Brown v. Parrish et al

Filing 117

REPORT AND RECOMMENDATIONS that 97 MOTION for Summary Judgment filed by Deb Timmerman-Cooper be granted, that all other pending motions be denied, and that judgment be entered in favor of the defendants. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/14/2014. (kk2)

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-352

Russ Parrish, et al.,

:

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Defendants.

:

REPORT AND RECOMMENDATION
This prisoner civil rights case is before the Court to
consider Defendant Deb Timmerman-Cooper’s motion for summary
judgment.

Mr. Brown has been given several extensions of time to

respond; he has more such requests pending, but despite the
passage of a year since the motion was filed, he has never
responded.

For the following reasons, it will be recommended

that the summary judgment motion be granted.
I.
The history of this case is set forth in several prior
orders of the Court.

For example, in the Court’s Opinion and

Order of July 10, 2012, the Court described the case as involving
Mr. Brown’s “claim ... about denial of access to legal materials
and interference with his right to access the courts ....”
84, at 1.

Doc.

In that order, the Court granted a motion for judgment

on the pleadings in favor of all defendants except Warden
Timmerman-Cooper, finding that Mr. Brown had not exhausted the
inmate grievance procedure with respect to his claims except for
those against the Warden.

After that order was issued, the Court

set a case schedule, pursuant to which Ms. Timmerman-Cooper filed
a second motion for judgment on the pleadings, arguing that the
complaint did not adequately allege her personal involvement in

any claimed denial of constitutional rights.

The Court denied

that motion as well, see Doc. 96, but it granted the Warden sixty
additional days to move for summary judgment.

Her motion was

filed in accordance with that order.
Mr. Brown, who has consistently taken the position that he
does not have access to legal materials needed to prosecute this
and other cases, asked for and received extensions of time to
respond to the motion, first to July 12, 2013; then to August 29,
2013; then to October 12, 2013; and finally to November 12, 2013.
He moved to extend that date again.

The Court has not ruled on

that motion, but Mr. Brown has made no effort to file a response
even though six months have passed since his last request for an
extension.

The Court will proceed to analyze the motion on the

basis of the present record.
II.
Warden Timmerman-Cooper has moved for summary judgment on a
number of grounds.

She argues that Mr. Brown, despite his

claims, has been fully able to litigate all of his matters,
particularly civil claims protected by the First Amendment.

She

also asserts that any confiscation of his legal materials
occurred pursuant to valid prison regulations concerning the
amount of personal property which an inmate may possess.
Finally, she claims that she had no direct involvement in any
denial of access to the courts if, in fact, any such denial
occurred.

Her motion is supported by an affidavit from Bonnie

Williams, a paralegal in the Criminal Justice Section of the Ohio
Attorney General’s office, and hundreds of pages of exhibits
dealing with cases which Mr. Brown filed or litigated in Ohio’s
two federal district courts, the Sixth Circuit Court of Appeals,
and various State courts.

Additionally, the motion is

accompanied by a declaration from Unit Manager Administrator
Russell Parrish, who was directly involved in the disposition or
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storage of Mr. Brown’s legal materials during the time Mr. Brown
was housed at the London Correctional Institution (where Ms.
Timmerman-Cooper was the Warden).

Mr. Parrish’s declaration

states that Mr. Brown had excess personal property (more than the
one 2.4 cubic foot locker box which an inmate may possess); that
Mr. Brown’s excess materials were kept at London, but either in
Mr. Parrish’s office or in the vault; that Mr. Brown had access
to them at any time via a written request; that the institution
provided him with accommodations for his legal materials to a
greater extent than it did for other inmates; and that all of the
decisions about legal materials “were made by [Mr. Parrish, unit
manager Kelly] Mason, or other unit staff members, or the vault
staff.

Warden Deb Timmerman-Cooper had no direct involvement in

these decisions.”

(Parrish Declaration, ¶11).

This last allegation is potentially case-dispositive.

It

has long been the law that respondeat superior - the legal
doctrine which makes supervisory employees responsible for the
actions or inactions of their subordinates - does not apply to
cases brought under 42 U.S.C. §1983.

“Government officials may

not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”
Iqbal, 556 U.S. 662, 676 (2009).

Ashcroft v.

Even if a prison official

becomes aware of an alleged constitutional violation by way of a
grievance, denying that grievance does not amount to “personal
involvement” in the alleged wrongful act.

See, e.g., Skinner v.

Govorchin, 463 F.3d 518, 525-26 (6th Cir. 2006), citing, inter
alia, Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Despite the passage of a long period of time, Mr. Brown has
not filed any response to Warden Timmerman-Cooper’s claim that,
even if the way in which institution staff dealt with Mr. Brown’s
property was improper, she was not directly involved.

The law is

clear that “a party cannot rest on the allegations contained in
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his ... [pleadings] in opposition to a properly supported motion
for summary judgment against him.”

First National Bank of

Arizona v. Cities Service Co., 391 U.S. 253, 259 (1968) (footnote
omitted).

Even if the property which Mr. Brown consistently

claims was taken or withheld from him was not immediately
accessible to him, he has made no showing that he was unable, for
a year, to file an affidavit or declaration about the Warden’s
alleged involvement in this case a very limited subject, and one
which he addresses in his complaint.

He has known that it was a

potential issue at least since the first motion for judgment on
the pleadings was filed; if he had any evidence to support her
involvement, he has had ample time to marshal it and come forward
with it.

Under these circumstances, the Court must conclude that

the assertion in Mr. Parrish’s declaration is true; because it
has not been controverted as provided for in Fed.R.Civ.P. 56(c),
the Court is entitled to “consider the fact undisputed for
purposes of the motion ....”

Fed.R.Civ.P. 56(e).

That being so,

it is recommended that the motion for summary judgment (Doc. 97)
be granted, that all other pending motions be denied, and that
judgment be entered in favor of the defendants.
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
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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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