Brown v. Parrish et al
Filing
94
REPORT AND RECOMMENDATIONS that 88 MOTION for Judgment on the Pleadings & 90 MOTION for Preliminary Injunction and Temporary Restraining Order both be denied. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/7/2013. (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
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, 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.
In an Opinion and Order filed on July 10,
2012, the Court granted the motion on exhaustion grounds as to
all defendants but Warden Timmerman-Cooper.
Her motion, which
also raised issues of exhaustion, was denied because the Court
concluded that Mr. Brown followed the proper procedure for filing
a grievance against the Warden and that, despite defendants’
arguments to the contrary, his grievance sufficiently alleged her
personal involvement in the confiscation of, and refusal to
return, his legal materials.
Warden Timmerman-Cooper has now filed a motion for judgment
on the pleadings.
The sole basis of that motion is her argument
that the complaint pleads no facts concerning her involvement in
the confiscation of Mr. Brown’s legal materials, and that she
cannot be held liable solely on respondeat superior grounds.
Brown has opposed the motion.
Mr.
For the following reasons, it is
recommended that the motion be denied.
I.
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.
II.
Discussion
As noted, one basis of the prior motion, which the Court
overruled, was that Mr. Brown had not exhausted the grievance
system properly as it relates to the Warden because his grievance
did not adequately allege her personal involvement in the claimed
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constitutional deprivations.
In rejecting that argument, the
Court - as it is permitted to do when considering a motion for
judgment on the pleadings, see Haeberle v. University of
Louisville, 90 Fed. Appx. 895 (6th Cir. February 6, 2004), citing
Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) - looked
to the attachments to Mr. Brown’s complaint.
There, the Court,
after noting that allegations of personal involvement are “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),”
held that “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.”
Recommendation, Doc. 66, at 5-6.
Report and
The Warden did not object to
the Report and Recommendation as to this point, and Judge Sargus
subsequently adopted and affirmed this conclusion in the July 10,
2012 Opinion and Order.
Given the fact that the argument which the Warden now
presents is very similar to the one raised in her prior motion,
although it is phrased in terms of failure to state a claim as
opposed to failure to exhaust, it is relevant to quote the Report
and Recommendation’s analysis of this issue.
There, the Court
said:
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 alleging that “Deb TimmermanCooper [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
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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.”
Report and Recommendation, Doc. 66, at 5-6.
In her current motion, the Warden makes no mention of the
allegations in this grievance, focusing instead on the body of
the complaint and the section where Mr. Brown was asked to state
the facts underlying his claim.
She also does not appear to
acknowledge that she made a similar argument in her prior motion
for judgment on the pleadings and that the Court rejected it.
It is true, as the Warden’s motion points out, that a
supervisory official cannot be held liable just by virtue of
denying an administrative grievance.
F.3d 295 (6th Cir. 1999).
See Shehee v. Luttrell, 199
That is true in part because, under
§1983, “[a] plaintiff's claim is against the subjects of his
grievances, not those who merely decided whether to grant or deny
the grievances.”
Burke v. Thompson, 2010 WL 1141213, *3 (W.D.
Ky. March 22, 2010).
As this Court has said, “[t]he law is clear
that unless a defendant is personally involved in some way in an
alleged constitutional deprivation, simply gaining knowledge of
the situation through the prison grievance process and failing to
respond are not sufficient to make someone liable.”
Harris v.
Collins, 2007 WL 1822288, *3 (S.D. Ohio June 22, 2007).
Here, however, Mr. Brown alleges more than that.
He claims
- whether truly or falsely - that the Warden herself was directly
involved in keeping his legal materials from him at a time when
he was attempting to litigate issues concerning his conditions of
confinement or the fact of his confinement.
Shehee premised its
holding of no liability on the absence of allegations that “‘the
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[prison] official at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the
offending officers’” in some way other than by denying a
grievance directed toward those officers’ conduct.
Shehee, 199
F.3d at 300, quoting Hays v. Jefferson County, Ky., 668 F.2d 869,
874 (6th Cir. 1982).
Mr. Brown, in his grievance against the
Warden, alleges that she was a participant in the decision to
continue to withhold his legal materials, and not just that she
did not sustain his grievances against the officers who allegedly
confiscated those materials.
At the pleading stage, that is
enough to satisfy the requirement of alleging personal
involvement.
Cf. Lueck v. Wathen, 262 F.Supp.2d 690, 696
(N.D. Tex. 2003)(holding that complaint sufficiently alleged
personal involvement of an assistant warden in the confiscation
of legal materials when plaintiff claimed that official “directed
Officers ... to confiscate his legal materials in violation of
prison policy”).
It is important to recall that Mr. Brown is
complaining not only about the initial confiscation of his legal
materials, an action which, it appears, the Warden learned of
only after the fact, and only through the grievance process, but
also the continued detention of those materials, something which,
says Mr. Brown, the Warden not only knew about but either
actively encouraged or ordered.
Again, because the current
motion to dismiss focuses solely on the sufficiency of the
allegations of personal involvement, Mr. Brown’s claims against
the Warden - whatever their other deficiencies - survive this
motion.
Mr. Brown has also moved for a temporary restraining order
and preliminary injunction.
However, he is no longer at the
London Correctional Institution, where the only defendant in this
case is the Warden.
She would have no ability to cure the
problems he describes in his motion.
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Therefore, it will be
recommended that his motion be denied.
III.
Recommendation and Order
Based on the above discussion, it is recommended that the
motion for judgment on the pleadings (#88) and Mr. Brown’s motion
for a preliminary injunction and temporary restraining order
(#90) both be denied.
Should the Court adopt this
recommendation, it should grant defendants a short period of time
to move for summary judgment so that the Court can determine if
there are triable issues of fact, and, if so, to set the case for
trial.
IV.
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
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United States Magistrate Judge
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