Ridenour et al v. Ohio Department of Rehabilitation and Correction et al

Filing 147

REPORT AND RECOMMENDATIONS: The Magistrate Judge RECOMMENDS that 126 MOTION to Dismiss CLAIMS FOR INJUNCTIVE AND DECLARATORY RELIEF filed by defendants be GRANTED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 10/04/2013. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William L. Ridenour and Tommy Lee
Brown,

:
:

Civil Action 2:10-cv-00493

:

Judge Economous

:

Magistrate Judge Abel

Plaintiffs
v.
Ohio Department of Rehabilitation and
Correction, et al.,

:

Defendants
Report and Recommendation
Plaintiffs William L. Ridenour and Tommy Lee Brown, inmates in the custody of
the Ohio Department of Rehabilitation and Correction (“ODRC”) bring this action
pursuant to 42 U.S.C. § 1983 alleging exposure to friable asbestos at the Chillicothe
Correctional Institution (“CCI”) in violation of their Eighth and Fourteenth Amendment
rights. This matter is before the Magistrate Judge on defendants’ July 8, 2013 motion to
dismiss plaintiffs’ claims for injunctive and declaratory relief (doc. 126).
During a telephone conference with plaintiffs and counsel for defendants, I
understood that plaintiffs intended to dismiss their claims for injunctive and
declaratory relief because their claims are solely for compensatory and punitive
damages. On January 4, 2008, a class action was brought on behalf of inmates at CCI in
connection with alleged exposure to unabated asbestos at CCI. See Smith v. ODRC, Case

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no. 2:08-cv-00015. As inmates housed at CCI, plaintiffs Ridenour and Brown were
members of the Rule 23(b)(2) certified class. The Smith Court approved a settlement
agreement. The settlement agreement dismissed all of the claims of the individual
named plaintiffs and the plaintiff class with prejudice with the exception of individual
claims or other types of money damages related to alleged exposure to asbestos in
violation of the Eighth Amendment. Claims for compensatory and punitive damages
were not adjudicated in Smith v. Ohio Department of Rehabilitation and Correction. In
response to my Order memorializing the telephone conference, plaintiffs stated their
belief that the Smith case did not moot their claim for declaratory relief as the Smith
decision only concerned injunctive relief.
Defendants maintain, however, that the Smith case mooted plaintiffs’ claims for
injunctive and declaratory relief. They argue that this Court has previously ruled that
plaintiffs’ claims for injunctive and declaratory relief were duplicative of those in Smith
and rely on the law of the case doctrine. As a result, defendants maintain that plaintiffs’
claims for injunctive and declaratory relief should be dismissed.
In response, plaintiffs argue that the Smith defendants were not released from
declaratory judgment claims. Rather they were released from all claims “relating to the
removal or abatement asbestos at CCI.” Plaintiffs maintain that the declaratory relief
originally sought in Smith was not addressed by the Court or the settlement agreement.
The Smith complaint sought declaratory judgment relief on (1) whether CCI has
knowingly created unreasonable risks of serious damage to the present and future
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health of the Class in violation of the Eighth and Fourteenth Amendments; (2) whether
CCI has knowingly required inmates to abate exposed and/or friable asbestos without
proper training, containment or personal protective clothing, masks and/or equipment,
thereby exposing the inmates to dangerously high levels of asbestos; (3) whether CCI
failed to implement policies or procedures that would have prevented these
unreasonable risks of serious damage to inmates’ future health and/or failed to follow
existing policies or procedures to prevent such well known risks of harm; and (4)
whether the injunctive and/or declaratory relief will remedy or alleviate CCI’s alleged
ongoing class wide constitutional violations.
Plaintiffs seek declaratory judgment relief under 28 U.S.C. §§ 2201 and 2202.
They argue that the Declaratory Judgment Act specifically provides that further relief is
available based on a request for declaratory judgment. Plaintiffs maintain that because
the settlement agreement only released defendants for claims relating to the removal or
abatement of asbestos at CCI, plaintiffs are entitled to maintain their claim for
declaratory relief.
In the Smith case, the class was defined as all inmates in areas identified as
containing unabated asbestos at CCI. The Stipulation of Dismissal states:
The parties hereby stipulate that the claims of the plaintiff class and the
individual named plaintiffs relating to the following issue shall be and
hereby are dismissed without prejudice: any individual claim for personal
injury or other types of money damages relating to alleged exposure to
asbestos, in violation of the Eighth Amendment.

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Doc. 135-1 at PageID# 1065. All of the other claims of the plaintiff class were dismissed
with prejudice.
The Smith plaintiffs obtained the injunctive relief they requested, and the
declaratory relief sought in the Smith action was dismissed with prejudice. Plaintiffs’
Section 1983 claim in this case will determine whether defendants acted with deliberate
indifference by exposing plaintiffs to friable asbestos posing an unreasonable risk of
serious damage to their future health.
The Magistrate Judge RECOMMENDS that defendants’ July 8, 2013 motion to
dismiss plaintiffs’ claims for injunctive and declaratory relief (doc. 126) be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge
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