Bloodworth v. Timmerman-Cooper et al
Filing
156
OPINION AND ORDER 135 motion requesting leave to file second amended complaint. Signed by Magistrate Judge Norah McCann King on 6/17/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD BLOODWORTH,
Plaintiff,
vs.
Civil Action 2:10-CV-1121
Judge Marbley
Magistrate Judge King
WARDEN DEBORA A. TIMMERMAN-COOPER,
et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion Requesting
Leave to File Second Amended Complaint (“Plaintiff’s Motion”), Doc.
No. 135.
Defendants oppose Plaintiff’s Motion on the basis that the
proposed amendment would be futile.
Defendants’ Response in
Opposition to Plaintiff’s Motion for Leave to File a Second Amended
Complaint, Doc. No. 140.
Plaintiff has filed a reply.
Plaintiff’s
Reply to Defendants’ Response in Opposition to Plaintiff’s Motion for
Leave to File a Second Amended Complaint, Doc. No. 149.
For the
reasons that follow, Plaintiff’s Motion is DENIED.
I.
BACKGROUND
Plaintiff is a state inmate currently incarcerated in the Toledo
Correctional Institution (“ToCI”) and formerly incarcerated in the
London Correctional Institution (“LoCI”). First Amended Complaint,
Doc. No. 49.
Defendants’ motion to dismiss the First Amended
Complaint, Doc. No. 58, was granted in part on February 13, 2012.
Order, Doc. No. 75.
In that Order, the Court dismissed, inter alia,
plaintiff’s First Amendment retaliation claim against defendant Mason
(“Count XVII”).
Id.
Count XVII had alleged that defendant Mason
recommended an increase in plaintiff’s security status “as punishment
in retaliation for plaintiff filing grievances against defendant.”
First Amended Complaint, ¶ 90.
The Court dismissed Count XVII because
the allegations were insufficient to state a valid claim for relief.
Report and Recommendation, Doc. No. 72, pp. 7-8; Order, Doc. No. 75.
Plaintiff filed a motion to reconsider that Order, Doc. No. 94, which
was denied on September 11, 2012.
Order, Doc. No. 105.
On March 16, 2012, plaintiff filed a motion for leave to further
amend the complaint to reassert, inter alia, Count XVII of the First
Amended Complaint.
Plaintiff’s Motion Requesting Leave to File Second
Amended Complaint, Doc. No. 86.
The Court denied that motion as
futile, reasoning that plaintiff had “merely re-allege[d] that
defendant Mason recommended an increase in plaintiff’s security status
‘as punishment in retaliation for plaintiff filing grievances against
defendant.’”
Opinion and Order, Doc. No. 107, p. 5.
Defendants filed a motion for summary judgment, Doc. No. 112, on
November 27, 2012.
Plaintiff filed a response to that motion on April
4, 2013, Doc. No. 130.
2013.
Plaintiff’s Motion was filed on April 11,
The motion seeks leave to file the Proposed Second Amended
Complaint, Doc. No. 135-1, to reassert Count XVII.
Plaintiff’s
Motion, p. 1.
II.
STANDARD
Plaintiffs’ Motion to Amend is governed by Rule 15(a) of the
Federal Rules of Civil Procedure, which provides that a “court should
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freely give leave [to amend] when justice so requires.”
P. 15(a)(2).
Fed. R. Civ.
“The thrust of Rule 15 is to reinforce the principle
that cases should be tried on their merits rather than the
technicalities of pleadings.”
Tefft v. Seward, 689 F.2d 637, 639 (6th
Cir. 1982) (citing Conley v. Gibson, 355 U.S. 41, 48 (1957)).
The
grant or denial of a request to amend a complaint is left to the broad
discretion of the trial court.
F.2d 1119, 1130 (6th Cir. 1990).
Gen. Elec. Co. v. Sargent & Lundy, 916
In exercising its discretion, the
trial court may consider such factors as “undue delay, bad faith or
dilatory motive on the part of a movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment [and] futility
of the amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
“A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing
Thiokol Corp. v. Dep’t of Treasury, Revenue Div., 987 F.2d 376, 382-83
(6th Cir. 1993)).
A motion to dismiss under Rule 12(b)(6) attacks the
legal sufficiency of the complaint.
See Roth Steel Prods. v. Sharon
Steel Co., 705 F.2d 134, 155 (6th Cir. 1983).
In determining whether
dismissal on this basis is appropriate, a complaint must be construed
in the light most favorable to the plaintiff, and all well-pleaded
facts must be accepted as true.
See Bower v. Fed. Express Corp., 96
F.3d 200, 203 (6th Cir. 1996); Misch v. Cmty. Mut. Ins. Co., 896 F.
Supp. 734, 738 (S.D. Ohio 1994).
The United States Supreme Court has
explained that “once a claim has been stated adequately, it may be
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supported by showing any set of facts consistent with the allegations
in the complaint.”
(2007).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546
However, a plaintiff’s claim for relief “requires more than
labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.”
Id. at 555.
“Factual allegations
must be enough to raise a right to relief above the speculative
level . . . .”
Id.
Accordingly, a complaint must be dismissed – and
amending a complaint is futile – if the complaint does not plead
“enough facts to state a claim to relief that is plausible on its
face.”
Id. at 570.
III. DISCUSSION
The Proposed Second Amended Complaint seeks to reassert Count
XVII of the First Amendment Complaint, a First Amendment retaliation
claim against defendant Mason.
Plaintiff’s Motion, p. 2.
A First
Amendment retaliation claim entails three elements:
(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) there is 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.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (citing Bloch
v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)).
It is not enough to
state, without supporting factual allegations, that prison officials
engaged in retaliation.
Cir. 2006).
Pack v. Martin, 174 F. App’x 256, 259 (6th
Moreover, a prisoner’s conduct is not protected if he
“violates a legitimate prison regulation.”
Lockett v. Suardini, 526
F.3d 866, 874 (6th Cir. 2008) (quoting Thaddeus-X, 175 F.3d at 394).
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The Proposed Second Amended Complaint contains the following
allegations, which are incidentally nearly identical to those in the
original Complaint and in the First Amended Complaint: In August 2010,
plaintiff was directed to enter a segregation cell occupied by two
other inmates but he expressed fear for his safety.
Amended Complaint, ¶ 1.
instinctively froze up.”
Proposed Second
Plaintiff, “extremely terrified,
Id., ¶ 3.
. . .
He was thereafter pushed into the
cell by Corrections Officer Goins, who was assisted by, inter alios,
Corrections Officer Jewell.
Id., ¶¶ 4-5.
Jewell thereafter issued a
conduct report charging plaintiff with physical resistance to a direct
order in contravention of Rule 20 of the inmate rules of conduct and
disobedience of a direct order in contravention of Rule 21.
8.
Id. at ¶
Plaintiff characterizes the charges as false and based on the
“unprovoked, unjustified and unlawful attack against plaintiff and
because plaintiff expressed his fears of being placed in a cell with
two other inmates.”
Id. at ¶ 9.
The rules infraction board, chaired
by defendant Carson, found plaintiff guilty of the charges and
recommended plaintiff’s placement in local control.
Id. at ¶¶ 10-11.
In October 2010, defendant Mason and the local control committee
recommended that plaintiff’s security status be increased to level 3.
Id. at ¶ 13.
Plaintiff alleges that defendant Mason’s recommendation
in this regard was based on plaintiff “fil[ing] grievances against
defendant Mason on August 4, 2010 and September 2, 2010.”
Id. at ¶
15.
The Proposed Second Amended Complaint also contains three new
allegations related to plaintiff’s First Amendment retaliation claim
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against defendant Mason.
See Plaintiff’s Motion, pp. 4-5, 7
(identifying new allegations in the Proposed Second Amended
Complaint).
First, the Proposed Second Amended Complaint alleges that
the conduct report does not support a rule 20 offense because there
are no allegations of “overt acts demonstrative of physically refusing
to obey direct orders to comply with prison rules.”
Id. at ¶ 14.
Second, it alleges that “defendant Mason acted with full knowledge
during the October 13, 2010 hearing that both the LoCI’s Warden and
the Director routinely assent and approve its administrations
disciplinary transfer requests ultimately carried out by the
Classification Bureau.”
Id. at ¶ 15.
Finally, the Proposed Second
Amended Complaint alleges that defendant Mason “was fully aware that
the conduct report does not allege facts which charge a rule 20
offense.”
Id. at ¶ 26.
Plaintiff argues that the new allegations
cure “his fatally defective complaint” by showing that defendant
Mason’s decision to recommend increasing plaintiff’s security status
“was motivated, at least in part, by [] plaintiff’s protected
conduct,” i.e., the filing of grievances against defendant Mason.
Plaintiff’s Motion, p. 6.
Specifically, plaintiff argues that
defendant Mason’s “prior knowledge of deference” and “prior know ledge
[sic] that the conduct report does not allege facts which charge a
rule 20 offense” “demonstrate[] a caussal [sic] connection between
plaintiff’s filing of grievances against defendant Mason and the
decision to transfer the plaintiff [to a higher security prison].”
Id.
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Plaintiff’s arguments to the contrary notwithstanding, the
Proposed Second Amended Complaint does not cure the deficiencies of
the First Amended Complaint.
Rather, the Proposed Second Amended
Complaint merely re-alleges the facts that this Court has, on multiple
prior occasions, determined to be insufficient.
This Court
specifically rejects plaintiff’s contention that the conduct reports
issued against him by defendant Jewell did not allege facts supporting
the charged offenses under Rules 20 and 21.
Plaintiff argues that the
allegations contained in the conduct report “do not support a charge
of a rule 20 offense [because] noticeably absent therefrom are any
overt acts demonstrative of physically refusing to obey direct orders
to comply with prison rules.”
Id., ¶ 14.
To the contrary, even
plaintiff acknowledges in the Proposed Second Amended Complaint that,
after having been directed to enter the segregation cell, he “froze
up” and had to be physically pushed into the cell in order to effect
the directive.
Id., ¶ 3.1
As noted supra, plaintiff was charged with
and convicted of physical resistance to a direct order in
contravention of Rule 20 and of disobedience of a direct order in
contravention of Rule 21.
“A finding of guilt on a misconduct charge
based on some evidence of a violation of prison rules ‘essentially
checkmates [a] retaliation claim.’” Jackson v Madery, 158 Fed. Appx.
656, 662 (6th Cir. 2005)(citing Henderson v. Baird, 23 F.3d 464, 469
(8th Cir. 1994)).
Moreover, even crediting plaintiff’s allegation that defendant
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The original Complaint and the First Amended Complaint also alleged that
plaintiff “froze up” and was thereafter “pushed and pulled extremely hard . .
. until plaintiff was inside the cell.” Complaint, Doc. No. 5, ¶¶ 46-47;
First Amended Complaint, Doc. No. 49, ¶¶ 46-47.
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Mason knew of and relied on the routine approval of disciplinary
transfer recommendations, the Proposed Second Amended Complaint is
insufficient.
That allegation simply does not provide factual support
for his otherwise conclusory allegation of retaliatory motive on the
part of defendant Mason.
Under these circumstances, to permit the filing of the Proposed
Second Amendment Complaint in order to reassert plaintiff’s First
Amendment retaliation claim against defendant Mason would be futile.
Plaintiff’s Motion Requesting Leave to File Second Amended
Complaint, Doc. No. 135, is DENIED.
June 17, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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