Brown v. Mohr et al

Filing 197

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 177 in that 173 Defendant Mohr's Motion to Dismiss is granted in part and denied in part and 161 Motion for Judgment on the Pleadings filed by Insp. Whitten, Mr. Seacrest, Mr H eiss, Warden Jeffries, Dr. Krisner, DW Upchurch and Ryan Dolan is granted in part and denied in part. Signed by Judge George C. Smith on 1/13/17. (sem)(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,
vs.

Case No.: 2:13-cv-006
JUDGE SMITH
Magistrate Judge Kemp

DIRECTOR MOHR, et al.,
Defendants.

ORDER
On September 9, 2016, the United States Magistrate Judge issued a Report and
Recommendation and Order recommending that Defendants Dr. Krisher, Inspector Whitten, Mr.
Heiss, Mr. Seacrest, Warden Jeffries, Deputy Warden Upchurch, and Ryan Dolan’s Motion for
Judgment on the Pleadings (Doc. 161) be granted in part and denied in part and that Defendant
Director Mohr’s Motion to Dismiss (Doc. 173) be granted in part and denied in part. Defendants
also filed a motion to stay discovery and a motion for an extension of time to file a reply in
support of their motion for judgment on the pleadings which the Magistrate Judge denied as
moot. Plaintiff has also filed several motions, including a motion to “reserve” defendants, a
motion for an order to serve Nurse Smith, a motion to amend the complaint, a motion seeking an
order to “reserve” defendants Stout and Trout, and a motion to appoint counsel. The Magistrate
Judge granted Plaintiff’s motion to amend the complaint, motion to serve Nurse Smith and
motion to re-serve Defendants Trout and Stout; and denied his motion to appoint counsel and
motion to “reserve” defendants. (See Doc. 177, Report and Recommendation and Order).

The parties were advised of their right to object to the Report and Recommendation and
Order. This matter is now before the Court on Defendants’ Objections to the Magistrate Judge’s
Report and Recommendation and Order, (see Docs. 180 and 182), as well as Plaintiff’s
Objections to the Report and Recommendation and Order (see Doc. 191). Objections to a
magistrate judge’s factual findings are reviewed under the “clearly erroneous” standard, while
objections to a magistrate judge’s legal conclusions are considered under the more lenient “contrary
to law” standard. Itskin v. Gibson, No. 2:10-CV-689, 2012 U.S. Dist. LEXIS 32169, at *3 (S.D.
Ohio Mar. 9, 2012) (quoting Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992)). Factual
findings may be overturned under the “clearly erroneous” standard only when the district court is left
with a definite and firm conviction that a mistake has been made. Id. (citing In re Search Warrants
Issued August 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995)). The district court’s review of
legal conclusions under the “contrary to law” standard is plenary, and the court “may overturn any
conclusions of law which contradict or ignore applicable precepts of law, as found in the
Constitution, statutes, or case precedent.” Id. (quoting Gandee, 785 F. Supp. at 686).

In Defendants’ first objection, they object to the failure of the Magistrate Judge to
dismiss Plaintiff’s claims against Defendant Dolan. The Magistrate Judge acknowledges that
Plaintiff brought a claim for the denial of his right to access to the courts against Director Mohr,
Mr. Stout, Mr. Clark, Mr. Dolan, Warden Jeffries, Mr. Heiss, and Inspector Whitten. Defendants
argue that the Magistrate Judge mistakenly forgot to dismiss the claims against Defendant Dolan.
The Court has reviewed the Magistrate Judge’s analysis in the Report and Recommendation, and
agrees with Defendants that this seems to have been an oversight by the Magistrate Judge.
Therefore, Plaintiff’s claim for denial of his right of access to the courts against Defendant Dolan
is also dismissed. Defendants’ objection, Doc. 180, is hereby SUSTAINED.
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Defendants also filed a second objection (Doc. 182), and makes the same objection as set
forth above except in this objection with respect to Defendant Deputy Warden Upchurch. The
Court agrees that like the other Defendants, Defendant Upchurch should have been dismissed for
the same reasons and therefore dismisses Plaintiff’s claim for denial of his right of access to the
courts against Defendant Upchurch. Accordingly, Plaintiff’s objection, Doc. 182, is
SUSTAINED.
Turning to Plaintiff’s Objections, they present the same issues presented to and
considered by the Magistrate Judge in the Report and Recommendation. Specifically, he objects
to his claim, regarding being housed with a neo Nazi, being characterized as a failure to protect
claim. Instead he asserts it is a deliberate indifference, cruel and unusual punishment claim
under the Eighth Amendment. (Doc. 191, Pl.’s Obj. at 4). Plaintiff asserts that he must only
show that the conditions were unsafe and “pose a serious unreasonable risk to an inmate’s well
being, even if the damage has not yet occurred, may violate the 8th Amendment.” (Id. citing
Helling v. McKinney, 509 U.S. 25 (1993); Hill v. Marshall, 962 F.2d 1209 (6th Cir. 1992).
Despite Plaintiff’s allegations to the contrary, the Magistrate Judge carefully considered
his arguments in the Report and Recommendation, including assessing whether Defendants acted
with deliberate in difference to a serious risk of physical harm. (See Doc. 177, R&R at 25). The
Court agrees with the findings of the Magistrate Judge that Plaintiff has not alleged sufficient
facts indicating a deliberate indifference to serious physical harm.
Next, Plaintiff argues that the Magistrate Judge’s decision is clearly erroneous in finding
that none of his claims regarding the Eighth Amendment medical indifference rise to a
constitutional violation. (Doc. 191, Pl.’s Obj. at 9). However, Plaintiff has failed to offer any

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new arguments for consideration. All of his arguments were previously considered by the
Magistrate Judge. The Court again agrees with the findings of the Magistrate Judge with respect
to these claims.
Additionally, Plaintiff challenges the Magistrate Judge’s findings with respect to Director
Mohr’s Motion to Dismiss. Plaintiff argues that there is new Ohio law concerning immunity for
state officials who violate civil rights, citing Ohio Revised Code § 2307.60. However, as the
Report and Recommendation discusses in detail, Plaintiff has not sufficiently alleged that
Director Mohr was directly involved in constitutional violations, only that he complained to
Director Mohr of the alleged violations. Plaintiff’s claims against Director Mohr are therefore
barred under Monell v. Department of Social Services, 436 U.S. 658 (1978).
Plaintiff also raises a number of other objections, including those regarding the
conditions during his confinement, appointment of counsel, and access to the Court. All of these
arguments were fully discussed in the original motions and carefully considered by the
Magistrate Judge in the Report and Recommendation. The Report and Recommendation was
neither clearly erroneous nor contrary to law. Therefore, for the reasons stated in the Report and
Recommendation, this Court finds that Plaintiff’s objections are without merit.
The Report and Recommendation, Document 177, is ADOPTED and AFFIRMED.
Defendants Dr. Krisher, Inspector Whitten, Mr. Heiss, Mr. Seacrest, Warden Jeffries, Deputy
Warden Upchurch, and Ryan Dolan’s Motion for Judgment on the Pleadings (Doc. 161) is
GRANTED IN PART AND DENIED IN PART and Defendant Director Mohr’s Motion to
Dismiss (Doc. 173) is GRANTED IN PART AND DENIED IN PART.
Defendants’ motion to stay discovery and motion for an extension of time to file a reply

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in support of their motion for judgment on the pleadings are DENIED AS MOOT. Plaintiff’s
motion to amend the complaint and motion to serve Nurse Smith and motion to re-serve
Defendants Trout and Stout are GRANTED. Plaintiff’s motion to appoint counsel and motion
to “reserve” defendants are DENIED.
The Clerk shall remove Documents 161, 173, 177, 180, 182 and 191 from the Court’s
pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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