Brown v. Johnson et al

Filing 92

ORDER AND REPORT AND RECOMMENDATIONS recommending that the 81 MOTION for Preliminary Injunction and Temporary Restraining Order be denied as moot, that the 85 MOTION to Dismiss and the 86 MOTION for Summary Judgment be granted & that th is case be terminated. Further, for good cause shown, the 84 MOTION to Withdraw as Attorney for Defendant Klotz is granted, the 88 MOTION for Extension of Time to File Response/Reply as to 86 MOTION for Summary Judgment is denied, and the 31 MOTION to Strike & 80 MOTION to Deny re 77 MOTION for Leave to File Answer Instanter are denied as moot. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 8/6/2013. (kk2)

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

:

Plaintiff,

:
:

v.
Captain Andre J. Johnson,
et al.,
Defendants.

Case No. 2:10-cv-965
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

:
:

REPORT AND RECOMMENDATION
AND ORDER
Plaintiff, Frank C. Brown, a state prisoner formerly housed
at the London Correctional Institution, filed this 42 U.S.C.
§1983 case claiming that his constitutional rights were violated
by certain actions which, he contends, were taken in retaliation
for his exercise of his First Amendment rights.

Currently before

this Court is the State of Ohio’s motion to dismiss former
corrections officer Bridgette Klotz (Doc. #85), Defendants’
motion for summary judgment (Doc. #86), and Mr. Brown’s motion
for a preliminary injunction and a temporary restraining order
(Doc. #81).

For the reasons set forth below, the Court will

recommend that the State of Ohio’s motion to dismiss Defendant
Klotz be granted, Defendants’ motion for summary judgment be
granted (Doc. #86), and Mr. Brown’s motion for a preliminary
injunction and a temporary restraining order be denied as moot
(Doc. #81).
I.

Background

As set forth in prior orders of this Court, Mr. Brown
alleges that in September, 2010, he was removed from his prison
job in the law library as retaliation for the exercise of his
First Amendment rights.

Prior to that time, he had filed an

informal complaint against a corrections officer about the loss
of a legal mail pass, and, when he was not allowed to see a log

book, he threatened to sue.

He was then threatened with

institutional charges but none were ever filed.

Mr. Brown’s

complaint recites other instances where corrections officials
harassed him for filing grievances or pursuing litigation,
including filing false charges against him, and he asserts that
all of this retaliatory conduct culminated in the loss of his job
assignment in the law library.

He also claims that, on other

occasions, he was given some extra duty as punishment and given a
verbal reprimand, again as part of an overall pattern of
retaliation.
In an order filed on April 4, 2011, the Court concluded that
these allegations were sufficient, under the law of retaliation
as set forth in Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th
Cir. 1999), to state a claim which could survive the initial
screening required by 28 U.S.C. §§1915(e) and 1915A.

Thereafter,

the Court denied Defendants’ motion to dismiss on the grounds of
qualified immunity and granted Mr. Brown’s motion for leave to
amend his complaint.

The Court later granted Mr. Brown an

extension of time to amend his complaint.

Mr. Brown has not

filed an amended complaint or sought leave for additional time in
order to do so.

The Court also issued an Opinion and Order

denying Mr. Brown’s motion for injunctive relief and later denied
Mr. Brown’s motion for reconsideration on this issue.
Currently before this Court is a motion to dismiss former
corrections officer Bridgette Klotz (Doc. #85), Defendants’
motion for summary judgment (Doc. #86), and Mr. Brown’s motion
for a preliminary injunction and a temporary restraining order
(Doc. #81).

The Court will first consider whether Mr. Brown

exhausted his administrative remedies as required by the Prison
Litigation Reform Act of 1996 (PLRA), 42 U.S.C. §1997e(a), prior
to bringing this lawsuit, an issue raised in both the motion to
dismiss and the motion for summary judgment.
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II. Exhaustion of Administrative Remedies
In its motion to dismiss, the State of Ohio1 argues that Mr.
Brown’s claim against Defendant Klotz is barred because he failed
to exhaust his administrative remedies with respect to that
claim.

Similarly, in the motion for summary judgment, Defendants

argue that Mr. Brown’s “failure to exhaust his administrative
remedies bars his claims as to Defendants Johnson, Richardson,
Ferrell, Foy, Frye, Hurwood, and Mason.”

(Doc. #86 at 5).

Defendants attach a Declaration of Suzanne Evans, a Correctional
Grievance Officer for the ODRC, in support of their assertion
that Mr. Brown did not exhaust his administrative remedies as to
these Defendants.

Id. at Ex. 1.

Defendants do not, however,

argue that Mr. Brown failed to exhaust his administrative
remedies with respect to his claim against Defendant Decarlo
Blackwell, Inspector of Institutional Services at the London
Correctional Institution.

Id. at n.1.

Accordingly, Mr. Brown’s

claim against Defendant Blackwell will be considered infra in
this Report and Recommendation.
The PLRA requires a prisoner to exhaust administrative
remedies prior to filing an action in federal court.
§1997e(a).

42 U.S.C.

“To exhaust a claim, a prisoner must proceed through

all steps of a prison or jail’s grievance process, because an
inmate ‘cannot abandon the process before completion and claim
that he has exhausted his remedies.’” Umani v. Caruso, No. 07-CV10649, 2008 WL 2216283 at *5 (E.D. Mich. May 27, 2008) (quoting
Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999)).
Although exhaustion is not a jurisdictional prerequisite, it is a

1

The State of Ohio filed the motion pursuant to O.R.C.
§109.361, which allows the Ohio Attorney General to make an
appearance to represent the State of Ohio’s interests despite the
fact that Defendant Klotz has made no request for representation.
(Doc. #85 at n.1).
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mandatory requirement.
(6th Cir. 1999).

See Wyatt v. Leonard, 193 F.3d 876, 879

Failure to properly exhaust bars suit in

federal court. See Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378
(2006).
Prisoners are not required to plead and prove exhaustion in
their complaint, rather failure to exhaust is an affirmative
defense.

See Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007).

Compliance with the grievance procedures will vary between
systems and from claim to claim, “but it is the prison's
requirements, and not the PLRA, that define the boundaries of
proper exhaustion.”

Id. at 921.

Exhaustion is mandatory even if

proceeding through the administrative process would appear to the
inmate to be “futile.”

Hartsfield, at 308-310.

That is, “there

is no futility exception to the exhaustion requirement.”

Unami

at *6 (citing Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819
(2001)).

As the Court of Appeals recently observed, “[t]he point

of the PLRA exhaustion requirement is to allow prison officials
‘a fair opportunity’ to address grievances on the merits, to
correct prison errors that can and should be corrected and to
create an administrative record for those disputes that
eventually end up in court.”

Reed-Bey v. Pramstaller, 603 F.3d

322, 324 (6th Cir. 2010).
In the complaint, Mr. Brown acknowledged that there is a
prisoner grievance procedure at the London Correctional
Institution which he did not comply with.

(Doc. #1, Ex. 1 at 5).

As to the reason for his noncompliance, Mr. Brown stated, “That
is the basis and reasons for this action.

I was taken in

handcuffs to the captain’s office for filing an Informal
Complaint Resolution against a C.O. and was told by Lts. that
‘Your next one better be worded right or you are going to the
hole!’.”

Id.

As the State of Ohio observes in its reply brief

in support of its motion to dismiss, although Mr. Brown opposed
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the motion, he failed to respond to the State of Ohio’s argument
that he failed to exhaust his administrative remedies.

(Doc. #89

at 1-2).
Mr. Brown did not file an opposition to the motion for
summary judgment, instead filing a “motion for time extension.”
(Doc. #88).

In the motion, Mr. Brown argues that he is unable to

effectively respond because Defendants have refused to permit him
to retain his legal documents and did not allow him to take the
documents with him when he transferred to another institution.
Defendants oppose Mr. Brown’s motion for an extension of time,
stating that “Plaintiff’s Motion cites to Federal Rule of Civil
Procedure 7(a), but it is more appropriately construed as a Rule
56(d) motion.”

(Doc. #90 at 1).

Fed. R. Civ. P. 56(d), “When

Facts Are Unavailable to the Nonmovant,” provides:
If a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential
to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations
or to take discovery; or
(3) issue any other appropriate order.
Id.

Defendants argue that the Court should deny Mr. Brown’s

motion because it is not properly supported by an affidavit or a
declaration as required by Fed. R. Civ. P. 56(d).

Moreover,

Defendants assert that even if the motion were properly
supported, Mr. Brown “does not identify any material facts he
seeks to show are in dispute, or describe how his legal files
would assist him.”

(Doc. #90 at 2.)

Here, Mr. Brown admits in his complaint that he did not
exhaust his administrative remedies.

Further, in his motion for

an extension of time, Mr. Brown does not suggest that the
materials he seeks would indeed demonstrate that he satisfied the
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exhaustion requirement.

Instead, Mr. Brown claims a need for the

materials “in order for him to effectively refute and rebut
[Defendants’] perjury.”

(Doc. #88 at 1).

In his reply in

support of his motion for an extension, Mr. Brown asserts that
the materials he seeks will demonstrate that “he initiated
grievance procedures against defendants” which led to issuance of
false conduct reports.

(Doc. #91 at 1).

Although he claims to

have initiated the grievance process, he does not argue that the
materials will demonstrate his exhaustion of that process.

On

this basis, the “motion for time extension” (Doc. #88) will be
denied.
In his complaint, Mr. Brown’s explanation as to why he did
not exhaust his administrative remedies seems to suggest that he
feared retaliation if he pursued his rights fully using the
institution’s grievance procedure.

A prisoner’s general

allegation that he feared retaliation from the prison staff,
however, does not excuse the prisoner from exhausting his
administrative remedies.

See Himmelreich v. Federal Bureau of

Prisons, No. 4L10-CV-2404, 2013 WL 3787619, at *3 (N.D. Ohio July
18, 2013); see also Sarah v. Deshambo, 67 Fed. Appx. 346, 346
(6th Cir. 2003) (finding that the district court properly
dismissed plaintiff’s complaint without prejudice where
“plaintiff plainly alleged that he did not exhaust available
administrative grievance remedies because he feared
retaliation”).

Stated differently, “courts have not recognized a

fear of retaliation as an exception to the PLRA’s exhaustion
requirement.”

Ramos v. Gansheimer, No. 1:12 CV 132, 2013 WL

775353, at *6 (N.D. Ohio Feb. 26, 2013).

Accordingly, Mr.

Brown’s fear of retaliation does not excuse his compliance with
the PLRA’s exhaustion requirement.

Because Mr. Brown did not

exhaust his administrative remedies, it will be recommended that
the complaint against Defendant Klotz and all Defendants, except
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Defendant Blackwell, be dismissed without prejudice.
III. Motion for Summary Judgment Against Defendant Blackwell
The Court now examines the motion for summary judgment as it
applies to Defendant Blackwell.

Although the motion is captioned

as one for summary judgment, it does not attach or cite to any
evidence relating to Mr. Brown’s claims against Defendant
Blackwell.

Rather than arguing that there is no genuine dispute

of material fact pursuant to Fed. R. Civ. P. 56, Defendants
instead argue that the allegations in Mr. Brown’s complaint are
deficient and “fail to state a viable retaliation claim” against
Defendant Blackwell.

(Doc. #86 at 11).

Consequently,

Defendants’ arguments as to Defendant Blackwell are properly
analyzed under Fed. R. Civ. P. 12 based on Mr. Brown’s alleged
failure to state claim on which relief can be granted.
Accordingly, the Court will examine the face of the complaint and
determine whether, taking all of Mr. Brown’s allegations as true
and construing them in the light most favorable to him, Mr.
Brown’s allegations state a legal claim against Defendant
Blackwell.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556,

127 S. Ct. 1955, 167 L. Ed.2d 929 (2007); see also McLoyd v.
United States, No. 04-605, 2006 WL 2135837, n.1 (D.N.J. July 27,
2006)(finding that motion brought pursuant to Fed. R. Civ. P. 56
should be analyzed under Fed. R. Civ. P. 12(b)(6)).

Further,

because the Court must limit its consideration to the pleadings
and the attached exhibits, see Twombly, 550 U.S. at 556,
providing Mr. Brown the additional time he seeks in his “motion
for time extension” is unnecessary. Because nothing in the
requested documents would change the pleadings, additional time
is not warranted.

On this basis, the Court again will deny Mr.

Brown’s “motion for time extension.”

(Doc. #88).

In the complaint, Mr. Brown alleges that Defendant Blackwell
retaliated against him for using the grievance procedure.

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Specifically, Mr. Brown argues that Defendant Blackwell filed two
dispositions in response to his informal complaints that were
retaliatory in nature.

In order to state a First Amendment

retaliation claim against Defendant Blackwell, Mr. Brown must
allege that he engaged in a protected activity, that Defendant
Blackwell took an adverse action against him that would deter a
person of ordinary firmness from continuing to engage in that
activity, and that the adverse action was motivated at least in
part by Mr. Brown’s protected activity.

See Thaddeus-X, 175 F.3d

at 394.
In his complaint, Mr. Brown first relies upon a disposition
issued by Defendant Blackwell in response to Mr. Brown’s informal
complaints concerning adequate clothing.

In response to these

complaints, Defendant Blackwell issued a disposition which
included the statement “Sgt. Hodson will get you into 2.4
compliance.”

(Doc. #1, Ex. A).

According to Mr. Brown, this

language demonstrates that Defendant Blackwell was retaliating
against him for his use of the grievance process.
This Court disagrees.

A thorough reading of the disposition

demonstrates that, in response to Mr. Brown’s grievance,
Defendant Blackwell had Sgt. Hodson conduct a property inventory
to determine if Mr. Brown had adequate clothing.

As a result of

that inventory, it was discovered that Mr. Brown was over the
property limit on certain property items.

In particular, Mr.

Brown was found to have, among other items, “1 extra set of state
blues; 2 extra pair pf state boots; 1 extra hat; and 5 extra
pairs of state socks.”

Id.

Defendant Blackwell’s reference to

2.4 compliance related to the amount of space an inmate is
provided to store personal property.

(Doc. #86 at 13 (stating

that 2.4 compliance refers to “the ODRC policy which limits
inmates to 2.4 cubic feet of personal property”)).
Although the filing of a legitimate grievance is indeed a

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protected activity, Hill v. Lappin, 630 F.3d 468, 472 (6th Cir.
2010), enforcing prison rules against an inmate is not an adverse
action.

See, e.g., Sales v. Smith, No. 2:11-cv-239, 2012 WL

5389675, at *6 (S.D. Ohio Nov. 2, 2012)(finding that plaintiff
failed to show an adverse action was taken against him where
retaliation claim was based on enforcement of prison rules).

As

this Court has observed, inconsequential actions do not rise to
the level of a constitutional deprivation.
at 398.

Thaddeus-X, 175 F.3d

Mr. Brown does not allege that he was, in fact, brought

into “2.4 compliance.”

Moreover, even assuming that did happen,

Defendant Blackwell’s enforcement of the ODRC policy does not
constitute an adverse retaliatory action.
The Court now turns to the second disposition issued by
Defendant Blackwell which Mr. Brown claims is retaliatory.

In

that disposition, Defendant Blackwell alleges that Mr. Brown
engaged in disrespectful behavior toward prison officials.

With

respect to this behavior, the disposition provides, “Due to your
continued disrespect towards staff you will be recommended to be
suspended from using the Inmate Grievance procedure due to abuse
and disrespect to staff.”

(Doc. #1, Ex. D).

Mr. Brown claims

that this constitutes retaliation for his use of the grievance
process, noting “[i]t was not allowed.”

Id. at ¶25.

Mr. Brown

has not set forth any allegations claiming that Defendant
Blackwell indeed made the recommendation as provided in
disposition, or that he was suspended from using the
institution’s grievance procedure.

Thus, the Court must consider

whether the threat to recommend suspension alone is sufficient to
constitute an adverse action for purposes of a retaliation claim.
The Court finds that it is not.

The threat alone did not

impair Mr. Brown’s First Amendment right to file legitimate
grievances.

A careful reading of the record demonstrates that

Defendant Blackwell made the threat in reaction to what he

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perceived to be a frivolous grievance.

The Court of Appeals has

found that “there is no constitutionally protected due process
right to unfettered access to the grievance process.”

Threatt v.

Birkett, No. 07-1752, 2008 U.S. App. LEXIS 28074, at *2 (6th Cir.
Feb. 15, 2008)(quoting Walker v. Michigan Dept. of Corr., 128
Fed. Appx. 441, 445 (6th Cir. 2005)).

That is, the First

Amendment right to file institutional grievances only applies to
non-frivolous claims.

Walker, 128 Fed. Appx. at 445.

Here, Mr.

Brown has not alleged that he attempted to file a legitimate
grievance but was denied access to the process as a result of
Defendant Blackwell’s disposition.

Mr. Brown thus fails to

allege that Defendant Blackwell engaged in an adverse retaliatory
action.
In addition to these claims, Mr. Brown also generally
alleges that Defendant Blackwell continually failed to provide
him with “the required forms in the required amounts in the
required time limits” in order for him to “timely grieve and/or
appeal the incidents or conditions of his environment. . . .”
(Doc. 1 at ¶26).

Although Mr. Brown claims to have documents to

support this allegation, he fails to attach them to the
complaint.

Mr. Brown likewise alleges that Defendant Blackwell

“recruited other [sic] to engage in retaliation” against him for
his use of the inmate grievance procedure.

Id. at ¶27.

General

allegations that Defendant Blackwell failed to provide Mr. Brown
with forms and recruited others to join him in retaliating
against Mr. Brown are insufficient to state a plausible claim for
relief.

For these reasons, the Court will recommend dismissal of

the First Amendment retaliation claim against Defendant
Blackwell.
IV. Conclusion
Based upon the forgoing, the Court recommends that the
complaint against Defendant Klotz and all Defendants, except

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Defendant Blackwell, be dismissed without prejudice for failure
to exhaust administrative remedies.

The Court likewise

recommends that claim against Defendant Blackwell be dismissed
with prejudice.

Consequently, the Court recommends that the

State of Ohio’s motion to dismiss Defendant Klotz be granted
(Doc. #85), Defendants’ motion for summary judgment be granted
(Doc. #86), and Mr. Brown’s motion for a preliminary injunction
and a temporary restraining order be denied as moot (Doc. #81).
There being no remaining claims for resolution, this Court
recommends that this case be terminated.
Further, for good cause shown, the motion to withdraw as
attorney for Defendant Klotz is granted.

(Doc. #84).

For the

reasons stated herein, Mr. Brown’s motion for a time extension is
denied.

(Doc. #88).

In addition, Defendants’ motion to strike

Mr. Brown’s response in opposition to the motion for judgment on
the pleadings (Doc. #31) and Mr. Brown’s motion to deny the
motion for leave to file an answer instanter (Doc. #80) are
denied as moot.
V. 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

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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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