Hansen v. Director, O.D.R.C. et al

Filing 32

REPORT AND RECOMMENDATIONS re 29 MOTION for Summary Judgment: The Magistrate Judge RECOMMENDS that this motion be GRANTED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/24/2014. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SCOTT KELLY HANSEN,
Plaintiff,
Civil Action 2:12-cv-773
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

DIRECTOR, O.D.R.C., et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a federal inmate in North Carolina who proceeds in forma pauperis, brings this
civil rights action under 42 U.S.C. § 1983. Plaintiff purports to assert claims of cruel and
unusual punishment and deliberate indifference under the Eighth Amendment of the United
States Constitution. This matter is before the Court for consideration of Defendants’ Motion for
Summary Judgment (ECF No. 29), Plaintiff’s Memorandum in Opposition1 (ECF No. 30), and
Defendants’ Reply (ECF No. 31). For the reasons that follow, it is RECOMMENDED that
Defendants’ Motion for Summary Judgment be GRANTED.
I. BACKGROUND
The Court incorporates by reference the factual background set forth in its May 8, 2013
Order. (ECF No. 20.) The Court sets for the following pertinent facts as they relate to the
instant Motion.
Plaintiff is an inmate in the custody of the Federal Bureau of Prisons and is currently
incarcerated in North Carolina. The Ohio Department of Rehabilitation and Corrections
(“ODRC”) has placed a parole holder on Plaintiff. At the end of Plaintiff’s federal sentence, he
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Plaintiff is represented by counsel, but has filed his Memorandum in Opposition pro se.

will be extradited to Ohio for a parole revocation hearing. If the parole board determines that
Plaintiff violated his parole, he will be returned to ODRC custody. Plaintiff brings this action to
prevent his potential return to Ohio. He asserts that he will be in imminent danger in an Ohio
prison because of testimony he gave in the 1990s. Plaintiff asserts that Defendants are being
deliberately indifferent to his safety needs and indicates that he could face grave danger if
returned to Ohio.2
Defendants filed the subject Motion on December 17, 2013. In their Motion, Defendants
contend that they are entitled to summary judgment because Plaintiff’s claim is not ripe for
review. Defendants posit that it is uncertain whether Plaintiff will even be sent back to prison in
Ohio. Further, Defendants assert that even if the claim was ripe for review, Plaintiff cannot
show that Defendants have been deliberately indifferent to his safety needs. They indicate that
they have received Plaintiff’s threat assessment and will follow the appropriate procedures for
dealing with such a safety risk. Finally, Defendants posit that the relief Plaintiff requests is
beyond the Court’s authority to award, because it would prohibit the enforcement of his criminal
sentence.
Plaintiff opposes Defendants’ Motion. In his Memorandum in Opposition, Plaintiff
asserts that his case is ripe for review because he would suffer immediate hardship if returned to
Ohio. Plaintiff indicates that Defendants remain deliberately indifferent to substantial threats to
his safety. Plaintiff acknowledges that Defendants have received his threat assessment, but
believes that defendants are not doing enough to ensure his safety. Plaintiff contends that

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Plaintiff brought a similar action in 2009. In that case, the Court granted summary judgment to
Defendant and dismissed the action without prejudice on the basis of ripeness. Hansen v.
Collins, No. 2:09-CV-00517 (S.D. Ohio Sept. 16, 2010). The Court noted, however, that
“Plaintiff may, if he so chooses, re-file an action for injunctive relief approximately one year
before his January 2014 release.” Id.
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Defendants’ interest in returning Plaintiff to Ohio for a parole violation is outweighed by the
serious risk of harm he faces.
In Defendants’ Reply, they contend that Plaintiff has failed to provide sufficient evidence
to show that material facts are in dispute. They indicate that Plaintiff’s Memorandum in
Opposition is “nothing more than an unsupported reiteration of his original pleadings.” (Reply 3,
ECF No. 31.)
II.

SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).
“Once the moving party meets its initial burden, the nonmovant must ‘designate specific
facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011
WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely
disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,
however, do more than simply show that there is some metaphysical doubt as to the material
facts. . . . [T]here must be evidence upon which a reasonable jury could return a verdict in favor
of the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville &

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Davidson Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations
omitted). “When a motion for summary judgment is properly made and supported and the
nonmoving party fails to respond with a showing sufficient to establish an essential element of
its case, summary judgment is appropriate.” Stanberry, 651 F.3d at 486 (citing Celotex, 477 U.S.
at 322–23).
III.

ANALYSIS

Defendants assert that they are entitled to summary judgment for a variety of reasons.
Specifically, Defendants maintain that (1) Plaintiff’s claims are not ripe for review; (2) even if
Plaintiff’s claims were ripe for review, he cannot show that Defendants are deliberately
indifferent to his safety needs; and (3) Plaintiff seeks relief that is beyond the Court’s ability to
provide. The Court will consider each of Defendants’ arguments in turn.
A.

Ripeness
The Court set out the standard for whether Plaintiff’s case is ripe in his previous case:
Under the Constitution, federal court jurisdiction is limited to cases and
controversies. U.S. Const. art. III, § 2; In re Cassim, 594 F.3d 432, 437 (6th Cir.
2010). Accordingly, “[t]he ripeness doctrine has developed ‘to ensure that courts
decide only existing, substantial controversies . . . .’” Cassim, 594 F.3d at 437
(quoting Déjà vu of Nashville, Inc. v. Metro Gov’t of Nashville & Davidson Cnty.,
274 F.3d 377, 399 (6th Cir. 2001)). Nevertheless, “the ripeness doctrine arises
‘both from Article III limitations on judicial power and from prudential reasons
for refusing to exercise jurisdiction.’” Id. (quoting Reno v. Catholic Soc. Servs.,
509 U.S. 43, 57 n.18 (1993)). Accordingly, ‘“[t]he ripeness doctrine not only
depends on the finding of a case and controversy and hence jursidcition under
Article III, but it also requires that the court exercises its discretion to determine if
judicial resolution would be desirable under all of the circumstances.’” Id. at 43738 (quoting Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985)).
In determining whether a judicial resolution would be desirable, the Court
will consider several factors. Grace Cmty. Church v. Lenox Twp., 544 F.3d 609,
615 (6th Cir. 2008). Specifically, the Court looks to “(1) the likelihood that the
harm alleged by the plaintiff[] will ever come to pass; (2) whether the factual
record is sufficiently developed to produce a fair adjudication of the merits of the
parties’ respective claims; and (3) the hardship to the parties if judicial relief is
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denied at this stage in the proceedings.” Id. (quoting Insomnia, Inc. v. City of
Memphis, Tenn., 278 Fed. App’x 609, 612 (6th Cir. 2008) (internal quotations
omitted)). The first factor provides that ‘“[r]ipeness, while often spoken of as a
justiciability doctrine distinct from standing, in fact shares the constitutional
requirement of standing that an injury in fact be certainly impending.’” Casden v.
Burns, 306 Fed. App’x 966, 971 (6th Cir. 2009) (quoting Nat’l Treasury
Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996)). The
second and third factors, however, “reflect the ‘prudential aspects of ripeness.’”
Id. at 972 (quoting Nat’l Treasury Employees Union, 306 Fed. App’x at 1427-28).
Hansen v. Collins, No. 2:09-cv-517 Report and Recommendation (S.D. Ohio June 22, 2010).
Defendants assert that Plaintiff’s claim is not ripe for adjudication because it is possible
that the harm alleged by Plaintiff will never come to pass. They maintain it is possible that
Plaintiff may never be returned to ODRC custody. In any event, Defendants note, several events
must occur before Plaintiff could be returned. First, Plaintiff must be released from federal
custody in North Carolina. Then, he must be returned to Ohio for a hearing with the Ohio Parole
Board. Following the hearing, a member of the Ohio Parole Board will determine whether or not
Plaintiff violated his parole. Only at that point would Plaintiff be returned to prison in Ohio.
Defendants note that “Plaintiff’s return to an Ohio prison is a legitimate possibility, but far from
a certainty.” (Def.’s Mot. 5, ECF No. 29.)
Plaintiff asserts that his claim is ripe for review because he could be subjected to serious
harm or death immediately upon his return to Ohio. He indicates that the individuals who have
the potential to inflict harm upon him have the resources and ability to attack him if he is
returned to an Ohio prison.
The Undersigned concludes that Plaintiff’s claim is ripe for review. As noted by the
Court in Plaintiff’s previous case:
Because Hansen objects to the transfer itself, he is seeking relief that is concrete,
particularized and imminent. There is a causal connection between the injury-threats to his safety--and the conduct complained of--the transfer. A favorable

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decision would prevent the injury that plaintiff seeks; he would not be transferred
to an Ohio prison.
Hansen v. Collins, No.2:09-CV-517, 2010 WL 419933, at *3 (S.D. Ohio Jan. 29, 2010)(adopting
Report and Recommendation). Further, although the Court determined on summary judgment
that Plaintiff’s claims were not ripe for review in his 2009 case, the reasons for that
determination are no longer applicable. The Court emphasized that the the fact that Plaintiff’s
potential transfer to an Ohio prison was more than three years away weighed heavily in its
decision. Hansen v. Collins, No. 2:09-cv-517, 2010 WL 3702558, at *4 (S.D. Ohio Sept. 16,
2010) (“[A]ny judicial decision at this stage would undergo the difficult task of assessing the
prison safety conditions that will exist over three years from now.”). The Court specifically
noted that “Plaintiff may, if he so chooses, re-file an action for injunctive relief approximately
one year before his [anticipated] January 2014 release.” Id. Plaintiff did exactly that. He will be
released sometime this year, and may be transferred to ODRC custody in the immediate future.
Further, the factual record has been developed in this case. Defendants have had an opportunity
to review Plaintiff’s threat assessment and begin to evaluate their actions with respect to
Plaintiff’s potential transfer. Finally, Plaintiff will not have another opportunity to request such
relief unless and until he is in ODRC custody.
The Undersigned therefore concludes that Plaintiff’s claims are ripe for review and will
address his claims for deliberate indifference on the merits.
B.

Deliberate Indifference
“To establish liability under the Eighth Amendment for a claim based on a failure to

prevent harm to a prisoner, appellant must prove that appellees acted with ‘deliberate
indifference’ to a substantial risk of serious harm.” Woods v. Lecureux, 110 F.3d 1215, 1222

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(6th Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The United States Court
of Appeals for the Sixth Circuit has described the deliberate indifference test as follows:
This test involves both a subjective and objective component. The objective
component requires that the deprivation alleged must be “sufficiently serious.”
Farmer, 511 U.S. at 834. “For a claim . . . based on failure to prevent harm, the
inmate must show that he is incarcerated under conditions posing a substantial
risk of serious harm.” Id. To satisfy the subjective requirement, appellant must
show that appellees had “a sufficiently culpable state of mind.” Id.
Woods, 110 F.3d at 1222.
An inmate’s right to be free from violence at the hands of other prisoners is well
established. Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011); see also Farmer, 511 U.S. at
833 (“[P]rison officials have a duty . . . to protect prisoners from violence at the hands of other
prisoners); Walker v. Norris, 917 F.2d 1449, 1453 (6th Cir. 1990) (“On several occasions, we
have held that ‘deliberate indifference’ of a constitutional magnitude may occur when prison
guards fail to protect one inmate from an attack by another.”). “However, in cases where prison
officials ‘actually knew of a substantial risk to inmate health or safety may be found free from
liability if they reasonably respond to the risk, even if the harm ultimately was not averted.’”
Harrison v. Ash, 539 F.3d 510, 519 (6th Cir. 2008) (quoting Farmer, 511 U.S. at 837).
The evidence in the instant case, when viewed in the light most favorable to Plaintiff, is
sufficient to meet the objective component of the test. Plaintiff has consistently asserted that he
faces a serious risk of harm if he is returned to prison in Ohio. He indicates that he provided
testimony against individuals who have the capability of causing him serious harm in Ohio.
Further, Plaintiff has been placed in the federal witness protection program, which indicates that
he is under some threat of harm.
Plaintiff has not, however, adduced any evidence to establish that Defendants have a
sufficiently culpable state of mind to satisfy the subjective portion of the test. Defendants have
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put forth evidence to show that they are reasonably responding to the potential threat Plaintiff
faces if he is returned to Ohio. In support of their Motion, Defendants provide an affidavit from
Brian Wittrup, the Chief of the ODRC Bureau of Classification and Reception, which is the
division of ODRC that determines the safety classification and institutional placement for
inmates and assesses requests for placement in Protective Control Units. (Wittrup Aff. ¶ 2, ECF
No. 29-1.) In his affidavit, Mr. Wittrup affirms that he has been provided a copy of Plaintiff’s
1994 threat assessment conducted by the United States Drug Enforcement Agency. (Id. at ¶ 6.)
He avers that he will consider the threat assessment when evaluating the risks to Plaintiff’s safety
and where he will be placed. (Id.) The safety evaluation process also involves an investigation
and an interview with Plaintiff, which cannot begin until Plaintiff is in ODRC custody. Mr.
Wittrup further affirms that when Plaintiff is in ODRC custody, he will be placed in a “singlecelled environment while the Ohio Adult Parole Authority (“APA”) determines whether he must
be incarcerated as part of his prior criminal sentence.” (Id. at ¶ 8.) Defendants also provide their
current policies on Inmate Separations and Classification/Release of Protective Control Inmates.
Mr. Wittrup affirms that those policies are performed consistently with Ohio Administrative
Code § 5120-9-14 and that ODRC will follow the relevant policies with respect to Plaintiff. (Id.
at ¶ ¶ 3-4.)
Plaintiff, in his Memorandum in Opposition, indicates that Defendants’ plan for
protection is insufficient because they underestimate the threat against him. He opines that the
threats against him are not something that Defendants deal with on a daily basis. As best as the
Court can discern, Plaintiff asserts that Defendants are being deliberately indifferent by putting
him in potential danger in an Ohio prison because of what he considers a minor parole violation.
Plaintiff does not, however, provide any facts or evidence to indicate that Defendants’ current

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plan of action is an unreasonable response to the potential threat he faces. See, e.g., Mingus v.
Butler, 591 F.3d 474, 481 (6th Cir. 2010)(concluding that Defendant reasonably responded to an
inmate’s request for a single-cell by considering the prison’s Guidelines); Doe v. Bowles, 254
F.3d 617, 621 (6th Cir. 2001) (concluding that the prison guard’s choice of isolating the
plaintiff’s attacker was not deliberately indifferent, even though plaintiff was ultimately
attacked). Further, Plaintiff does not provide evidence to indicate that Defendants will disregard
the risk of harm he faces if he is returned to ODRC custody. See Hadix v. Johnson, 367 F.3d
513, 526 (6th Cir. 2004) (explaining that a plaintiff seeking injunctive relief to prevent future
harm, ‘“must come forward with evidence from which it can be inferred that the defendantofficials were at the time the suit was filed, and are at the time of summary judgment, knowingly
and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue
to do so.”’ (quoting Farmer, 511 U.S. at 845-46)).
Defendants have provided evidence that they are taking Plaintiff’s concerns regarding
potential harm seriously. They have received and reviewed a threat assessment and will use that
assessment when evaluating Plaintiff’s potential return to an Ohio prison. They will keep him
segregated in a single-cell while the APA decides whether he must be incarcerated. They will
follow the relevant policies designed to address similar situations. Plaintiff has not adduced
sufficient evidence to indicate that Defendants are deliberately indifferent to his safety needs.
The Undersigned therefore RECOMMENDS that the Court GRANT Defendants’ Motion for
Summary Judgment on Plaintiff’s claims for deliberate indifference.3

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The Court dispenses with an analysis of its authority to order relief under 18 U.S.C. § 3626
given this recommendation to grant summary judgment to Defendants on the merits.
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IV.

RECOMMENDATIONS

For the reasons set forth above, it is RECOMMENDED that Defendants’ Motion for
Summary judgment be GRANTED and that judgment be entered in favor of Defendants.

V.

PROCEDURE FOR OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: April 24, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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