Brown v. Mohr et al

Filing 53

REPORT AND RECOMMENDATIONS recommending that 47 MOTION for Preliminary Injunction be denied. Further, 38 MOTION for Extension of Time & 41 MOTION Requesting Re-Service of Some Defendants are granted. Finally, 34 MOTION to Dismiss Lt. Yates, 35 MOTION for Leave to Proceed in forma pauperis & 44 MOTION for More Definite Statement are moot. Defendants are directed to provide the USMS w/the last known addresses for defendants Dolan, Smith & Eleby w/in 14 days of the date of this Order. Mr. Brown shall submit a service copy of the complaint, completed summons & a USM-285 for defendants Stout, Trout, Clark, Mohr, Dolan, Eleby, Voorhies & Smith w/in 14 days of the date of this order. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/29/2014. (kk2)

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

Steven S. Brown,
Plaintiff,
v.

Case No. 2:13-cv-0006

Director Mohr, et al.,

JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp

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

These include plaintiff Steven S. Brown’s motions to

dismiss Lt. Yates, for leave to proceed in forma pauperis, for an
extension of time to serve defendant Charlie Heiss, requesting
re-service of some of the defendants, and for a preliminary
injunction.

Also pending is a motion for a more definite

statement filed by defendant Heiss.

Only some of these motions

have been fully briefed, but all are ripe for decision.

For the

following reasons, it will be recommended that the motion for a
preliminary injunction be denied.

The remaining motions are

resolved as set forth below.
I.

Mr. Brown’s Motion for a TRO or Preliminary Injunction

Mr. Brown contends that a TRO or preliminary injunction is
necessary primarily because he is being denied medical care.

He

also indicates that he was being denied kosher food but is now
unhappy with the nature of the kosher food he is provided because
it is inadequate for a diabetic.

Further, he asserts that he is

suffering retaliation for having taken legal action and this
includes being placed in a cell with Nazis and “skinheads”
because he is Jewish.

He has submitted both a sworn statement in

support of his motion and eighteen exhibits detailing his medical

history dating back to 1999, demonstrating his requests for
kosher meals, and indicating his belief that he is being
retaliated against for pursuing legal action.
In response, defendants have submitted a declaration from
Kelli Cardaras, a licensed and registered nurse employed at RCI
and the custodian of the medical records of the inmates housed
there.

According to this declaration, Mr. Brown does not suffer

from all of the conditions that he alleges.

Further, he has

received continuing medical treatment for the serious conditions
which have been diagnosed.

However, Mr. Brown either disagrees

with or chooses not to comply with at least some of that
treatment.
Relying on this declaration, defendants argue that Mr.
Brown’s factual allegations regarding the denial of medical care
are without merit.

They also contend that Mr. Brown has

requested no specific relief necessary to preserve the status
quo, the very purpose of a preliminary injunction.

Additionally,

they assert that his claims regarding his need for a kosher diet
and retaliation are unrelated to the claims set forth in his
complaint.
In reply, Mr. Brown disputes the truthfulness of Ms.
Cardaras’ declaration at great length.
A.

Legal Standard

In deciding whether to grant a TRO or to grant preliminary
injunction, the Court considers the same factors.

Ohio

Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
These factors include: (1) whether the plaintiff is likely to
succeed on the merits, (2) whether the plaintiff is likely to
suffer irreparable injury absent an injunction, (3) whether the
preliminary injunction will cause substantial harm to others, and
(4) whether the public interest would be served by granting the
injunction.

Hunter v. Hamilton County. Bd. of Elections, 635
-2-

F.3d 219, 233 (6th Cir. 2011); see also Rock & Roll Hall of Fame
v. Gentile Productions, 134 F.3d 749, 753 (6th Cir. 1998); Winter
v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008).

These factors are to be balanced, they are

not prerequisites that must be met.

In re Eagle–Picher Indus.,

Inc., 963 F.2d 855, 859 (6th Cir. 1992); Dayton Area Visually
Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir.
1995).

However, some demonstration of irreparable injury is

required for injunctive relief.

Patio Enclosures, Inc. v.

Herbst, 39 F. App'x 964, 967 (6th Cir. 2002); see also Winter,
555 U.S. 22–23 (rejecting the notion that a mere “possibility” of
irreparable injury was sufficient for a preliminary injunction
and holding that “plaintiffs seeking preliminary relief [are
required] to demonstrate that irreparable injury is likely in the
absence of an injunction”).

Further, “a finding that there is

simply no likelihood of success on the merits is usually fatal.”
Gonzalez v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th
Cir. 2000).
Mr. Brown bears the burden of demonstrating that he is
entitled to a preliminary injunction.

Injunctive relief is “an

extraordinary remedy which should be granted only if the movant
carries his or her burden of proving that the circumstances
clearly demand it.”

Overstreet v. Lexington–Layette Urban Cnty.

Gov't, 305 F.3d 566, 573 (6th. Cir. 2002); Winter, 555 U.S. at
24.

Further, the “proof required for the plaintiff to obtain a

preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion.”
Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).

Leary v.
Additionally,

where a prison inmate seeks an order enjoining state prison
officials, courts are required to proceed carefully and with an
awareness of the unique nature of the prison setting.

See

Kendrick v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984).
-3-

It

is with these standards in mind that the Court will consider Mr.
Brown’s motion.
B.

Analysis

Briefly, at the outset, to the extent that Mr. Brown is
requesting to be placed on a kosher diet and, to the extent that
such a claim can be construed as relating to the allegations of
the complaint, it is not a claim sufficient to support the
issuance of a TRO or preliminary injunction.

See Jarrett v.

Snyder, 2013 WL 3270911 (W.D. Mich. June 27, 2013); Schuh v.
Michigan Dept. of Corrections, 2010 WL 3648876, *2 (W.D. Mich.
July 26, 2010), affirmed 2010 WL 3655654 (W.D. Mich. Sept. 16,
2010) (demand to be placed on religious diet does not present the
type of immediate and irreparable injury meriting a TRO); Daly v.
Lappin, 2006 WL 468723, *1 (S.D. Ill. Feb. 27, 2006) (request to
prevent removal from kosher diet does not demonstrate immediate
and irreparable harm necessary to obtain a TRO).
More substantively, at this point, the Court cannot
determine whether Mr. Brown has demonstrated a likelihood of
success on the merits on any of his claims.

With respect to his

allegation that he is being denied medical treatment or that his
kosher diet is not meeting his medical needs, to establish an
Eighth Amendment violation premised on inadequate medical care,
Mr. Brown must demonstrate that the defendants acted with
“deliberate indifference to serious medical needs.”

Farmer v.

Brennan, 511 U.S. 825, 835 (1994), quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976).

To rise to the level of an Eighth Amendment

violation, a prison official must “know of and disregard an
excessive risk to inmate health or safety; the official must both
be aware of the facts from which the inference could be drawn
that a substantial risk of serious harms exists, and he must also
draw the inference.

Farmer, 511 U.S. at 837-38. Where a prisoner

has received some medical attention and the dispute is over the
-4-

adequacy of the treatment, federal courts are generally reluctant
to second guess medical judgments.
857, 860 n.5 (6th Cir. 1976).

Westlake v. Lucas, 537 F.2d

From Mr. Brown’s own submissions

regarding his medical care as well as the information provided by
the defendants, his allegations suggest nothing beyond a dispute
over the adequacy of treatment he is receiving.
In order to succeed on his retaliation claim, to the extent
it relates to the allegations of the complaint, Mr. Brown must
establish that: (1) he was engaged in protected conduct; (2) an
adverse action was taken against him that would deter a person of
ordinary firmness from engaging in that conduct; and (3) the
adverse action was motivated, at least in part, by the protected
conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999)(en banc).

Moreover, Mr. Brown must be able to prove that

the exercise of the protected right was a substantial or
motivating factor in the alleged retaliatory conduct of placing
him in a cell with Nazis or “skinheads.”

See Smith v. Campbell,

250 F.3d 1032, 1037 (6th Cir. 2001), citing Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568, 50 L.Ed.2d 471 (1977).

Mr. Brown has not provided any

factual support for this claim beyond his bare statement of
retaliation.

Consequently, the Court cannot determine whether

Mr. Brown’s allegation of retaliation forms the basis for a
finding of a constitutional violation.
To the extent that Mr. Brown may be suggesting that he has
been placed in some kind of danger for having been “celled” with
a Nazi or “skinhead,” the Eighth Amendment generally prohibits
prison officials from being "deliberately indifferent" to the
health or safety of prison inmates and, as a result, causing them
to suffer unnecessary or purposeless pain or injury. In Farmer
v. Brennan, 511 U.S. 825, 839 (1994), the Court adopted
"subjective recklessness as used in the criminal law" as the

-5-

appropriate definition for deliberate indifference. It held that
"a prison official cannot be held liable under the Eighth
Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to
inmate health or safety ...." Id. at 837. Officials must be
aware of facts from which they could conclude that a substantial
risk exists and must actually draw that conclusion. Id. Prison
officials who know of a substantial risk to the health or safety
of an inmate are free from liability if "they responded
reasonably to the risk, even if the harm ultimately was not
averted." Id. at 844. As with his allegation of retaliation,
Mr. Brown has not provided any factual support for this claim.
Consequently, the Court cannot determine whether Mr. Brown’s
allegations form the basis for a finding of a constitutional
violation.
Further, Mr. Brown has not demonstrated that he will suffer
irreparable harm if his motion is not granted.

At best, Mr.

Brown has alleged a lengthy history of medical conditions for
which he has received medical treatment but he is unsatisfied
with the treatment he has received.

As noted, his remaining

allegations are far less detailed than those relating to his
medical treatment.

As a result, Mr. Brown has not demonstrated

the imminence, or even the likelihood, of physical injury
sufficient to support the issuance of preliminary injunctive
relief.

See, e.g.,

Johnson v. Payton, 2013 WL 1843979, *3 (E.D.

Mich. April 10, 2013), affirmed 2013 WL 1843971 (E.D. Mich. May
1, 2013), citing Winter, 555 U.S. 7 at 22; 11A C. Wright, A.
Miller, M. Kane, Federal Practice and Procedure: Civil 2d §2948
at 153–56 (West 1995) (“Speculative injury is not sufficient,”
and “a preliminary injunction will not be issued simply to
prevent the possibility of some remote future injury.
presently existing actual threat must be shown.”).

A

Consequently,

this factor does not weight in favor of granting a preliminary
-6-

injunction.
The third factor, frequently termed “the balance of
equities” also weighs against a preliminary injunction.

See

Rhinehart v. Scutt, 2013 WL 28095, *5 (6th Cir. January 2, 2013).
This factor requires the Court to weigh the interests of the
defendants against Mr. Brown’s interest in receiving medical care
and in being free from retaliation or the threat of harm.
Because, as discussed above, Mr. Brown has shown neither a
likelihood of success on the merits or irreparable harm, this
balance weighs against preliminary injunctive relief.

Id.

Finally, no public interest would be served by granting Mr.
Brown the relief he seeks.

Interference by federal courts in the

administration of state prison matters is generally disfavored.
See Johnson v. Payton, 2013 WL 1843979 at *5, citing Glover v.
Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988) (“Any interference
by the federal courts in the administration of state prison
matters is necessarily disruptive.

The public welfare therefore

militates against the issuance of extraordinary relief in the
prison context, absent a showing of a violation of constitutional
rights.”).

Consequently, the public interest does not support

the remedy of injunctive relief.

For all of these reasons, the

Court will recommend that Mr. Brown’s motion for a TRO or
preliminary injunction be denied.
II.

Motions Regarding Service (Docs. 38 and 41)

The Court’s discussion of these motions requires some brief
background.

By order dated January 4, 2013, this case was

severed from the original case filed in the Western Division and
then transferred to this Court.

Prior to the transfer, the

Magistrate Judge assigned to the case in the Western Division
granted plaintiff’s motion for an order directing the United
States Marshal to serve defendants with the complaint and
summonses.

By order issued May 14, 2013, this Court directed
-7-

service on certain defendants - Dr. Krisner, Warden Jeffries,
Nurse Smith, Insp. Whitten, DW Upchurch, Ms. Ward, Mr. Seacrest,
Lt. Yates, Gary Croft, Mr. Heiss, and Ron Eleby - because they
did not appear to have been served in response to that previous
order.

Service appears to have been completed on several of

those particular defendants in this case with the exceptions of
Ron Eleby and Nurse Smith.
On November 13, 2013, plaintiff filed a motion requesting
that the Court order that defendant Heiss be re-served.

By order

dated November 15, 2013, the Court granted plaintiff’s motion on
the condition that he provide a service copy of the complaint, a
completed summons and USM-285 for Mr. Heiss within fourteen days.
On January 22, 2014, Mr. Heiss filed a motion for a more definite
statement in which he states that he accepted service on December
18, 2013.

To this extent, Mr. Brown’s motion (Doc. 38) is moot.

Mr. Brown’s motion for an extension, however, also raises issues
regarding the status of service on several other defendants.

Mr.

Brown raises similar issues in his motion requesting re-service
(Doc. 41) relating to the same defendants as well as additional
defendants.

It is to this issue that the Court will now turn.

According to Mr. Brown, there is no record that certain
defendants, who appear to have been served in connection with the
original case filed in the Western District, have properly been
served in this case.

In his motion for an extension, Mr. Brown

refers specifically to defendants Stout, Trout, Clark, Reese,
Mohr, Dolan, Smith, Rutherford, Eleby and “John and Jane Doe’s
Medical.”

See Doc. 38.

He requests that the Court direct that

these defendants be re-served.

In his motion requesting re-

service, Mr. Brown contends that Director Mohr, Ed Voorhies,
Trevor Clark, Ryan Dolan, Dr. Eddy, Austin Stout, Greg Trout, and
Mary Anne Reese have been served in connection with the Western
District case but this Court’s docket does not reflect service on
-8-

these defendants.

See Doc. 41.

Further, he states in this

latter motion that Nurse Smith, Ryan Dolan, Ron Eleby, Inspector
Whitten, D.W. Operations, Gary Croft, and C/O Burke have not been
served at all because defense counsel has refused to respond to
his discovery requests seeking their addresses.

He requests that

the Court order defense counsel to provide addresses for these
individuals to the United States Marshal so service may be
completed.
Briefly, defendants Eddy, C/O Burke, D.W. Operations, Reese
and Rutherford are not named as defendants in this case.

The

order (Doc. #12) severing and transferring this case ordered
specifically that:
1. The following claims be severed from this case
and transferred to the Eastern Division of this Court
at Columbus:
(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 claim against defendant Mohr
alleged in ¶83 of the complaint.
Consequently, the Court will not direct that defendants Eddy, C/O
Burke, D.W. Operations, Reese or Rutherford be re-served in this
case.
Further, to the extent that Mr. Brown seeks service upon
John and Jane Doe defendants, as previously explained to him,

-9-

before service may be issued upon those defendants, he must file
a motion to issue service setting forth their identities.

Mr.

Brown’s present motions do not do so and the Court will not
direct service on the John and Jane Doe defendants.
Additionally, the Court notes that, despite Mr. Brown’s
representations to the contrary, the Court’s docket reflects that
service has been made on both Gary Croft and Insp. Whitten and
they have been active litigants in this case.

Consequently, the

Court will not order service to be made on these defendants.
This brings the Court to the issue of the need for service
upon defendants Stout, Trout, Clark, Mohr, Dolan, Eleby, Voorhies
and Smith.

It appears that at least some of these defendants

(Stout, Trout, Clark, Mohr, Voorhies, and Dolan) may have been
served with both a copy of the original complaint filed in the
Western Division and a copy of that Court’s order severing and
transferring to this Court various claims against them.

See

Brown v. Mohr, Case No. 1:12-cv-583 (Docs. #12, #25 and #34).
However, to the extent this may be so, these defendants have not
filed an answer or otherwise responded to the complaint in this
case.

There is not, however, any independent record of service

upon these same defendants in this case.

The Court’s docket

further reflects that summonses were returned unexecuted as to
defendants Eleby and Smith.

See Docs. #21 and #22.

Mr. Brown contends that he has been unable to perfect
service on defendants Dolan, Smith and Eleby because he does not
have their current addresses and defendants will not provide them
in response to his discovery request.

Mr. Brown requests that

the Court order defendants to provide the addresses to the United
States Marshal for service, and there is an indication in the
record of defendants’ willingness to do so.

See Response in

Opposition to Motion to Compel Discovery (Doc. 28).

While this

Court has no obligation to do so, other courts under similar
-10-

circumstances have ordered such information provided to the
United States Marshal.

See Baldwin v. Croft, 2013 WL 172870

(N.D. Ohio January 16, 2013) (directing prison warden to provide
U.S. Marshal service with defendants’ last known addresses); Ely
v. Smith, 2008 WL 2076651 (E.D. Tenn. May 15, 2008)(court ordered
state prison to provide Marshal with current addresses of former
prison employee); see also Fitts v. Sicker, 2007 WL 419623 (6th
Cir. February 8, 2007) (Court of Appeals recognized that district
court could have directed department of corrections to provide a
defendant’s last known address).

Consequently, the Court will

direct defendants to provide the U.S. Marshal Service with the
last known addresses for defendants Dolan, Smith and Eleby within
fourteen days of the date of this order.
In order to clarify the record here, Mr. Brown shall submit
a service copy of the complaint, a completed summons and a USM285 for defendants Stout, Trout, Clark, Mohr, Dolan, Eleby,
Voorhies and Smith within fourteen days of the date of this
order.

Once those forms are received from Mr. Brown and the

relevant addresses are received from defendants, it is ordered
that the United States Marshal serve by certified mail a copy of
the complaint, summons, and a copy of this order, upon each of
these defendants at each of the addresses shown on the Process
Receipt and Return forms which have been completed by the
plaintiff or which have been provided by the defendants.

To this

extent, Mr. Brown’s motions for an extension of time and motion
to re-serve (Docs. 38 and 41) are granted.
III.

Remaining Motions

A. Motion to Dismiss (Doc. 34), Motion to Proceed In Forma
Pauperis (Doc. 35), and Motion for a More Definite Statement
(Doc. 46)
Turning first to the motion to dismiss Lt. Yates, although
Mr. Brown does not indicate which procedural rule he is
-11-

proceeding under, he states in his motion that he incorrectly
named Lt. Yates in this action.

Rules 15 and 21 set forth the

standards for allowing a party to amend its pleadings to remove
parties and, as relevant here, both require leave of court.

In

this case, Mr. Brown already has been granted leave to file, and
has filed, an amended complaint which does not name Lt. Yates as
a defendant.

Consequently, the motion to dismiss Lt. Yates is

moot.
With respect to Mr. Brown’s motion to proceed in forma
pauperis, the Court’s docket reflects that he paid the filing fee
in full on November 8, 2012.

Consequently, the motion for leave

to proceed in forma pauperis also is moot.
Finally, the motion for a more definite statement has been
rendered moot by Mr. Brown’s filing of an amended complaint.
V.

Recommended Disposition and Order

For the reasons set forth above, it is recommended that the
motion for a temporary restraining order or preliminary
injunction(Doc. 47) be denied.

Further, the motion for an

extension of time (Doc. 38) and the motion to re-serve (Doc. 41)
are granted as set forth above.

Finally, the motion to dismiss

Lt. Yates (Doc. 34), the motion to proceed in forma pauperis
(Doc. 35), and the motion for a more definite statement (Doc. 44)
are moot and shall be removed from the Court’s pending motions
list.
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).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
-12-

A judge

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).
APPEAL PROCEDURE
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

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

-13-