Durham v. Mohr et al

Filing 37

ORDER AND REPORT AND RECOMMENDATION: Plaintiff's request to submit exhibits (ECF 36 ) is DENIED without prejudice. It is RECOMMENDED that 28 MOTION to Dismiss be GRANTED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 4/10/2015. (agm1)(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

ROY A. DURHAM, JR.,
Plaintiff,
vs.

Civil Action 2:14-cv-581
Judge Marbley
Magistrate Judge King

GARY C. MOHR, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated in the Toledo Correctional
Institution (“ToCI”), brings this action under 42 U.S.C. § 1983
alleging that defendants failed to place plaintiff in protective
custody and thus caused plaintiff to be subjected to harassment and
assault by other inmates, in violation of plaintiff’s rights under the
Eighth Amendment to the United States Constitution.

This matter is

now before the Court on Defendants’ Motion to Dismiss, ECF 28 (“Motion
to Dismiss”) and plaintiff’s request to submit and “make exhibits part
of the pleadings and case,” ECF 36.

For the reasons that follow,

plaintiff’s request to submit exhibits, ECF 36, is DENIED without
prejudice to renewal at a later stage of the proceedings. It is
RECOMMENDED that the Motion to Dismiss be GRANTED.
I.

Background.
The Complaint, ECF 3, was filed by plaintiff on June 17, 2014

when plaintiff was incarcerated at the Southern Ohio Correctional

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Facility (“SOCF”). It appears that plaintiff signed the Complaint on
June 12, 2014. Named as defendants in the original Complaint were
officials of the Ohio Department of Rehabilitation and Correction
(“ODRC”), the Warden of the Toledo Correctional Institution, (“ToCI”),
30 employees at the Ross Correctional Institution (“RCI”), and three
employees at the Warren Correctional Institution (“WCI”): Michael
Sheets, the Warden at WCI, and Justin Johnson and Rosalie Battles,
case managers at WCI. The Complaint alleged a “plot” to “taunt[]” and
“harass[]” plaintiff that began prior to his incarceration and which
continued at the various prisons to which plaintiff has been assigned.
Id., ¶¶ 47-49. The Complaint specifically referred to a separate
lawsuit filed by plaintiff in the Cincinnati Division of this Court,
Durham v. Chief Bureau of Classification and Reception, 1:13-cv-226
(S.D. Ohio), which addresses events at WCI. Id. at ¶ 54. The remainder
of the original Complaint referred to events that are alleged to have
occurred at RCI, and sought monetary damages.
In the June 17, 2014 initial screen of the original Complaint,
ECF 3, the undersigned recommended that the claims against defendants
Michael Sheets, Justin Johnson and Rosalie Battles, i.e., the WCI
defendants, be dismissed without prejudice to pursuit in Durham v.
Chief Bureau of Classification and Reception, et al., 1:13-cv-226.
Order and Report and Recommendation, ECF 4, p. 3.1

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On July 10, 2014,

The undersigned also recommended that the claims against defendant Keith
Smith be dismissed as untimely and that claims arising out of events that
were alleged to have occurred more than two years prior to June 12, 2014 be
dismissed as untimely. Id.

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plaintiff filed an Amended Complaint, ECF 8, which named as defendants
only employees of the ODRC and RCI. Id. at ¶¶ 8-40.2
Noting that the Amended Complaint did not assert claims against
defendants Michael Sheets, Justin Johnson, or Rosalie Battles, the
undersigned withdrew the June 17, 2014 Report and Recommendation, ECF
4. Id.
Plaintiff was advised on a number of occasions of his obligation
to provide sufficient copies of the Complaint or Amended Complaint, as
appropriate, to enable the United States Marshals Service to effect
service of process on the named defendants; plaintiff was also advised
that Rule 4(m) of the Federal Rules of Civil Procedure requires that
the claims against any defendant not served with process within 120
days must be dismissed.

See, e.g., Order and Report and

Recommendation, ECF 4; Order, ECF 7; Order, ECF 10; Order, ECF 12. On
November 17, 2014, the Court, noting that plaintiff had submitted
summonses, Marshals service forms and copies of the Amended Complaint
for each of the named defendants, but had provided copies of only some
of the exhibits, nevertheless directed the United States Marshals
Service to effect service of process, by certified mail, on each of
the named defendants.

Order, ECF 14.

On January 5, 2015, the

summonses issued to defendants Rick Cockrill, L.C. Coval, Harnes,
Earlena Schorr, Timothy Stirr and Robert Whitten were returned
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Plaintiff crossed out the allegations against defendants Michael Sheets,
Justin Johnson and Rosalie Battles in the Amended Complaint. See ECF 6-1, ¶¶
44-46 (proposed amended complaint), ECF 8, ¶¶ 44-46 (same, but operative
Amended Complaint). These four individuals were terminated as defendants on
July 10, 2014.

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unexecuted, with the notation that these defendants were no longer
employed at RCI. Summonses Returned Unexecuted, ECF 21. On January 13,
2015, plaintiff was again reminded that the claims against any
defendant not served with process within 120 days must be dismissed.
Order, ECF 27, p. 2 n.1.
Plaintiff has initiated at least two (2) other lawsuits in this
District, each addressing similar claims at various Ohio prisons.
Durham v. Chief Bureau of Classification and Reception, 1:13-cv-226;
Durham v. Moore, 1:14-cv-816.
II.

Motion to Dismiss

Defendants now move to dismiss portions of the Amended Complaint
on a variety of grounds.3
A.

Statute of Limitations

First, defendants argue that the Court should dismiss claims
arising out of allegations that fall outside the two-year statute of
limitations.

Motion to Dismiss, pp. 2-3 (citing Amended Complaint, ¶¶

54-95 and a portion of ¶ 151); Reply, pp. 1-2.

Plaintiff acknowledges

that “the limitations period begins to run when a reasonable person
knows, or in the exercise of due diligence, should have known, ‘both
the injury and the cause of the injury,’”

Opposition, p. 2, but

argues that his claims are timely because defendants knew that
plaintiff was the victim of an “ongoing campaigne [sic] of harassment
and related attacks” that began before his incarceration and continued
throughout his incarceration in various Ohio prisons.

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Defendants have filed an answer to the remaining claims.

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Id. at 2-3.

Answer, ECF 29.

Plaintiff appears to argue that his claims are timely because they
arise out of a continuing course of conduct. Id. at 3-4.
Claims that arise in Ohio under 42 U.S.C. § 1983 must be
initiated within two (2) years of the time the cause of action
accrues.
(en banc).

See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989)
In general, a civil rights claim for relief accrues when

the plaintiff knows or has reason to know of the injury that is the
basis of the action.

Eidson v. Tenn. Dep’t of Children’s Servs., 510

F.3d 631, 635 (6th Cir. 2007); Friedman v. Estate of Presser, 929 F.2d
1151, 1159 (6th Cir. 1991).

“A plaintiff has reason to know of his

injury when he should have discovered it through the exercise of
reasonable diligence.”

Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.

1984).
Plaintiff signed the Complaint on June 12, 2014; that is
therefore the earliest date on which this case may be regarded as
having been filed. See Houston v. Lack, 487 U.S. 266 (1988)(Prisoner
filing is regarded as filed as of the time it is deposited in the
prison mailbox). Events that are alleged to have arisen before June
12, 2012 would therefore ordinarily be untimely. As noted, plaintiff
appears to contend that claims based on events that are alleged to
have occurred prior to that date, and even at prisons other than RCI,
are timely brought in this action because they are based on a
continuing course of misconduct.
The continuing violation doctrine is a narrow exception to the
ordinary rule that a statute of limitations begins to run at the time

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the alleged misconduct occurred. Havens Realty Corp. v. Coleman, 455
U.S. 363, 379 (1982); Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.
2003). However, the doctrine is “rarely” applied to § 1983 actions.
Sharpe v. Cureton, 319 F.3d at 267. The United States Court of Appeals
for the Sixth Circuit has referred to two possible categories of
continuing violations: those alleging serial violations and those
identified with one longstanding and demonstrable policy of
discrimination. Id. at 266. Where the claims are based on the first
category, i.e., serial violations, “the continuing violation doctrine
may not be invoked to allow recovery for acts that occurred outside
the filing period.” Id. (citing National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002)). Where the claims are based on the second
category of continuing violations, i.e., a longstanding and
demonstrable policy of misconduct, a plaintiff must allege (and
ultimately establish) something more than the mere existence of
mistreatment. Id. at 268.
Some of the claims asserted in this action arise out of a series
of events that are alleged to have occurred more than two years prior
to the execution of the Complaint on June 12, 2014.
Amended Complaint, ¶¶ 54-87, 151.

See, e.g.,

The facts underlying this series of

alleged events occurred more than two years prior to June 12, 2014,
and plaintiff’s claims arising out of those alleged events were known
or should have been known to him at the time they occurred.

Because

plaintiff waited more than two years after those events to initiate

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this action, his claims based on those events are untimely. See Sharpe
v. Cureton, 319 F.3d at 266.
To the extent that plaintiff may intend to rely on an alleged
policy of misconduct, he has not alleged any facts to support his
conclusory allegation of a “plot” against him, nor has he alleged any
facts to support even a suggestion that officials at the ODRC and the
various prison institutions have formulated and implemented a uniform
policy intended to subject plaintiff to abuse and harassment by other
inmates at prisons across the state. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(Although a complaint need not
contain detailed factual allegations, a plaintiff's allegations must
include more than labels and conclusions.). See also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not
suffice.”).
In short, the Court concludes that claims based on events that
are alleged to have occurred prior to June 12, 2012 are untimely.
B. Claims against WCI Defendants
Defendants next contend that the Amended Complaint improperly
asserts claims against defendants Sheets, Johnson and Battles, current
or former employees at WCI, who were also named as defendants in
Durham v. Chief Bureau of Classification and Reception, et al., 1:13cv-226.4 Motion to Dismiss, p. 3 (citing Amended Complaint, ¶¶ 9, 63,

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The claims asserted against Sheets and Johnson in Durham v. Chief Bureau of
Classification and Reception, et al., 1:13-cv-226, remain pending. The claims

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64, 65, 69, 150, 176, 192); Reply, p. 2.

Plaintiff insists that the

claims against these defendants are properly joined in this action
because these defendants participated in an “ongoing campaigne [sic]
of harassment and related plots[.]”

Opposition, p. 4.

As previously noted, plaintiff has instituted other litigation in
connection with events that are alleged to have occurred at WCI,
Durham v. Chief Bureau of Classification and Reception, et al., 1:13cv-226. As this Court previously observed, the claims asserted by
plaintiff in this action against the WCI defendants, i.e., Sheets,
Justin Johnson, and Battles, should be pursued in that action rather
than in this. Order and Report and Recommendation, ECF 4. This Court
reaffirms that observation and concludes that the claims asserted by
plaintiff in this litigation against defendants Sheets, Justin Johnson
and Battles should be dismissed without prejudice to prosecution in
Durham v. Chief Bureau of Classification and Reception, et al., 1:13cv-226.
C. Claims against Defendants Not Served with Process
Defendants also urge the Court to dismiss the claims asserted
against defendants Earlena Schorr, Rick Cockrill, Timothy Stirr,
Haynes, Robert Whitten and L.C. Coval pursuant to Fed. R. Civ. P. 4(m)
because service of process was not effected within 120 days of the
assertion of the claims against them.

Motion to Dismiss, p. 3 (citing

Amended Complaint, ¶¶ 105-07, 119, 132, 136, 137, 139, 140, 143-44,
147, 160, 167-68, 180, 182, 183, 185); Reply, pp. 2-3.

Plaintiff

asserted against Battles in that action were dismissed on December 31, 2014
for failure to effect service of process. Id., Decision and Entry, ECF 75.

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argues that dismissal of the claims against these defendants is
inappropriate because he was unaware, until his receipt of the Court’s
January 16, 2015 Order, ECF 27, that these defendants had not been
served with process.

Opposition, pp. 5-6.

Plaintiff asks for yet

additional time in which to effect service of process on these
defendants. Id. at 6-7.
Rule 4(m) of the Federal Rules of Civil Procedure requires that a
court “dismiss the action without prejudice against [a] defendant or
order that service be made within a specified time” if a plaintiff
does not effect service of process within 120 days of the filing of
the complaint.

However, if a plaintiff who does not complete service

within this period establishes good cause for that failure, a court
“must extend the time for service for an appropriate period.”

Id. See

also Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 521 (6th Cir.
2006) (“Dismissal of the action ‘shall’ follow unless the ‘plaintiff
shows good cause’ for failure to meet the 120-day deadline.”)
Determining whether good cause has been shown is left to the
discretion of the district court.

Nafziger, 467 F.3d at 521.

The Complaint was formally docketed on June 17, 2015. It was not
until October 31, 2014 that plaintiff even submitted most of the
papers necessary to permit the United States Marshals Service to
effect service of process on defendants. Service on defendants Earlena
Schorr, Rick Cockrill, Timothy Stirr, Haynes, Robert Whitten and L.C.
Coval was not completed because the address provided by plaintiff for
these defendants was not good.

In asking for yet an additional period

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of time in which to effect service on these defendants, plaintiff
offers no suggestion that he can provide a valid address for them.
Under all these circumstances, the Court concludes that yet additional
time for service of process is unwarranted.
D. Claims against Defendant Mohr
Finally, defendants argue that the Court should dismiss the
claims against defendant Gary Mohr, the Director of the Ohio
Department of Rehabilitation and Correction, because plaintiff has
failed to allege that this defendant directly participated in the
events underlying plaintiff’s claims.

Motion to Dismiss, p. 3 (citing

Amended Complaint, ¶¶ 167-68, 176, 192); Reply, pp. 3-4.

Plaintiff

disagrees and also asks that he be permitted to amend his complaint to
“include facts regarding defendant Mohr which Plaintiff mistakenly
left out.”

Opposition, pp. 7-8.

As noted supra, a valid claim must contain “more than labels and
conclusions. . . .”

Twombly, 550 U.S. at 555.

“Factual allegations

must be enough to raise a right to relief above the speculative level
. . . .”

Id.

Moreover, liability based on a theory of respondeat

superior is not cognizable under § 1983.

See Turner v. City of

Taylor, 412 F.3d 629, 643 (6th Cir. 2005); Hays v. Jefferson Cnty.,
Ky., 668 F.2d 869, 874 (6th Cir. 1982). In order to be held liable
under § 1983, a defendant with supervisory authority must have either
“encouraged the specific incident of misconduct or in some other way
directly participated in it.”

Turner, 412 F.3d at 643.

In other

words, defendant Mohr cannot be held liable merely for other

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defendants’ alleged acts or failures to act and claims asserted
against him, to be valid, must be supported by factual allegations
which, if proven, would establish plaintiff’s right to relief.
In the case presently before the Court, most of plaintiff’s
allegations against defendant Mohr amount to nothing more than labels
and conclusions.

For example, plaintiff alleges generally that

defendant Mohr was “deliberately indifferent to his [plaintiff’s]
health and safety” in violation of plaintiff’s constitutional rights;
that defendant Mohr’s “acts, omissions/failures,” which are otherwise
unspecified, caused plaintiff’s injuries; that defendant Mohr “failed
to take reasonable measures to ensure fairness of disciplinary
proceedings”; that defendant Mohr’s “acts, omissions/failures caused
plaintiff Durham continued confinement in segregation and cause
emotional distress and physical injuries, and suffering of pain”; and
that defendant Mohr was deliberately indifferent by “failing to take
reasonable measures to abate the risk of continued harassment and
attacks on plaintiff when” this defendant knew or should have known
“that plaintiff was being targeted by inmates in a ongoing plot[.]”
Amended Complaint, ¶¶ 167-68, 176 [sic].

These formulaic and

conclusory recitations — devoid of any factual allegations whatsoever
— are simply insufficient.

See, e.g., Twombly, 550 U.S. at 555.

Plaintiff also complains that defendant Mohr “affirmed defendant
Buchanan’s decision to place plaintiff Durham in Local Control, in
spite of his receipt of information contained in (Exhibits R-39, and R
40.1) which notified Mohr of the unfairness of the proceedings (see

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Exhibit R-41).”

Amended Complaint, ¶ 146.

According to plaintiff,

defendant Mohr’s alleged “failure to take corrective action, and
afford plaintiff Durham his rights to fair proceedings,” resulted in
plaintiff’s continued detention in Local Control.

Id. at ¶¶ 147, 150.

This claim is deficient for at least two reasons.

First, as noted

supra, a supervisor cannot be held liable merely for a subordinate’s
actions. Turner, 412 F.3d at 643.

Second, a prison inmate has no

inherent constitutional right to an effective prison grievance
procedure.

See, e.g., Argue v. Hofmeyer, No. 03-1156, 80 F.App’x 427,

at *430 (6th Cir. Oct. 20, 2003); Young v. Gundy, No. 01-2111, 30
F.App’x 568, at *569-70 (6th Cir. Mar. 7, 2002) (citing Antonelli v.
Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996)). Prison officials are
not obligated to respond to an inmate’s grievances in a way that is
satisfactory to the inmate.

Overholt v. Unibase Data Entry, Inc., No.

98-3302, 221 F.3d 1335 (Table), 2000 U.S. App. LEXIS 14087, at *3 (6th
Cir. June 14, 2000).

Plaintiff’s allegations that defendant Mohr’s

action or inaction that allegedly deprived plaintiff of “fair
proceedings” must therefore be dismissed.

Id.; Lee v. Mich. Parole

Bd., No. 03-1775, 104 Fed. Appx. 490, at *493 (6th Cir. June 23, 2004)
(“Section 1983 liability may not be imposed simply because a defendant
denied an administrative grievance or failed to act based upon
information contained in a grievance.”) (citing Sheheen v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999)).

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In short, the claims asserted against defendant Mohr in the
Amended Complaint are insufficient to state a claim for relief against
him.
Plaintiff seeks leave to further amend the Amended Complaint “to
include facts [dating back to 2011] regarding defendant Mohr which
Plaintiff mistakenly left out.”

Opposition, pp. 7-8.

Although Rule

15(a) of the Federal Rules of Civil Procedure provides that a “court
should freely grant leave [to amend] when justice so requires[,]” see
Fed. R. Civ. P. 15(a)(2), the grant or denial of a request to amend a
complaint is left to the broad discretion of the trial court.

Gen.

Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990).

A

court must therefore dismiss a complaint - and deny leave to amend a
complaint as futile - if the complaint does not plead “enough facts to
state a claim to relief that is plausible on its face.”

Twombly, 550

U.S. at 570.
Plaintiff has not proffered a proposed second amended complaint,
and the Court has no basis upon which to even speculate as to the
sufficiency of any facts that plaintiff might allege against defendant
Mohr.

Plaintiff’s request for leave to further amend the complaint

is, under these circumstances, without merit.
III. Motion to Add Exhibits
Plaintiff asks the Court to accept certain exhibits “as a part of
the pleadings and case, to show that Plaintiff acted diligently in
trying to exhaust administrative remedies[.]”

ECF 36, pp. 1-2.

not clear what plaintiff intends by this request.

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It is

Because the Motion

to Dismiss does not address exhaustion, the Court assumes that
plaintiff does not seek the Court’s consideration of these exhibits in
connection with the Motion to Dismiss.

Although plaintiff may submit

evidence in connection with a motion or trial, the Court will not
entertain “evidence” offered for the Court’s general consideration.

WHEREUPON, plaintiff’s request to submit and “make exhibits part
of the pleadings and case,” ECF 36, is DENIED without prejudice to
submission, if otherwise appropriate, in connection with a motion or
trial.
It is RECOMMENDED that Defendants’ Motion to Dismiss, ECF 28, be
GRANTED.
(1)

It is specifically RECOMMENDED that
the claims arising out of events that are alleged to have
occurred prior to June 12, 2012 be DISMISSED as untimely;

(2)

the claims against defendants Michael Sheets, Justin
Johnson and Rosalie Battles be DISMISSED without prejudice
to pursuit in Durham v. Chief Bureau of Classification and
Reception, et al., 1:13-cv-226 (S.D. Ohio), rather than in
this litigation;

(3)

the claims against defendants Earlena Schorr, Rick
Cockrill, Timothy Stirr, Haynes, Robert Whitten and L.C.
Coval be DISMISSED without prejudice pursuant to Fed. R.
Civ. P. 4(m);

(4)

the claims against defendant Gary Mohr be DISMISSED.

If any party seeks review by the District Judge of this Report

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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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

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 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

April 10, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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