Robison v. Coey et al
REPORT AND RECOMMENDATION AND ORDER - It is recommended that 61 MOTION for Summary Judgment be granted as to the initial retaliation claim only. Objections to R&R due by 2/16/2017. Further, Mr. Robisons discovery motions (Docs. 62 , 64 , and [ 71]) are denied. If defendants wish to address the remaining claim by way of a summary judgment motion, they shall do so by 3/1/2017. Signed by Magistrate Judge Terence P. Kemp on 2/2/2017. (agm)(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
David A. Robison,
Woody Coey, et al.,
Case No. 2:15-cv-944
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on a motion for summary
judgment filed by defendants Woody Coey and Cody Posey.
motion has been fully briefed and is now ripe for decision.
before the Court are three discovery-related motions filed by
plaintiff David A. Robison.
For the following reasons, the Court
will recommend that the motion for summary judgment be granted.
The Court resolves the remaining motions as follows.
Plaintiff David A. Robison, an inmate at the Chillicothe
Correctional Institution, filed this action under 42 U.S.C. §1983
alleging violations of his First and Fourteenth Amendment rights
as a result of the conduct of defendants Woody Coey, Cody Posey,
Brent Cruse, Corby Free, Roger Wilson, and Gary Mohr.
Robison’s claims (detailed below) all arise from an incident
which took place in October, 2014, when, according to Mr.
Robison, Cody Posey, a corrections officer, broke a lock on the
locker of Mr. Blakeman, who was Mr. Robison’s work supervisor in
an OPI paint shop at CCI.
Following the Court’s order affirming
the report and recommendation granting in part and denying in
part a motion to dismiss, Mr. Robison asserts a claim against Mr.
Coey and Mr. Posey for retaliation in violation of his First
See Robison v. Coey, 2015 WL 5437175 (S.D.
Ohio Sept. 14, 2015) adopted and affirmed 2015 WL 6164113 (S.D.
Ohio Oct. 21, 2015).
Mr. Robison was later granted leave to
amend to assert a claim for further retaliation by these
See Robison v. Coey, 2016 WL 3350471 (S.D. Ohio June
In the previous report and recommendation, the Court
explained Mr. Robison’s initial retaliation claim as follows:
To summarize, Mr. Robison has stated a claim for
retaliation based on the following allegations. He
provided statements to his supervisor Mr. Blakeman
regarding Mr. Posey’s alleged criminal activity in
connection with Mr. Blakeman’s investigation regarding
the break-in to his locker. As a result, Mr. Coey
prepared a false conduct report against Mr. Robison in
conspiracy with Mr. Posey which then caused Mr. Robison
to lose his job and good time credits. Mr. Coey and
Mr. Posey conspired to have Mr. Coey write the false
conduct report because Mr. Robison had implicated Mr.
Posey in Mr. Blakeman’s investigation. Beyond these
specific allegations and these specific defendants, Mr.
Robison has not stated a retaliation claim.
2015 WL 5437175, at *8.
In its order granting leave to amend, the Court described
Mr. Robison’s additional retaliation claim as follows:
... since Mr. Robison has not proposed any new
defendants, he must be asserting that claim against
Defendants Coey and Posey. He has alleged a sequence
of facts showing that shortly after he served discovery
and moved to compel, the false “nexus” was lodged, and
he also alleges that this was part of a pattern of
retaliation he has been experiencing since 2014. See
Proposed Amended Complaint, Doc. 25, at 5.9 (“the
Defendants will stop at nothing with their continuous
constitutional deprivations and never ending attempts
to thwart the forward progress of this case”).
2016 WL 3350471, at *1.
Mr. Robison’s initial claim is that he was retaliated
against for giving truthful information to his supervisor, Tim
Blakeman, during Mr. Blakeman’s investigation of the break-in to
Mr. Blakeman’s locker.
The factual background set forth below is
taken from the parties’ exhibits submitted in connection with the
summary judgment motion.
The incident report form completed by Mr. Blakeman on
October 23, 2014, following his discussion with Mr. Robison
indicates the subject as “security” and reflects the following
discussion with Mr. Robison:
On 10-23-14 Inmate Robison 517-488 E-1 307-B
stated to me that he felt uneasy and threatened by Cody
Posey PWSI making snitch accusations towards him when
Posey worked paint shop on 10-22-14 and that he Robison was going to take it up front if any more came
from it. Robison stated to me that he came into the
office of the paint shop to get copies when I (TMB) was
on vacation and Posey was trying to piece back a
combination lock on the desk and Posey told him he’d
better not find out that he told me (TMB) about the
lock. Robison asked what are you going to do with it
now. Posey stated I’m going to throw it over the
fence. Robinson (sic) also stated that Posey stated
that he is very well connected with DRC through his
family. Robison also stated that Hagwood 180-004 F1
216-T said Posey also told him he was going to throw it
over the fence but Hagwood said to Robison that he
would not admit to it. Inmate Martin stated that Posey
PWSI asked him to pick the lock on the locker in the
paint shop tool room. Martin 319-029 E1 311-B told
Posey no. Martin was asked to pick the lock sometime
when I was on vacation. Reported this to Captain Brown
and Woody Coey.
The form further indicates that the action taken
- Communicated incident to Mr. Coey.
- Notified Major Camp and DWO Pierce.
communication to DWSS
- Inmates Robison, Martin and Hagwood reassigned
to Seg pending further investigation.
The bottom portion of this report indicates that it was
reviewed by Warden Charlotte Jenkins on October 24, 2014.
Handwriting appearing to be hers states  Follow up: By OPI
Supervisor Woody C to handle.
Copies of the report were to be
distributed to Operations Major, LRO, Locksmith, and W. Coey.
Based on this incident report, Mr. Robison was interviewed
by Mr. Coey on October 23, 2014.
According to Mr. Robison, he
was called into Mr. Coey’s office and questioned for
approximately two hours about his knowledge of the missing lock.
See Declaration of David A. Robison, ¶2, Doc. 63-1.
report arising from this discussion is dated November 3, 2014 and
appears to be signed by Mr. Coey.
It identifies two rule
violations: (27) giving false information or lying to
departmental employees and (49) distruction (sic), alteration or
misuse of property, and states:
Be advised through an investigation of interviews
and written statements it has been determined that
Inmate Robison fabricated a story involving (2) OPI
employees to intentionally cause conflict between the
employees. On 10/23/2014 Mr. Blakeman (OPI PWS-Paint
Shop) reported by incident report (attached) that
Inmate Robison was stating that he seen PWS Posey with
a missing lock that had been reported the day prior by
Mr. Blakeman. He also reported that Inmate Robison was
also stating that Mr. Posey was making “snitch
accusations” towards him and he felt threatened by Mr.
Posey and “he would take it up front if any more came
of it.” During an interview with Inmate Robison
(attached, signed statement) Inmate Robison contradicts
himself and states the he has never felt threatened by
Mr. Posey and Mr. Posey has never called him any kind
of names. Inmate Robison also stated in the interview
that he never told anyone staff or inmate that he would
“take it up front.”
Be advised Inmate Robison also took it upon
himself to type up a statement (attached) on an OPI
typewriter which is against OPI policy and a misuse of
Inmate Robison reclassed out of OPI.
This conduct report was based, at least in part, on an
interview statement prepared by Mr. Coey and signed by Mr.
Defendants and Mr. Robison have submitted identical
copies of that interview statement with their filings.
Inmate Robison 517-488 E-1
States when Mr. Posey was working the Paint shop
on a day Tim Blakeman was on Vacation, he went to the
office to make copies and seen Mr. Posey sitting at the
desk working on a lock. Robison states that lock was a
(Master) combination lock silver in color with a blue
face. Robison States he asked Mr. Posey, “did you
break your lock”, Posey replied “I broke Blakeman’s
lock”. Robison States Posey said he was trying to get
in the cabinet and the lock broke. Also Mr. Robison
states Mr. Posey said if he couldn’t get the lock fixed
he was going to throw it over the fence.
Robison sates he never visually seen Mr. Posey
break the lock or try to get it off the cabinet. He
states the days Mr. Posey was working in the Paint shop
he never seen Mr. Posey in or around the cabinet at
Robison states that Inmate Martin 319-029 told him
in the unit (E-1) that Mr. Posey asked him to pick the
Robison states he was present the entire time the
locksmith was in the Paint shop due to an issue with a
lock on the cage/office door. Robinson (sic) states
that he never heard anything mentioned to the locksmith
concerning the lock in question on the cabinet. He
states the incident with the lock took place after the
locksmith was in the shop.
Robison states he has never felt threatened by Mr.
Posey nor does he now. He states Mr. Posey has not
called him any names or treated him any different today
than he had last week or a month ago.
Robison states he never told anyone, inmate or
staff that he was going to up front and talk about the
incident or to anyone else. He states he never stated
he would “take it up front.”
Robison states Mr. Posey yesterday (October 22)
asked him if he told anyone about the lock and Robison
stated his response was “No”.
Robison says that he told Mr. Blakeman of the
incident concerning the lock on Monday morning October
20th when asked by Mr. Blakeman.
In his declaration filed in this case, Mr. Robison states
that this is not the interview statement he signed in Mr. Coey’s
office on October 23, 2014.
See Declaration, ¶¶5 and 6, Doc. 63-
He explains that certain information has been added to the
statement he signed and other information has been deleted.
identifies this information as follows:
Information Added to the Interview Statement:
I NEVER told Defendant Coey that I was “present
the entire time the Locksmith was in the Paint Shop due
to an issue with a lock on the cage/office door.” I
would have never used the word “CAGE” because the issue
with the lock was on the “OFFICE DOOR.”
I NEVER told Defendant Coey that I “never heard
anything mentioned to the Locksmith concerning the lock
in question on the cabinet.” I would have never used
the word “CABINET” because the lock was on Mr.
I NEVER told Defendant Coey “the incident with the
lock took place after the Locksmith was in the Paint
I NEVER told defendant Coey that “I never felt
threatened by Mr. Posey.”
I NEVER told Defendant Coey “Mr. Posey has not
called me any names or treated me different today than
he had last week or a month ago.”
See Declaration, Doc. 63-1, ¶¶7-11.
Information Deleted from the Interview Statement:
I told Defendant Coey that Inmate Ronald Martin
A319-029 was asked by Defendant Posey to pick the lock
on Mr. Blakeman’s personal locker.
I told Defendant Coey that Mr. Blakeman told me
that when he called to report the lock missing to the
CCI Locksmith, Mr. Wolfenbarger before I got to work,
Mr. Wolfenbarger said that Mr. Posey had asked him to
remove the locks from Mr. Blakeman’s personal locker as
well as a black storage box that belonged to Mr.
I told Defendant Coey that inmate Ronald Martin
A319-029 was so concerned about what Mr. Posey had
asked him to do that he went and told another OPI
Supervisor, Mr. Randy Dunham who told inmate Martin to
wait and see what Mr. Posey would do.
I told Defendant Coey that on October 22, 2014
Defendant Posey worked the OPI Paint Shop while Mr.
Blakeman was in training and came back to my office,
pointed his finger in my face and said, “You told on me
I told Defendant Coey that I told Mr. Posey that I
did not tell on him to avoid confrontation, to which
Mr. Posey replied, “Don’t let me find out.”
I told Defendant Coey that I did not feel
threatened now by Mr. Posey for the sole purpose of
getting out of his office to avoid confrontation with
Defendants Coey and Posey.
See Declaration, Doc. 63-1, ¶¶12-17.
Defendants and Mr. Robison also have submitted copies of Mr.
Robison’s own separate typed statement referred to in the conduct
That statement reads:
I, David Robison Inmate #517-488 work as a Clerk in the
OPI Paint Shop. About a week and a half ago, I went
into the Supervisor’s Office to make copies as is the
custom pertaining to my job duties. When I went into
the office Mr. Posey was sitting at his desk with a
combination lock that appeared to be broken. I asked
Mr. Posey if he broke his lock and he replied, “I broke
Blakeman’s lock. Then I asked him how he broke it and
he responded, “I broke it when I tried to get into his
locker”. he then told me if he could not fix it, he
would have to get rid of it. I said how are you going
to get rid of a lock? Mr. Posey then told me he was
to, “throw it over the fence”. Mr. Posey then told me
not to say anything to anyone about this, and if I did
he would know that I was the one who told. Mr. Posey
told me that he would find out if I ever told and then
said, If Blakeman ask’s you about the lock, tell him
you don’t know anything about it.
Mr. Posey worked this shop for the three weeks
that Mr. Blakeman was on vacation and several times he
would say that his Uncle Posey was the Major at RCI and
that all of his family worked for DRC. Because of this
I did not say anything to anyone until Mr. Blakeman
came back from vacation and looked at me and asked if I
knew anything about the lock on his locker. At that
point I could not lie to Mr. Blakeman and told him the
truth. I have 14 to 50 years left on my sentence after
doing almost 10 already and the last thing I want is to
have problems with any staff member, but right is right
and wrong is wrong and I WILL NOT LIE FOR ANYONE!
On November 4, 2014, Mr. Robison was called to Sgt. Rick
Parnell’s office and shown a copy of the conduct report.
Declaration, Doc. 63-1, ¶18. Sgt. Parnell left this meeting to
meet with Mr. Coey and asked Mr. Robison to return to his office
in about an hour.
Id. at ¶22.
When Sgt. Parnell returned, he
allegedly told Mr. Robison, “personally, I don’t think you are
guilty of anything, but Woody wants you out of OPI, so I have to
find you guilty.”
Id. at ¶23.
Mr. Robison tried to explain his side of the story to Sgt.
Parnell, stating that he did not lie about the lock but that he
did lie about feeling threatened because he didn’t want any
Id. at ¶24.
Mr. Robison explained that he had staff
witnesses who could confirm his story and he asked Sgt. Parnell
to refer him to the Rules Infraction Board so that witnesses
could be called.
Id. at ¶¶25-26.
Sgt. Parnell refused this
request and told Mr. Robison “I am not sending this to R.I.B.,
your going to lose your job at OPI and this is where it ends
Id. at ¶¶27-28.
Sgt. Parnell returned from his meeting
with Mr. Coey with an Inmate Work Evaluation Form for the
Id. at ¶29.
This report was signed by Mr.
Coey and Sgt. Parnell and rated Mr. Robison at the lowest level poor - in all of his job
Sgt. Parnell’s hearing officer’s report dated November 4,
2014 states that the conduct report was accurately completed,
that Mr. Robison was informed of his right to be heard in his own
defense, and that his plea was not guilty.
statement to Sgt. Parnell is set forth as:
I didn’t lie about what happened with the lock. Mr.
Posey was attempting to fix a lock that he admitted to
me that he broke and told me not to tell anyone. I did
lie about feeling threatened because I didn’t want any
conflict. Mr. Blakeman gave me permission to use the
Typewriter and gave me a copy of my report.
Sgt. Parnell found that Mr. Robison was guilty of violating Rule
27 by lying, but that he was not guilty of violating Rule 49.
concluded that disposition by a hearing officer was appropriate
and then imposed the following disposition:
Reclass out of the
Sgt. Parnell issued his hearing report finding Mr. Robison
guilty of lying in violation of Rule 27 after reviewing the
information described above.
Declaration of Rick Parnell, Doc.
According to Sgt. Parnell, Mr. Robison could have
called staff witnesses but chose not to do so.
Id. at ¶5.
Coey did not, according to this declaration, direct Sgt. Parnell
to find Mr. Robison guilty and Sgt. Parnell has never found an
inmate guilty because he was told to do so.
Id. at ¶6.
told Sgt. Parnell to re-class Mr. Robison out of his job at OPI.
Id. at ¶7.
The decision to do so was Sgt. Parnell’s based on the
evidence presented, including Mr. Robison’s poor job evaluation
Based on Sgt. Parnell’s experience at CCI, broken
locks are commonly fixed or replaced by the locksmith so he did
not find Mr. Robison’s story about the lock credible.
Mr. Robison also has provided an unauthenticated copy of a
document captioned as an “Industrial Employment/IPRS Action
This document appears to be dated November 3, 2014,
possibly signed by Brett Cruse, and indicates that the selected
action is Mr. Robison’s termination from his OPI job.
Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.
It may be rendered only when appropriate
evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
The moving party bears the burden of demonstrating
that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
Adickes v. S.H. Kress & Co., 398 U.S. 144
Additionally, the Court must draw all reasonable
inferences from that evidence in favor of the nonmoving
United States v. Diebold, Inc., 369 U.S. 654 (1962).
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.
See Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).
Of course, since "a party seeking
summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
to respond to those issues clearly identified by the moving party
as being subject to the motion.
It is with these standards in
mind that the instant motion must be decided.
IV. The Motion for Summary Judgment
In their motion for summary judgment, defendants
characterize Mr. Robison’s complaint as alleging that Mr. Coey
violated Mr. Robison’s First Amendment right to be free from
retaliation by writing a false conduct report.
They argue that
Mr. Robison’s retaliation claims fails for two primary reasons.
First, they assert that Mr. Robison admittedly lied in violation
of inmate regulations and such a violation prohibits the
conclusion that he was engaged in protected activity.
they explain that, because the conduct report would have been
written based on that lie regardless of whether Mr. Robison was
telling the truth about the lock, Mr. Robison’s retaliation claim
They also note that Mr. Robison’s finding of guilt on his
conduct report bars his retaliation claim.
defendants contend that Mr. Robison has failed to identify any
retaliatory conduct engaged in by Mr. Posey.
Finally, they argue
that they are entitled to qualified immunity.
In his response, Mr. Robison frames the issue presented in
this case as “whether the Plaintiff ‘Fabricated a story.’”
Response (Doc. 63), p. 4.
According to Mr. Robison, the issue is
not “whether the Plaintiff said he did not feel threatened, when
he in fact did.”
As Mr. Robison explains:
Regardless of whether the Plaintiff lied about
feeling threatened by Defendant Posey, he DID NOT lie
or “Fabricate a story about a missing lock” In fact in
the Hearing Officers Report (See Plaintiff’s Exhibit E)
the Plaintiffs statement was, “I didn’t lie about what
happened with the lock. Mr. Posey was attempting to
fix a broken lock he admitted to me that he broke and
told me not to tell anyone. I did lie about feeling
threatened because I did not want any conflict.”
Defendants, in their Motion for Summary Judgement fail
to give any evidence whatsoever that Plaintiff
“Fabricated a story (about a missing lock) involving
(2) OPI employees (Mr. Blakeman and Defendant Cody
Posey) to intentionally cause conflict between the
employees.” This is what the Conduct Report accused
the Plaintiff of doing, not lying about whether he felt
threatened by Defendant Posey as the Defendants would
mislead this court to believe.”
In reply, defendants reiterate the arguments of their motion.
doing so, they contend that Mr. Robison’s attempts to “pars[e]
his lies” by focusing only on the issue of the lock is to no
Mr. Robison filed a sur-reply without seeking leave of
Defendants have not objected to this filing, however, so
the Court will consider it.
In his sur-reply, Mr. Robison
asserts that defendants have set forth contradictory positions in
their filings that should be prohibited on grounds of estoppel.
He points at some length to what he describes as credibility
issues and misrepresentations.
He reiterates that the conduct
report “proves that Plaintiff was not accused of lying about
being threatened by Defendant Posey but rather accuses the
Plaintiff of saying Defendant Posey broke into Mr. Blakeman’s
personal locker and was written as direct retaliation for the
Plaintiff doing so.
This is where the Constitutional violation
He accuses defendants of “egregious
misrepresentation” by “trying to persuade this court that the
protected conduct that the Plaintiff was engaged in was his
conversations with Defendant Woody Coey as the investigator.”
explains that: “The question then still remains, did the
Plaintiff give Mr. Blakeman truthful information regarding the
locker incident and did Defendants Coey and Posey retaliate
against him for doing so?”
In order to establish a retaliation claim, Mr. Robison must
prove that: (1) he was engaged in protected conduct; (2) an
adverse action was taken against him that would deter a person of
ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by his
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th
The Court agrees with the defendants that,
construing the facts in the light most favorable to Mr. Robison,
his retaliation claim cannot succeed.
The Court reaches this conclusion despite the significant
fervor with which Mr. Robison has pursued this litigation.
of this fervor has been devoted to detailing allegations of
theft and illicit financial schemes, inappropriate relationships
and threatened sadistic behavior, all allegedly running rampant
within the confines of CCI, including at the highest level.
of this detail, however, relates to
Mr. Robison’s claim that he
was retaliated against in violation of his First Amendment rights
as alleged in the complaint.
Putting aside all of this
peripheral information, Mr. Robison’s claim arises from only the
following simply stated and undisputed facts.
First, the parties agree that Mr. Robison made statements to
Mr. Blakeman in the course of Mr. Blakeman’s investigation of the
Mr. Blakeman prepared an incident report based on
Mr. Robison’s statements.
These statements related to two
distinct issues: (1) whether Mr. Robison was afraid of Mr. Posey
and (2) whether Mr. Posey broke Mr. Blakeman’s lock.
investigated the incident report.
As part of his investigation,
he interviewed Mr. Robison.
During that interview, Mr. Robison
conceded that he lied about being afraid of Mr. Posey.
Coey’s conduct report cites this contradiction. It also concludes
that Mr. Robison fabricated the story about the lock in an effort
to cause conflict between staff members.
The conduct report was then forwarded to Sgt. Parnell.
Based on the conduct report, Sgt. Parnell found Mr. Robison
guilty of lying.
Mr. Robison admitted to Sgt. Parnell that he
had lied to Mr. Coey about not feeling threatened by Mr. Posey.
Mr. Robison stood by his story about the lock.
report does not distinguish between the issue of Mr. Robison’s
fear of Mr. Posey and the issue of the broken lock.
Defendants assert that these undisputed facts demonstrate
that Mr. Robison rightfully was found guilty of lying.
explain that, because lying is a violation of the inmate rules of
conduct and these rules are valid prison regulations, this takes
Mr. Robison’s statements to Mr. Blakeman out of the realm of
Without proof that he was engaged in
protected activity, they argue that Mr. Robison’s retaliation
Further, they contend that Mr. Robison would have
been found guilty of lying based on the information in the
conduct report regardless of whether he had told the truth about
Mr. Robison contends that his claim does not fail for two
First, he explains that, while he admittedly lied, he
did so only to Mr. Coey in the course of Mr. Coey’s
investigation, and that is not the investigation that forms the
basis of the retaliation claim, it is the statements he made in
the course of Mr. Blakeman’s investigation, and those statements
were all true.
Further, Mr. Robison insists that he had no
choice but to lie to Mr. Coey.
That is, he explains that he had
to disavow his truthful statements about being afraid of Mr.
Posey, when confronted by Mr. Coey, in order to protect himself
from Mr. Coey and Mr. Posey.
Because, from his perspective the
statements regarding the lock are true, he could only have been
found guilty of lying in retaliation for having made them.
further, support of his position, Mr. Robison relies on Sgt.
Parnell’s statement in his affidavit that, based on his
experience at CCI, he found Mr. Robison’s statements about the
lock to lack credibility.
Mr. Robison suggests that this
statement indicates that Sgt. Parnell found him guilty of lying
solely on the basis of his statements about the lock.
While the Court previously explained that the Court of
Appeals has acknowledged that a prisoner has a right to cooperate
in an internal prison investigation, see Griffin v. Berghuis, 563
Fed.Appx. 411, 421 (6th Cir. 2014), it is well-settled that, “if
a prisoner violates a legitimate prison regulation, he is not
engaged in ‘protected conduct,’ and cannot proceed beyond step
Thaddeus-X, 175 F.3d at 395.
Mr. Robison was found guilty of having violated Rule 27 of
Ohio Administrative Code 5120-9-06, Inmate rules of conduct.
That regulation provides:
(A) The disciplinary violations defined by this
rule shall address acts that constitute an immediate
and direct threat to the security or orderly operation
of the institution, or to the safety of its staff,
visitors and inmates, (including the inmate who has
violated the rule,) as well as other violations of
institutional or departmental rules and regulations.
(27) Giving false information or lying to
Mr. Robison does not challenge the legitimacy of this prison
Further, Mr. Robison admits that he told Mr. Coey
that he had given Mr. Blakeman false information regarding his
fear of Mr. Posey.
Stated another way, Mr. Robison told Mr. Coey
that he had provided a statement to Mr. Blakeman in a way that
violated a legitimate prison regulation.
That Mr. Robison later
has continually contended that he was actually truthful with Mr.
Blakeman, but not Mr. Coey, does not change this fact.
There may well be a genuine disagreement here about whether
Mr. Coey wrote his conduct report in order to punish Mr. Robison
for “ratting out” Mr. Posey.
But that report, standing alone,
did not result in any adverse action.
The adverse action came
only after Sgt. Parnell concluded that, at some point in this
entire series of events, Mr. Robison lied to a staff member about
This fact is undisputed.
Lying is not protected
As defendants note, “[a] finding of guilt based upon
some evidence of a violation of prison rules, ‘essentially
checkmates [a] retaliation claim.’” Jackson v. Madery, 158 Fed.
Appx. 656, 662 (6th Cir. 2005), quoting Henderson v. Baird, 29
F.3d 464, 469 (8th Cir. 1994).
Here no genuine issue exists as
to the fact that Sgt. Parnell found Mr. Robison guilty of lying
based on “some evidence.”
Mr. Robison’s attempt to
compartmentalize his statements to Mr. Blakeman in an effort to
overcome this conclusion is unavailing.
For all of these reasons, the Court will recommend that the
defendants’ motion for summary judgment as to Mr. Robison’s
initial retaliation claim be granted.
Because the motion for
summary judgment does not address Mr. Robison’s additional
retaliation claim as set forth in the amended complaint, that
claim is not addressed by this Report and Recommendation and
Mr. Robison has filed three discovery motions including a
motion for supplemental discovery
(Docs. 64 and 71).
and two motions to compel
Mr. Robison’s first motion seeks transcripts
from depositions he believes defendants conducted.
responded to this motion stating that they have not conducted any
depositions in this case.
They explain that they spoke with Mr.
Blakeman and Mr. Wolfenbarger but did not depose them.
Defendants were well within their rights to do so.
Thomas v. 1156729 Ontario Inc., 979 F.Supp.2d 780, 786 (E.D.
Mich. 2013) (witness interviews are routine components of case
Based on defendants’ representation, the motion
for supplemental discovery will be denied.
In his first motion to compel, Mr. Robison seeks answers to
the second set of interrogatories directed to Mr. Posey.
Defendants responded contending that his responses were not due
until four days after discovery closed, that Mr. Robison failed
to attach certification demonstrating his extrajudicial efforts
to resolve the issue, and that Mr. Robison has not demonstrated
the relevance of these interrogatories.
Mr. Robison filed a
Mr. Robison has not attached to his motion a copy of his
second set of interrogatories.
As a result, the Court cannot
determine whether the interrogatories relate to the claim that is
the subject of this order or the claim raised in the amended
Consequently, the Court will deny this motion to
compel without prejudice.
See Peterson v. Kramer, 2015 WL
1954615, *3 (S.D. Ohio Apr. 29, 2015).
In his second motion to compel, Mr. Robison again seeks a
copy of the alleged NEXUS report.
Mr. Robison previously filed a
similar motion that was denied by the Court as premature.
According to the current motion, on April 4, 2016, Warden Jenkins
responded to Mr. Robison’s kite regarding the NEXUS report by
stating that “[t]he information you seek pertaining to the
‘nexus’ documentation is not public record and cannot be provided
at this time.
Upon a request from the courts the request will be
Based on this response, Mr. Robison
challenges defense counsel’s representations in response to his
document request that neither the defendants nor CCI have the
requested NEXUS report.
In response, defendants contend that a
diligent search was made for such a document and no such record
could be found.
They note that this search was done after Warden
Jenkins’ response to Mr. Robison’s kite.
Defendants stand by their consistent representations that no
such report exists and assert that they cannot be compelled to
produce non-existent documents.
The Court agrees.
Starbuzz Tobacco, Inc. v. Al-Amir, Inc., 2010 WL 4774077, *2
(E.D. Mich. Nov. 16, 2010)( “The Court cannot compel the
production of documents based solely on the opposing party’s
speculation and belief that responsive documents exist and that
the producing party is withholding them”).
second motion to compel will be denied.
Recommendation and Order
For the reasons stated above, it is recommended that the
motion for summary judgment (Doc. 61) be granted as to the
initial retaliation claim only.
Further, Mr. Robison’s discovery
motions (Docs. 62, 64, and 71) are denied.
If defendants wish to
address the remaining claim by way of a summary judgment motion,
they shall do so by March 1, 2017.
PROCEDURE ON OBJECTIONS TO THE REPORT AND RECOMMENDATION
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
MOTION FOR RECONSIDERATION OF ORDER
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge
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