Brown v. Mason et al

Filing 67

ORDER AND REPORT AND RECOMMENDATION: It is recommended that 44 MOTION for Summary Judgment be granted and that all of the claims against the individual defendants be dismissed w/out prejudice to their reinstatement should the Ohio Court of Cla ims ever determine that the waiver of claims against those defendants is void. It is further recommended that if the Court adopts this recommendation and dismisses the case that 30 MOTION for Preliminary Injunction and/or Temporary Restraining Ord er, 41 MOTION for Immediate Interim Order on Plaintiff's 30 Motion for Preliminary Injunction and Temporary Restraining Order, 50 MOTION to Compel & 58 MOTION for an Emergency Interim Hearing, Preliminary Injunction and Temporar y Restraining Order be denied as moot. It is further ordered that 38 MOTION for Leave to File Amended Complaint is granted and that 40 MOTION for Extension of Time or Stay on Actions, 57 MOTION for Leave to Supplement Pleadings and/or Strike Therefrom S.D.Ohio CivR. 7.2(a)(2), 46 MOTION to Compel Service & 63 Second MOTION for Extension of Time to File Response/Reply are denied. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 12/28/2011. (kk2)

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

:

Plaintiff,

:

v.

:
:

Kelly Mason, et al.,
Defendants.

Case No. 2:10-cv-0783
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
AND ORDER
Plaintiff, Frank C. Brown, Jr., a state prisoner, filed this
civil rights action against a number of defendants employed by
the Ohio Department of Rehabilitation and Correction at the
London, Ohio Correctional Institution, the facility where Mr.
Brown is currently housed.

In response to the defendants’

initial motion to dismiss, this Court, in an Opinion and Order
filed on May 4, 2011, granted the motion to dismiss but permitted
Mr. Brown to file an amended complaint providing more detail
about his access to the courts claim.
On May 31, 2011, Mr. Brown filed an amended complaint.

In

it, he details a series of events, beginning with a response to
an informal grievance which he received on August 15, 2008, and
culminating in an occurrence on March 23, 2009, which, in his
view, adversely affected his ability to pursue certain legal
claims due to the defendants’ confiscation and destruction of his
legal materials.
Those defendants who have been served with process answered
the amended complaint on June 9, 2011.

On September 16, 2011,

they moved for summary judgment, asserting that Mr. Brown had
waived his right to pursue any of these claims in this Court by
virtue of his having filed an identical complaint in the Ohio

Court of Claims.

Mr. Brown opposed that motion and cross-moved

for summary judgment.
briefed.

All of these matters have now been fully

For the following reasons, it will be recommended that

the defendants’ motion for summary judgment be granted and that
this case be dismissed.

The Court will either dispose of, or

make recommendations concerning, a number of other pending
motions.
I.

The Facts

In its prior Report and Recommendation (#23), the Court
summarized the facts this way.

Although the summary was based on

the initial complaint, the amended complaint does not alter these
basic facts, but rather includes some additional information
about the cases which Mr. Brown claims were affected by the
destruction of his legal materials.
Mr. Brown’s complaint is directed to ten defendants,
all employees of ODRC. His allegations, fairly
summarized, begin with Mr. Brown’s transfer to the
London Correctional Institution in 2008. He brought
with him, or had sent to him from his previous place of
confinement, a large volume of legal materials. For a
time, he was allowed to store them in various
locations, but when defendant Mason became his unit
manager in February, 2009, she began to question why he
had such a large amount of material. On March 23,
2009, she and defendant Gilliam ordered Mr. Brown to
remove his excess material from Mason’s office, where
it had been stored, and when he refused, defendant
Gilliam ordered inmate porters to throw it in a trash
compactor. Mr. Brown alleges that after he filed an
informal complaint about these actions, he was placed
in a disciplinary dormitory.
According to the complaint, several months later,
as part of a routine “shakedown” conducted in his
dormitory, more of Mr. Brown’s legal materials were
confiscated, this time by defendants Barbee and Reeves,
both corrections sergeants. He claims that some of it
was also thrown away. He asserts that he filed proper
grievances about all of the actions described in the
complaint, and that these actions violated his rights
under the First, Fifth, Eighth, and Fourteenth
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Amendments to the United States Constitution. He also
pleads a claim for infliction of emotional distress.
In their motion for summary judgment, the defendants do not
directly take issue with the way in which Mr. Brown has pleaded
the underlying facts (although they do not admit them).

Rather,

they argue that additional facts which they have submitted with
their motion provide the basis for summary judgment.
The additional facts are these.

As shown by a copy of a

complaint which Mr. Brown filed in the Ohio Court of Claims on
March 1, 2011, Mr. Brown has pleaded essentially the same factual
allegations in that court.

Although the Court of Claims

complaint is somewhat shorter than the amended complaint filed in
this case, the allegations about the key events - those which
took place between March 3, 2009 and March 23, 2009, culminating
in the alleged loss of legal materials and resulting prejudice to
Mr. Brown’s pending cases - are identified.

Mr. Brown has not

disputed that he filed the complaint attached to the motion for
summary judgment, so those additional facts - that he filed the
complaint, and that it alleges the same conduct as does his
complaint in this case - will be taken as true for purposes of
ruling on defendants’ motion.
II.

Legal Standard

Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.

It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).

The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
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nonmoving party.
(1970).

Adickes v. S.H. Kress & Co., 398 U.S. 144

Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving
party.

United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.

See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).

Of course, since "a party seeking

summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
to respond to those issues clearly identified by the moving party
as being subject to the motion.

It is with these standards in

mind that the instant motion must be decided.
III.

Discussion

The State of Ohio has, by statute, enacted a limited waiver
of its sovereign immunity from suit.

O.R.C. §2743.02 provides,

in relevant part, that
(A)(1) The state hereby waives its immunity from
liability ... and consents to be sued, and have its
liability determined, in the court of claims created in
this chapter in accordance with the same rules of law
applicable to suits between private parties, except
that the determination of liability is subject to the
limitations set forth in this chapter ....
Except in the case of a civil action filed by the
state, filing a civil action in the court of claims
results in a complete waiver of any cause of action,
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based on the same act or omission, which the filing
party has against any officer or employee, as defined
in section 109.36 of the Revised Code. The waiver shall
be void if the court determines that the act or
omission was manifestly outside the scope of the
officer's or employee's office or employment or that
the officer or employee acted with malicious purpose,
in bad faith, or in a wanton or reckless manner.
The waiver of claims created by §2743.02 applies to suits
filed in federal courts under 42 U.S.C. §1983.

See Thomson

v. Harmony, 65 F.3d 1314, 1318 (6th Cir. 1995), citing
Leaman v. Ohio Dept. Of Mental Retardation and Dev.
Disabilities, 825 F.2d 946 (6th Cir. 1987).
The language used in Leaman, however, implies that a
finding of waiver does not automatically follow from the
fact that a plaintiff has filed overlapping cases in federal
court and in the Ohio Court of Claims, and suggests that the
waiver must be knowing and voluntary in order to be
effective.

See Leaman, 825 F.2d at 956 (indicating that

there should be “an adequate foundation for the finding of
voluntariness” with respect to this waiver).

The Court of

Appeals has further observed that a trial court may not
necessarily presume an intelligent and voluntary waiver of
rights when the plaintiff is a pro se litigant.

See Kajfasz

v. Haviland, 55 Fed. Appx. 719 (6th Cir. January 15, 2003).
This Court, however, has held that if the pro se plaintiff
is an experienced litigator, it can find that he or she
“made an informed choice” by filing suit in the Court of
Claims and thereby waiving the right to pursue federal
claims in federal court.

See Easley v. Bauer, 2008 WL

618642, *3 (S.D. Ohio February 29, 2008) (finding a waiver
where the plaintiff was an experienced pro se litigant and
had filed at least ten other cases).
Here, defendants assert that Mr. Brown is a very
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experienced litigator, having pursued in excess of thirty
cases or appeals in the last five years, over twenty of
which involved governmental entities.

Mr. Brown does not

dispute that fact, and this Court’s records show that he has
filed seven cases here in the past few years, with five
(including this one) still pending.

There is no question

that he is a much more experienced litigator than the
average pro se party, and the Court has little difficulty in
concluding that he was well aware of the consequences of his
decision to file suit in the Ohio Court of Claims.
Mr. Brown’s only argument in response to the motion for
summary judgment is that the acts he has alleged - the
intentional unlawful destruction of his legal materials are manifestly outside the scope of the duties of the
individual defendants, and that they cannot take advantage
of the waiver which is created by §2743.02(A).

The language

quoted above states that the waiver is void if “the court
determines” that the defendants acted manifestly outside the
scope of their employment or in a malicious, wanton or
reckless manner.

The “court” referred to in this statute is

the Ohio Court of Claims, however, and not this or any other
court in which similar claims have been asserted.

“The

determination of whether a state employee's actions were
ultra vires or malicious is to be made exclusively by the
Ohio Court of Claims.”

Turker v. Ohio Dept. of

Rehabilitation and Correction, 157 F.3d 453, 458 (6th Cir.
1998); see also Thomas v. Ohio Dept. of Rehabilitation and
Correction, 36 F.Supp.2d 1005, 1008 n.4 (S.D. Ohio 1999).
Mr. Brown has not submitted any evidence that the Ohio Court
of Claims has made such a ruling.

Therefore, by filing his

suit in that Court, he has waived his right to pursue any
damage claims against the defendants in this Court, and the
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defendants’ motion for summary judgment must be granted.
IV.

Other Motions

There are a number of other motions pending in this case.
Some of them fall within the jurisdiction of the Magistrate judge
to determine in the first instance.

Such motions include Mr.

Brown’s motion for leave to amend (#38), which is not opposed and
will be granted, and his motion for an extension of time (#40),
which is now moot and will be denied for that reason.
Defendants’ motion to compel service (#46) will also be denied,
as will Mr. Brown’s motion for leave to supplement and to strike
(#57).

Defendants’ motion for an extension of time (#63) is also

moot and 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 30, 41, 50, and 58) would be moot and
should be denied, 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).

The same

result should apply to Mr. Brown’s motion for summary judgment
and the defendants’ motion to stay discovery pending a ruling on
their motion for summary judgment.
V.

Recommendation and Order

Based on the above discussion, it is recommended that the
defendants’ motion for summary judgment (#44) be granted and that
all of the claims asserted against the individual defendants be
dismissed without prejudice to their reinstatement should the
Ohio Court of Claims ever determine that the waiver of the claims
against those defendants is void.

It is further recommended

that, if the Court adopts this recommendation and dismisses the
case, that the motions filed at ECF #s 30, 41, 50, and 58 all be
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denied as moot.

It is further ordered that Mr. Brown’s motion

for leave to amend (#38) is granted and that Mr. Brown’s motions
for an extension of time (#40) and for leave to supplement and to
strike (#57) are denied.

Defendants’ motion to compel service

(#46) and their motion for an extension of time (#63) are also
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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