Johnson v. Mohr et al

Filing 52

ORDER ADOPTING REPORT AND RECOMMENDATION 49 in that 30 Defendant's Motion for Summary Judgment is granted. In accordance with the instant order and the 4/3/15 Order, this case is DISMISSED. Signed by Judge James L. Graham on 11/16/16. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Frederick E. Johnson,
Plaintiff,
v.

Case No. 2:15-cv-86

Gary C. Mohr, et al.,
Defendants.
ORDER
This is an action brought pursuant to 42 U.S.C. §1983 by
plaintiff Frederick E. Johnson, a state inmate, against Gary C.
Mohr,

Director

of

the

Ohio

Department

Correction, and other prison officials.

of

Rehabilitation

and

Plaintiff alleged in his

complaint that he was denied due process in a prison disciplinary
proceeding brought against him, in which he was charged with raping
another inmate.

He further alleged that Deborah Timmerman-Cooper,

the former warden of the London Correctional Institution, violated
his First Amendment rights by ordering the destruction of his
personal property in retaliation for his pursuit of an appeal from
the decision rendered against him in the disciplinary proceeding.1
By order filed on April 3, 2015, this court dismissed plaintiff’s
claims with the exception of the First Amendment retaliation claim
asserted against Timmerman-Cooper.

1

See Doc. 11.

Prior to commencing the instant action, plaintiff filed a
complaint against the London Correctional Institution in the Ohio
Court of Claims, alleging that the institution acted negligently in
failing to pack his property when he was sent to segregation. The
Court of Claims found that the institution was negligent and
awarded plaintiff $466.45 to compensate him for the loss of his
property. Timmerman-Cooper was not a defendant in that action.

This matter is before the court for consideration of the
October 5, 2016, report and recommendation of the magistrate judge.
The

magistrate

judge

recommended

that

plaintiff’s

motion

for

declaratory judgment (Doc. 37), plaintiff’s motion for an order to
show cause, for an injunction, and for a temporary restraining
order (Doc. 38) and plaintiff’s second motion for an order to show
cause (Doc. 48) be denied.

The magistrate judge also recommended

that Timmerman-Cooper’s motion for summary judgment (Doc. 30) be
granted.
On October 31, 2016, plaintiff filed objections to the report
and recommendation. If a party objects within the allotted time to
a report and recommendation, the court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court
“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”

28 U.S.C.

§636(b)(1).
I. Motions for Declaratory Judgment and Show Cause Orders
Plaintiff’s motions for declaratory judgment and for show
cause orders, which requested injunctive relief, addressed the
institution’s allegedly erroneous debiting of the entire amount of
the filing fee for the instant action to plaintiff’s prisoner
account.

Plaintiff alleged in general terms that this error was

retaliatory.

Plaintiff sought an order directing the prison

cashier to credit his account for any improper deductions and to
send all properly debited funds to this court.

The magistrate

judge recommended denying these motions because they raised new

2

claims for relief that were unrelated to the matters alleged in the
complaint.

The magistrate judge correctly noted that an award of

injunctive relief was inappropriate here where the injunction
‘“deals with a matter lying wholly outside of the issues in the
suit.”’

Doc. 49, p. 9 (quoting De Beers Consol. Mines Ltd. v.

United States, 325 U.S. 212, 220 (1945); see also Colvin v. Caruso,
605 F.3d 282, 299-300 (6th Cir. 2010)(noting that trial court could
have denied the requested injunctive relief on the grounds that the
request was improper because it was not premised upon a claim in
the original complaint).

The court agrees that these motions

asserted new claims outside the scope of the original complaint
which are not properly before this court.
Even if this court were to consider the merits of plaintiff’s
motions, they would not be well taken.

Timmerman-Cooper provided

the affidavit of Institutional Inspector Cynthia Hill, in which she
stated that the erroneous debit entry had been corrected. See Doc.
45-1.

Inspector

Hill

stated

that

$350.00

was

applied

to

plaintiff’s account as a debit as a result of this court’s order
February 11, 2015, order directing the payment of the filing fee by
installments. Doc. 45-1, ¶5. The debit was reversed on August 25,
2016, in response to plaintiff’s August 15, 2016, grievance, which
was granted.

Doc. 45-1, ¶6.

In his objections, plaintiff does not dispute the magistrate
judge’s legal grounds for denying these motions. Rather, he claims
for the first time that the accounting error prevented him from
responding to the court’s orders, although he does not identify
which orders he was unable to comply with due to this error.

The

court notes that plaintiff filed numerous motions in this action

3

prior to the correction of the accounting error, including a July
24, 2015, motion objecting to defendant’s answer, a March 14, 2016,
motion to appoint counsel, and a May 9, 2016, motion for extension
of time to file a response to defendant’s summary judgment motion,
which was granted.

On June 9, 2016, plaintiff filed a response in

opposition to the defendant’s motion for summary judgment, and on
July 14, 2016, he filed a supplemental memorandum opposing summary
judgment.

Plaintiff never requested the extension of a filing

deadline based on a lack of funds for postage in his prison
account.

The

court

sees

no

basis

for

disagreeing

with

the

recommendation of the magistrate judge, and plaintiff’s motions for
declaratory judgment and for show cause orders (Docs. 37, 38 and
48) will be denied.
II. Summary Judgment Motion
A. Eleventh Amendment Immunity
The magistrate judge recommended that defendant’s motion for
summary judgment be granted on Eleventh Amendment grounds to the
extent that Timmerman-Cooper was named as a defendant in her
official capacity.

The magistrate judge correctly noted that any

official capacity claim was barred by the Eleventh Amendment.

See

Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
Plaintiff has not objected to this recommendation, and it will be
adopted.
B. Retaliation Claim
The magistrate judge also recommended that summary judgment be
granted on the retaliation claim because plaintiff failed to
produce evidence sufficient to support that claim.

To prove a

First Amendment claim for retaliation, plaintiff must show that:

4

(1) he engaged in protected conduct; (2) an adverse action was
taken against him, and (3) there is a causal connection between the
first and second elements, i.e., that the adverse action was
motivated at least in part by the protected conduct. LaFountain v.
Harry, 716 F.3d 944, 948 (6th Cir. 2013).

The destruction of

property can constitute an adverse action. LaFountain, 716 F.3d at
948-949.
The magistrate judge correctly concluded that plaintiff failed
to show the existence of a genuine dispute in regard to the
elements of his retaliation claim.

Plaintiff’s unsworn complaint

provides no evidentiary support for his claim on summary judgment.
In

his

unsworn

memorandum

contra,

plaintiff

veered

from

his

original complaint and summarily alleged that Timmerman-Cooper was
negligent in the handling of his property because she believed he
was guilty of sexually assaulting another inmate.

This allegation

does not meet the first element of a retaliation claim, because a
prisoner who violates a legitimate prison regulation does not
engage in protected conduct and cannot proceed beyond the first
step of the three-step retaliation analysis.

Lockett v. Suardini,

526 F.3d 866, 874 (6th Cir. 2008).
There is also no evidence to show that Timmerman-Cooper was
responsible for the alleged adverse action, the destruction of
plaintiff’s property.

She submitted an affidavit stating that she

had no knowledge as to whether any of plaintiff’s property was
destroyed, that she never ordered the destruction of plaintiff’s
personal property, and that she did not retaliate against plaintiff
in any way or for any reason.
¶¶ 21-23.

Doc. 30-2, Timmerman-Cooper Affid.,

Plaintiff offered no evidence sufficient to show that

5

Timmerman-Cooper had any involvement in the destruction of his
property.
There is also no evidence to show causation, i.e., that the
destruction of his property was motivated at least in part by
protected conduct.
2012).

King v. Zamiara, 680 F.3d 686, 694 (6th Cir.

Even assuming, as plaintiff alleged in his memorandum

contra, that the destruction of his property was due to some
negligence on the part of Timmerman-Cooper, proof of negligence
cannot support a retaliation claim.

Allen v. Iranon, 283 F.3d

1070, 1076 n. 5 (9th Cir. 2002); Hardy v. 3 Unknown Agents, 690
F.Supp.2d

1074,

1104

(C.D.Cal.

2010)(if

defendant,

a

prison

physician, acted negligently, he cannot have acted in retaliation
for plaintiff’s grievances).
In his objections, plaintiff does not specifically address the
magistrate judge’s analysis of the retaliation claim.

Rather, he

argues that, as a lay person, he should not be held responsible for
the fact that his complaint was unverified and could not be
considered as evidence. This argument is not well taken. Although
the filings of a pro se litigant are construed liberally, a pro se
party will not be relieved of the responsibility to comply with
basic rules of court.

McNeil v. United States, 508 U.S. 106, 113

(1993); see also Moore v. Holbrook, 2 F.3d 697, 705 (6th Cir.
1993)(pro se litigants are not excused from federal rules governing
summary judgment); Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.
1980)(pro

se

litigants

must

present

proper

summary

judgment

evidence).
Plaintiff also argues that he was not given the chance to
amend his complaint, and that his motions for discovery were

6

denied.

However, the record reveals that plaintiff never moved to

amend his complaint, nor did he file any motions seeking to compel
discovery. The discovery orders to which he refers were the May 8,
2015, and the March 16, 2016, orders of the magistrate judge
striking plaintiff’s written discovery requests which were filed on
the docket without prior authorization in violation of Fed. R. Civ.
P. 5(d)(1), which provides that discovery requests must not be
filed until they are used in the proceeding or the court orders
that

they

be

filed.

No

orders

were

issued

which

precluded

plaintiff from seeking that same discovery from Timmerman-Cooper.
Plaintiff’s objections fail to identify any error in the reasoning
of the magistrate judge regarding plaintiff’s failure to offer
evidence in support of the retaliation claim.
C. Failure to Exhaust Administrative Remedies
In

the

alternative,

the

magistrate

judge

concluded

that

summary judgment was warranted due to plaintiff’s failure to
exhaust

his

administrative

remedies

against

Timmerman-Cooper.

Under Ohio Admin. Code §5120-9-31(M), plaintiff was required to
file a grievance against Timmerman-Cooper with the Office of the
Chief Inspector.

According to the affidavit of DeCarlo Blackwell,

custodian of the grievance records at the London Correctional
Institution, plaintiff’s grievance file contained no grievances
which mentioned Timmerman-Cooper, or which were filed directly with
the Office of the Chief Inspector.
¶10.

Doc. 30-3, Blackwell Affid.

The magistrate judge noted that plaintiff’s evidence, which

included an October 18, 2013, Informal Complaint Resolution and
correspondence from the Office of the Chief Inspector dated October
24, 2013, were insufficient to support a finding of exhaustion

7

because those documents did not show that plaintiff filed a
grievance against Timmerman-Cooper with the Office of the Chief
Inspector.
stated

that

See Doc. 49, p. 16.
plaintiff’s

unsworn

The magistrate judge further
statement

in

his

opposition

memorandum that he complied with the grievance procedure was
insufficient to show exhaustion.

Doc. 49, p. 16.

The magistrate

judge also observed that if plaintiff believed that grievance
documents existed, he could have utilized the discovery process to
obtain copies of those grievances, yet plaintiff filed no motion to
compel discovery.

See Doc. 49, p. 17.

In his objections, plaintiff again claims that the magistrate
judge denied his discovery motions.

As noted above, plaintiff

never filed a motion to compel discovery.

The magistrate judge

only struck improperly filed interrogatories from the record.
Plaintiff also states in his objections that he filed a complaint
against Timmerman-Cooper with the Office of the Chief Inspector.
Doc. 50, p. 4. The court notes that plaintiff’s objections contain
an affirmation at the end.

Doc. 50, p. 11.

However, Plaintiff may

not offer evidence for the first time in an objection which was
never presented to or considered by the magistrate judge.
United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000).
agrees

with

the

magistrate

judge

that

Murr v.

The court

Timmerman-Cooper

has

submitted evidence sufficient to establish the affirmative defense
of failure to exhaust administrative remedies, and that summary
judgment is warranted on that ground as well.
III. Conclusion
In accordance with the foregoing, the court agrees with the
report and recommendation (Doc. 49), and it is hereby adopted.

8

Plaintiff’s objections (Doc. 50) are denied.
summary judgment (Doc. 30) is granted.

The motion for

Plaintiff’s motions for

declaratory judgment and for show cause orders (Docs. 37, 38 and
48) are denied. In accordance with the instant order and the order
of April 3, 2015, dismissing the other claims in this action (Doc.
11), the clerk is directed to enter judgment dismissing this case.

Date: November 16, 2016

s/James L. Graham
James L. Graham
United States District Judge

9