procedures are followed and

the testimony of each witness, whose credibility is assessed by the
RIB panel, is presented.

O.A.C. § 5120-9-08(E), (F), (H).
12

After it hears testimony, if any, and receives evidence, the RIB
panel votes and determines a disposition:
. . . [T]he RIB panel shall vote and determine whether,
based on the evidence presented, they believe that a rule
violation occurred, the inmate committed that violation, and
if so, what disposition to impose. The RIB panel may
consider all information presented in reaching its
determination. At least two panel members must concur in a
finding of guilt in order to find an inmate guilty of a rule
violation and to impose a disposition.
(1) No inmate shall be found to have violated a rule
based solely on his or her past conduct.
(2) Past conduct may be considered when determining
issues such as credibility and intent; or in
considering suitable penalties.
O.A.C. § 5120-9-08(J) (2006).

If the RIB panel finds that an inmate

is guilty of violating a rule, the panel may, subject to the warden’s
approval, impose certain penalties:
(1) Placement of the inmate in disciplinary control . . . .
(2) Recommend that the inmate be referred to the local
control committee for possible placement in local control.
(3) Recommend that the inmate receive a security review
and/or transfer to another institution.
(4) Order the disposition of contraband in accordance with
rule 5120-9-55 of the Administrative Code.
*
(6)
her
for
the
the

*

*

*

Order that the inmate be denied a deduction from his or
minimum or definite sentence (if the inmate is eligible
such deduction,) for a definite number of months after
violation occurred in accordance with rule 5120-9-56 of
Administrative Code.

(7) Order restrictions on personal privileges following an
inmate’s abuse of such privileges or facilities or when such
action is deemed necessary by the warden for the safety and
security of the institution, or the well-being of the
inmate. Such restrictions shall continue only as long as it
is reasonably necessary.
O.A.C. § 5120-9-08(K)(1)-(4), (6)-(7) (2006).
13

The warden or the

warden’s designee “shall review panel decisions to assure compliance
with the procedures, rights and obligations set forth in this rule[,]”
and may approve, modify or reject a panel’s determination of guilt and
the penalty imposed.

O.A.C. § 5120-9-08(M) (2006).

An inmate may appeal the RIB panel decision within fifteen
calendar days from the inmate’s receipt of the RIB panel’s
disposition.

O.A.C. § 5120-9-08(N) (2006).

In the event of an

appeal, the warden or the warden’s designee “shall review the RIB
determination to determine whether it was supported by sufficient
evidence, and that there was substantial compliance with applicable
procedures, and that the disposition and any sanction imposed was
proportionate to the rule violations.”

Id.

The inmate may also request that the ODRC director review the RIB
decision under certain circumstances, including (1) where the inmate
was found to have violated certain rules, including, inter alia, Rule
28; (2) “[t]he RIB decision as affirmed by the warden refers the
inmate for either a security level review to consider an increase to
level 3, 4 or 5; or privilege level review to consider placement in
level 4B or 5B,” or (3) “[t]he decision refers the inmate to the local
control committee to consider placement.”
(2006).

O.A.C. § 5120-9-08(O)

The ODRC director may also review any RIB decision that the

director believes “presents issues that may have significant impact on
the operation of the department.”
B.

O.A.C. § 5120-9-08(Q) (2006).

Conduct Reports Issued at MaCI

Plaintiff was incarcerated at MaCI at all times relevant to the
issues presented in this case until he was transferred to Ross
Correctional Institution (“RCI”) on February 1, 2007.
14

Verified

Complaint, ¶¶ 2, 20 and 36, Doc. No. 4.4

Plaintiff has owned his own

typewriter since he was initially incarcerated in 1985, i.e., prior to
and during his time at MaCI.

Plaintiff’s First Declaration, ¶ 14.

“At no time has any corrections staff ever told [plaintiff] that [he]
was not permitted to use [his] typewriter to type legal documents for
someone else, or bearing someone else’s name.”

Id.

On occasion,

plaintiff typed documents for other people, including corrections
staff, and drafted documents that contained another person’s name.
Id.
1.

Violation Related to Rule 28

In a conduct report dated August 21, 2006, plaintiff was charged
with violating Rule 28 (relating to forging, possessing, or presenting
forged or counterfeit documents).
Haskins Declaration.

Exhibits B-1 and B-2, attached to

The conduct report states that

[o]n 8-21-06 The Attorney Generals [sic] office contacted me
[unit manager’s initials] about 2 signatures on different
Documents which where [sic] Presented to Them by Inmate
Whiteside 184-313. One of These Documents was Addressed to
Marcie Henceroth, U.M.A. Subject Matter: Suspensions.
After Review of This Document “Not ONLY WAS IT NOT My
Signature, but I Had Never typed it Either, Therefore it is
a Forged Document.”
Exhibit B-2, p. 1, attached to Haskins Declaration.

The RIB panel

issued its disposition on August 28, 2006, finding that plaintiff had
violated Rule 28.

Exhibit B-2, p. 2.

The RIB panel imposed

disciplinary control and recommended plaintiff’s placement in local
control, a security review and an institutional transfer.

4

Id.

Plaintiff later filed the Verified Amended Complaint, Doc. No. 15,
which incorporated by reference the initial Verified Complaint and included
additional parties and claims. Accordingly, the facts alleged in the original
Verified Complaint remain viable.

15

Plaintiff appealed this disposition to the ODRC director who upheld
the decision.
thereto.

Haskins Declaration, ¶ 5; Exhibit B-1, attached

See also Verified Complaint, ¶ 24 (referencing time spent in

segregation).
2.

Violations Related to Rules 50 and 51

Between September and November 2006, the RIB panel concluded that
plaintiff had violated Rule 50 (possession of property of another)
and/or Rule 51 (possession of contraband, including any article
knowingly possessed which has been altered or for which permission has
not been given) seven times, with all but one of the offenses
occurring on September 22, 2006.
B-1 and B-3, attached thereto.

Haskins Declaration, ¶ 6; Exhibits
In particular, as to one of those

offenses, the RIB panel concluded that plaintiff violated Rule 50
(possession of property of another) after a search of his property
revealed that he possessed the legal materials of other inmates:
During the search of inmate Whiteside’s property, several
other inmates [sic] cases were found in his personal
property. Per [ODRC Policy] 59-LEG-01 it is not permissible
for inmates to maintain possession of leagal [sic] materials
of another inmate. Inmate Whiteside admitted that some
inmates have sent him their leagal [sic] material from other
institutions for him to assist. He also admitted that he
has assisted all inmates cases on the conduct report.
Exhibit B-3, p. 2, attached to Haskins Declaration.

In reaching this

decision, the RIB panel relied on the conduct report and the testimony
of plaintiff and defendant Haskins.

Id.

The RIB panel ordered

plaintiff to “15 days [in disciplinary control] to run concurrent with
his local control placement.”

Id.

In another instance, the RIB panel concluded that plaintiff had
violated Rules 50 and 51 after a search of his property revealed that

16

he possessed, inter alia,5 the legal materials of other inmates:
Inmate did have in his personal property several items which
are contraband. He also had several items that belongs
[sic] to other inmates. Inmate admits that the stamps was
[sic] his and that he had received them through the mail.
The confiscated items were brought into the RIB room.
Whiteside admitted that all confiscated items were his
except for the medication [that was not prescribed to him].
Radio serial # did match (BS11A2020275) unit file, however
it has been altered.
Id. at 10.

In reaching this decision, the RIB panel relied on the

confiscated property, the conduct report and the testimony of
plaintiff and defendant Haskins.

Id.

to “15 days [in disciplinary control].
control.

The RIB panel ordered plaintiff
Run concurrent with local

Property belonging to others will be returned.

Property

over possession limits will be mailed out at inmates [sic] expense
along with altered Panasonic radio.

All other property that can’t be

returned to rightful owner will be destroyed.”

Id.

III. PROCEDURAL BACKGROUND
As discussed supra, the Magistrate Judge previously set forth in
detail the lengthy procedural history in this case.
and Recommendation, Doc. No. 148.

Order and Report

Plaintiff’s only remaining claims

assert that Rules 28, 50 and 51 under O.A.C. § 5120-9-06 are vague and
lack fair notice in violation of the Due Process Clause.
Order, Doc. No. 66.

Opinion and

Plaintiff seeks declaratory and injunctive relief

and asks for “punitive damages in excess of $10,000 against all
defendants WITH ACTUAL AMOUNT to be determined by a jury[.]”

5

The items confiscated are detailed at length.

17

Id. at 9.

Amended

Verified Complaint, ¶¶ A, B, C, E.6
As discussed supra, Defendants’ Motion for Summary Judgment is
fully briefed.

After Plaintiff’s Motion for Summary Judgment was

filed, Defendants’ (Lambert, Willingham, Terrill, Perry, Stanley,
Gossard, Collins, Clark, Lazaroff, Haskins, Workman) Memorandum in
Opposition to Plaintiff’s Motion for Summary Judgment, Doc. No. 187
(“Defendants’ Memo. in Opp.”), was filed.

With the filing of

Plaintiff’s Reply to Defendants’ Memorandum in Opposition to
Plaintiff’s Motion for Summary Judgment, Doc. No. 189 (“Plaintiff’s
Reply”), this matter is now ripe for resolution.
IV.

STANDARD FOR SUMMARY JUDGMENT
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment 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.
Fed. R. Civ. P. 56(a).

In making this determination, the evidence

must be viewed in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

Summary judgment

will not lie if the dispute about a material fact is genuine, “that
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242 (1986).

Anderson v. Liberty Lobby, Inc.,

However, summary judgment is appropriate if the

opposing party fails to make a showing sufficient to establish the

6

This Court previously dismissed all claims except plaintiff’s due
process claims based on O.A.C. § 5120-9-06(C)(28), (50) and (51) as against
the ODRC and MaCI defendants.
Order and Report and Recommendation, Doc. No.
54, pp. 27-31, 36; Opinion and Order, Doc. No. 66.

18

existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

The mere existence of a scintilla

of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.

Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.

Catrett, 477 U.S. at

Once the moving party has met its initial burden, the burden

then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”

Anderson, 477 U.S.

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).

“Once the

burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.

It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’”

Glover v. Speedway

Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003)(citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

Instead, the non-moving party must support the assertion

that a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”

19

Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)).

Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”
V.

Id. See also Fed. R. Civ. P. 56(c)(3).

LEAMAN DOCTRINE
Defendants originally argued that plaintiff’s claims are barred

because he previously filed a lawsuit in the Ohio Court of Claims
based on the same acts and omissions as are presented in this case.
Defendants’ Motion for Summary Judgment, pp. 4-5 (citing, inter alia,
Leaman v. Ohio Dep’t of Mental Retardation & Dev. Disabilities, 825
F.2d 946, 951-52 (6th Cir. 1987) (en banc), cert denied, 487 U.S. 1204
(1988)).

After Plaintiff’s Memo. in Opp. was filed, however,

defendants concede that plaintiff is correct that “the Leaman Doctrine
is not relevant to the remaining issue in this case.”
Reply, p. 4.

Defendants’

Based on this record, defendants are not entitled to

summary judgment under Leaman, 825 F.2d 951-52.
VI.

EXHAUSTION
Defendants also contend that plaintiff failed to exhaust his

administrative remedies as to his claims related to his RIB
convictions for violations of Rules 50 and 51.

Defendants’ Motion for

Summary Judgment, pp. 5-7. The Prison Litigation Reform Act of 1996
(“PLRA”) requires a prisoner to exhaust administrative remedies
available to the prisoner prior to filing an action in a federal
court.

42 U.S.C. § 1997e(a).
20

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.
Id.

Failure to exhaust is considered an affirmative defense and

defendants bear the burden of proving non-exhaustion.

Surles v.

Andison, 678 F.3d 452, 455 (6th Cir. 2012).
Here, several conduct reports were issued to plaintiff while he
was incarcerated at MaCI in 2006.

Exhibits B-1, B-2 and B-3, attached

to Defendants’ Motion for Summary Judgment.

As discussed supra in

more detail, a hearing officer initially screens each conduct report
and may either dispose of the report or refer the charged violation to
the RIB for a hearing.

O.A.C. § 5120-9-07(D)-(F), (H).

RIB panel

decisions are appealable to the warden of the institution.
5120-9-08(N).

O.A.C. §

An inmate may thereafter appeal the warden’s decision

to the ODRC director under the following circumstances:

(1) the

inmate violated, inter alia, Rule 28; or (2) “[t]he RIB decision as
affirmed by the warden refers the inmate for either a security level
review to consider an increase to level 3, 4 or 5; or privilege level
review to consider placement in level 4B or 5B”; or (3) “[t]he
decision refers the inmate to the local control committee to consider
placement.”

O.A.C. § 5120-9-08(O).

The inmate grievance process, see

O.A.C. § 5120-9-31, which is a separate process “designed to address
inmate complaints related to any aspect of institutional life that
directly and personally affects the grievant[,]” is not “an additional
or substitute appeal process for hearing officer decisions [or] rules
infraction board decisions[.]”

O.A.C. § 5120-9-31(A), (B).

Defendants argue that plaintiff failed to exhaust his
21

administrative remedies because he failed to appeal his convictions
for violating Rules 50 and 51 to the highest level in the prison
system, namely, to the ODRC director.

Defendants’ Motion for Summary

Judgment, pp. 5-7 (citing inter alia, O.A.C. §§ 5120-9-07 & 08;
Haskins Declaration and exhibits attached thereto).

Defendants also

contend that plaintiff “has not exhausted the regular grievance
procedure for non-RIB proceedings (Ohio Admin. Code 5120-9-31) as to
any of his complaints regarding Rules 28, 50 and 51.”

Id. at 7

(citing Declaration of Suzanne Evans (“Evans Declaration”), attached
as Exhibit C to Defendants’ Motion for Summary Judgment.
In response, plaintiff argues that the inmate grievance process
is inapplicable in this case,

Plaintiff’s Memo. in Opp., pp. 2-3

(citing O.A.C. § 5120-9-31(B)), and avers that he has exhausted his
administrative remedies.

Id. at 3 (citing Plaintiff’s First

Declaration, ¶8; Exhibits B-4, E-6 and F-6, attached to Plaintiff’s
Memo. in Opp.).

Defendants concede in reply that “[p]laintiff is

correct that he cannot appeal a decision of the Rules Infraction Board
through the grievance process.”

Defendants’ Reply, p. 4.

However,

defendants insist that plaintiff failed to exhaust his administrative
remedies through the separate appeal procedure for RIB decisions
because he did not appeal all his convictions to the ODRC director.
Id.
In reviewing the arguments and evidentiary record in this case,
the Court finds no dispute that plaintiff exhausted his administrative
remedies as to certain of the conduct reports, i.e., the reports
related to violations of Rule 28 (with an offense date of August 21,
2006) and of Rule 51 (with an offense date of November 16, 2006).
22

See

Exhibit B-1, attached to Defendants’ Motion for Summary Judgment.
However, it is unclear whether plaintiff exhausted his administrative
remedies as to the remaining six conduct reports related to violations
of Rules 50 and 51.

Id. (reporting case status of each as “CLOSED -

Warden’s Decision (No Appeal/Completed)”).

Other than asserting in

conclusory fashion that plaintiff failed to exhaust his remedies,
defendants offer no argument or evidence that these decisions were in
fact decisions that were even appealable to the ODRC director.
Although defendants proffer copies of some of these conduct reports
and RIB decisions, see Exhibit B-3, attached to Defendants’ Motion for
Summary Judgment, they do not attach copies of all of such reports or
RIB decisions.

Even if they had done so, the RIB decisions do not

include enough information to enable the Court to determine if the
decisions were appealable under the provisions of O.A.C. § 5120-908(O).

In short, defendants have not carried their burden of

establishing that plaintiff failed to exhaust available administrative
remedies. Accordingly, defendants’ argument that plaintiff failed to
exhaust his administrative remedies is not well taken.
VII. QUALIFIED IMMUNITY
Defendants argue that they are entitled to qualified immunity for
monetary liability arising in connection with plaintiffs’ remaining
claims.

Defendants’ Motion for Summary Judgment, pp. 8-9.

The

doctrine of qualified immunity provides that, in civil suits for
monetary damages, government officials acting in their official
capacity and performing discretionary functions are generally shielded
from liability “‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
23

person would have known.’”

Phillips v. Roane County, 534 F.3d 531,

538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).

Qualified immunity involves a two-step inquiry: “First,

viewing the facts in the light most favorable to the plaintiff, has
the plaintiff shown that a constitutional violation has occurred?
Second, was the right clearly established at the time of the
violation?”

Id. (citing Silberstein v. City of Dayton, 440 F.3d 306,

311 (6th Cir. 2006)).
Here, defendants do not argue that the alleged constitutional
violation was not “clearly established” under the second prong of a
qualified immunity analysis.
pp. 8-9.

Defendants’ Motion for Summary Judgment,

Defendants instead base their qualified immunity argument on

the first prong, which asks whether a constitutional violation has
occurred.

Id.7

Accordingly, resolution of the motions for summary

judgment on plaintiff’s remaining claims turns on whether there is a
genuine issue of material fact as to whether a constitutional
violation occurred.
VIII.

DUE PROCESS
Plaintiff alleges that Rules 28, 50 and 51 are vague and lack

fair notice in violation of the Due Process Clause of the Fourteenth
Amendment.

Verified Complaint, ¶¶ A, 24, 26.

The Due Process Clause

provides in relevant part that no state shall “deprive any person of
life, liberty, or property, without due process of law[,]” U.S. Const.

7

Defendants also argue that they are entitled to the protection of
qualified immunity because plaintiff “cannot show. . . exhaustion, or the fact
that the case is not barred by Leaman.” Id. at 9. However, because the Court
rejected those arguments for the reasons discussed supra, the Court will not
address those arguments again here.

24

amend XIV, and contains a procedural component and a substantive
component.

“Procedural due process is traditionally viewed as the

requirement that the government provide a ‘fair procedure’ when
depriving someone of life, liberty, or property[.]”

EJS Props., LLC

v. City of Toledo, No. 10-4471, 2012 U.S. Dist. LEXIS 18624, at *14
(6th Cir. Sept. 5, 2012).

Conversely, “substantive due process

‘protects individual liberty against certain government actions
regardless of the fairness of the procedures used to implement them.’”
Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992)).

In addition, “[t]he Due Process Clauses of the Fifth and

Fourteenth Amendments provide the constitutional foundation for the
void-for-vagueness doctrine.”

Belle Maer Harbor v. Charter Twp. of

Harrison, 170 F.3d 553, 556-57 (6th Cir. 1999).

Here, construing this

pro se plaintiff’s filings liberally, see, e.g., Haines v. Kerner, 404
U.S. 519, 520-21 (1972), the Court concludes that plaintiff asserts
claims based on procedural due process and on the void-for-vagueness
doctrine.

The Court will address each in turn.

Plaintiff complains that Rule 28, 50 and 51 violated his due
process rights because he had no notice that the conduct in which he
engaged violated those rules and that he had previously engaged in the
same conduct with no warning or punishment.

In determining whether

defendants violated plaintiff’s due process rights, the Court first
determines whether defendants deprived plaintiff of a liberty or
property interest protected by the Due Process Clause and, if so,
“‘whether the procedures attendant upon that deprivation were
constitutionally sufficient.’”

Bazzetta v. McGinnis, 430 F.3d 795,

801 (6th Cir. 2005) (quoting Kentucky Dep't of Corr. v. Thompson, 490
25

U.S. 454, 460 (1989)).
Prisoners have limited liberty interests because “lawful
incarceration brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
considerations underlying our penal system.”
U.S. at 485.

Sandin v. Conner, 515

An inmate’s only liberty interest protected by the Due

Process Clause is “freedom from restraint which . . . imposes atypical
and significant hardship on the inmate in relation to the ordinary
incidents of prison life.”

Id. at 484.

Plaintiff’s rambling and convoluted summary judgment filings,
which refer to statements and arguments presented in other filings and
multiple documents, are difficult to follow.

However, the Court

understands plaintiff to complain that:
(1) he was placed in segregation, Verified Complaint, ¶¶ 24,
29, 35; Plaintiff’s Motion for Summary Judgment, p. 4;
(2) he was transferred to another prison, Verified
Complaint, ¶¶ 34, 36; Declaration in Support of Plaintiff’s
Motion for Summary Judgment (“Plaintiff’s Second
Declaration”), ¶ 18, attached to Plaintiff’s Motion for
Summary Judgment;8
(3) he was denied parole, Plaintiff’s Second Declaration, ¶
18; Doc. No. 193, p. 2; Plaintiff’s Memo. in Opp., p. 4;
Plaintiff’s Reply, p. 2;
(4) he received death threats, Plaintiff’s Memo. in Opp., p.
3 (sworn to as true and correct, Plaintiff’s First
Declaration, ¶ 5); Plaintiff’s Second Declaration, ¶ 18;
(5) defendants’ discovery responses cannot explain or
justify the RIB decision that he violated Rule 28 (forgery),
Plaintiff’s Memo. in Opp., p. 4; Plaintiff’s Reply, p. 3;
and

8

Although plaintiff denies that he intends to contest his “transfer from
one prison to another[,]” Plaintiff’s Motion to Strike, p. 1, the Court will
nevertheless address the transfer issue in light of plaintiff’s repeated
complaints about that transfer.

26

(6) “the OSHP did not conduct the usual investigation,”
Plaintiff’s Memo. in Opp., p. 4; Plaintiff’s Reply, p. 2.
Turning, first, to plaintiff’s complaint relating to his
placement in segregation, the Court emphasizes that segregation does
not constitute an “atypical and significant hardship.”

See Order and

Report and Recommendation, pp. 22-24 (citing, inter alia, Sandin, 515
U.S. at 484), adopted and affirmed by Opinion and Order, Doc. No. 66.
Second, to the extent that plaintiff complains about being
transferred from MaCI, the Court notes that prisoners have no
constitutionally protected liberty interest in being assigned to any
particular institution.

Olim v. Wakinekona, 461 U.S. 238, 245-46

(1983); Meachum v. Fano, 427 U.S. 215, 225 (1976); Montanye v. Haymes,
427 U.S. 236 (1976). “Confinement in any of the State’s institutions
is within the normal limits or range of custody which the conviction
has authorized the State to impose.”

Meachum, 427 U.S. at 225.

Even

if the inmate believes that conditions at the transferee institution
are more onerous, prison officials have the discretion, under the
Constitution, to authorize transfers so long as the conditions at the
transferee prison do not impose “atypical and significant hardships on
the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484.

See

Cf. Wilkinson v. Austin, 545 U.S. 209, 222

(2005)(recognizing an inmate’s liberty interest in not being
transferred to Ohio’s “supermax” institution without due process of
law).

Here, no liberty interest is implicated in plaintiff’s transfer

from MaCI (where the rule violations occurred) to RCI, which is not a
“supermax” facility.

Id.

Third, although plaintiff believes that he was denied parole

27

because of the rules violations at MaCI, it is significant that the
United States Constitution does not guarantee an inmate’s release on
parole.

See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442

U.S. 1, 7 (1979); Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007).
Fourth, plaintiff complains in conclusory fashion that he has
received “death threats,” but he provides no details about the
substance of the threats, who made the threats, when the threats were
made, why the threats were made or how the threats relate to
enforcement of Rules 28, 50 and 51 while he was incarcerated at MaCI.
See Plaintiff’s Memo. in Opp., p. 3 (“The conduct reports containing
vague violations that lack fair notice have gotten [plaintiff]. . .
subjected to death threats[.]”); Plaintiff’s Second Declaration, ¶ 18
(“Because of the vagueness and lack of fair notice of Rules 28, 50 and
51, and their unconstitutional uses against me. . . I have had death
threats against me[.]”).

These conclusory and self-serving assertions

are not sufficient at the summary judgment stage.

See, e.g., Lewis v.

Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004) (concluding that
a party may not survive summary judgment by relying on “conclusory
statements” unsupported by specific facts); Emmons v. McLaughlin, 874
F.2d 351, 358 (6th Cir. 1989) (stating that “affidavits [that] merely
repeated the [plaintiff’s] vague and conclusory allegations. . . were
insufficient to generate a genuine issue of material fact”).

Finally,

the Court notes that even if plaintiff received death threats, his
prior filings establish that plaintiff complained of death threats in
only 2009, well after enforcement of Rules 28, 50 and 51 at MaCI in
2006.

See Motion of Plaintiff Whiteside for Temporary Restraining

Order and/or Preliminary Injunction Based Upon, Inter Alia, Death
28

Threats Against Him, Doc. No. 37 (seeking order prohibiting transfer
to another prison because of alleged death threats);

Order and Report

and Recommendation, Doc. No. 54, pp. 33-34 (recommending that such
motion be denied and noting, inter alia, that it appeared that the
alleged death threats, if made, originated at RCI), adopted and
affirmed by Opinion and Order, Doc. No. 66.

Accordingly, plaintiff

has offered no evidence that he has received death threats resulting
from a 2006 enforcement of Rules 28, 50 and 51 at MaCI, i.e., that he
suffered an atypical and significant hardship.
Fifth, plaintiff complains that defendants are unable to explain
the basis for the finding that plaintiff violated Rule 28 (forgery).
Plaintiff’s Memo. in Opp., p. 4; Plaintiff’s Reply, p. 3.

To the

contrary, however, the record establishes that plaintiff’s conviction
in this regard was based on the RIB’s consideration of the conduct
report, inmate testimony and documents. Exhibit B-2, attached to
Defendants’ Motion for Summary Judgment. This evidence is therefore
sufficient.

See Superintendent, Massachusetts Correctional

Institution at Walpole v. Hill, 472 U.S. 445, 455 (1985)(“[T]he
requirements of due process are satisfied if some evidence supports
the decision by the prison disciplinary board[.]”). See also Young v.
Tennessee Dep’t of Corr., 863 F.2d 50 (6th Cir. 1988) (affirming sua
sponte dismissal of plaintiff prisoner’s due process claim where “some
evidence” existed to support the disciplinary board’s decision).

In

any event, this complaint is unavailing in the absence of evidence
that plaintiff’s conviction resulted in an “atypical and significant
hardship.”

See Sandin, supra.

Finally, plaintiff asserts that the Ohio State Highway Patrol
29

“did not conduct the usual investigation[.]”
Opp., p. 4; Plaintiff’s Reply, p. 2.

Plaintiff’s Memo. in

See also Plaintiff’s Second

Declaration, ¶ 12 (representing that, in an unrelated forgery case
involving another inmate, “matters regarding the crime of forgery
[we]re turned over to the Ohio State Highway Patrol (OSHP) for [its]
investigation”).

Although it is not entirely clear what plaintiff

intends by this allegation, the Court assumes that plaintiff proposes
to claim a liberty interest in an Ohio State Highway Patrol
investigation. However, plaintiff cites to no authority for such a
right and this Court is aware of no such right.

Cf. Walker v. Mich.

Dep’t of Corr., No. 04-1347, 128 Fed. Appx. 441, at *445 (6th Cir.
April 1, 2005) (noting that there “is no constitutionally protected
due process right to unfettered access to prison grievance
procedures”); Carlton v. Jondreau, No. 03-1430, 76 Fed. Appx. 642, at
*644 (6th Cir. Sept. 16, 2003) (finding that inmate plaintiff failed
to state a claim where, inter alia, inmate plaintiff alleged that a
deputy warden “had failed to properly investigate his grievance”); See
also Jackson v. Hamlin, No. 02-2040, 61 Fed. Appx. 131, at *132 (6th
Cir. Mar. 11, 2003) (“[A] prisoner has no constitutional right to be
free from false accusations of misconduct.”) (citing Freeman v.
Rideout, 808 F.2d 949, 951 (2d Cir. 1986)).
In short, the Court concludes that plaintiff has not presented
evidence of a violation of his procedural due process rights.
Plaintiff also argues that Rules 28, 50 and 51 are vague and lack
fair notice in violation of the Due Process Clause.

30

Plaintiff’s Memo.

in Opp., pp. 4-5 (“adopt[ing] herein by reference Exhibit K9 attached
and the same rationale and argument presented in “II. The Law and
Issues Involved”); Plaintiff’s Motion for Summary Judgment, pp. 4-5;
Plaintiff’s Reply, p. 3; Plaintiff’s Motion to Strike, pp. 1-2.
“Although the vagueness doctrine was originally used to invalidate –
on due process grounds – penal statutes that failed to ‘define the
criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited,’ Kolender v. Lawson, 461 U.S.
352, 357 (1983), courts have frequently applied it in the First
Amendment context.”
2009).

Jones v. Caruso, 569 F.3d 258, 276 (6th Cir.

Therefore, “[t]he stringency of the vagueness test depends

upon the context of the challenge.”

Condon v. Wolfe, No. 06-4205, 310

Fed. Appx. 807, at *821 (6th Cir. Feb. 12, 2009) (citing Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498
(1982)).

Where a challenged statute or rule neither imposes criminal

penalties nor implicates First Amendment rights, a plaintiff may not
mount a facial challenge to that statute or rule; however, that
plaintiff may challenge the statute or rule as it is applied to that
plaintiff.

Simon v. Cook, No. 06-6514, 261 Fed. Appx. 873, at *883

(6th Cir. Jan. 30, 2008) (“Therefore, since the statute does not
impose criminal penalties and [plaintiff’s] vagueness challenge does
not arise from the First Amendment, a facial challenge is
inappropriate, and Simon may only challenge the statute as it was
applied to him.”); United States v. Blaszak, 349 F.3d 881, 887 (6th

9
Exhibit K attached to Plaintiff’s Memo. in Opp. appears to be
Plaintiff’s Status Report Pursuant to Court’s December 28, 2011, Order #143,
separately filed as Doc. No. 147.

31

Cir. 2003) (“Statutes not reaching constitutionally protected activity
will therefore be evaluated ‘in light of the facts of the particular
case at hand,’ rather than for their facial validity.”) (quoting Belle
Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir.
1999)).
Here, there is no argument or evidence that Rules 28, 50 and 51
impose criminal sanctions.

However, plaintiff raises, apparently for

the first time in opposing summary judgment, the argument that he “has
a clearly established First Amendment right to provide legal
assistance to others in prison.”

Plaintiff’s Memo. in Opp., p. 3

(citing Newell v. Sauser, 79 F.3d 115 (9th Cir. 1996)10 and O.A.C. §
5120-9-20 (addressing “[v]isits by attorneys and inmate access to
legal services”).

This Court disagrees.

It is well established in

this circuit that “an inmate does not have an independent right to
help other prisoners with their legal claims.”
175 F.3d 378, 395 (6th Cir. 1999) (en banc).

Thaddeus-X v. Blatter,
Accordingly, plaintiff

may challenge Rules 28, 50 and 51 only as they were actually applied
to plaintiff.
Although due process forbids excessively vague laws, prison
regulations do not require the same degree of specificity as do laws
applicable to free citizens:
Due process undoubtedly requires certain minimal standards
of specificity in prison regulations, but we reject the view
that the degree of specificity required of such regulations
is as strict in every instance as that required of ordinary
criminal sanctions. This results from the fundamental
difference between normal society and prison society. The
maintenance of strict security and discipline, with its

10

Plaintiff’s reliance on Newell in this regard is misplaced because
Newell did not address a First Amendment issue. Newell, 79 F.3d at 117 n.2.

32

unfortunate but unavoidable circumscription of an inmate's
freedom to act, is essential to safe and efficient prison
administration. As such, it is nearly impossible for prison
authorities to anticipate, through narrowly drawn
regulations, every conceivable form of misconduct which
threatens prison security.
Wolfel v. Morris, 972 F.2d 712, 717 (6th Cir. 1992) (citing Meyers v.
Alldredge, 492 F.2d 296, 310 (3rd Cir. 1974) (citations omitted).

See

also Al-Jabbar A’La v. Murray, No. 93-5794, 1993 U.S. App. LEXIS
33505, at *3 (6th Cir. Dec. 17, 1993) (“[P]rison officials cannot
anticipate every conceivable form of misconduct and draw narrow
regulations to satisfy such a notice requirement.”).
With the foregoing standard in mind, the Court will address each
rule in turn.
A.

Rule 28

Rule 28 forbids “[f]orging, possessing, or presenting forged or
counterfeit documents.”

Plaintiff argues that this rule lacks fair

notice because “[t]he only proof required” for an inmate to be found
guilty “is a staff member denying his or her signature.”

Plaintiff's

Memo. in Opp., p. 5; Plaintiff’s First Declaration, ¶10; Plaintiff’s
Second Declaration, ¶ 12.

Plaintiff specifically complains that Rule

28 contains “no provision that allows an inmate to know that the
inmate does not have to know that an item/document is forged in order
to be found guilty.”

Plaintiff’s Motion to Strike, pp. 1-2;

Plaintiff's Memo. in Opp., p. 5.

He represents that, contrary to the

charge in the conduct report issued to plaintiff, Exhibit B-2,
attached to Defendants’ Motion for Summary Judgment, plaintiff did not
submit a forged document and was never told that he could be charged
with, and found guilty of, forgery even though he did not know that an
33

item was forged.

See, e.g., Plaintiff’s First Declaration, ¶¶ 9-12.

Plaintiff therefore argues that his rights were violated because
“[d]ue process requires lawful proof that a forgery was committed.”
Plaintiff’s First Declaration, ¶ 10.
As an initial matter, this Court disagrees with plaintiff’s
characterization of Rule 28 as vague because it could result in a rule
infraction merely upon a staff member’s denial of the authenticity of
his or her signature.

The Ohio Administrative Code specifically

requires that “some evidence” support a finding that an inmate
violated a rule of conduct:
No inmate shall be found guilty of a violation of a rule of
conduct without some evidence of the commission of an act
and the intent to commit the act.
(1) The Act must be beyond mere preparation and be
sufficiently performed to constitute a substantial
risk of its being performed.
(2) “Intent” may be express, or inferred from the
facts and circumstances of the case.
O.A.C. § 5120-9-06(D) (2006)(emphasis added).

Cf. United States v.

Choice, 201 F.3d 837, 840 (6th Cir. 2000) (stating that a court looks
to “‘the language and design of the statute as a whole’”). Plaintiff’s
contention that the rule is too vague to pass constitutional muster is
simply without merit.

The fact that plaintiff disagrees with the RIB

panel’s decision does not militate a contrary conclusion.
B.

Rule 50

Rule 50 forbids the “[p]ossession of property of another.”
Plaintiff argues that this rule is vague because the words “property”
and “another” are not defined.

Plaintiff’s Motion for Summary

Judgment, p. 4; Plaintiff’s Second Declaration, ¶ 15; Plaintiff’s

34

Reply, p. 3.

However, as applied to plaintiff specifically,11 the RIB

panel concluded that plaintiff violated Rule 50 when a search of his
property revealed items, including legal materials, belonging to other
individuals.

Exhibit B-3, pp. 2, 10.

Plaintiff contends that,

because he has “been a law clerk and/or law library aide in at least
two prisons,” defendants should have known that seizing such legal
papers was “unlawful.”

Plaintiff’s First Declaration, ¶ 16 (citing

Newell v. Sauser, 79 F.3d 115 (9th Cir. 1996)).

In Newell, the

plaintiff was a prison law librarian and was permitted to keep a
computer in his cell.

Newell, 79 F.3d at 116.

Computer-generated

legal materials written by Newell on behalf of other inmates were
seized from his cell.

Id.

The disciplinary committee found Newell

guilty of violating a prison regulation that prohibited the possession
of “anything not authorized for retention or receipt by the prisoner,
and not issued through regular facility channels.”

Id.

The

disciplinary committee imposed a verbal reprimand, which became part
of Newell’s prison record and available for parole board review.

Id.

In concluding that the prison regulation failed to provide adequate
notice that his conduct was forbidden, the court in Newell noted that,
because Newell had been designated as a law librarian and was
permitted to have a computer in his cell, he had an implied right to
produce computer-generated documents.

Id. at 118.

Accordingly, the

Newell court concluded, prison officials were not entitled to
qualified immunity because “[a] reasonable officer would have known

11
For the reasons discussed supra, the Court will not address
plaintiff’s arguments and evidence that are directed to a facial challenge to
this rule.

35

that seizing computer-generated legal papers from his cell was
unlawful.”

Id.

However, plaintiff – unlike the plaintiff in Newell – has not
established that he was a prison law librarian with an attendant right
to retain other inmates’ legal materials.

Although plaintiff claims

that he has “been a law clerk and/or law library aide in at least two
prisons[,]”

Plaintiff’s First Declaration, ¶ 16, this general

assertion does not establish that plaintiff was acting as such in 2006
at MaCI when he was charged with violating Rule 50.

The mere fact

that plaintiff, who is himself a prodigious litigator, was permitted
to keep a typewriter in his cell does not mean that he had an
enforceable right to keep or generate the legal materials of other
inmates.

Cf. Thaddeus-X, 175 F.3d at 395 (“[A]n inmate does not have

an independent right to help other prisoners with their legal
claims”).
Plaintiff nevertheless insists that, like the plaintiff in
Newell, he had no notice that Rule 50 prohibited his possession of
legal documents relating to other inmates.

However, unlike the prison

regulation at issue in Newell, the plain language of Rule 50
explicitly forbids the possession of all property of another.
Although, as plaintiff points out, Rule 50 does not specifically
forbid the possession of others’ legal documents, “prison officials
cannot anticipate every conceivable form of misconduct and draw narrow
regulations to satisfy such a notice requirement.”

Al-Jabbar A’La v.

Murray, No. 93-5794, 1993 U.S. App. LEXIS 33505, at *3 (6th Cir. Dec.
17, 1993).

See also Wolfel v. Morris, 972 F.2d 712, 717 (6th Cir.

1992) (“Indeed, “[t]he maintenance of strict security and discipline,
36

with its unfortunate but unavoidable circumscription of an inmate’s
freedom to act, is essential to safe and efficient prison
administration.”).
Moreover, there is evidence that plaintiff in fact had notice
that inmates are not permitted to keep the legal materials of other
inmates:

In concluding that plaintiff had violated Rule 50, the RIB

noted that “[p]er 59-LEG-01 it is not permissible for inmates” to keep
legal materials of other inmates.

Exhibit B-3, p. 2, attached to

Defendants’ Motion for Summary Judgment.

See also O.A.C. § 5120-9-

06(A) (2006) (“The disciplinary violations defined by this rule shall
address acts that constitute an immediate and direct threat to the
security or orderly operation of the institution, or to the safety of
its staff, visitors and inmates (including the inmate who has violated
the rule,) as well as other violations of institutional or
departmental rules and regulations.”) (emphasis added); United States
v. Choice, 201 F.3d 837, 840 (6th Cir. 2000) (stating that a court
looks to “‘the language and design of the statute as a whole’”).

In

sum, the Court cannot conclude that Rule 50 is impermissibly vague as
applied to plaintiff.
C.

Rule 51

Rule 51 forbids the “[p]ossession of contraband, including any
article knowingly possessed which has been altered or for which
permission has not been given.”

In arguing that this rule is vague,

plaintiff advances multiple examples of how an inmate could
unwittingly violate this rule: e.g., using a sewing kit to alter items
or creating arts and crafts.

See Exhibit K, pp. 3-5, attached to

Plaintiff’s Memo. in Opp.; Plaintiff’s Second Declaration, ¶ 16;
37

Plaintiff’s Motion to Strike, p. 2.

However, the RIB panel at MaCI

did not find plaintiff guilty of violating Rule 51 for possessing
sewing kits or arts and crafts.

Exhibit B-3, pp. 4, 6, 8, 10,

attached to Defendants’ Motion for Summary Judgment.

Rather,

plaintiff was found to be in possession of a “sheet of gold seals[,] .
. . various notary stamps from different states . . . [and] a
notarized form with the same stamp from the State of California . . .
.”

Exhibit B-3, p. 4.

Plaintiff was also found to be in possession

of, inter alia, “letterhead . . . from NAACP (with official logo) . .
. and letterhead that appears from the Court of Claims of Ohio.”
at 8.

Id.

Finally, plaintiff was found to be in possession of a radio,

the serial number of which “ha[d] been altered.”

Id. at 10.

Plaintiff will not be heard that he had no reasonable notice that his
possession of these items violated Rule 51, particularly where, as
here, the rule addresses “acts that constitute an immediate and direct
threat to the security or orderly operation of the institution, or to
the safety of its staff, visitors and inmates . . . .”
9-06(A)(2006).

O.A.C. § 5120-

In sum, plaintiff has offered nothing to establish

that Rule 51 is unconstitutionally vague as applied to him.
Having concluded that no constitutional violation has occurred,12
the Court need not address the parties’ remaining arguments, i.e.,
whether plaintiff may recover punitive damages under the PLRA.

WHEREUPON, Plaintiff’s Motion for Extension, Doc. No. 194, is

12

Even if the Court had found a constitutional violation, defendants
would still be entitled to qualified immunity because they “reasonably relied
on and applied valid regulations[.]” See Wolfel v. Morris, 972 F.2d 712, 720
(6th Cir. 1992).

38

GRANTED.

Plaintiff’s Motion to Strike Defendants’ Reply (Doc #184),

Doc. No. 188, is DENIED.

Defendants’ (Lambert, Willingham, Terrill,

Perry, Stanley, Gossard, Collins, Clark, Lazaroff, Haskins, Workman)
Motion for Summary Judgment, Doc. No. 157, is GRANTED and, Plaintiff’s
Summary Judgment Motion, Doc. No. 182, is DENIED.

The remaining

claims against the remaining defendants are DISMISSED.
The Clerk shall enter FINAL JUDGMENT in favor of defendants.

Date: September 25, 2012

s/James L. Graham
James L. Graham
United States District Judge

39