Durham v. Mohr et al

Filing 50

ORDER denying 28 Motion to Dismiss; adopting Report and Recommendations re 37 Report and Recommendations, OVERRULING Plaintiff's Objections. Signed by Judge Algenon L. Marbley on 9/9/2015. (cw)(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.,

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Plaintiff,
v.
GARY C. MOHR, et al.,
Defendants.

Case No. 2:14-cv-581
JUDGE ALGENON L. MARBLEY

Magistrate Judge King

OPINION & ORDER
This matter is before the Court on pro se prisoner Plaintiff’s Objections, (Doc. 39), to the
Magistrate Judge’s April 10, 2015 Report and Recommendation, (Doc. 37), recommending
that the Court grant Defendant’s Motion to Dismiss in full. The Report and Recommendation
also recommends denying without prejudice, with the possibility of renewal at a later stage of the
proceedings, Plaintiff’s request to submit exhibits. (Doc. 36). Upon independent review by the
Court, and for the reasons set forth below, Plaintiff’s Objections are hereby OVERRULED and
the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation.
I.

BACKGROUND

On June 17, 2014, Plaintiff filed a complaint while incarcerated at the Southern Ohio
Correctional Facility (“SOCF”). (Compl., Doc. 3). The Plaintiff signed the complaint on June 12,
2014. The defendants named in the original complaint were as follows: officials of the Ohio
Department of Rehabilitations 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, both case managers at WCI. As the Magistrate Judge
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noted, the original complaint 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 concerned alleged events that took place at RCI.
The Magistrate Judge performed an initial screen of the original complaint on June 17,
2014. (Doc. 4). Pursuant to the screen, the Magistrate Judge recommended that the claims
against Michael Sheets, Justin Johnson and Rosalie Battles be dismissed without prejudice
because similar claims against those defendants were raised in the pending case, 1:13-cv-226.
The Magistrate Judge also recommended that claims against defendant Keith Smith be dismissed
as untimely, as well as all other claims alleged to have occurred more than two years prior to
June 12, 2014, particularly those at RCI, as those events fell outside of the two-year statute of
limitations for § 1983 cases brought in Ohio.
On July 10, 2014, the Plaintiff filed an amended complaint, in which he named as
defendants only employees of ODRC and RCI. (Doc. 8). Noting that the amended complaint did
not assert claims against Sheets, Johnson or Battles, the Magistrate Judge withdrew its Report
and Recommendation. (Doc. 7). Accordingly, Sheets, Johnson and Battles were terminated as
defendants on July 10, 2014.
The complaint, brought pursuant to 42 U.S.C. § 1983, raises allegations of deliberate
indifference to Plaintiff’s health and safety in violation of his Eight Amendment rights, as well as
allegations of unfair disciplinary proceedings in violation of his Fourteenth Amendment rights.
Specifically, the complaint alleges a plot against Plaintiff that began in society, in which people
induce conflict with him and intentionally aggravate him. He alleges that such a plot has
continued during his incarceration at the various prisons to which he has been assigned, as he is

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continuously taunted and harassed by inmates, and occasionally attacked. Plaintiff’s complaint
details his filing of administrative grievances and complaints, in which he reports the
harassment, attacks and taunting, and requests to be placed in “protective control,” rather than
placed in segregation or transferred to different institution. The complaint also details what he
considers to be failed investigations into the incidents he reports, unfair administrative
proceedings and disciplinary procedures, including extended stays in segregation, and various
prison staff members’ failures to protect him from other inmates, all as part of the same
conspiratorial plot against him. In addition, Plaintiff alleges that certain defendants who work in
mental health services acted with deliberate indifference to his serious medical needs by failing
to treat his mental health conditions.
The Magistrate Judge advised Plaintiff on a number of occasions of his obligation to
provide a sufficient number of copies of his complaint or amended complaint, as appropriate, to
enable the United States Marshals Service to effect service of process on the named defendants;
the Magistrate Judge also advised Plaintiff multiple times of the requirement under Fed. R. Civ.
P. 4(m) that he must effect service within 120 days of filing, or face dismissal. See, e.g., (Order
and Report and Recommendation, June 17, 2014, Doc. 4 (advising Plaintiff that if he were to
submit a copy of the complaint, summons and a Marshals Service form for each of the remaining
defendants, the Marshals Service would effect service of process; advising Plaintiff that the
Court may dismiss claims not served with process within 120 days); Order, July 10, 2014, Doc.
7 (granting motion to amend, but noting that although plaintiff had submitted summonses and
Marshals Service forms for at least some defendants, he had not provided service copies of the
amended complaint with attached exhibits for each defendant, and advising Plaintiff that if he
wanted the Marshals Service to make service of process, he must provide copies; reminding

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Plaintiff of the 120 day deadline); Order, October 2, 2014, Doc. 10 (noting that plaintiff had
failed to provide service copies of the Amended Complaint and ordering Plaintiff to demonstrate
effective service by October 17, 2014, or show cause why the claims against un-served
defendants should not be dismissed); Order, October 27, 2014, Doc. 12 (responding to Plaintiff’s
filing, Doc. 11, suggesting that because he had been granted leave to proceed in forma pauperis,
he was not required to provide copies of the amended complaint, and explaining that he is not
entitled to free copies of his filings; providing Plaintiff a final grant of 30 days in which to
provide the court with documents necessary for Marshals Service to effect service of process). It
was not until November 7, 2014 that Plaintiff provided 34 copies of the amended complaint for
service, and even then he provided copies of only some exhibits. Nonetheless, on November 17,
2014, the Magistrate Judge ordered the United States Marshals Service to effect service of
process. (Doc. 14). On January 5, 2015, the summonses issued to Rich Cockrill, L.C. Coval,
Harnes, Earlena Schorr, Timothy Stirr and Robert Whitten were returned unexecuted, with the
notation that they were no longer employed at RCI. (Doc. 21). In a January 13, 2015 Order, the
Magistrate Judge advised the Plaintiff a final time that claims against any defendant not served
with process within 120 days must be dismissed. (Doc. 27).
On April 6, 2015, Plaintiff filed a motion requesting that certain exhibits be made a part
of his pleadings. He explained that such exhibits showed that he had acted diligently in trying to
exhaust administrative remedies for the claims he raises in this case. The exhibits included
copies of grievances Plaintiff submitted, and responses and decisions from prison staff.
On January 28, 2015, Defendants filed a Motion to Dismiss. (Doc. 28). In that motion,
Defendants moved this Court to dismiss the following portions of the amended complaint: (1)
portions outside the two-year statute of limitations for § 1983 claims; (2) portions involving

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claims against defendants previously dismissed; (3) portions asserting claims against defendants
who were not served with process within the guidelines of Fed. R. Civ. P. 4(m); and (4) portions
asserting claims against Defendant Mohr pursuant to the doctrine of respondeat superior, which
is not permissible in cases brought under § 1983. (Doc. 28).
On April 10, 2015, the Magistrate Judge issued its Report and Recommendation as to
Defendants’ Motion to Dismiss, as well as to Plaintiff’s Motion to Add Exhibits. (Doc. 37). The
Magistrate Judge recommended that: (1) the claims arising out of events alleged to have occurred
prior to June 12, 2014 be dismissed as untimely; (2) the claims against defendants Sheets,
Johnson and Battles be dismissed without prejudice to pursuit in 1:13-cv-266, rather than this
case; (3) the claims against unserved defendants Schorr, Cockrill, Stirr, Haynes, Whitten and
Coval be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m); (4) the claims against
Defendant Mohr be dismissed. Further, the Magistrate Judge recommended denial without
prejudice of plaintiff’s request to submit and make certain exhibits part of the pleadings, and
suggested that if appropriate, such exhibits could be submitted via a motion or at trial.
The Plaintiff objected to the Magistrate Judge’s Report and Recommendation on April
27, 2015. This matter has been fully briefed and is ripe for review.
II.

STANDARDS OF LAW

When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 28
U.S.C. § 636(b)(1)(C). After review, the district judge “may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to
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preserve any issues for review: “[a] general objection to the entirety of the Magistrate [Judge]'s
report has the same effect as would a failure to object.” Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir.1991). Nevertheless, the objections of a petitioner appearing
pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167
L.Ed.2d 1081 (2007).
A magistrate judge’s decision on a non-dispositive matter will be reversed by the district
court if it is “clearly erroneous or is contrary to the law.” Fed. R. Civ. P. 72(a); 28 U.S.C. §
636(b)(1)(A). Review under Rule 72(a) provides “considerable deference to the determinations
of magistrates.” In re Search Warrants Issued Aug. 29, 1994, 889 F.Supp. 296, 298 (S.D. Ohio
1995) (quotation omitted). With respect to a Magistrate Judge’s legal conclusions, however, “this
Court must exercise its independent judgment,” and it may “overturn any conclusions which
contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case
precedent.” Siegler v. City of Columbus, No. 2:12-CV-00472, 2014 WL 1096159, at *1-2 (S.D.
Ohio Mar. 19, 2014) (Marbley, J) (citing Gandee v. Glasser, 785 F.Supp. 684, 686 (S.D. Ohio
1992), aff'd, 19 F.3d 1432 (6th Cir.1994) (quotation omitted)). It is ordinarily the case that the
District Judge need not consider any argument not presented to the Magistrate Judge. Cf. Carter
v. Wilkinson, 200999 WL 891748, *5 (S.D. Ohio March 30, 2009) (Marbley, J.).
A pro se civil rights complaint should be construed liberally. See Haines v. Kerner, 404
U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Under Rule 12(b)(6) the Court must
construe the complaint in the light most favorable to the nonmoving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008); Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394, 400 (6th Cir. 1997). That being said,

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Federal Rule of Civil Procedure 8(a) requires that a complaint set forth “a short and plain
statement of the claim showing that the pleader is entitled to relief,” as well as “a demand for the
relief sought.” Fed. R. Civ. P. 8(a)(2), (3). The purpose of Rule 8 is to “give the defendant fair
notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) and Fed. R. Civ. P. 8(a)(2)). While
this notice pleading standard does not require detailed factual allegations, it does require more
than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule 8 “demands more
than an unadorned, the defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550
U.S. at 557). Thus, a complaint that suggests “the mere possibility of misconduct” is insufficient;
rather, the complaint must state “a plausible claim for relief.” Id. at 1950 (citing Twombly, 550
U.S at 556).
III.

ANALYSIS

The Plaintiff objects to each of the Magistrate Judge’s conclusions in favor of
Defendants’ four arguments in their partial Motion to Dismiss. Upon independent, de novo
review, this Court concludes that the Magistrate Judge’s recommendations are well-taken, and
adopts each in turn, with some slight variations in rationale. Further, this Court agrees that
Plaintiff should be denied leave to add proposed exhibits to his complaint, as such documents are
entered more appropriately into the record by motion or at trial. Finally, the Plaintiff moves for
leave to file a supplemental complaint alleging new facts concerning another inmate attack in
March of 2015.

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A. Statute of Limitations
As the Magistrate Judge properly concluded, Plaintiff signed the complaint on June 12,
2014, so any events alleged to have arisen before June 12, 2012 generally would be considered
untimely. Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989) (two-year limitations period
for actions arising in Ohio and brought under 42 U.S.C. § 1983). In his response to Defendant’s
Motion to Dismiss, the Plaintiff argued that the two-year statute of limitations should not apply
to events which took place two-years or more before filing because they were based on a
continuing course of misconduct. Although a narrow exception to the two-year statute of
limitations exists pursuant to the “continuing violations” doctrine, that Magistrate Judge properly
concluded that the doctrine is inapplicable in this case.
Generally, the limitations period starts to run “‘when the plaintiff knows or has reason to
know of the injury which is the basis of his action.’” Bell v. Ohio State Univ., 351 F.3d 240, 247
(6th Cir. 2003) (quoting Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 520 (6th Cir.
1997)). The running of the period may be tolled, however, if a plaintiff establishes a “continuing
violation.” Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003). The Sixth Circuit has warned
that the continuing violations doctrine was originally crafted for and applied most commonly in
Title VII cases, and as such is rarely extended to § 1983 actions. Id. at 267.
Traditionally, the Sixth Circuit recognized two distinct categories of continuing
violations, namely, those: (1) alleging “serial violations” by providing proof that the alleged acts
of discrimination occurring prior to the limitations period are sufficiently related to those
occurring within the limitations period; and (2) those “identified with a longstanding and
demonstrable policy of discrimination.” Id. at 266, 268. In Nat'l R.R. Passenger Corp. v.
Morgan, however, the Supreme Court narrowed the continuing violations doctrine in the Title

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VII context, holding that the first category of a continuing violation, a serial violation, is no
longer recognized. 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Supreme Court
explained that:
discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each discrete discriminatory act
starts a new clock for filing charges alleging that act. The charge, therefore, must
be filed within the 180–or 300–day time period after the discrete discriminatory
act occurred. The existence of past acts and the employee’s prior knowledge of
their occurrence, however, does not bar employees from filing charges about
related discrete acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed.
Id. at 113, 122 S.Ct. 2061. In Sharpe, the Sixth Circuit extended the rationale in Morgan to the §
1983 context, holding that Morgan indicated that “when [a plaintiff] seeks redress for discrete
acts of discrimination or retaliation, the continuing violation doctrine may not be invoked to
allow recovery for acts that occurred outside the filing period.” Sharpe, 319 F.3d at 267 (citing
Morgan, 536 U.S. at 113); see also Taylor v. Donahoe, 452 F. App'x 614, 619 (6th Cir. 2011)
and Bruce v. Corr. Med. Servs., Inc., 389 F. App'x 462, 465-67 (6th Cir. 2010) (applying
Morgan and Sharpe to a continuing violations analysis of an Eighth Amendment claim for
deliberate indifference to a serious medical need brought pursuant to § 1983).
Thus, each discrete incident alleged constitutes a separate unlawful action that must fall
within the statutory period. Sharpe, 319 F.3d at 267. Continuing violations that constitute “a
longstanding and demonstrable policy of discrimination,” on the other hand, remain cognizable,
but the plaintiff must establish some form of intentional discrimination against an entire class of
which the Plaintiff was a member. Id. at 268; Bruce, 389 F. App'x at 466, and n. 1 (determining
that for statute of limitations purposes, plaintiff failed to allege facts permitting application of the
continuing violation theory because each act of refusing medical care represented a “discrete
unlawful act[] (beyond passive inaction) that trigger[ed] the statute of limitations,” and Plaintiff
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had failed to allege any facts showing a demonstrable policy of discrimination). Furthermore, the
Sixth Circuit has stated that “[p]assive inaction does not support a continuing violation theory.”
Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 635 (6th Cir. 2007) (internal
citations omitted).
Pursuant to Morgan, Sharpe, and Bruce, each alleged act of refusing Plaintiff the
recourse he sought through the grievance process, or denying him fair administrative procedures,
was a discrete unlawful act that triggered the statute of limitations. Further, allegations of prison
staffs’ failures to conduct the thorough investigation and follow-up after other inmates allegedly
attacked Plaintiff are insufficient to establish a continuing violation, as inaction is not enough to
satisfy the doctrine. Eidson, 510 F.3d at 637 (finding that defendants’ continued prosecution of
plaintiff and failure to conduct thorough investigation to exonerate him after allegedly
discovering exonerating evidence failed to establish a continuing violation, as mere inaction is
not enough to satisfy the doctrine).
While Plaintiff alleges a broader “plot” to harass and taunt him, which continued into his
incarceration, as well as alleges that this plot includes prison staffs’ failures to protect him and
provide him proper recourse, neither do such facts fall within the second category of the
continuing violation doctrine. In the context of Title VII and other cases brought pursuant to antidiscrimination laws—the context under which the continuing violations doctrine is normally
applied—the plaintiff must show facts demonstrating a longstanding and demonstrable policy of
discrimination, as well as establish some form of intentional discrimination against an entire
class of which the plaintiff is a member. Thus, extending the second category into the context of
a § 1983 case like this one—which does not allege that the Plaintiff is a member of a class
subject to discriminatory treatment—is attenuated at best. In Cuco v. Fed. Med. Ctr.-Lexington, a

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sister district court explained the policy reasons and practical difficulty in extending the second
category of the continuing violations doctrine into the § 1983 context:
The Sixth Circuit generally disapproves of applying the doctrine in civil rights
actions. Sharpe, 319 F.3d at 267 (“This Circuit employs the continuing violations
doctrine most commonly in Title VII cases, and rarely extends it to § 1983
actions.”) (applying the Supreme Court's restrictive application of the doctrine in
Nat'l R .R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-12, 122 S.Ct. 2061,
153 L.Ed.2d 106 (2002) to civil rights claims pursued under Section 1983); LRL
Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1106 n. 3 (6th Cir.1995).
This may be due, in part, to the fact that considerations which justify the
application of the continuing violations doctrine in race and sex discrimination
cases are often absent outside of that context. In Bell v. Chesapeake & Ohio Ry.
Co., 929 F.2d 220 (6th Cir.1991), the Sixth Circuit explained that the doctrine
developed because of the concern “that many discriminatory acts occur in such a
manner that it is difficult to define precisely when they took place.” The facts
which, only over time, make it clear to a plaintiff that he or she is or may be the
victim of race or sex discrimination tend to “unfold rather than occur.” Bell, 929
F.2d at 223. Thus, by the time a plaintiff discovers that adverse employment
decisions may have been the result of a discriminatory work environment, many
of the initial acts of discrimination may fall outside the limitations period. The
continuing violations doctrine may thus be considered a rule designed to
ameliorate the harsh consequences of a strict application of the discovery rule
under the statute of limitations. Id.; Barcume, 819 F.Supp. at 636.

Cuco v. Fed. Med. Ctr.-Lexington, No. 05-CV-232-KSF, 2006 WL 1635668, at *27-30 (E.D. Ky.
June 9, 2006) aff'd and remanded sub nom. Cuco v. Fed. Med. Ctr., Lexington, 257 F. App'x 897
(6th Cir. 2007).
The Cuco court held, therefore, that even if the prisoner plaintiff’s claims could have
been considered to fall within the second category, the policy justification for utilizing the theory
did not apply to the facts of the case because it could not be said that a decision to treat the
prisoner plaintiff’s anemia improperly “unfolded rather that occurred.” Id. at *29. Instead, any
deficiencies in her treatment stemmed from adherence to a treatment regimen given to her at the
beginning of her incarceration. Id. at *30. The Sixth Circuit affirmed the district court in an
unpublished opinion and fully concurred with its rationale. Cuco v. Fed. Med. Ctr., Lexington,
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257 F. App'x 897, 900 (6th Cir. 2007) (“As the district court's extensive opinion carefully and
correctly sets out the law governing Cuco's claims and clearly articulates the reasons underlying
its decision, the issuance of a full written opinion by this court would serve no useful purpose.”).
Extending the rationale in Cuco to this case, although Plaintiff alleges that the denials of
his grievances, unfair disciplinary procedures, or failures to respond to inmate harassment toward
him are all part of a larger plot against him, these related events do not fall within the policy
justifications that originally motivated the second category of the continuing violations doctrine.
Like in Cuco, the events that Plaintiff alleges are not of the type that, due to their nature,
unfolded rather than occurred, because each alleged illegal action was not impossible to notice
except when viewed in hindsight and in the aggregate. Instead, each discrete incident gave
plaintiff sufficient notice of any alleged illegal action, a fact which is evidenced by Plaintiff’s
continuous filing of both individual grievances and lawsuits. As explained supra, discrete rights
violations, even if related, individually trigger the statute of limitations. Sharpe, 319 F.3d at 267.
Finally, such a holding has little effect on Plaintiff as he raised his pre-June 12, 2014
claims pertaining to events which occurred at WCI in 1:13-cv-266. See Vandiver v. Prison
Health Servs., Inc., No. 1:14-CV-350, 2014 WL 2115264, at *10 (W.D. Mich. May 21, 2014)
(finding continuing violations doctrine inapplicable and noting that the Plaintiff had “ample
opportunity” to litigate his pre-statute of limitations claims in another case that he filed).
In sum, this Court agrees with the Magistrate Judge that the continuing violations
doctrine does not apply, and, as such, claims arising out of events that are alleged to have
occurred prior to June 12, 2012 are DISMISSED as untimely.

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B. Dismissal of Claims against Sheets, Johnson and Battles
Plaintiff argues that allegations in his amended complaint concerning Sheets, Johnson
and Battles are properly before this Court, and that the Magistrate Judge erred in terminating
them. He contends that these defendants are properly joined in the complaint under Federal Rule
of Civil Procedure 20 because they participated in the ongoing campaign of harassment and
plotting against him across a number of Ohio state prison facilities.
As the Magistrate Judge observed in her June 17, 2014 Order and Report and
Recommendation, Plaintiff asserted similar claims against Sheets, Johnson and Battles in another
case currently pending in this District, Durham v. Chief Bureau of Classification and Reception,
et al., 1:13-cv-226 (S.D. Ohio). Accordingly, the Magistrate Judge recommended that Plaintiff’s
claims against those three defendants be pursued in 1:13-cv-226, and, be dismissed without
prejudice in this case. Thereafter, Plaintiff did not object to the termination of Sheets, Johnson
and Battles, but, instead, filed an amended complaint which omitted them from the list of
defendants in the case. Those defendants subsequently were terminated from the docket.
On December 31, 2014, the court in 1:13-cv-226 dismissed claims against Battles without
prejudice for failure of service. Thus, claims are not pending against Battles in 1:13-cv-226, but
remain pending against Sheets and Johnson. Accordingly, since claims against Battles were
dismissed only because they were being pursued in 1:13-cv-226, and they no longer are pending
in that case, such is not a proper reason for their dismissal any longer. Instead, this Court
concludes that claims against Battles, and incidentally against Johnson and Sheets, are timebarred, as all claims pertaining to them involve incidents alleged to have arisen before April 2,
2012, the date Plaintiff was transferred from W.C.I. to R.C.I. As concluded, all incidents alleged
to have occurred prior to June 12, 2012 are time-barred.

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Plaintiff makes the alternative argument that his claims against Battles, Johnson and
Sheets in 1:13-cv-226 are related to claims made in this case, and thus that such claims should be
joined, as the same evidence will be used and common questions of law will arise in both bases.
Plaintiff’s argument is not well taken. First, Plaintiff filed separate cases, rather than moving to
supplement his complaint to allege new claims. Second, this argument is unavailing because it is
unrelated the primary reason that claims against these three defendants cannot be included in this
case, which is that all claims related to them are time-barred.
Thus, this Court AFFIRMS the Magistrate Judge’s recommendation that all claims
against Sheets, Johnson and Battles be DISMISSED, but finds they should be dismissed with
prejudice as untimely.
C. Claims Against Defendants Not Served With Process
The Magistrate Judge dismissed without prejudice all claims asserted against defendants
Earlena Schorr, Rick Cockrill, Timothy Stirr, Haynes, Robert Whitten and L.C. Coval for failure
to effect serve of process within 120 days of the assertion of the claims against them, and failure
to show good cause for failure to meet the deadlines. At the time the Magistrate Judge issued its
opinion, nearly 10 months had passed since Plaintiff filed his original complaint, and 9 months
had passed since he filed his amended complaint.
Fed. R. Civ. P. Rule 4(m) requires completion of service of process within 120 days after
filing of the complaint; dismissal of the action “shall” follow after 120 unless the “plaintiff
shows good cause” for failure to meet the 120–day deadline.” See, e.g. Nafziger v. McDermott
Int'l, Inc., 467 F.3d 514, 521 (6th Cir. 2006). Establishing good cause is the responsibility of the
party opposing dismissal for failure to effect service as required by the rules, and “necessitates a
demonstration of why service was not made within the time constraints.” Id. at 514. Fed. R. Civ.
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P. 12(b)(4) and (5) provide for dismissal of an action for “insufficient process” and “insufficient
service of process,” respectively. Further, under Fed. R. Civ. P. 12(b)(2), in the absence of
service of process, the court may not exercise jurisdiction over a party the complaint names as a
defendant, and thus dismissal is proper. Engler v. Arnold, No. 4:14-CV-2442, 2015 WL
4213642, at *2 (N.D. Ohio July 10, 2015).
This Court agrees that Plaintiff has failed to demonstrate good cause for his failure to
effect timely service of process on Earlena Schorr, Rick Cockrill, Timothy Stirr, Haynes, Robert
Whitten and L.C. Coval. The Sixth Circuit has found that Rule 4(m) “must be construed leniently
with regard to pro se litigants.” Habib v. Gen. Motors Corp., 15 F.3d 72, 74 (6th Cir. 1994).
When assessing if a pro se litigant has demonstrated good cause for failure to effect timely
service, the question is whether the litigant can show he/she “made a reasonable and diligent
efforts to effect service.” Id. In Habib, for instance, the Court found that although the pro se
litigant had failed to effect timely service, the record showed that immediately after the Court
issued a notice instructing the pro se plaintiff how to effect service of process, the plaintiffs
attempted to effect service in accordance with the magistrate judge’s instructions. Id. at 74-75.
Shortly thereafter, however, the deputy clerk returned plaintiffs’ service papers because they did
not submit an acknowledgment form. A few days later, the Defendant moved to dismiss. The
next day, a family member personally served the defendant’s agent. Nonetheless, the defendant
renewed its motion to dismiss, and the district court granted it. The Habib Court held that the pro
se plaintiffs had no reason to know their service of process was technically inadequate, and that
since they made a “diligent and reasonable” effort to attempt to effect service according to the
magistrate judge’s instructions within the time period, and ultimately did, the district court
abused its discretion in dismissing the case. Id. at 75.

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Unlike the plaintiffs in Habib, the Plaintiff has not demonstrated that he made a diligent
and reasonable effort to effect service. As detailed above, the Magistrate Judge alerted the
Plaintiff on no fewer than four occasions of his responsibility to effect service of process within
120 days, and provide the proper number of copies of the amended complaint at his own
expense. Plaintiff filed his amended complaint on July 10, 2015, but failed to provide enough
service copies until November 7, 2015.
Even assuming the Plaintiff genuinely was confused by the requirement that he had to
pay for and provide sufficient copies of the amended complaint himself, and thus that he made
every reasonable effort to effect service through November 7, 2014, the date on which he
provided sufficient copies of the amended complaint, he still failed to effect service of process on
Schorr, Cockrill, Stirr, Haynes, Whitten and Coval by April 2015, when the Magistrate Judge
recommended dismissal of those defendants. As the Magistrate Judge observed, Plaintiff offers
no suggestion that the can provide a valid address for these defendants. Thus, this case is like
Chasteen v. Johnson, in which this Court found that the magistrate judge had accorded the pro se
litigant “considerable accommodation and flexibility in the matter of service of process” over a
nine month period, and declined to grant plaintiff yet another extension of time. No. 2:12-CV229, 2013 WL 118889, at *1 (S.D. Ohio Jan. 9, 2013).
Accordingly, this Court AFFIRMS the Magistrate Judge’s recommendation that all
claims against Schorr, Cockrill, Stirr, Haynes, Whitten and Coval be DISMISSED without
prejudice for failure to effect service of process.
D. Claims against Mohr
Plaintiff objects to the dismissal of claims asserted against Defendant Mohr. In their
Motion to Dismiss, the Defendants argued that claims against Gary Mohr, the Director of the

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Ohio Department of Rehabilitation and Correction, should be dismissed. Defendants expounded
that since § 1983 liability will not be imposed solely on the basis of respondeat superior, and
because Plaintiff failed to allege that Mohr took any direct actions regarding Plaintiff’s
confinement and allegations of failure to protect, Plaintiff failed to state a claim entitling him to
relief regarding Mohr. See, e.g., Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (“Section
1983 liability will not be imposed solely upon the basis of respondeat superior. There must be a
showing that the supervisor encouraged the specific incident of misconduct or in some other way
directly participated in it.”) (citing Hays v. Jefferson County, 668 F.2d 869, 872–74 (6th Cir.
1982)). Plaintiff responded that Mohr should not be dismissed as Mohr has failed to remedy his
situation since 2011, and, in the alternative, he requested leave to amend his complaint to add
more specific allegations regarding Mohr.
The Magistrate Judge concluded that the majority of Plaintiff’s allegations regarding
Mohr—including those alleging Mohr’s deliberate indifference to Plaintiff’s safety and health
and Mohr’s failure to ensure the fairness of disciplinary proceedings—amounted to “labels and
conclusions” which were insufficient to state a claim under Iqbal/Twombly. Further, the
Magistrate Judge concluded that allegations regarding Mohr’s failure to ensure Plaintiff’s right to
fair proceedings were not cognizable under § 1983 because a supervisor cannot be held
responsible for a subordinate’s actions, see Turner v. City of Taylor, 412 F.3d 629, 643 (6th
Cir.2005), and also because prison officials are not obligated to respond properly to an inmate’s
grievances because there is no inherent constitutional right to an effective prison grievance
procedure. See, e.g, Overholt v. Unibase Data Entry, Inc., No. 98–3302, 221 F.3d 1335 (Table),
2000 U.S.App. LEXIS 14087, at *3, 2000 WL 799760 (6th Cir. June 14, 2000); Lee v. Mich.
Parole Bd., No. 03–1775, 104 Fed. App’x. 490, at *493 (6th Cir. June 23, 2004). Further, the

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Magistrate Judge denied Plaintiff leave to amend to include facts regarding Mohr because
Plaintiff had not proffered a proposed complaint or provided the Court with any basis upon
which to speculate as to the sufficiency of any facts that the Plaintiff might allege against Mohr.
Plaintiff responds that he earlier requested leave to add exhibits to his amended complaint
that demonstrate that Plaintiff sent directly to Defendant Mohr’s office requests for relief and
help securing his safety, as well as correspondence notifying Mohr of institutional-level
misconduct. The Magistrate Judge denied Plaintiff’s request to supplement his amended
complaint. Plaintiff insists, therefore, that the Magistrate Judge was in error to conclude that
Plaintiff has not proffered any basis upon which to even speculate as to the sufficiency of any
facts that Plaintiff might allege against defendant Mohr because she was in receipt of evidence
substantiating his claims against Mohr.
Even if the Magistrate had permitted supplementation, or taken note of the supplemental
exhibits, the information contained in those exhibits, according to Plaintiff’s own assertions,
would not overcome the bar to asserting claims sounding in respondeat superior under § 1983.
This is because Plaintiff fails to allege facts showing that Mohr “encouraged the specific incident
of misconduct or in some other way directly participated in it,” or, at a minimum, “implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.” Taylor, 412 F.3d 629, 643. Instead, he only makes the accusation that Mohr was on
notice of repeated constitutional violations against Plaintiff, but failed to take any action to
protect him, and also that on September 18, 2015, Mohr signed a letter affirming the warden’s
decision to place Plaintiff in Local Control. (See Plaintiff’s Amended Complaint, Ex. R-41, Doc.
8-1, p. 99).

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As the Sixth Circuit concluded in Taylor, imposing liability on a prison supervisor simply
pursuant to his or her responsibility to ensure the proper care and treatment of prisoners and to
ensure prison staff follows proper procedures would be “tantamount” to imposing respondeat
superior liability for the unlawful conduct of his staff. Id. (holding that “[b]ecause there is no
evidence that a supervisory official implicitly authorized, approved or knowingly acquiesced in
the unconstitutional conduct of the officers who allegedly beat Plaintiff, the district court
properly granted Defendants' summary judgment motion.”). Further, the rule that a supervisor
must have personal involvement in the alleged unconstitutional conduct in order to be held liable
under § 1983 holds true even if the supervisor has actual knowledge of the constitutional
violation, as Plaintiff asserts in this case, and even if the supervisor was involved in denying a
grievance which raised the alleged constitutional violations. See Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999) (prison officials cannot be held liable under § 1983 for denying
administrative grievances and failing to remedy alleged retaliatory behavior because such actions
are not equivalent to “approv[ing] or knowingly acquiesc[ing] in the unconstitutional conduct,”
for which supervisors can be liable); Horton v. Martin, 137 F. App’x 773, 775 (6th Cir. 2005)
(“[Plaintiff] merely alleged that Martin failed to remedy the situation after he had been informed
of the problem via [plaintiff's] grievance. [This] allegation does not state a claim because the
doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability onto
supervisory personnel.”); see also Stewart v. Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002)
(“supervisory liability under § 1983 cannot attach where the allegation of liability is based upon
a mere failure to act”).
Thus, Plaintiff’s accusations that Mohr was in receipt of notice that prison staff members
had violated his constitutional rights, but Mohr failed to take any remedial measures, without

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more, fails to show Mohr is personally responsible for the alleged unconstitutional actions that
caused Plaintiffs injury, which is required under § 1983 actions. Mills v. City of Barbourville,
389 F.3d 568, 580 (6th Cir.2004) (“In order to establish liability pursuant to § 1983, the plaintiff
must prove that the defendant, as a supervisory official, is personally responsible for the alleged
unconstitutional actions that caused his injury.”). Further the fact that Mohr denied a grievance
that Plaintiff appealed to him, which allegedly raised unconstitutional conduct on the part of
prison staff members, does not demonstrate the Mohr can be held personally liable for that
allegedly unconstitutional conduct of his inferiors under § 1983. See Shehee, 199 F.3d at 300.
Plaintiff argues in the alternative the Mohr should remain a defendant because, as a result
of Plaintiff being shuffled constantly to new institutions, he requires a stable individual named in
at least one suit in order to be able to prove the existence of the ongoing plot against him. As
explained above, however, the continuing violations exception to § 1983 is narrow, and is
inapplicable to the facts alleged in this case. Thus, Plaintiff cannot do more than allege discrete,
unlawful acts that defendant Mohr, or any other defendant, commits, within the statute of
limitations. Further, Plaintiff asserts that his conditions are a direct result of Mohr’s failures to
take reasonable measures, and that he would be prejudiced if he had to refile his claims against
Mohr when they are related to the current case. As explained above, however, Plaintiff has failed
to demonstrate that it is possible to for him to allege facts which state a claim against Mohr
because none of the actions the Plaintiff attributes to Mohr are cognizable under § 1983.
Accordingly, this Court AFFIRMS the Magistrate Judge’s decision to DISMISS claims
involving Mohr, as Plaintiff has failed to allege facts upon which relief can be granted pertaining
to Mohr. Further, this Court agrees that granting leave to amend the complaint to add facts
involving Mohr would be futile, as Plaintiff has failed to demonstrate he can allege facts to state

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a claim involving Mohr that is plausible on its face. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227,
9 L.Ed.2d 222 (1962) (holding that leave to amend a complaint should be denied when the
proposed amendment would be futile); Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417,
420 (6th Cir.2000) (“A proposed amendment is futile if the amendment could not withstand a
Rule 12(b)(6) motion to dismiss.”).
E. Motions to Add Exhibits and Motion to Supplement New Events
The Report and Recommendation also disposes of Plaintiff’s non-dispositive motion to
make 13 pages of exhibits part of the pleadings and the case. (Doc. 36). The Plaintiff explains in
his motion that he provides the exhibits for the Court to consider “when determining the
exhaustion requirement of the PLRA 42 U.S.C. § 1997(e).” The Court agrees with the Magistrate
Judge’s determination that since the Motion to Dismiss at issue does not address exhaustion, the
Court need not consider such exhibits in relationship to this motion. If the Plaintiff has not
already attached these exhibits to the amended complaint, however, the Plaintiff is directed to
file a motion to supplement the amended complaint with the exhibits, as a prisoner plaintiff is
instructed to attach to his § 1983 complaint any decisions demonstrating administrative
dispositions of his claims. See Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir. 1999); Brown v.
Toombs, 139 F.3d 1102, 1104 (6th Cir.), cert. denied, 525 U.S. 833, 119 S.Ct. 88, 142 L.Ed.2d
69 (1998).
Finally, at the end of Plaintiff’s Memorandum in Support of his Objections to the
Magistrate Judge’s Report and Recommendation, the Plaintiff notifies this Court that he
“sustained new injury” when he was attacked again on about March 29, 2015, as a result of the
failures committed by defendants named in the amended complaint, as well as by defendants
named in Durham v. Moore, No. 1:14-cv-816, another case Plaintiff filed in this District. He

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requests leave to file a supplemental complaint, assumedly pursuant to Fed. R. Civ. P. 15(d). He
does not provide further detail, however, nor does he attach a supplemental complaint. Further, it
is unclear from his briefing whether these new facts are alleged under this case, or under Durham
v. Moore, No. 1:14-cv-816. Plaintiff is directed to file a separate motion to supplement his
complaint, as well as a copy of the supplemental pleading, so that the Court can perform an
initial screening of the supplemental pursuant to the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. §§ 1915(e)(2), 1915A. See Caruthers v. Corr. Med. Serv., Inc., No. 1:10-CV-274, 2010
WL 1744881, at *1 (W.D. Mich. Apr. 27, 2010) (stating that the amended complaint must be
screened pursuant to the PLRA before an amendment is permitted).
Additionally, it is unclear from the Plaintiff’s briefing whether he has exhausted
administrative remedies concerning the proposed new claims and potentially new defendants as
42 U.S.C. § 1997(e) requires. Accordingly, Plaintiff is reminded before he files his motion to
supplement and the supplemental pleading that in prisoner cases, supplemental claims not only
must be linked to the original claims, but they also must have been completely exhausted through
all steps of the prison’s grievance procedure in accordance with the Prison Litigation Reform
Act’s mandatory exhaustion requirement. 42 U.S.C. § 1997e(a). See Hoyt v. Rogers, No. 10–cv–
10262, 2011 WL 940350, at *4 (E.D. Mich. March 16, 2011) (denying motion to supplement
pleading because prisoner’s supplemental claims were either unexhausted or improperly
exhausted). Thus, the Sixth Circuit has instructed that in order for a prisoner plaintiff to establish
that he has exhausted administrative remedies prior to filing suit, a prisoner should attach to his §
1983 complaint any decisions demonstrating the administrative dispositions of his claims. See
Wyatt, 193 F.3d at 878-79; Toombs, 139 F.3d at 1104.

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IV.

CONCLUSION

For the foregoing reasons, Plaintiff’s Objections are hereby OVERRULED, (Doc. 39),
and the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation.
(Doc. 37).
IT IS SO ORDERED.
s/Algenon L. Marbley_________
Algenon L. Marbley
United States District Court Judge
DATE: September 9, 2015

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