Burse et al v. Jenkins et al
REPORT AND RECOMMENDATIONS re 15 MOTION for Preliminary Injunction filed by Perrin Burse. It is RECOMMENDED that the Motion for Preliminary Injunction be denied. Objections to R&R due by 5/23/2016. Signed by Magistrate Judge Norah McCann King on 5/5/2016. (pes)(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
PERRIN BURSE, et al.,
Civil Action 2:15-cv-2992
Magistrate Judge King
CHARLOTTE JENKINS, et al.,
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner proceeding without the assistance of
counsel,1 brings this civil action under 42 U.S.C. § 1983 asserting
claims arising out of alleged interference with legal proceedings
pursued by him.
See Order and Report and Recommendation, ECF No. 14;
Order, ECF No. 19.
This matter is now before the Court on plaintiff’s
motion for interim injunctive relief, Motion for Preliminary
Injunction, ECF No. 15 (“Motion for Preliminary Injunction”);
Defendants’ Memorandum in Opposition to Plaintiff’s Motion for
Preliminary Injunction, ECF No. 30 (“Defendants’ Opposition”); and
plaintiff’s reply memorandum (“Plaintiff’s Reply”).
Plaintiff, currently incarcerated at the Chillicothe Correctional
Institution (“CCI”), alleges that, in February 2015, certain CCI
defendants restricted him to only one box of legal materials in his
cell, forcing him to either discard his remaining legal materials or
This case is related to a case pursued by plaintiff with the assistance of
counsel and also pending in this Court: Burse v. Robinson, 2:14-cv-403.
store those materials elsewhere.
Complaint, ECF No. 4, PageID# 101,
106-08 (citing Exhibits 2, 3, attached thereto).2
alleges that, in February and March 2015, certain CCI mail room
employees delayed the processing and lost some of plaintiff’s legal
mail, including a DVD, thereby impairing his ability to successfully
litigate certain legal actions.
Id. at PageID# 107-10 (citing
Exhibits 4, 5, 6, 7, 7A, 8, 8A, 8B, attached thereto).
plaintiff, defendants retaliated against him and/or interfered with
his civil rights because plaintiff had sued other CCI staff members.
Id. at PageID# 110-11.
On January 16, 2016, plaintiff filed the Motion for Preliminary
Injunction, which is now fully briefed and ripe for resolution.3
Interim injunctive relief is an extraordinary remedy that should
be granted only after the Court has carefully considered the following
(1) whether the movant has a “strong” likelihood of success
on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether issuance of a
preliminary injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th
The Complaint is verified. See Affidavit of Verity, ECF 4-1, PageID# 255.
Although plaintiff refers to attached exhibits by numbers and letters, most
of these handwritten identifiers on the exhibits are outside the printable
margins, making it difficult or impossible to read.
Upon further review of the docket, which revealed documents in support of
plaintiff’s request for a preliminary injunction that were not attached to
the Complaint, the earlier Report and Recommendation, ECF No. 20, was
withdrawn. Order, ECF 23.
Cir. 1997) (en banc), quoting Sandison v. Michigan High Sch. Athletic
Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)).
When considering these
factors, the district court should balance each factor against the
others to arrive at its ultimate determination. Id.
These factors are
not prerequisites to injunctive relief; rather, they are factors that
the Court must balance.
In re Delorean Motor Co., 755 F.2d at 1229;
Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001)
(no single factor is determinative.); Monongahela Power Co. v.
Schriber, 322 F. Supp.2d 902, 918 (S.D. Ohio 2004) (same).
preliminary injunction should not issue where there is simply no
likelihood of success on the merits.
Michigan State AFL-CIO v.
Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
The Motion for Preliminary Injunction asks that “all Chillicothe
Correctional Institutional staff members
. . . Cease and Desist
from any further Denial of Access to Courts, Retaliation, Harassment,
or Interference of Civil Rights.”4
Motion for Preliminary Injunction,
Defendants contend that plaintiff is unlikely to succeed
on the merits of his claims and that his request for interim
injunctive relief should therefore be denied. See generally
Access to the Courts
The First Amendment to the United States Constitution guarantees
to inmates a right of access to the courts.
Lewis v. Casey, 518 U.S.
The request for an order precluding defendants from interfering with
plaintiff’s civil rights apparently refers to his right of access to the
courts, see, e.g., Complaint, PageID# 111, ¶ 37, which is addressed infra.
343, 346 (1996); Bounds v. Smith, 430 U.S. 817 (1977); Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
Constitution assures “adequate, effective, and meaningful” access,
Bounds, 430 U.S. at 822, the right is nevertheless not unlimited.
Rather, the right secured by the Constitution relates only to
challenges to the inmate’s conviction or sentence or to challenges to
the conditions of confinement.
Lewis, 518 U.S. at 355.
Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (“Thus, a
prisoner’s right to access the courts extends to direct appeals,
habeas corpus applications, and civil rights claims only.”).
Moreover, an inmate plaintiff pursuing a claim of denial of the right
of access to the courts must demonstrate an “actual injury.”
518 U.S. at 349.
“Examples of actual prejudice to pending or
contemplated litigation include having a case dismissed, being unable
to file a complaint, and missing a court-imposed deadline.”
Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005) (citing Jackson v.
Gill, No. 03–5045, 92 F. App’x 171, at * 173 (6th Cir. 2004)).
Finally, restrictions on the time, place and manner in which inmates
may engage in legal research and draft legal documents are permissible
so long as the restrictions do not unreasonably impede the right of
access to the courts.
Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.
In the case presently before the Court, plaintiff contends that
he had instituted two lawsuits, Burse v. Vaughn, Case No. C 1400139,
and Burse v. Lambert, Case No. C 1400161, that relate to “the
information that the institution refuse[d] to allow the plaintiff to
maintain in storage, which was a violation of 61 PRP 01, VIG(c).”
Plaintiff’s Reply, p. 2 (citing exhibits attached thereto and
Complaint, ¶ 19).
One of the attached exhibits, a letter from the
Ohio Supreme Court dated August 31, 2015, reflects a rejection of
plaintiff’s appeals in these cases as, inter alia, untimely.
31-1, PageID# 341.
Plaintiff apparently takes the position that he
missed the filing deadlines in these cases because defendant Shane
Clark placed plaintiff in segregation from February 19, 2015 until
March 3, 2015, when plaintiff failed to or refused to comply with
defendant Clark’s order to reduce his legal materials sufficiently to
be stored in one box.
Complaint, PageID# 108; Affidavit, attached
thereto at PageID# 264, ¶¶ 4-10.
Plaintiff does not explain how his
placement in segregation nearly six months prior to August 31, 2015,
when his appeals were dismissed, caused him to miss filing deadlines.5
To the extent that plaintiff may argue that his inability to maintain
more than one box of legal materials in his cell caused him to miss
later filing deadlines, plaintiff fails to either specify the critical
documents or explain why the restriction on the amount of legal
materials caused him to miss those filing deadlines.
Plaintiff also refers to another lawsuit, State of Ohio v. Burse,
Case No. C 1400356, which addressed “the held DVD and legal material
by CCI staff” as well as additional constitutional violations.
Plaintiff’s Reply, p. 2 (citing Complaint and Judicial Notice, PageID#
343, attached thereto,6 which is filed on the docket as ECF No. 24).
The actual filing deadlines are not immediately apparent from the record.
Plaintiff’s Judicial Notice appears to relate to a delay in a filing in this
case and is addressed infra.
Plaintiff’s exhibits indicate that his appeal in this case was not
timely filed and that, on November 10, 2015, the Ohio Supreme Court
denied his motion for a delayed appeal and dismissed the case.
PageID# 341 (letter from the Ohio Supreme Court dated August 31, 2015,
advising that this case had not filed with that court, but that
plaintiff may resubmit the documents if State v. Burse involves a
felony), 342 (copy of court order, dated November 10, 2015, with the
State v. Burse caption).
Although it is not entirely clear, plaintiff
appears to contend that the fact that he received “the DVD” “some (8)
days after it was delivered to the CCI Mail Room”
caused him to miss
the appeal deadline in this case. Complaint, PageID# 110.
defendants point out, Defendants’ Opposition, p. 4, plaintiff has not
established that this delay, even if it occurred, is extraordinary nor
has he explained how such a delay impaired plaintiff’s ability to
timely file an appeal in State v. Burse.
Finally, plaintiff’s reference, without discussion, to a Judicial
Notice with an attached Declaration, ECF No. 31-1, PageID# 343-44,
suggests that plaintiff also contends that defendants interfered with
his right of access to the courts in the case presently before the
More specifically, plaintiff avers that, on February 27, 2016,
he submitted an objection to the Report and Recommendation, ECF No.
20, “to be E filed, and mailed” to this Court, but that the objection
was instead given to another inmate and not mailed out until
approximately March 9, 2016.
Declaration, PageID# 344, ¶¶ 3-7.
Court’s docket, however, reflects that plaintiff’s objection was
actually filed on February 27, 2016. See Objection, ECF No. 22.
Moreover, based on that objection, the Court withdrew that
recommendation and provided the parties the opportunity to fully brief
the Motion for Preliminary Injunction. Order, ECF No. 23.
Based on this record, plaintiff has failed to
establish prejudice to him in this litigation resulting from an
alleged delay in filing the Objection.
For all these reasons, this Court concludes that plaintiff has
not established a likelihood of success on the merits of his access to
the courts claims.
Plaintiff also seeks to enjoin retaliation by defendants. Motion
for Preliminary Injunction, p. 1.
There are three elements to a First
Amendment retaliation claim:
(1) the plaintiff engaged in protected conduct; (2) an
adverse action was taken against the plaintiff 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 the plaintiff's protected
Rapp v. Putman, No. 15-1995, 2016 WL 1211850, at *3 (6th Cir. Mar. 29,
2016) (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc)) (internal quotation marks omitted).
In the case presently before the Court, the Complaint alleges
that “UM Clark and the other defendants, purposely, and by unlawful
threat of harm to inmate Burse, retaliated against plaintiff, who was
currently in litigation with several legal proceedings, one of which
was against the fellow staff members at CCI[.]”
111, ¶ 38.
Neither the Motion for Preliminary Injunction nor
Plaintiff’s Reply expands on this statement or otherwise alleges facts
that would support a retaliation claim.
This vague and conclusory
statement of a generalized threat wholly fails to allege a
See, e.g., Thaddeus-X, 175 F.3d at 398
(“[C]ertain threats...are so de minimis that they do not rise to the
level of being constitutional violations . . . .”).
See also Harbin-
Bey, 420 F.3d at 580 (“But conclusory allegations of retaliatory
motive ‘unsupported by material facts will not be sufficient to state
... a claim under § 1983.’”) (quoting Gutierrez v. Lynch, 826 F.2d
1534, 1538–39 (6th Cir. 1987)).
Accordingly, the Court concludes that
plaintiff has failed to establish a likelihood of success on the
merits of his retaliation claim.
In short, interim injunctive relief on this record is therefore
It is RECOMMENDED that the Motion for Preliminary Injunction, ECF
No. 15, be denied.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections
must be filed within fourteen (14) days after being served with a copy
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.
See, e.g., Pfahler v.
Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).
Even when timely
objections are filed, appellate review of issues not raised in those
objections is waived.
Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.
2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
May 5, 2016
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