Brown v. Timmerman-Cooper et al

Filing 61

ORDER AND REPORT AND RECOMMENDATION: It is recommended that 35 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 and that the c omplaint be dismissed w/prejudice for failure to state a claim upon which relief can be granted. It is further recommended that if the Court adopts this recommendation & dismisses the case that 18 , 38 , 39 , 43 and 53 all be denied as moot. It is further ordered that 52 MOTION for Leave to Supplement Pleadings and/or Strike Therefrom S.D.Ohio CivR. 7.2(a)(2) & 57 MOTION for Extension of Time to File Response/Reply as to 53 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction MOTION for Hearing are denied. Signed by Magistrate Judge Terence P Kemp on 1/4/2012. (kk2)

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

:

Plaintiff,

:
:

v.

Case No. 2:10-cv-967
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Deb Timmerman-Cooper, et al., :
Defendants.

:

REPORT AND RECOMMENDATION
AND ORDER
This is one of a number of civil rights actions filed by
plaintiff Frank C. Brown, Jr., a state prisoner.

In this case,

he has alleged that the three named defendants - Deb TimmermanCooper, the Warden of the London Correctional Institution, Brian
Cook, the Warden of the Madison Correctional Institution, and
Gary Croft, the Chief Inspector of the Ohio Department of
Rehabilitation and Correction - violated his constitutional
rights by having him transferred from the London Correctional
Institution to the Madison Correctional Institution, from Madison
to the North Central Correctional Institution, and then back to
London, as part of a scheme to retaliate against him for his use
of the prison grievance process.

The defendants have filed a

motion for judgment on the pleadings.

For the following reasons,

it will be recommended that the motion be granted and that this
case be dismissed.

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 Facts

Because the case is before the Court by way of a motion for
judgment on the pleadings, the only facts which the Court may
consider are those well-pleaded facts which appear on the face of

the complaint.

Mr. Brown’s complaint in this case can be fairly

summarized as follows.
On October 28, 2009, Mr. Brown was transferred from London
to Madison.

He alleges that this transfer was “in retaliation

and in reprisal for Plaintiffs (sic) practices of utilizing the
grievance procedure.”

Complaint, ¶1.

Only a few days after he

arrived at Madison, Mr. Brown was transferred to the North
Central Correctional Institution, which he also asserts was
related to his use of the prison grievance procedure, apparently
during his short stay at Madison.

He was not at North Central

very long before he was transferred back to London.

He arrived

there on November 28, 2009, less than thirty days after initially
being transferred out.

The only other facts alleged (as opposed

to legal conclusions) are that some of his property was stolen at
NCCI and that he was charged with some type of misconduct at
Madison due to the volume of his legal materials and his refusal
to send them home.

He claims these actions violated his rights

under the First, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution.
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,
-2-

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.
III.

Discussion

The defendants raise a number of different arguments in
support of their request for judgment on the pleadings.

Their

primary argument is that the complaint, to the extent that it
attempts to state a claim for retaliation for the exercise of
First Amendment rights under Thaddeus-X v. Blatter, 175 F.3d 378,
394 (6th Cir. 1999), is deficient because it alleges only the
first element of such a claim - that Mr. Brown was engaged in
protected First Amendment activity when he used the prison
grievance process - and none of the other required elements.

in

Thaddeus-X, 175 F.3d at 394 (6th Cir. 1999), the Court of Appeals
held that a valid claim for retaliation can be stated if an
inmate alleges three things: the exercise of a First Amendment
right, “an adverse action ... taken against the plaintiff that
would deter a person of ordinary firmness from continuing to
engage in that conduct; and ... a causal connection between
elements one and two - that is, the adverse action was motivated
at least in part by the plaintiff's protected conduct.”
Mr. Brown’s complete response to the motion for judgment on
the pleadings is terse.

In a combined response to this and other

motions, in both this and other cases, he argues the following:
Defendants (sic) motion is barred by the doctrine
of estoppel namely res judicata. This Honorable Court
has already denied these motions once before in toto.
Memorandum in Opposition, Doc. #37, at 6.
-3-

Clearly, as defendants

correctly point out, this statement is incorrect.

The Court

ruled on a prior motion for judgment on the pleadings, but the
only issue raised in that motion was that defendants had not been
sued in their individual capacities and that Mr. Brown’s damage
claims were barred by the doctrine of sovereign immunity.
Doc. #30.

See

Mr. Brown’s complaint was deemed amended to include a

claim for damages against the defendants in their individual
capacities.

That, however, did not answer the question posed by

the current motion, which is whether the complaint states any
valid claim for relief under any provision of the United States
Constitution.
Even though Mr. Brown has not presented any specific
argument in opposition to the motion for judgment on the
pleadings, the Court will still review his complaint in light of
the defendants’ arguments to determine if he has properly pleaded
a claim under any of the constitutional provisions he cites.
After conducting such a review, and for the following reasons,
the Court concludes that he has not.
The complaint fails on at least two grounds.

Taking the

Thaddeus-X factors in reverse order, in order to plead a valid
claim for retaliation, the plaintiff must plead facts from which
a plausible conclusion can be drawn that the actions about which
the prisoner complains - here, the three transfers in less than a
month - were caused by the plaintiff’s exercise of some First
Amendment right.

Mr. Brown’s complaint does not contain any

factual (as opposed to wholly conclusory) allegations on this
point.

For example, he does not relate any of the transfers to

the filing of any particular grievance or set of grievances at
any of the three institutions involved.

He has not even pleaded

temporal proximity - that is, that the transfers occurred so soon
after his use of the grievance process that a reasonable person
could infer a connection between the two.
-4-

Even if he had, the

case law makes clear that “conclusory allegations of temporal
proximity are not sufficient to show a retaliatory motive.”
Skinner v. Bolden, 89 Fed. Appx. 579, 579-80 (6th Cir. March 12,
2004), citing, inter alia, Smith v. Campbell, 250 F.3d 1032, 1038
(6th Cir. 2001).

Nor are similar allegations about the

defendants’ motives; as this Court has held, “[c]onclusory
allegations of retaliatory motive which are not supported by
material facts are insufficient to state a claim under §1983.”
Treesh v. Bobb-Itt, 2011 WL 3837099, *7 (S.D. Ohio August 29,
2011), citing Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir.
2005).

Thus, the complaint fails to satisfy the plausibility

standard set forth in Twombly with respect to this element of a
First Amendment retaliation claim.
Even if the complaint were sufficient as to the third
element, it fails to satisfy the second.

The only factual

allegations in the complaint concerning the effect of these
transfers are that the officials at Madison had some issue with
the amount of Mr. Brown’s legal property, and that someone stole
some of his property while he was at North Central.

There is no

allegation that the officials at Madison took action concerning
the legal property requirement in a way that is inconsistent with
ODRC regulations, or that it was likely that if Mr. Brown were
moved to that institution, the move would adversely affect his
ability to pursue grievances or litigation.

The theft of

property at North Central appears similarly unrelated to the
transfer, other than the fact that the theft happened while he
was there - and not because transferred prisoners were likely to
have their property stolen.

These types of transfers, without

any accompanying foreseeable effect on an inmate’s ability either
to pursue First Amendment protected conduct or to be housed in
conditions similar to those which affect all inmates, are
generally not the type of adverse actions which would deter an
-5-

inmate of ordinary firmness from pursuing his constitutional
rights.

That is particularly so where, as here, the entire

process took less than a month and Mr. Brown ended up back at the
same institution he started at.
In this circuit, “the transfer of a prisoner may rise to the
level of unconstitutional retaliation where there are foreseeable
consequences to the transfer that would inhibit the prisoner's
ability to access the courts.”

Hix v. Tennessee Dept. of

Corrections, 196 Fed.Appx. 350, 358 (6th Cir. August 22, 2006),
citing Siggers-El v. Barlow, 412 F.3d 693, 704 (6th Cir. 2004).
The converse of that statement is that if the transfer does not
carry with it such foreseeable consequences, it is not the type
of adverse action which can satisfy the second prong of the
Thaddeus-X test.

Thus, without any facts in the complaint

showing that the transfers were accompanied by some foreseeable
impact on Mr. Brown’s First Amendment activities - that is,
absent “aggravating circumstances” which accompanied the
transfers - he has not met this part of the test.

See Smith v.

Jones, 2009 WL 6632300, *8 (W.D. Mich. October 8, 2009).
All of Mr. Brown’s claims center around his allegations of
retaliation.

Since such claims are properly analyzed under the

First Amendment, the Court need not conduct a separate analysis
of the other claimed constitutional basis for the alleged denial
of Mr. Brown’s rights.

See, e.g., County of Sacramento v. Lewis,

523 U.S. 833, 841-42 (1998).

However, it is clear that Mr. Brown

has no cognizable claim under the Fifth Amendment, because that
provision applies only to the federal government and not the
States, see Scott v. Clay County, Tenn., 205 F.3d 867, 873 n.8
(6th Cir. 2000), and has not alleged any conditions of
confinement which would amount to cruel and unusual punishment
under the applicable Eighth Amendment standard.

See

Rhodes

v.

Chapman, 452 U.S. 337, 347 (1981) (Eighth Amendment is violated
-6-

by conduct which fall below contemporary standards of decency).
His Fourteenth Amendment claims is simply duplicative of his
First Amendment claim.
Defendants have raised other arguments as well, such as
qualified immunity and lack of personal involvement.

In light of

the fact that the complaint does not state a viable First
Amendment claim, there is no need to discuss these other bases
for relief.
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 (#52) and defendants’ motion for an
extension of time (#57).

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 18, 38, 39, 43,and 53) 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).
V.

Recommendation and Order

Based on the above discussion, it is recommended that the
defendants’ motion for judgment on the pleadings (#35) be granted
and that the complaint be dismissed with prejudice for failure to
state a claim upon which relief can be granted.
-7-

It is further

recommended that, if the Court adopts this recommendation and
dismisses the case, that the motions filed at ECF #s 18, 38, 39,
43,and 53 all be denied as moot.

It is further ordered that Mr.

Brown’s motion for leave to supplement and to strike (#52) and
defendants’ motion for an extension of time (#57) 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

-8-