Roberts v. Patterson et al

Filing 34

REPORT AND RECOMMENDATIONS re 22 MOTION for Judgment on the Pleadings. The Magistrate Judge RECOMMENDS that defendants motion for judgment on the pleadings 22 be DENIED. Defendants motion to stay discovery 23 is DENIED as MOOT. Plaintiffs motion for an enlargement of time 27 is GRANTED. Discovery due by 06/30/2014 and Dispositive motions due by 07/30/2014. Defendants are DIRECTED to file a response to plaintiffs motion tocompel 28 and 03/17/2014 reply to defendants response objecting forproduction of documents 21 no later than 06/19/2014 - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 06/20/2014. (sr1)

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

Michael Roberts,

:
Plaintiff

Trent Patterson, et al.,
Defendants

Civil Action 2:13-cv-00567

:

v.

:

Judge Sargus

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Michael Roberts, a State prisoner, brings this action under 42 U.S.C. §
1983 alleging violation of his First Amendment right of access to the courts. This matter
is before the Magistrate Judge on defendants’ March 26, 2014 motion for judgment on
the pleadings (doc. 22).
I.

Allegations in the Complaint

The complaint alleges that defendants Cathy Pummill and Correction Officer
Kimberly Sanson at different times independently and acting in concert with one
another confiscated and deleted plaintiff Roberts’ computer files. Doc. 5; Compl. at ¶ 11.
Based on the alleged conduct of Pummill and Sanson, Roberts filed informal complaints
against them. Following these informal complaints, he was subjected to retaliation by
being written up for fraudulent conduct reports. Id. at ¶ 12. The complaint asserts
defendant Trent Patterson falsified documents in an effort to corrupt the outcome of the

official RIB proceedings. Id. at ¶ 13. Patterson confiscated Roberts' legal material, work
product, and clearly marked legal mail. Id. at ¶ 14.
Defendant Corby Free conspired with others and advocated for the issuance of
falsified conduct reports and pressured RIB Director, Rick Branham, to overturn his not
guilty decision. Id. at ¶ 15.
In May 2010, after preparing a motion for his state habeas action, Roberts asked
defendant Pummill to print out his saved documents, but she refused to give him the
printed documents after deducting his funds with his cash slip. Pummill told him that
he was not permitted to type for other inmates. When Roberts complained to defendant
Corby Free, Free said that if Roberts was typing for another inmate, that inmate had to
be sitting next to him. Compl. Branch II; PageID# 204 at ¶¶ 3-4. The following oddnumbered date, Pummill informed Roberts that he was going to be sorry for
complaining to Free. Id. at ¶ 6.
On November 8, 2011, Pummill read all of Roberts’ computer files and compared
his files with court filings. When she found that some documents matched court filings
in other inmates’ cases, she deleted those filings. Id. at ¶ 7. The complaint alleges this
conduct deprived Roberts of his right to access the courts and his intellectual property.
Pummill refused to print out documents for him. Id. at ¶ 13. On November 17, 2011,
Roberts filed informal complaints against Pummell. Id. at ¶ 14. The complaint also
alleges that in May 2012 Pummill deleted Roberts’s eleven page memorandum. Id. at ¶¶
16-18. On May 10, 2012, defendant Patterson issued a conduct report against Roberts
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alleging that typed another inmate’s legal work on a day that Roberts was not in the law
library. Id. at ¶ 19.
On May 17, 2012, after complaining to Free about Pummill and Paterson’s
conduct, Patterson had Roberts’s legal material seized and he was placed in
segregation. Id. at ¶¶ 22-25. Roberts was brought before the RIB on charges that he was
extorting inmates by hiding their legal work. Id. at ¶ 28. The complaint alleges that RIB
proceedings were improper. Id. at ¶¶ 28-30. He was found guilty and placed in
segregation and subjected to extreme heat, rat infestation, black worms in the drains,
and a dilapidated mattress on a steel bunk. Id. at ¶ 30.
“Branch IV” of the complaint asserts that the grievance process is a sham legal
process that is administered in a perfunctory manner. PageID 210 at ¶ 1. The complaint
alleges that Pummill, Patterson, Free, Rheinsheld and Branham colluded with one
another to deprive Roberts of his Fourteenth Amendment rights. Id. at ¶ 2. Pummill,
Patterson, Free, Rheinsheld and Branham retaliated against Roberts for using the
inmate grievance procedure. Id. at ¶¶ 3-8.
Plaintiff attached an addendum detailing further allegations concerning
defendants Sanson, Pummill, Rheinsheld, Free, Branham, and Patterson.
II.

Arguments of the Parties
A.

Defendants

Defendants argue that plaintiff’s complaint does not provide the Court with the
details necessary for it to determine whether plaintiff is entitled to the monetary and
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injunctive relief that he seeks. Plaintiff repeatedly alleges that he was put in segregation
and that he fears retaliation. Plaintiff fails to provide sufficient allegations concerning
the retaliation conduct of defendant Sanson. Defendants maintains that it is impossible
to determine which facts are meant to allege a constitutional violation.
Defendants maintain that plaintiff’s complaint fails to demonstrate that
defendants violated plaintiff’s constitutional rights because it fails to contain direct or
inferential allegations respecting all the material elements under a viable legal theory.
At most, plaintiff’s complaint is about unspecified retaliation. Defendants characterize
plaintiff’s complaint as a “buckshot” complaint--one that aims in the general direction
of the Constitution. Defendants argue that Rule 20 of the Federal Rules of Civil
Procedure does not permit a complaint to join defendants in the manner that plaintiff
does. According to defendants, plaintiff has attempted to combine many unrelated
claims into one lawsuit and that the claims against the defendants properly belong in
multiple cases. Defendants maintain that they share no common elements. Defendants
argue that plaintiff’s claims regarding access to the law library, his placement in
segregation, and retaliation do not arise from the same transaction, occurrence or series
of transactions or occurrences.
B.

Plaintiff

Plaintiff argues that he has provided defendants with enough particularized facts
to establish their individual liability for depriving plaintiff of his First, Fourth, Fifth,
Eighth and Fourteenth Amendment rights. Plaintiff maintains that for approximately
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two years, plaintiff regularly visited the law library. Plaintiff never received a conduct
report from defendants Pummill, Paterson, and Sanson until he initiated informal
complaints against them. Plaintiff maintains that he was not retaliated against until his
26(A) motion in his state habeas case was denied. Plaintiff argues that his complaint
demonstrates he engaged in protective conduct; was deprived of fair access to the
courts; was retaliated against for using the law library to file his successful civil action
against CCI; was deprived of any real or meaningful due process in the RIB hearings;
and deprived of his state created liberty interest under Ohio Revised Code § 2929.20.
Plaintiff was concerned that he would be set-up because he had witnessed other
inmates have knives or drugs placed in their personal property and then be indicted.
Based on these concerns, plaintiff contacted the Director of Correctional Institution
Inspection Committee, the Ohio State Highway Patrol and an attorney. Plaintiff
maintains that he was thrown in the hole and had his security increased and transferred
to a more dangerous facility as he had predicted.
Plaintiff argues that defendants have attempted to trivialize the essence of what
plaintiff is alleging by contending that he filed his complaints because he was
attempting to access the law library at his convenience to finish a manuscript. Instead,
plaintiff was engaged in litigation concerning his criminal appeal when he suffered
retaliation by defendants Pummill, Sanson and Patterson.
Plaintiff argues that the complaint provides specific dates, times and locations
concerning the defendants’ removing plaintiff’s legal work product from the law library
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computers, denying his access to the courts, and retaliating against him. Plaintiff
maintains that he did not suffer any retaliation from the library staff until he filed his
civil action against the CCI and filed informal complaints against defendants.
III.

Judgment on the Pleadings

In ruling on a motion for judgment on the pleadings, the Court accepts all
well-pleaded material allegations of the complaint as true. JPMorgan Chase Bank, N.A. v.
Winget, 510 F.3d 577, 581 (6th Cir.2007). The Court must then decide whether the
moving party is entitled to judgment as a matter of law. Id. This is the same standard
applied in deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Id.
When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a court must construe the complaint in the light most
favorable to the plaintiff and accept all well-pleaded material allegations in the
complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.
Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th
Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982).
Although the court must apply a liberal construction of the complaint in favor of the
party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513
F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or
unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.
Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th
Cir. 1971). In reading a complaint, however, a court will indulge all reasonable
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inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,
1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the
complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451
F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to
offer evidence to support the claims, rather than whether the plaintiff will ultimately
prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court
cannot consider extrinsic evidence in determining whether a complaint states a claim
upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.
To survive a motion to dismiss under Rule 12(b)(6), the allegations in a complaint
“must do more than create speculation or suspicion of a legally cognizable cause of
action; they must show entitlement to relief.” Lambert v. Hartman, 517 F.3d 433, 439 (6th
Cir. 2008), quoting League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th
Cir.2007) (emphasis in original). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Twombly, 550 U.S. at
555.
IV.

Discussion

Defendants primarily argue that plaintiff’s complaint should be dismissed
because it fails to comply with Rule 20(a)(2). Under Rule 20(a)(2), persons may be joined
in one action as defendants if: “any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences. . . .” Fed. R. Civ. P. 20(a)(2)(A).
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Here, the complaint alleges a series of related occurrences. The complaint contains
detailed allegations concerning Roberts' attempts to use the law library. Plaintiff
contends that on numerous occasions his work was removed from the law library
computers by staff. Following these alleged incidents, plaintiff maintains that he filed
his informal complaint and grievances in accordance with the grievance procedure.
Plaintiff further alleges that in retaliation for his complaints and grievances, false
conduct reports were issued against him in retaliation for his attempts to utilize the
grievance procedure. He also alleges that the RIB process was purposefully
manipulated to further retaliate against plaintiff. Defendants, however, make no effort
to demonstrate that plaintiff has failed to state a claim for retaliation in violation of the
First Amendment.
Defendants also argue that plaintiff has failed to clarify which allegations he has
fully grieved. Failure to exhaust prison administrative remedies is an affirmative
defense. The Supreme Court has determined that an inmate is not required to specially
plead or demonstrate exhaustion in his complaint. Jones v. Bock, 549 U.S. 199, 212–17
(2007). See also Massey v. Helman, 196 F.3d 727, 735 (7th Cir.2000) (“Because failure to
exhaust administrative remedies is an affirmative defense, defendants have the burden
of pleading and proving the defense.”). If defendants believe that plaintiff has failed to
exhaust his administrative remedies, they should file a motion to dismiss detailing
which claims they believe have not been fully exhausted. It is defendants’ burden to
demonstrate such failure.
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Defendants further argue that plaintiff’s complaint should be dismissed because
it fails to comply with Rule 8, which requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.” While it is true that the complaint could
have been drafted more concisely, I cannot say that it is “too lengthy to summarize in
detail” or that it is “tedious and difficult to follow” as defendants argue. Flaytor v. Wi.
Dept. of Corrections, 16 Fed. App’x 507, 508 (7th Cir. 2001).
V.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that
defendants’ March 26, 2014 motion for judgment on the pleadings (doc. 22) be DENIED.
Defendants’ March 26, 2014 motion to stay discovery (doc. 23) is DENIED as MOOT.
Plaintiff’s June 5, 2014 motion for an enlargement of time (doc. 27) is GRANTED.
Discovery must be completed by June 30, 2014, and Dispositive motions must be filed
no later than July 30, 2014.
Defendants are DIRECTED to file a response to plaintiff’s June 5, 2014 motion to
compel (doc. 28) and his March 17, 2014 reply to defendants’ response objecting for
production of documents (doc. 21) no later than June 19, 2014.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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The parties are specifically advised that 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. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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