Jones v. Croft et al

Filing 32

REPORT AND RECOMMENDATIONS that 20 MOTION for Summary Judgment be granted & this case be dismissed. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 11/13/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason Jones,

:

Plaintiff,

:

v.

:
:

Defendant.

JUDGE GREGORY L. FROST

:
:

Chief Inspector
Gary R. Croft,

Case No. 2:12-cv-0545

Magistrate Judge Kemp

REPORT AND RECOMMENDATION
Plaintiff, Jason Jones, an inmate who was housed at Ross
Correctional Institution at the time relevant to this action,
filed this action against defendants Chief Inspector Gary R.
Croft and Institutional Inspector Whitten pursuant to 42 U.S.C.
§1983.

According to the complaint, both of these defendants

conspired and demonstrated deliberate indifference when informed
of the imminent danger of murder or brutal attack faced by Mr.
Jones.

Defendants have filed a motion for summary judgment,

which is now fully briefed.

For the reasons set forth below, the

Court recommends that the motion (#20) be granted.
I.

Introduction

This is one of three cases filed by Mr. Jones asserting
claims of deliberate indifference to his safety arising from an
alleged conspiracy between various prison officials and prison
inmates.

The allegations in this action involve Defendants’

actions and inactions relating to a Notification of Grievance
that Mr. Jones filed on June 13, 2011 claiming that he was in
substantial risk of serious physical harm (Compl. at ¶2).

Mr.

Jones accuses Defendant Croft of violating his need for safety by
failing to take action to ensure Mr. Jones’s safety, delaying the
response to the Notification of Grievance, and ultimately denying
the grievance.

Mr. Jones accuses Defendant Whitten of refusing

to make blank grievance forms available to Mr. Jones and failing
to ensure Mr. Jones’ safety after being made aware of the
substantial risk of serious physical harm to Mr. Jones.
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 nonmoving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970). 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.
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The facts which the Court must take as true for purposes of
a summary ruling are those which have been properly supported.
As Fed. R. Civ. P. 56(c) states, proper support for facts at this
stage of the case can come from “depositions, documents,
electronically stored information, affidavits or declarations,
stipulations ..., admissions, interrogatory answers, or other
materials....” One common feature of all these types of
information is that they be properly authenticated or sworn to.
As the Court of Appeals has said, “it would [be] improper for the
district court to consider documents that were not admissible in
evidence” when ruling on a summary judgment motion. Alexander v.
CareSource, 576 F.3d 551, 561 (6th Cir. 2009).
III. Analysis
Mr. Jones has brought claims relating to his conditions of
confinement alleging that Defendants violated his constitutional
rights. While Mr. Jones stated in his complaint that this action
was brought pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986, and
1987, both parties have referred exclusively to section 1983 in
their briefing.

There is no need to analyze claims pursuant to

section 1987, because that section does not provide a private
right of action.

Trapp v. Kimpel, 3:13-CV-18, 2013 WL 4510570,

*3 (S.D. Ohio Aug. 23, 2013) (quoting Carpenter v. Ashby, 351
Fed. Appx. 684, 687 (3rd Cir. 2009) as stating “[o]n its face, §
1987 does not authorize a private right of action.”).
Accordingly, this Court will address sections 1983, 1985(3) and
1986, but will begin its analysis with section 1983, which
provides in relevant part: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State
..., subjects, or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law ....” 42 U.S.C. §
1983.
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“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.
1998) (internal quotations and citations omitted).

A plaintiff

seeking relief under § 1983 may bring a claim against a public
official in the official's individual or official capacity.
Individual-capacity claims “seek to impose individual liability
upon a government officer for actions taken under color of state
law .”

Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116

L.Ed.2d 301 (1991).

In contrast, an official-capacity claim is

“another way of pleading an action against an entity of which an
officer is an agent.”

Monell v. Dep't of Soc. Servs., 436 U.S.

658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Mr. Jones

did not specify in the complaint which type of claim he was
bringing, and Defendants made arguments addressing both officialcapacity and individual-capacity claims.

The parties’ arguments

regarding each type of claim will be addressed below.
Regarding the types of damages at issue, Mr. Jones’s prayer
for relief requested monetary damages or, alternately, release
from his sentence and conviction.

However, “[h]abeas is the

exclusive remedy . . . for the prisoner who seeks ‘immediate or
speedier release’ from confinement.”
Ct. 1289, 1293 (2011).

Skinner v. Switzer, 131 S.

Accordingly, release from sentence and

conviction is not a proper remedy for Mr. Jones’s claims, and
only his request for damages is before the Court.
A.

Official Capacity Claims

“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit
against the official's office.”

Grinter v. Knight, 532 F.3d 567,

572 (6th Cir. 2008) (quoting Will v. Mich. Dep't of State Police,
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491 U.S. 58, 71 (1989)).

“Indeed, when officials sued in this

capacity in federal court die or leave office, their successors
automatically assume their roles in the litigation.”

Hafer v.

Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L. Ed. 2d 301 (1991)
(citing inter alia Fed. R. Civ. Pro. 25(d)(1); Fed. R.App. Pro.
43(c)(1)).

As a result, an official capacity suit is, for most

purposes, “‘no different from a suit against the State.’”

McCoy

v. Michigan, 369 F. App'x 646, 654 (6th Cir. 2010) (quoting Will
v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,
105 L.Ed.2d 45 (1989)).
The Eleventh Amendment to the United States Constitution
“bars suits brought in federal court against a state and its
agencies unless the state has waived its sovereign immunity or
consented to be sued in federal court.”

Grinter, 532 F.3d at 572

(citing Will, 491 U.S. at 66; additional citations omitted).
This immunity extends to claims against individuals sued in their
official capacity to the extent that those claims seek monetary
damages.

Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011),

reh'g denied (Sept. 12, 2011); see also McCormick v. Miami Univ.,
693 F.3d 654, 662 (6th Cir. 2012).

Ohio has not waived its

sovereign immunity or consented to being sued in federal court.
See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999);
see also Barker, 649 F.3d at 432 (“The burden of establishing
Eleventh Amendment immunity lies with the state, and the defense
is waived if it is not raised.”) (citations omitted).
Furthermore, section 1983 has not abrogated that immunity, see
Campbell v. Hamilton Cnty., 23 F. App'x 318, 327 (6th Cir. 2001)
(quoting Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d
358 (1979)), and Mr. Jones has not argued that 1985(3) or 1986
abrogated that immunity, nor does the language of those sections
indicate an intent to abrogate Eleventh Amendment immunity.
U.S.C. §§ 1983, 1985(3), 1986.

42

Accordingly, because the claims
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at issue here are claims for monetary damages, to the extent
Defendants are sued in their official capacities, the claims
against them are barred by the Eleventh Amendment.
Mr. Jones responds to that argument by making a variety of
arguments.

His first argument discusses “discretion” authority,

and while the question of whether government officials are
performing discretionary functions is relevant to whether
qualified immunity protects defendants sued in their individual
capacity, it is not relevant to the question of whether Eleventh
Amendment immunity protects defendants sued in their official
capacity.

Mr. Jones also suggests that municipal liability

exists here, but neither of the Defendants are municipalities, so
that argument is irrelevant.

Mr. Jones discusses absolute

immunity, but that is distinct from Eleventh Amendment immunity,
and not applicable here.

Absolute immunity applies to the

legislative immunity created by the Speech or Debate Clause, the
immunity of the President of the United States from damages
liability arising from official acts, and the provision of
judicial immunity for certain acts.

Forrester v. White, 484 U.S.

219, 229, 108 S. Ct. 538, 545, 98 L. Ed. 2d 555 (1988).

In

contrast, Eleventh Amendment immunity relates to the immunity of
states and state agencies from suits.

Mr. Jones has not sued

legislators, the President, or judges, so absolute immunity is
not applicable here.

Mr. Jones also argues that he has exhausted

his administrative remedies, and that his claims are not barred
by the statute of limitations.

Neither of those arguments are

relevant to whether Eleventh Amendment immunity bars claims
against Defendants in their official capacity.

Mr. Jones makes

additional arguments and assertions regarding jurisdiction and
monetary damages, but he does not provide any legal authority to
contradict the conclusion that Eleventh Amendment immunity
protects Defendants from being sued for monetary damages in their
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official capacities.

To the extent that Mr. Jones has sued

Defendants in their official capacities, such claims are barred
by the Eleventh Amendment.
B.

Individual Capacity Claims

In opposition to any claims brought against Defendants in
their individual capacity, Defendants raised the defenses of
qualified immunity, failure to state a claim upon which relief
can be granted, and lack of sufficient personal involvement of
Defendants.
Public officials sued in their individual capacities may
raise “qualified immunity” as a defense to the suit. That defense
has been explained as follows:
[G]overnment officials performing discretionary
functions, generally are shielded from liability for
civil damages insofar as their conduct does not violate
clearly established constitutional or statutory rights
of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982) (citations omitted).

Conversely, when such

officials violate constitutional or statutory rights, “if the law
was clearly established, the immunity defense ordinarily should
fail, since a reasonably competent public official should know
the law governing his conduct.”

Id. at 818–19.

“Qualified

immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”

Pearson v.

Callahan, 555 U.S. 223, 231 (2009).
Whether qualified immunity applies involves “a two-step
inquiry, addressing (1) whether, considering the allegations in a
light most favorable to the injured party, a constitutional right
has been violated and (2) whether that right was clearly
established.”

Yoder v. Univ. of Louisville, 12-5354, 2013 WL
-7-

1976515, *6 (6th Cir. May 15, 2013) (citing Saucier v. Katz, 533
U.S. 194, 201 (2001) and Campbell v. City of Springboro, Ohio,
700 F.3d 779, 786 (6th Cir. 2012)).
addressed in that order.

Those two steps need not be

See Pearson, 555 U.S. at 236–37.

Turning to the first step, Mr. Jones has sued Defendants
pursuant to section 1983 for violations of his constitutional
rights.

His description of the constitutional violations

follows:
Chief Inspector Gary R. Croft and Institutional
Inspector Whitten demonstrated Deliberate Indifference
while conspiring under color of state law, also
depriving Plaintiff of [procedural] Due Process rights
. . . [by] failing to take corrective action to address
risk faced by Plaintiff by failing to prevent staff
from intimidating or physically harming Plaintiff.
Thus violating Plaintiffs [sic] eighth Amendment Rights
by failing to protect and Cruel and Unusual Punishment
rights. . . .
(Compl. at ¶ 1.)

While Mr. Jones has alleged the violation of

both the Due Process Clause of the Fourteenth Amendment and the
Eighth Amendment’s prohibition against cruel and unusual
punishments, the claim under the Due Process Clause of the
Fourteenth Amendment is redundant of the Eighth Amendment claim
and need not be considered because “the Due Process Clause
affords [prison inmates] no greater protection than does the
Cruel and Unusual Punishment Clause.”

Stewart v. Wilkinson, No.

2:03-cv-0687, 2008 WL 2674843, *9 (S.D. Ohio July 7, 2008)
(quoting Whitley v. Albers, 475 U.S. 312, 327 (1986) and citing
Lee v. Baker, 181 F.3d 101 (table), 1999 WL 282652 at *1 (6th
Cir. Apr. 30, 1999)).

Accordingly, the question addressed in the

first step is whether Mr. Jones can demonstrate that his Eighth
Amendment right to be free from cruel and unusual punishment has
been violated.
“In its prohibition of ‘cruel and unusual punishments,’ the
Eighth Amendment places restraints on prison officials, who may
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not, for example, use excessive physical force against prisoners.
. . . and must ‘take reasonable measures to guarantee the safety
of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(citations and internal quotations omitted).

In the context of

an Eighth Amendment failure to protect claim, in order for a
denial of a grievance to rise to the level of a constitutional
violation, there must be allegations that the defendant had
subjective knowledge of the threats and that the defendant acted
unreasonably in disregarding the risk.

Williams v. McLemore, 247

Fed. Appx. 1 (6th Cir. June 19, 2007) (holding that plaintiff
failed to state a claim against several defendants involved in
the grievance process but did state a claim against one defendant
involved in the grievance process).
A mere failure to respond to a grievance does not state a
claim under § 1983 where that non-response did not cause or
contribute to the constitutional violation.

“The ‘denial of

administrative grievances or the failure to act’ by prison
officials does not subject supervisors to liability under §1983.”
Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (citations
omitted); see also Argue v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th
Cir. 2003) (holding that the plaintiff failed to state a claim
concerning the alleged interference with his ability to file
grievances “because there is no inherent constitutional right to
an effective prison grievance procedure”).

Furthermore,

“[f]ailing to follow proper procedures is insufficient to
establish an infringement of a liberty interest,” or a procedural
due process claim.

Grinter v. Knight, 532 F.3d 567, 574-75 (6th

Cir. 2008) (citing Olim v. Wakinekona, 461 U.S. 238, 250 (1983) &
Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994)).

An

official's failure to act may rise to the level of a
constitutional violation where that failure is an abandonment of
“the specific duties of his position ... in the face of actual
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knowledge of a breakdown in the proper workings of the
department,” that “result[s] directly in a violation of the
plaintiff's” constitutional rights.

Hill v. Marshall, 962 F.2d

1209, 1213 (6th Cir. 1992) (involving an official who repeatedly
failed to review and respond to the medical needs of the prison
population); see also Williams v. McLemore, 247 Fed. Appx. 1 (6th
Cir. 2007) (following the denial of the plaintiff’s grievance,
the plaintiff was stabbed).

However, there is no liability

where officials’ only involvement was to deny administrative
grievances and to fail to remedy the alleged behavior or
intervene on the inmate’s behalf.

Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999).
Here the claims at issue involve delay in response to and
denial of a grievance.

In light of the fact that the delay in

response and the denial of a grievance are not themselves
constitutional violations even if the delays violated prison
regulations, the question is whether those actions caused or
contributed to a constitutional violation in such a way that the
processing of the grievance was elevated to the level of a
constitutional violation.
Mr. Jones has failed to demonstrate that any actions or
inactions by Defendants in processing or failing to process the
grievance caused any constitutional violation.

Defendants

contend that “[Mr.] Jones has yet to come forward with any
specifics as to any injuries he did incur that he can attribute
to the operation of [the conspiracy alleged in his grievance].”
(Doc. #20 at 18.)

In his objections to the motion for summary

judgment, Mr. Jones wrote, “[a] review of Plaintiffs [sic] civil
Complaint will annul all these allegations and a review of
Plaintiff’s Proper non-Falsified medical records will show that
Plaintiff did receive a eternal [sic] injury to his right eye
from Defendants [sic] actio[n]s and inactions.”
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(Doc. #27 at

14.)

However, Mr. Jones has not attached any medical records to

his opposition or identified where in the record such medical
records may be found.

The allegations in Mr. Jones’ complaint

are not verified, and therefore the allegations that as a result
of Defendants’ inactions, Mr. Jones suffered “daily mental and
emotional distress and serious inflicted physical injury as a
result of Plaintiffs [sic] imminent Danger,” and received
“multiple cuts and serious eye injury” (compl. at ¶4.), are not
evidence.

Mr. Jones has not provided any other evidence of a

constitutional violation arising from Defendants’s actions or
inactions.

In addition, even if properly supported evidence

demonstrated a constitutional violation of Mr. Jones’ rights, he
has not provided any affidavits or other properly supported
evidence to demonstrate the cause of any such violations and to
connect them to the actions or inactions of Defendants.
Mr. Jones argues that “every Administrative rule that
Defendants break is essentially a violation of criminal law.”
(Doc. #27 at 6.)

However, as discussed above, violations of

prison regulations are not in and of themselves constitutional
violations such that they would prevent qualified immunity from
protecting Defendants.

See, e.g., Grinter, 532 F.3d at 574-76

(citations omitted).
Mr. Jones makes a separate argument in his opposition that
he was only given the option of being given a disciplinary
violation and placed in “segregation ‘Defined as [disciplinary]
confinement or local control,’ or wait and gather more evidence .
. . Plaintiff state[d] that he did not violate any rules and
didnt [sic] deserve D.C.”

(Doc. #27 at 7.)

He stated that

Defendant Whitten was the one who presented him with the option
of being placed in segregation.

(Doc. #27 at 13; Compl. at ¶3.)

Unlike his allegations in civil docket number 2:11-cv-871 that
alleged that he was placed in disciplinary confinement in order
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to protect him because there was no lawful protective custody
facility (see case 2:11-cv-00871 at doc. # 16 at 2), here Mr.
Jones has alleged that he was offered disciplinary confinement
and declined it, and that Defendant Whitten “released Plaintiff
back to population.”

(Doc. #27 at 7.)

Being offered

disciplinary confinement and being permitted to decline it does
not rise to the level of a constitutional violation, and, as
discussed above, Defendants’ failure to provide protective
custody for Mr. Jones in this case did not rise to the level of a
constitutional violation.
The discussion of the claims against Defendants in their
individual capacity has, to this point, focused on the claims
pursuant to section 1983.

However, qualified immunity would

apply equally to the claims brought pursuant to sections 1985(3)
and 1986, because no constitutional right has been violated here.
Furthermore, “[t]o prevail on a § 1985(3) claim, one must prove
(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges or
immunities of the laws; (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person
or property or deprived of any right or privilege of a citizen of
the United States.” Radvansky v. City of Olmsted Falls, 395 F.3d
291, 314 (6th Cir. 2005) (internal quotation marks omitted).

In

light of the absence of any evidence of a constitutional
violation, Mr. Jones cannot succeed on any claim that Defendants
conspired to violate his rights.

See Anderson v. County of

Hamilton, 780 F.Supp. 2d 635, 652 (S.D. Ohio 2011) (in order for
a conspiracy claim to succeed, “plaintiff must allege facts
showing not only an agreement by defendants to violate
plaintiff's constitutional rights, but also an actual deprivation
of a constitutional right”).

Additionally, “ ‘[w]here plaintiff
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has stated no cause of action under § 1985, no cause of action
exists under § 1986.’”

Id. at 315 (quoting Braley v. City of

Pontiac, 906 F.2d 220, 227 (6th Cir. 1990)).
In light of the fact that qualified immunity should shield
Defendants here from liability for damages, there is no need to
consider Defendants’ other defenses.
VII.

Recommendation

For these reasons, it is recommended that Defendants’ Motion
for Summary Judgment (Doc. 20) be granted and that this case be
dismissed.
VIII.

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
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United States Magistrate Judge

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