Brown v. Mohr et al

Filing 139

REPORT AND RECOMMENDATION and ORDER - it is RECOMMENDED that 135 MOTION to Dismiss be DENIED. Further, 124 MOTION for Extension of Time is DENIED as MOOT; 126 MOTION For Status and To Correct The Record is DENIED as MOOT; 127 MOTION to "unstrike" the Amended Complaint is DENIED; and 128 MOTION to serve third amended complaint is GRANTED. Objections to R&R and ORDER due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 12/17/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Steven S. Brown,

:

Plaintiff,

:
:

v.
Director Mohr, et al.,

Case No. 2:13-cv-0006
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court to consider several pending

motions.

These motions include plaintiff Steven S. Brown’s

motion for an extension of time to submit a third complaint (Doc.
124), motion for status and to correct the record (Doc. 126),

motion to “unstrike” the amended complaint (Doc. 127), and motion
“for an order to serve the third amended complaint” (Doc. 128).
Also pending is a motion to dismiss the third amended complaint
filed by defendants Gary Croft, Mr. Heiss, Warden Jeffries, Dr.

Krisner, Mr. Seacrest, DW Upchurch, Ward, and Insp. Whitten (Doc.
135).

All of these motions are ripe for decision.

The Court

will recommend that the motion to dismiss be denied and will
dispose of the remaining motions as follows.
I.

Background

Mr. Brown, a state prisoner currently incarcerated at the

Ohio State Penitentiary in Youngstown, originally filed this
action in the Court’s Western Division in August, 2012.

In his

original complaint, Mr. Brown alleged numerous civil rights

violations against 45 individuals employed by the Ohio Department
of Rehabilitation and Correction and the Ohio Attorney General’s
Office.

A Magistrate Judge in the Western Division screened the

complaint, dismissed several defendants and claims, severed the

claims relating to Mr. Brown’s incarceration at the Ross

Correctional Institution, and transferred the severed claims to
this Court.

The surviving claims arising out of events while Mr.

Brown was incarcerated at the Southern Ohio Correctional Facility
remain pending in the Western Division as Case No. 1:12-cv-583.
The claims severed and transferred to this Court included

the following:

(a) Plaintiff’s claims against the following defendants
based on the conditions of confinement and the
propriety of a variety of incidents that allegedly
occurred at RCI when plaintiff was incarcerated there,
including the decision to transfer plaintiff from RCI
back to the “higher security” prison at SOCF allegedly
“in retaliation for making complaints” at RCI: ODRC
Director Gary Mohr; Warden Jefferies; Deputy Warden
Upchurch; Ryan Dolan; Edwin Voorhies; Mr. Eleby; ODRC
attorneys Trout, Stout, and Clark; Dr. Krishner, Nurse
Smith; Inspector Robert Whitten; Ms. Ward; Mr.
Seacrest; Lt. Yates; Gary Croft; and Mr. Heiss. The
claims are based on allegations contained in ¶¶12-25,
27-28, and 32-33 of the complaint.
(b) Plaintiff’s claims against defendant Mohr
alleged in ¶83 of the complaint.

See Order and Report and Recommendation (Doc. 12).
These allegations contained in the complaint, originally

submitted August 1, 2012 (Doc. 10) but filed in this Court on
November 21, 2012, read, verbatim, as follows:

12) The C/O upon arriving at Ross gave the
plaintiff all his non-carry medication which included
narcotics. His nazi celly ended up stealing them along
with much of the plaintiff’s other property.
13) When the prison authorities found out that
they had given the plaintiff the narcotics they had his
cell searched but could not find them so they put him
in the hole.
14) They transfered him a few hours later to a
hospital cell and in the morning he saw a doctor named
Dr. Krishner. This Doctor stopped all plaintiff’s
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medication including pain medication, insulin, seizure
medication, vitamine D and other medications.
Plaintiff was told that by the doctor that he was under
instruction by Central Office to cut costs and to stop
prescribing pain medication. This doctor also stoppeda previous order for a consult with a neurologist and
for a c-pap machine for sleep apnia.
15) As a result of this denial of the plaintiffs
right to medical care and medication he had seizures,
suffered extreme pain, and complacations from sleep
apnia including high blood pressure and mental health
problems. He also suffered high blood sugars and his 3
month A1c was over 9.
16) When the plaintiff was released from the
hospital unit and he went to get his property he found
that much of his property was missing and his legal
papers were destroyed. The property officer refused to
acknowledge that the property was missing and tried to
force the plaintiff to sign the John Doe C/O refused to
let him have the rest of his property.
17) The plaintiff went in serch of a supervisor
and found Warden Jefferies. He tried to explain about
the property, his nazi celly and the denial of medical
care. The warden refused to allow the plaintiff to
explain and started yelling at him about him being out
of place. In frustration the plaintiff said “what kind
of place are you running here.” For that he was taken
to the hole.
18) In the hole he was put on the top floor and
top bunk. Due to the doctor stopping high doses of
sizure medication the plaintiff had a seizure and fell
from the top bunk hurting his back, neck and arm.
19) The plaintiff had a privious order to be
housed on the bottom bunk and on the bottom range but
Dr. Krishner did not renew it. The plaintiff told the
nurses including nurse Smith but they refused to put
him in a safe place.
20) The plaintiff was moved to another cell closer
to the medical department. This cell had a shower in
it and no ventilation. Thus the whole cell was covered
in black mold. This mold made the plaintiff sick. The
cell was also full of flys and fly larve (black worms),
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growing in stgnant water. The plaintiff was not given
enough food and his diabetic snack was canceled so he
could not take his insulin.
21) The plaintiff complained about these
conditions to the warden, deputy warden, health care
administrator and inspector but he received no relief.
22) The plaintiff continued to suffer in pain,
seizures, and from sleep apnia, He then got a 105
temperature and was returned to the hospital unit and
placed in a cell with no heat by Nurse Smith. He was
not given his blood pressure and heart medication. He
threatened to sue the nurse and she said, you cant sue
if your dead a lot of good the money will do you in
prison. The plaintiff replied how about if I use it to
hire a private detective to see what could be dug up on
you.
23) Plaintiff was moved out of the cell with no
heat by a nurse on the next shift and also given his
medication. Nurse Smith had tried to kill the
plaintiff by denying medical care and medication and by
putting the plaintiff in a cell with no heat when it
was 12N outside.
24) Plaintiff made a complaint against Nurse Smith
and the next day she retaliated by writing a bogus
tickit saying the plaintiff threatened her.
25) Also in retaliation the RIB chairman found the
plaintiff guilty without allowing witnesses and
recommended that the plaintiff be sent to Lucasvillehigher security. This was done several months later
under the orders of Warden Jefferies, attorney general
Dolan, Edwin Voorhies, Greg Trout, Austin Stout, Trevor
Clark and others.
...
27) Deputy Warden Upchurch refused to approve the
plaintiffs Kosher diet. She also refused to provide
mental health care after the conditions made the
plaintiff go crazy and his mother died.
28) While being held in isolation the plaintiff’s
mom became very ill and had to go to the hospital for
ovarian cancer. They gave her a few weeks to live.
The plaintiff asked to be permitted to call her but
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Warden Jefferies, Robert Whitten, and others refused to
allow him to call and say goodby. Plaintiff’s mother
kept calling out for him and to talk to him.
...
32) After the plaintiffs mother died he went
crazy. He was kept in isolation, he was denied medical
care, mental health care, after passing out he was
assaulted by John Doe C/O’s because he could not walk,
he could not sleep for days due to severe pain, sleep
apnia, and grief, remorse and anger at the prison
authorities for torturing him and not allowing him to
go to the funeral. The totally of his circumstances
constituted cruel and unusual punishment, denial of
court access, retaliation, withholding legal mail,
destruction of his property, deliberatly putting him in
a cell with a nazi, denying kosher food, denying health
care, denying mental health care, destruction of his
legal papers, giving him bogus tickits and danying him
due process in his disciplinary hearings. Those
responsible for these acts at Ross Correctional
include, Mary Anne Reese, Ryan Dolan, Greg Trout, Edwin
Voorhies, Austin Stout, Director Mohr, Warden
Jefferies, Ms. Ward from Mental Health, Mr Seacrest
from mental health, Deputy Warden Upchurch, Dr.
Krisher, Inspector Whitten, C/O Riggs who assaulted me,
Lisa Bethel - health care adminstrator, John Doe Dep.
Warden of Operations for failing to properly supervise
his employees which harmed the plaintiff and put him in
unconstitutional conditions, Lt. Yates for denying due
process in RIB and for retaliation, Gary Croft for
retaliation and denial of medical care and denial of
court access, Mr Heiss for illegally withholding legal
mail, illegally destroying legal documents, for
retaliation for making complaints of abuse,
disciplinary issues and conditions and for condoning
the plaintiffs torture in the hole and antisemitism by
Ross staff.
33) The plaintiff was transferred back to
Lucasville and put in unconstitutional conditions by
Ron Eleby and Warden Jeffries. This move was in
retaliation for making complaints and partially caused
by the plaintiff’s behavior when they tortured him at
Ross into insanity.
...

83) Plaintiff was transferred to Toledo where for
3 months there was no Doctor working here at all. This
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was the directors fault, Mr. Mohr who is responsible
for providing a doctor. The plaintiff did not get
medications or care for serious illnesses including
diabetes, rectal bleeding, herniated discs, shoulder
pain and torn rotator disc, neuropathy, high blood
pressure, enemia, contractures, pereferal vascular
diseases and heart problems.
On August 26, 2013, Mr. Brown sought leave to file an

amended and supplemented complaint (Doc. 26).
specifically stated:

This motion

In the instant case, the plaintiff wants to amend
the suit to reflect his errors in the suit concerning
the capacities of those he sued, to include dates and
times once he receives his grievance files and medical
records, add John Does’ names and clarify the original
complaint.
... Additionally, the plaintiff’s rights under the
Constitution continue to be violated by the same
defendants’ after he was transferred back to Ross
Correctional in March of 2013 from Southern Ohio
Correctional. He request[s] leave to include a
supplemental complaint over the denial of his rights
to:
1) Medical care and constitutional medical policy
and procedure
2) Denial of the right to access the courts and
policy and procedures that deny copies, postage - and
indigent status
3) Retaliation for exercise of constitutional
rights
4) Totallity (sic) of conditions at Ross
Correctional
5) Stolen and lost property deliberatly (sic) done
by the State Corrections Personel (sic).
On August 30, 2013, certain defendants moved for a more

definite statement (Doc. 27).

Mr. Brown’s motion to amend was

granted and the motion for a more definite statement was denied
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as moot by order dated March 28, 2014 (Doc. 49).
stated:

The order

... With respect to the motion for leave to amend, the
Court notes that Mr. Brown has not provided a proposed
amended complaint for the Court’s review. He has,
however, described his intended amendments and his
motion is unopposed. Consequently, the motion for
leave to amend (Doc. 26) is granted. Mr. Brown shall
file an amended complaint consistent with the
representations in his motion within 28 days of the
date of this order.
On April 11, 2014, Mr. Brown filed his amended complaint

which he captioned as a second amended complaint.

The defendants

moved to strike this pleading on April 25, 2014 (Doc. 52).
basis for this motion was Mr. Brown’s failure to amend his

The

complaint in accordance with previous Court orders.

By order dated November 6, 2014 (Doc. 92), the Court granted

defendants’ motion to strike that pleading.
second amended complaint, the Court stated:

In striking the

...in granting Mr. Brown leave to file an amended
complaint, this Court specifically directed that his
amended complaint conform to the representations in his
motion for leave. Mr. Brown’s motion for leave raised
issues relating to conditions at Ross Correctional
Institution only. Mr. Brown’s amended complaint naming
defendants and raising issues relating to SOCF is
inconsistent with the Court’s instruction. Further,
the Court in Case No. 1:12-cv-583 specifically retained
the claims relating to SOCF and transferred only the
remaining claims involving conditions at RCI or those
involving ODRC employees located in Columbus.
Consequently, the Court will grant the defendants’
motion and will strike the amended complaint for Mr.
Brown’s failure to comply with this Court’s orders.
Mr. Brown will be directed to file an amended complaint
in this case which complies with the terms of the
Court’s previous orders. See Docs. 12 and 49 in Case
No. 1:12-cv-583 and Doc. 49 in Case No. 2:13-cv-06.
His failure to do so may result in a recommendation
that this case be dismissed for Mr. Brown’s failure to
comply with the Court’s orders.
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The Court directed Mr. Brown to file another amended complaint
within fourteen days of the date of the order.

Mr. Brown timely filed objections to the order and a motion

for reconsideration.

He also sought an extension of time for

filing the third amended complaint.

The Court granted the motion

for extension of time and directed Mr. Brown to file his third
amended complaint within thirty days of the Court’s ruling on
the objections and motion for reconsideration.

On May 13, 2015,

the Court adopted the Report and Recommendation and directed Mr.
Brown to file his third amended complaint.

On May 22, 2015, Mr.

Brown sought an additional extension of time for filing the third
amended complaint.

On July 10, 2015, Mr. Brown filed two

motions, a motion to “unstrike” the amended complaint (Doc. 127)
and a “motion for an order to serve the third amended complaint”
(Doc. 128).

He attached to the latter motion a copy of the third

amended complaint.

Defendants responded to the motion for an

order to serve the third amended complaint and Mr. Brown filed a
reply.

On September 11, 2015, Mr. Brown filed his third amended

complaint (Doc. 132) as a stand alone document.
2015, defendants moved to dismiss.
October 26, 2015.

On October 9,

Mr. Brown responded on

The defendants did not file a reply.

II.

The Third Amended Complaint

Mr. Brown has captioned his complaint as a third amended and

supplemented complaint.

He requests that all of the permitted

facts from the original and amended complaints be incorporated by
reference and states that he is supplementing his complaint with
new facts related to the allegations of the original complaint.
This pleading, like Mr. Brown’s other complaints, is quite
lengthy.

In fact, by Mr. Brown’s page numbering, it is 48 pages

in length with two additional pages identifying the intended
defendants.

By the Court’s calculation, this document is 39
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pages in total length.

Beginning on page 4, the third amended complaint sets forth

a preliminary statement.

A “statement of claims” containing

approximately 62 paragraphs of detailed factual allegations is

found at pages 7 to 44, as the document has been numbered by Mr.
Brown.

The first paragraph under the statement of claims states

that he was transferred to RCI on January 18, 2011 and
transferred out on April 6, 2011.

returned to RCI on March 15, 2013.

It also states that he

Mr. Brown sets forth “claims for relief” beginning on page

44 in seven numbered paragraphs.

These claims include denial of

his right of access to the courts, deliberate indifference to his
medical needs, conspiracy to deny his constitutional rights,

violations of his right to practice his religion, and retaliation
for the exercise of his constitutional rights.

He also asserts

claims for declaratory relief relating to the “medication policy,
the indigent policy, the clothing policy, and the medical
policy.”

Each “claim” states the name of the defendants to whom

it is directed.

Named defendants are set forth on the final two pages of Mr.

Brown’s filing.

Mr. Brown, contrary to the representations in

his motion for leave to amend, does not indicate whether these
defendants are being sued in their individual or official
capacities or both.

There is some indication in Mr. Brown’s

first “claim for relief” relating to the denial of access to the
courts, that certain defendants are being sued in their
individual and official capacities.

The defendants as identified on the final two pages include

the following employees of the Ross Correctional Institution:
Lt. Turner, Dr. Krisher, Robert Whitten, Nurse Smith, Charlie
Heiss, D.W. Upchurch, Lt. Cockrell, Capt. Posey, Mr. Pence,

Warden Hooks, Nurse Hawk, Nurse Kardaras, Lisa Bethel, Mr. Ford,
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Mr. Long, Ms. Goldburg, Mr. Byrd, Sgt. Anderson, and Warden OPPI.
Most of these individuals were not named in the original
complaint.

Only Dr. Krisher, Robert Whitten, Nurse Smith,

Charlie Heiss, and D.W. Upchurch were named as defendants in the
original complaint as transferred to this Court.

Further, the third amended complaint also seeks to name as

defendants the following employees of ODRC:

Director Mohr and

Director Moore, Mr. Clark and Trevor Clark, Austin Stout, Greg
Trout, Ryan Dolan, and Mr. Voorhies.

Only Director Mohr, Trevor

Clark, Austin Stout, Greg Trout, Ryan Dolan and Mr. Voorhies were
named as defendants in the original complaint as transferred to
this Court.

Additionally, the third amended complaint seeks to add as

defendants Ohio Attorney General Mike DeWine and several

employees of his office including Mary Anne Reese, Peter Jamison
and Judith Goldstein.

None of these defendants were included in

the original complaint as transferred to this Court.

Additional

defendants named in the third amended complaint, but not in the
original complaint, are Ross County Prosecutor Mathew Schmidt,

Ross County Common Pleas Judge Nusbaum, and Aramark Corporation.
III.

Defendants’ Motion to Dismiss

Defendants have moved to dismiss this complaint because of

what they characterize as Mr. Brown’s “blatant non-compliance”
with the Court’s orders.
demonstrates bad faith.

They assert that Mr. Brown’s conduct

Defendants cite to Ebbing v. Butler

Cnty., Ohio, 2010 WL 4118105 (S.D. Ohio May 21, 2010), adopted
and affirmed 2010 WL 4117458 (S.D. Ohio Oct. 19, 2010), as an

example of this Court’s dismissal of a pro se plaintiff’s claims
with prejudice for similarly willful conduct.

Specifically, the

defendants contend that Mr. Brown has failed to comply with Court
orders by “including new defendants, allegations that he was

forced to settle Brown v. Voorhies, including defendants that
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have not been served, new allegations not stating a time or

place, allegations occurring at SOCF, allegations arising from
events in 2011, rambling allegations without directing
allegations at any specific defendant, time or place.”

Further, they note that the Court in the Western Division

has recommended the dismissal of Case No. 1:12-cv-583 for Mr.

Brown’s failure to comply with the Court’s directives to organize
and clarify his claims.

They also point out that Mr. Brown has

been put on notice that his failure to comply with this Court’s
orders might result in the dismissal of this case.

Additionally, defendants argue that they have been

prejudiced by Mr. Brown’s conduct because they have been forced

to respond to multiple frivolous motions during the nearly three
years this case has been pending.
IV.

Analysis

The only issue raised by defendants’ motion to dismiss is

whether Mr. Brown’s complaint so fails to comply with previous
orders of this Court that it warrants dismissal.

The defendants’

motion does not address the merits of any of Mr. Brown’s claims.
For the following reasons, the Court cannot agree that dismissal
on defendants’ asserted ground is appropriate.

In reaching this conclusion, the Court is aware that Mr.

Brown’s current amended complaint is not a model of clarity.

However, that is not the issue presented by defendants’ motion.

The issue is whether, based on the representations in his motion
for leave to amend, Mr. Brown has filed an amended complaint
consistent with the Court’s orders.

Defendants assert that Mr. Brown has not complied for

several reasons.

Specifically, defendants argue that Mr. Brown

has included new defendants, added allegations that he was forced
to settle Brown v. Voorhies, included defendants that have not

been served, added allegations without stating a time or place,
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added allegations of events at SOCF, and added allegations
without reference to a specific defendant, time, or place.
Defendants are correct that Mr. Brown has included

allegations beyond those described in his motion for leave to
amend.

For example, he indicates in his motion that he intends

to identify defendants named as John Doe defendants in his
original complaint.

In his original complaint, Mr. Brown named

as defendants three John Doe employees of RCI.

His current

amended complaint names fourteen additional employees of RCI as
defendants.

Further, Mr. Brown does not indicate in his motion for leave

that he intends to name additional defendants.

Rather, he

explains that he seeks to add allegations relating to certain
claims against the same defendants.

His amended complaint,

however, names additional defendants beyond employees of RCI.
addition, Mr. Brown’s motion for leave to amend was filed on

In

August 26, 2013, but his current amended complaint includes
allegations relating to events in 2015.

Mr. Brown also requests

leave to clarify the capacities in which the defendants are being
sued, but the clarification in his amended complaint is somewhat
imprecise.

At the same time, however, the Court reads Mr. Brown’s

current amended complaint as an attempt to comply with its
previous orders.

For example, the Court disagrees with

defendants’ view that Mr. Brown has included claims directed to
events at SOCF.

The current amended complaint does not name any

SOCF employees as defendants.

Further, while the amended

complaint may contain brief mention of SOCF, the Court construes
this mention as made only in the context of factual background.
Further, although defendants contend that Mr. Brown has

failed to provide information as to dates and times, the Court
reads Mr. Brown’s complaint as attempting to establish a time
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frame for his various allegations.

For example, in paragraph 1

of his statement of claims, Mr. Brown states that he was

transferred to RCI on January 18, 2011 and out on April 6, 2011.

Further, he states that he was returned to RCI on March 15, 2013.
Moreover, the Court finds that the defendants’ concerns

easily can be addressed by the Court’s review and construction of
the amended complaint for purposes of going forward.
principles will guide the Court in its review.

Several

First, Mr. Brown was not granted leave to amend his

complaint to assert claims on a continuing, or rolling, basis.
Rather, he was granted leave to file an amended complaint

consistent with the representations in his motion as of August
26, 2013.

Further, his amended complaint remains subject to Fed.

R. Civ. P. 8(a).

That Rule provides:

(a) Claim for Relief. A pleading that states a
claim for relief must contain:
(1) a short and plain statement of the grounds for
the court’s jurisdiction, unless the court already has
jurisdiction and the claim needs no new jurisdictional
support;
(2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may
include relief in the alternative or different types of
relief.
Additionally, the Court notes that, although Mr. Brown

captioned his previous motion as a motion to amend and

supplement, the language of his motion does not identify any
defendants he intends to add.

Rather, it states that his “rights

under the Constitution continue to be violated by the same
defendants.”

The mere inclusion of the conclusory statement

that “[a] supplemental complain (sic) can add new parties,” is

not sufficient for the Court to consider the addition of 22 new
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defendants in the amended complaint as consistent with the
representations in Mr. Brown’s motion.

Further, under Rule 12(f), the Court may “strike from a

pleading ... any redundant, immaterial, impertinent, or
scandalous matter.”
the Court.

This Rule grants “liberal discretion” to

Stanbury Law Firm, P.A. v. Internal Revenue Service,

221 F.3d 1059, 1063 (8th Cir. 2000).

Applying these standards and keeping in mind Mr. Brown’s

intentions as expressed in his motion for leave to amend, the
Court has reviewed the allegations of the current amended
complaint and will construe it as follows.

First, with respect to the dates and times of the events at

RCI, the Court construes those as limited to events occurring

between Mr. Brown’s transfer to RCI on January 18, 2011 and his
transfer out on April 6, 2011 and between his return to RCI on
March 15, 2013, and the date his motion for leave to amend was
filed - August 26, 2013.

Consequently, the time frame at issue

in the amended complaint is limited to approximately three months
in 2011 and approximately five months in 2013.

Further, as noted above, Mr. Brown was not granted leave to

name additional defendants in his amended complaint.

To the

extent that he was granted leave to identify previously named
John Doe defendants, he has not done so properly.

Consequently,

the Court does not construe the amended complaint as properly

naming any defendants beyond RCI defendants Dr. Krisher, Robert
Whitten, Nurse Smith, Charlie Heiss, Mr. Seacrest, Warden
Jefferies, and D.W. Upchurch.

The Court notes that, although the

amended complaint does not list either Warden Jefferies or Mr.
Seacrest as defendants on the pages designating the parties,
allegations in the complaint remain directed to them.

Further,

the Court finds that the only properly named ODRC defendants are

Gary Mohr, Trevor Clark, Greg Trout, Austin Stout, Ryan Dolan and
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Ed Voorhies.

Additionally, the Court notes that Mr. Brown has not

included Gary Croft or Ms. Ward in his list of defendants in the
amended complaint nor included any allegations directed to them
within the body of the amended complaint.

Accordingly, the Court

will construe this omission as Mr. Brown’s intention to dismiss
them as defendants.

The Court also notes a brief reference in the claims for

relief to Lt. Yates.

Mr. Brown previously sought to dismiss Mr.

Yates as a defendant (Doc. 34).

This motion was denied as moot

name Lt. Yates as a defendant.

Although that amended complaint

based on Mr. Brown’s filing of an amended complaint that did not
was subsequently stricken based on Mr. Brown’s failure to comply
with the Court’s order, the Court does not construe Mr. Brown’s
single mention of Lt. Yates in a laundry list of names included
in Paragraph 7 of the claims for relief as sufficient to allow
the Court to construe Lt. Yates as a named defendant.
This brings the Court to Dr. Eddy.

Mr. Brown does not

include Dr. Eddy in his list of named defendants although

multiple allegations in the complaint are directed to him.

Dr.

Eddy, however, was not named as a defendant in any of the claims
transferred to this Court.

Further, Mr. Brown did not seek leave

to name Dr. Eddy as a defendant.

Consequently, the Court will

not construe the complaint as naming Dr. Eddy as a defendant.
To the extent that Mr. Brown seeks to incorporate by

reference “permitted” facts set forth in his original and amended
complaint, the Court declines to do so with respect to the

amended complaint, captioned as a second amended complaint by Mr.
Brown.

This complaint was stricken and is no longer part of the

record before this Court.

Although Mr. Brown has moved to

“unstrike” the second amended complaint, he does not set forth

good cause for doing so and his motion (Doc. 127) will be denied.
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Accordingly, there are no “permitted” facts contained in the

amended complaint that could be incorporated into Mr. Brown’s
current amended complaint.

To the extent that Mr. Brown seeks to

incorporate allegations from his original complaint, those
allegations have been set forth above.

Further, to the extent that Mr. Brown has included

allegations or claims beyond what he represented in his motion

for leave, the Court will recommend that portions of the amended
complaint be stricken as follows.

The Court will recommend that the supplemental pleadings

section contained on pages 1 and 2 and the preliminary statement
set forth at pages 4 through 7 be stricken.

The Court construes

this discussion as a procedural history of this case which is
both well beyond the boundaries of Rule 8 and easily
characterized as redundant under Rule 12(f).

The Court construes Mr. Brown’s statement of claims as

setting forth the factual allegations on which he bases his
claims for relief.

Paragraphs 1 through 25 of the amended

complaint appear to relate to conditions at RCI.

Paragraphs 26

through 30 relate to claims previously dismissed by this Court
(Doc. 12) and clearly fall outside the parameters set forth in
the Court’s prior order allowing Mr. Brown leave to amend.

Consequently, the Court will strike Paragraphs 26 through 30.
Paragraph 31 appears to relate to events at RCI.

Paragraph 32

appears to be directed to the conduct of an individual who is not
a named defendant in this case and the Court will strike it.
Paragraph 33 appears to relate to events at RCI.
contains information establishing a time frame.

Paragraph 34

Paragraphs 35

and 36 have no relationship to events or conditions Mr. Brown

endured while at RCI and the Court will strike these paragraphs.
Paragraphs 37 and 38 again appear to relate to Mr. Brown’s
confinement in RCI.

Paragraph 39 is directed to individuals who
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are not defendants in this case and the Court will strike it.

In

doing so, the Court notes that Mr. Smith, the ADA coordinator, is
not the same individual as Nurse Smith.

Paragraph 40 appears to

relate to Mr. Brown’s confinement at RCI.

Paragraph 41 appears

to relate to conditions at RCI and is directed to one named
defendant, Director Mohr.

The Court will strike Paragraphs 42

defendants in this case.

Paragraph 44 appears to relate to Mr.

and 43 because they are directed to individuals who are not
Brown’s confinement at RCI.

Paragraph 45 will be construed as

directed only to the conduct of Mr. Heiss in ignoring Mr. Brown’s
complaints.

Additionally, paragraphs 46 through 50 will be

stricken because they contain allegations of events outside of
the time frame established for this case.

The paragraphs beginning on page 27 as Mr. Brown has

numbered the pages of his amended complaint are out of sequence
and start over at 31.

The Court will strike Paragraph 31 as it

appears directed to employees of the Ohio Attorney’s General
Office who are not named as defendants in this case.

Paragraph

32 appears to be a recap of previously alleged unconstitutional
conditions at RCI and suggests class action allegations.
Consequently, the Court will strike that paragraph.

Paragraph 33

appears to be both redundant and directed in large part to
individuals who are not defendants in this case.
the Court will strike Paragraph 33.
to relate to various ODRC policies.

Consequently,

Paragraphs 34 and 35 appear
Paragraphs 36 through 41

appear to relate to Mr. Brown’s medical care at RCI and his
disagreement with various institutional policies.

In the section captioned as claims for relief, the Court

will strike paragraph 4 because it appears to arise from
allegations outside the established time frame.

Finally, the Court notes that Mr. Brown had been granted

leave to amend in order to clarify the capacity in which he was
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suing the defendants.

Mr. Brown’s amended complaint falls short

on this issue, although he does expressly indicate that his
access to the courts claim is directed to the particular

defendants in both their individual and official capacities.
Despite Mr. Brown’s failure to be more precise, the Court

construes the complaint as proceeding against all defendants in
both their official and individual capacities.

See Rose v. Reed,

2014 WL 3547375, *4 (S.D. Ohio July 17, 2014) (request for

compensatory and punitive damages and nature of claims suggested
plaintiff’s intention to sue defendant in individual capacity);

see also Lindsay v. Bogle, 92 Fed.Appx. 165, 169 (6th Cir. 2004)
(“To the extent doubt persists that this combination of factors
warrants construing the complaint as one against the defendants
individually, this doubt should be resolved in [plaintiff’s]
favor as a pro se plaintiff”).

In summary, the Court will not recommend dismissal of Mr.

Brown’s amended complaint on defendants’ asserted ground that he
intentionally failed to comply with previous orders of this
Court.

The Court will, however, construe the amended complaint

as proceeding only against the following defendants in both their
official and individual capacities:

Dr. Krisher, Robert Whitten,

Nurse Smith, Charlie Heiss, D. W. Upchurch, Mr. Seacrest, Warden

Jefferies, Director Mohr, Trevor Clark, Austin Stout, Greg Trout,
Ryan Dolan and Mr. Voorhies.

Further, the Court will strike the following portions and

paragraphs of the amended complaint: the supplemental pleadings

section contained on pages 1 and 2 and the preliminary statement
set forth at pages 4 through 7; beginning with the Statement of

Claims, Paragraphs 26 through 30; Paragraph 32; Paragraphs 35 and
36; Paragraph 39; Paragraphs 42 and 43; Paragraphs 46 through 50;
beginning on page 27 as Mr. Brown has numbered the amended
complaint, Paragraphs 31 through 33; and under the section
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captioned as Claims for Relief, Paragraph 4.
V.

Remaining Motions

Mr. Brown’s motion for an extension of time to submit a

third amended complaint (Doc. 124) will be denied as moot.

Additionally, because the clerical error designating this case as
closed has been corrected, Mr. Brown’s motion for status and to
correct the record (Doc. 126) will be denied as moot.

This brings the Court to Mr. Brown’s motion for an order to

serve the amended complaint.

Defendants have opposed this motion

raising the same issues addressed above.

As is well documented

in this case, Mr. Brown has yet to complete service on Nurse

Smith, Ryan Dolan, Ed Voorhies, Director Mohr, Austin Stout, Greg
Trout, and Trevor Clark.

Because the extent of this issue has

been addressed in previous orders, the Court will not reiterate
the full background here.

Briefly, however, the Court, in

denying a Rule 12(b)(5) motion filed by these defendants, noted
Mr. Brown’s alleged difficulties in perfecting service and the
issue of the filing of the third amended complaint (Doc. 109).

Prior to that order, the Court had directed Mr. Brown to properly
complete service on these defendants within 30 days of the filing
of his third amended complaint (Doc. 92).

Now that the amended

complaint has been filed, the Court will direct its service.
Consequently, Mr. Brown’s motion (Doc. 128) will be granted.

Mr. Brown has submitted a summons and marshal form and a

service copy of the current amended complaint only for Gary Mohr.
The Clerk shall prepare and finalize the summonses for the

remaining defendants and shall provide these documents, along

with those directed to Gary Mohr, to the United States Marshal.

The United States Marshal shall serve by certified mail a copy of
the amended complaint, summons, and a copy of this order, upon
these defendants at each of the addresses shown.
VI.

Recommendation and Order
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For the reasons stated above, it is recommended that the

motion to dismiss (Doc. 135) be denied.

Further, the following portions and paragraphs of the

amended complaint are stricken:

the supplemental pleadings

section contained on pages 1 and 2 and the preliminary statement
set forth at pages 4 through 7; beginning with the Statement of

Claims, Paragraphs 26 through 30; Paragraph 32; Paragraphs 35 and
36; Paragraph 39; Paragraphs 42 and 43; Paragraphs 46 through 50;
beginning on page 27 as Mr. Brown has numbered the amended
complaint, Paragraphs 31 through 33; and under the section
captioned as Claims for Relief, Paragraph 4.

The Court construes the amended complaint as proceeding

against only the following defendants in both their individual
and official capacities:

Dr. Krisher, Robert Whitten, Nurse

Smith, Charlie Heiss, D. W. Upchurch, Mr. Seacrest, Warden

Jefferies, Director Mohr, Trevor Clark, Austin Stout, Greg Trout,
Ryan Dolan and Mr. Voorhies.

Additionally, the Court construes

the complaint as relating to events occurring between Mr. Brown’s
transfer to RCI on January 18, 2011 and his transfer out on April
6, 2011 and between his return to RCI on March 15, 2013, and the
date his motion for leave to amend was filed - August 26, 2013.
Further, the motion for extension of time (Doc. 124) and

motion for status (Doc. 126) are denied as moot.

The motion to

“unstrike” the amended complaint (Doc. 127) is denied and the
motion to serve the third amended complaint (Doc. 128) is
granted.

The Clerk shall prepare and finalize the summonses for the

defendants Nurse Smith, Ryan Dolan, Ed Voorhies, Austin Stout,
Greg Trout, and Trevor Clark and shall provide all of these

documents, along with the documents prepared by Mr. Brown for
Gary Mohr, to the United States Marshal.

The United States

Marshal shall serve by certified mail a copy of the amended
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complaint, summons, and a copy of this order, upon these
defendants at each of the addresses shown.

PROCEDURE ON OBJECTIONS TO THE REPORT AND RECOMMENDATION

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).

of this Court shall make a de novo determination of those

A judge

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).
MOTION FOR RECONSIDERATION OF ORDER

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the
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motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.

This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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