Brown v. Timmerman-Cooper et al

Filing 65

REPORT AND RECOMMENDATIONS - It is recommended that the motion for judgment on the pleadings (# 38 ) be granted as to the class action claims asserted in the complaint and denied in all other respects. It is further ordered that Mr. Brown's motion for leave to supplement and to strike (# 56 ) and defendants' motion for an extension of time (# 61 ) are denied. Signed by Magistrate Judge Terence P Kemp on 1/6/12. (jr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frank C. Brown, Jr.,
Plaintiff,
v.

Case No. 2:10-cv-283

Warden Deb Timmerman-Cooper,
et al.,

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Defendants.
REPORT AND RECOMMENDATION
AND ORDER
Plaintiff Frank C. Brown, Jr., a state prisoner residing at
the London Correctional Institution, filed this civil rights
action under 42 U.S.C. §1983.

In his complaint, as explained in

prior orders of this Court, Mr. Brown alleges that he and other
inmates at London were denied adequate amounts of clothing,
linens, hygiene materials, laundry detergent, washers, dryers,
and cleaning supplies.

Mr. Brown asserts that the defendants’

actions violated the Eighth Amendment to the United States
Constitution, which prohibits cruel and unusual punishment.
The defendants have filed a motion for judgment on the
pleadings, raising two distinct types of arguments.

First, they

assert that, in both this and other cases filed by Mr. Brown, the
Court should revoke his in forma pauperis status (which, under
the Prison Litigation Reform Act, allows the filing fee for the
case to be paid in installments) and direct the immediate payment
of the full filing fee, based on what defendants describe as Mr.
Brown’s history of abusive litigation.
addressed separately.

That issue will be

Second, they contend that Mr. Brown did

not properly exhaust administrative remedies with respect to this
claim, and that even if he may bring this case based on events
which affected him personally, he may not pursue class-based

relief because he is proceeding pro se.

They also assert, in

very brief fashion, that the complaint does not allege the
requisite level of personal involvement of the defendants in the
matters about which Mr. Brown complaints.

For the following

reasons, it will be recommended that the motion for judgment on
the pleadings be granted as to Mr. Brown’s class action
allegations and denied in all other respects.
I.

The Facts

For purposes of ruling on a motion for judgment on the
pleading, the well-pleaded and plausible facts must be taken to
be true.

See, e.g., Southern Ohio Bank v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973).

Here,

the disposition of the defendants’ motion does not, for the most
part, turn on the facts pleaded in the complaint other than those
relating to Mr. Brown’s efforts to exhaust his administrative
remedies.

This statement of facts will focus on that issue.

More precisely (because this is the deficiency defendants have
identified in the way Mr. Brown filed his grievances), the Court
will focus on which prison officials, if any, were identified in
the grievances as being responsible for denying Mr. Brown
adequate clothing, linens, and other necessities.

Other facts

will be discussed, as necessary, in connection with the
defendants’ remaining arguments.
Based on the exhibits which he attached to the complaint,
the Court assumes the following facts to be true concerning Mr.
Brown’s use of the prison grievance process.

On September 9,

2008, Mr. Brown filed an informal complaint which stated that he
did not, upon his transfer to London, receive enough underwear or
laundry bags, and that he did not get a hooded sweatshirt or a
pair of properly-fitting boots.

He also referred to the laundry

policy and the fact that, apparently, he was only permitted to
wash his clothing once a week.

No specific person is named in
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the complaint, but it does refer to the quartermaster as the
person who issued the clothing.

He filed almost the identical

complaint as his appeal from the resolution of his informal
complaint.

That appeal was denied on grounds that he already had

more than the permitted amount of property as it related to most
clothing items such as “blues,” boots, hats and socks.

The

denial made specific reference to having found no violations by
the quartermaster, who apparently is an inmate.

The complaint

does not appear to include a copy of Mr. Brown’s appeal from that
resolution.
It is not clear exactly what happened next.

The only other

documents that are attached to the complaint and which are part
of the grievance process are a disposition of a grievance filed
on May 4, 2009 (but that grievance is not a part of the record)
and a decision of the Chief Inspector on the appeal from that
disposition.
complaint.

The appeal itself is also not attached to the

Both of these documents denied Mr. Brown’s grievance

on grounds that Mr. Brown was not entitled to four sets of
clothing, as he had apparently claimed, and that it could not be
determined that the institution had violated department policy
with regard to laundry.

No grievance appears to have been denied

on grounds that Mr. Brown did not adequately identify the persons
against whom his grievance was directed.
II.

Discussion

A.

Exhaustion

The Prison Litigation Reform Act requires a prisoner to
exhaust any available grievance process within the prison system
prior to filing suit about the matter which was or should have
been the subject of such a grievance.

It provides, in 42 U.S.C.

§1997e(a), that “[n]o 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

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correctional facility until such administrative remedies as are
available are exhausted.”

This exhaustion requirement is

“mandatory,” see Woodford v. Ngo, 548 U.S. 81, 84 (2006), and the
Supreme Court has held that “[p]roper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules ...”

Id. at 90.

In Ohio, the prison grievance procedure is laid out in Ohio
Administrative Code §5120-9-31.
process to be followed.

It provides for a three-step

First, the inmate must file an informal

complaint within fourteen days of the occurrence, which must be
directed “to the direct supervisor of the staff member ...
responsible for the particular subject matter of the complaint.”
Once that step has been completed, the inmate must direct a
notification of grievance to the inspector of institutional
services.

Finally, assuming the inmate is still dissatisfied

with the response, an appeal must be taken to the office of the
chief inspector.

O.A.C. §5120-9-31(K).

If the grievance is

against the warden or the inspector of institutional services, it
must be filed directly with the office of the chief inspector.
O.A.C. §5120-9-31(M).

Such a grievance must provide details

about the Warden’s direct personal involvement in the matter
complained of.
Although exhaustion of administrative remedies is required
by the PLRA, the Supreme Court has made it clear that “failure to
exhaust is an affirmative defense under the PLRA, and that
inmates are not required to specially plead or demonstrate
exhaustion in their complaints.”
216 (2007).

Jones v. Bock, 549 U.S. 199,

Thus, Mr. Brown had no obligation to attach any

copies of his grievances or the disposition of those grievances
to the complaint in order for it to survive a motion for judgment
on the pleadings.

Further, unless the defendant themselves

submit copies of the missing grievances, and the Court then

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converts the motion into one for summary judgment, the question
of adequate exhaustion cannot be resolved in the context of a
motion for judgment on the pleadings unless the failure appears
See, e.g., Damron v. Sims, 2010

from the face of the complaint.

WL 3120061 (S.D. Ohio Jan 27, 2010), adopted and affirmed 2010 WL
3075119 (S.D. Ohio Aug 3, 2010).
Here, the Court simply does not know, and cannot determine
from the current record, what Mr. Brown said in some of his
grievances or appeals about the involvement of any specific
defendants.

The defendants themselves have not supplied the

Court with copies of the missing grievances or appeals.

In their

reply, they argue that Mr. Brown conceded, in his memorandum in
opposition (#40), that he did not name specific individuals in
his grievances.

The precise statement they rely on reads thusly:

“Brown has properly exhausted his administrative remedies even
though he may have failed to identify each defendant as
personally involved in the initial grievance procedure ....”
(Doc. #40, at 2)(emphasis supplied).

While this can be read a

concession of some sort, it does not tell the Court if Mr. Brown
is admitting that he identified none of the defendants properly,
or that he may not have identified all six of them in his
grievances, but that he did identify some of them.

Again,

without the grievances themselves, the Court simply cannot
address the issue properly.

Defendants are, of course, free to

file a summary judgment motion on this issue and attach copies of
the entire administrative file on this issue, but in the absence
of that documentation (and given that only a motion for judgment
on the pleadings was filed), the defendants are not currently
entitled to judgment on grounds of failure to exhaust
administrative remedies.
B.

Personal Involvement

Defendants also raise, as an adjunct to their argument about

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proper exhaustion of administrative remedies, the question of
whether Mr. Brown’s complaint adequately alleges the personal
involvement of any of the defendants in the matters about which
he complains.

Again, since the issue has been raised in a motion

for judgment on the pleadings, a close review of the complaint is
needed in order to determine its sufficiency, and, in particular,
whether it does contain plausible allegations of direct personal
involvement by any of the defendants, most of whom occupy
supervisory positions such as Warden, Deputy Warden, Inspector of
Institutional Services, or ODRC Director.
The complaint alleges that “defendants have continuously
engaged and are still engaging in a practice of cruel and unusual
punishment by not providing adequate clothing and sanitary
conditions” within the London Correctional Institution.

Each

additional allegation about lack of laundry facilities, soap,
linens, or other items is attributed to “them.”

The grievances

support Mr. Brown’s claim (which he repeats in his opposing
memorandum) that his complaints are directed not so much to
individual decisions to deny him a certain amount of clothing,
laundry services, soap, or linens, but to what he claims was and
is an institutional policy concerning how many of these items or
services are provided to each inmate.
It is certainly true that liability under §1983 cannot be
premised solely on the existence of a supervisory relationship
between a state official who directly violated the constitution
and a person or entity which exercises supervisory authority over
that official.

See Monell v. Department of Social Services, 436

U.S. 658 (1978); see also Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984).

However, courts have held that claims such as

the ones made in Mr. Brown’s complaint “are adequate to allege
the personal involvement of the defendant supervisory officials,
as the claims stem not from individual treatment decisions of

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particular medical professionals, but the staffing and policy
decisions of the supervisory officials.”

Rouse v. Caruso, 2011

WL 918327, *12 (E.D. Mich. Feb 18, 2011), adopted and affirmed
2011 WL 893216 (E.D. Mich. Mar 14, 2011).

Thus, “[a] senior jail

official who was not personally involved in the acts or omissions
complained of nonetheless may be liable in his individual
capacity if he can be expected to have either known of or
participated in creating systemic inadequate conditions at the
jail.”

Warren ex rel. Warren v. Dart, 2010 WL 4883923, *6

(N.D.Ill. Nov 24, 2010); see also Antonelli v. Sheahan, 81 F3d
1422, 1428-29 (7th Cir. 1996)(drawing a distinction between
“localized” and “systemic” complaints and permitting the latter
to go forward against supervisory officials because they “can be
expected to know of or participate in creating systemic, as
opposed to localized, situations”).
Again, it is important to emphasize that at this point in
the case, the Court is determining only if the complaint
plausibly states a claim from which the personal involvement of
the defendants can be inferred.

See, e.g., Bell Atlantic Corp.

v. Twombly, 550 U.S. 544 (2007).

It clearly asserts that all of

the defendants were involved in creating and enforcing the
clothing, linen and laundry policies at issue here.

Given that

the alleged constitutional deprivations resulted directly from
the application of these policies, it is plausible to assume that
all of the defendants, even the Director of ODRC, were aware of
them.

The defendants are therefore not entitled to judgment on

the pleadings on this basis.
C.

Class Action Allegations

The other issue which will be addressed here is whether Mr.
Brown may maintain this case as a class action.

This Court has

repeatedly held that pro se prisoners may not serve as class
representatives or pursue legal action on behalf of inmates other

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than themselves.

See, e.g., Brown v. Warden Ross Correctional

Inst., 2011 WL 6012342 (S.D. Ohio Dec 1, 2011); Tarpley v.
Jefferson County Com'rs, 2010 WL 300609 (S.D. OHIO Jan 19, 2010).
This is so because they cannot, as non-attorneys, fairly
represent the interests of the class as required by Fed.R.Civ.P.
23(a).

See Palasty v. Hawk, 15 Fed. Appx. 197, 200 (6th cir.

June 20, 2001).

Therefore, to the extent that the complaint

contains class action allegations, defendants are entitled to
judgment on the pleadings as to such claims.
III.

Other Motions

There are two other motions pending in this case which fall
within the jurisdiction of the Magistrate Judge to determine in
the first instance.

They are Mr. Brown’s motion for leave to

supplement and to strike (#56) and defendants’ motion for an
extension of time (#61).

The former motion does not appear to be

specific to this case and requests no relief that would affect
the recommendation being made on the motion for judgment on the
pleadings.

The latter motion is moot.

Both motions will be

denied.
The other pending motions are all motions which must be
finally ruled on by the District Judge because they ask, in one
form or another, for some type of interim injunctive relief.
Since this recommendation leaves this case pending, if that
recommendation is adopted, those motions will require a ruling.
That should be done by way of a separate order, since they
pertain not just to this case but to Mr. Brown’s other pending
cases, some of which may be subject to a recommendation that they
be dismissed in whole or in part.
IV.

Recommendation and Order

Based on the foregoing, it is recommended that the motion
for judgment on the pleadings (#38) be granted as to the class
action claims asserted in the complaint and denied in all other

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respects.

It is further ordered that Mr. Brown’s motion for

leave to supplement and to strike (#56) and defendants’ motion
for an extension of time (#61) are denied.
V.

Procedure on Objections

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/Terence P. Kemp
United States Magistrate Judge

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