Brown v. Parrish et al

Filing 66

ORDER AND REPORT AND RECOMMENDATIONS: It is recommended that 38 MOTION for Judgment on the Pleadings or in the Alternative to Revoke Plaintiff's In Forma Pauperis Status and Compel Payment of Full Filing Fees be granted as to all d efendants except Warden Timmerman-Cooper and denied as to her. It is further ordered that 55 MOTION for Leave to Supplement Pleadings and/or Strike Therefrom S.D.Ohio CivR. 7.2(a)(2) & 62 MOTION for Extension of Time to File Response/Reply as to 56 MOTION for an Emergency Interim Hearing, Preliminary Injunction and Temporary Restraining Order are denied. Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 1/5/2012. (kk2)

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

Frank C. Brown, Jr.,

:

Plaintiff,

:

v.

:
:

Russ Parish, et al.,
Defendants.

Case No.

2:10-cv-352

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
AND ORDER
Plaintiff, Frank C. Brown, Jr., a state prisoner, filed this
action under 42 U.S.C. §1983 alleging that by denying him access
to certain of his legal materials, the defendants adversely
affected his ability to pursue legal actions relating either to
the fact or the conditions of his confinement.

In an Opinion and

Order filed on July 16, 2010 (Doc. #6), the Court concluded that
the complaint adequately stated a claim for infringement of the
First Amendment right of access to the courts, noting that Mr.
Brown “may or may not have suffered actual prejudice resulting
from the alleged actions of the defendants.

However, Plaintiff’s

allegations are sufficient to state a claim upon which relief may
be granted.”
Defendants answered, and subsequently filed a motion for
judgment on the pleadings, raising the defenses of lack of
exhaustion of the prison grievance procedure and qualified
immunity.

That motion is fully briefed.

For the following

reasons, it will be recommended that the motion for judgment on
the pleadings be granted as to all defendants except defendant
Timmerman-Cooper.

The Court will also issue a ruling on certain

other motions or, as appropriate, recommend a disposition of

those other motions by the District Judge.
I.
The basic facts underlying Mr. Brown’s complaint are set
forth in some detail in the Court’s July 16, 2010 Opinion and
Order and will not be repeated here unnecessarily.

It is

sufficient, for purposes of this Report and Recommendation, to
say that Mr. Brown’s claim arises out of what happened to his
legal material in 2009 and 2010 as he was transferred around the
Ohio prison system.

He asserts that these transfers and the

resultant six-month delay in being able to access his legal
materials caused him to be unable to work on a federal habeas
corpus case he had filed in the Northern District of Ohio, to
file a state court mandamus case, and file suit challenging the
conditions of his confinement.
The motion for judgment on the pleadings is based primarily
on Mr. Brown’s own description of the way in which he pursued
grievances relating to the deprivation of access to his legal
materials.

In his complaint (Doc. #3), Mr. Brown recites that “I

filed a grievance directly to the Chief Inspector in Columbus
against the Warden, Deb Timmerman-Cooper, Russ Parrish, UMA, and
Major Stanley Taylor for this cause.”

His complaint also states

that his grievance was denied on grounds that he did not follow
the correct procedure for grieving these actions, starting with
the informal complaint stage at the institutional level.

Copies

of his grievance and the Chief Inspector’s response are attached
to the complaint.
In his response, Mr. Brown asserts that he could not have
followed the usual grievance procedure because the person to whom
that grievance should have been directed was defendant Parrish’s
supervisor, but that position had been eliminated.

He did send a

letter to the Warden, and he attached a copy of that letter to
his response, and also claims that he was told he had to file a
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grievance with the Deputy Warden of Operations.

At the time,

that position was being filled by either Unit Manager Parrish or
Major Taylor, so it would not have been proper to submit a
grievance to them about their own actions.

Additionally, he

asserts that he raised this issue in a state court case and
Warden Timmerman-Cooper was made aware of the issue through that
filing.

In their reply, the defendants do not take issue with

any of Mr. Brown’s factual assertions, so the Court will assume
their truth for purposes of ruling on the motion for judgment on
the pleadings.

They do, however, dispute that Mr. Brown’s

attempts to exhaust the prison grievance procedure were adequate.
The Court will address this argument below.
II.

Legal Standard

A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th
Cir.1979).

In ruling upon such motion, the Court must accept as

true all well-pleaded material allegations of the pleadings of
the opposing party, and the motion may be granted only if the
moving party is nevertheless clearly entitled to judgment.
Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir.1973).

The same rules which

apply to judging the sufficiency of the pleadings apply to a Rule
12(c) motion as to a motion filed under Rule 12(b)(6); that is,
the Court must separate factual allegations from legal
conclusions, and may consider as true only those factual
allegations which meet a threshold test for plausibility.

See,

e.g., Tucker v. Middleburg-Legacy Place, 539 F.3d 545 (6th Cir.
2008), citing, inter alia, Bell Atlantic Corp. v. Twombly
550 U.S. 544 (2007).

It is with these standards in mind that the

motion for judgment on the pleadings must be decided.
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III.

Discussion

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
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.
One of the defendants in this case is the Warden of the
London Correctional Institution, Deb Timmerman-Cooper.
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Because

the exhaustion requirements differ for the Warden and the other
defendants, the Court will analyze the exhaustion issue
separately as to Warden.
Defendants concede that the grievance which Mr. Brown filed
against Warden Timmerman-Cooper was properly directed to the
Chief Inspector under O.A.C. §5120-31-9(M).

They argue, however,

that it was insufficient to exhaust remedies with respect to the
Warden because it did not specify how she was personally involved
in the actions of others who allegedly denied Mr. Brown access to
his legal materials.

That is both a requirement of the Ohio

Administrative Code and a requirement to state a claim against a
supervisory official under §1983.

See Monell v. Department of

Social Services, 436 U.S. 658 (1978).
It is important to recall that Mr. Brown’s complaint about
the denial of access to his legal materials after he was returned
to the London Correctional Institution on November 29, 2009, was
that he was not permitted to take his legal material to his
housing area immediately because some of the defendants (but not
the Warden) insisted on looking through it to make sure it was
all his.

The material was then placed in a storage locker and

then transferred to defendant Russ Parrish’s office.

As of the

date of the filing of the complaint (it was signed on April 21,
2010), Mr. Brown was still being denied access to those
materials.
Although the body of the complaint does not say much about
the Warden’s involvement in these actions, Mr. Brown’s grievance
filed with the Chief Inspector, which is attached to his
complaint (the electronic copy is nearly illegible, but there is
an original copy available in a hard file maintained by the
Clerk’s office which is much more readable) states the following.
The grievance is dated February 20, 2010, at a time when his
property was still in the property vault, and it begins by
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alleging that “Deb Timmerman-Cooper [is] violating my
constitutional right of access to the court by keeping my
personal and general legal materials locked up in the R & T vault
and refusing to give it back.”

He mentions her several more

times in the grievance, stating at one point that “Warden Cooper
is most definitely aware that I am being denied access, have been
denied access and am still being denied access to all the legal
material ....”

As relief, he asked that she be told that she

“cannot nor is permitted to engage in this sort of conduct at any
time and there can be ramifications.

She is knowingly violating

a constitutional rule, and DRC policy and OAC codes.”
Defendants argue that, notwithstanding this language, the
grievance was insufficient to put the Chief Inspector on notice
as to the particulars of how the Warden was involved in the
alleged constitutional deprivation.

They reason that because the

grievance stated, in part, that the Warden must have been aware
of the problem because of a class action which Mr. Brown filed in
the Ohio Supreme Court, and because there is no proof that the
Warden personally received any of the filings in that case that
addressed this issue, its allegations about her involvement are
unsupported.

The applicable regulation, however, does not call

for evidentiary support for a grievance; it simply requires that
the grievance “show that the warden or inspector of institutional
services was personally and knowingly involved in a violation of
law, rule or policy, or personally and knowingly approved or
condoned such a violation.”

Mr. Brown’s grievance does that.

Whether what he said in the grievance is true is an entirely
different question, but the grievance clearly lays out the
violation and the Warden’s alleged complicity in it, or, at the
very least, her personal knowledge and approval of it.

Since the

requirements in the regulation are stated in the disjunctive, the
latter is sufficient to meet the standard set forth there.
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The

Court therefore concludes that, as to Warden Timmerman-Cooper,
Mr. Brown properly exhausted the prison grievance procedure.
As to the other defendants, Mr. Brown makes no argument, and
apparently concedes, that he did not exhaust the grievance
procedure as to any of them except defendants Russ Parrish and
Stanley Taylor.

He makes two arguments about Mr. Parrish - that

he did not have a direct supervisor to whom a grievance could be
directed, and that he temporarily filled the job of Deputy Warden
of Operations, which is where Mr. Brown was told to file that
grievance.

He claims the latter (but not the former) was also

true about Major Taylor.

Defendants assert that even if these

statements are taken as true, there is no excuse for Mr. Brown’s
having bypassed the institutional grievance process altogether as
to these two defendants.
In this instance, the Court agrees with defendants.

The

applicable code section, O.A.C. §5120-931(K), does not designate
the direct supervisor of the responsible prison official as the
only person to whom a first-step grievance can be directed.

It

also permits the grievance to be submitted to the “department
most directly responsible for the particular subject matter of
the complaint.”

Mr. Brown has not explained why he did not even

attempt to submit an informal grievance in that way.

If, as he

alleges, and as the response he received from the Chief Inspector
(also attached to the complaint) appears to indicate, that
department was headed by the Deputy Warden for Operations, and
that position was either vacant or being temporarily filled by
either Unit Manager Parrish or Major Taylor, he could possibly
have proceeded to the second step of the process, which is filing
a grievance with the Inspector of Institutional Services and
explaining why he skipped the first step.

Any of these actions

would have brought the matter to the attention of the local
institution in a way that would have forced it to respond in some
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way.

The Court does not read the grievance procedure as

permitting individual inmates to decide unilaterally that these
steps in the process may be unavailable to them due to temporary
changes in circumstances or positions within a particular
institution, and allowing them to proceed directly to litigation
without having made even a good faith attempt to exhaust the
grievance process.
The case law, from the Supreme Court on down, is replete
with language stressing the mandatory nature of exhaustion of an
available prison grievance procedure.

See, e.g., Woodford v.

Ngo, supra; see also Carr v. Lavender, 2011 WL 4467670, *3 (S.D.
Ohio Sep 26, 2011)(“The requirement to exhaust administrative
remedies is mandatory”), adopted and affirmed 2011 WL 5834967
(S.D. Ohio Nov 21, 2011).

Further, the Court of Appeals has

specifically held that
a jail's grievance policies need not explicitly provide
for all possible scenarios in which a prisoner may seek
to file a grievance. Instead, when a reasonable policy
is in place, but is silent or vague in a particular
circumstance, courts must look to see whether the
prisoner has attempted to satisfy the requirements of
the policy.
Napier v. Laurel County, Ky., 636 F.3d 218, 223 (6th Cir. 2011).
Here, Mr. Brown did not make such an effort with respect to Unit
Manager Parrish or Major Taylor.

Consequently, he did not

exhaust available remedies, as required by the PLRA, with respect
to any defendant named in this case except the Warden, and that
conclusion mandates the dismissal of his claims against those
other defendants.
The only other argument defendants raise in support of their
motion (apart from the more general argument about revoking Mr.
Brown’s in forma pauperis status due to what defendants claim is
his abuse of the litigation process) is a qualified immunity

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defense.

That argument is completely focused on the issue of

whether any of the defendants acted reasonably in enforcing a
property restriction dealing with the amount of legal materials
an inmate may possess.

But, as the complaint, the Court’s prior

interpretation of it, and Mr. Brown’s response make clear, this
case is not about that restriction, but about the intentional
actions of the defendants in preventing him from having access to
all of his legal material for many months, even though it was
being kept at his institution.

Since defendants have not

advanced any argument about this claim, judgment on the pleadings
on grounds of qualified immunity would not be appropriate.
IV.

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 (#55) and defendants’ motion for an
extension of time (#62).

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.
Should the Court adopt this Report and Recommendation, all of
those motions (including #s 25, 41, 42, 46 and 56) would be
affected to some extent, at least to the extent that they request
relief in this case (many of these motions were filed in
identical form in both this and other cases brought by Mr.
Brown), and they should be considered jointly in all of his
pending cases in light of this and other recommendations which
are being submitted to the District Judge.
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That should be done

in a separate order, so those motions are not addressed by this
Report and Recommendation.
V.

Recommendation and Order

Based on the above discussion, it is recommended that the
defendants’ motion for judgment on the pleadings (#38) be granted
as to all defendants except Warden Timmerman-Cooper and denied as
to her.

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

to supplement and to strike (#55) and defendants’ motion for an
extension of time (#62) are denied.
VI.

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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