Burse et al v. Jenkins et al

Filing 76

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS denying 67 Dispositive Motion, granting 70 MOTION for Summary Judgment, denying as moot 75 MOTION for Preliminary Injunction. Objections to R&R due by 9/27/2017. Signed by Magistrate Judge Kimberly A. Jolson on 9/13/2017. (ew)(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
PERRIN BURSE,
Plaintiff,
Civil Action 2:15-cv-2992
Judge Michael H. Watson
Magistrate Judge Jolson

v.

CHARLOTTE JENKINS, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on cross-motions for summary judgment. For the reasons
set forth below, the Court RECOMMENDS that Plaintiff’s Dispositive Motion be DENIED
(Doc. 67) and Defendants’ Motion for Summary Judgment be GRANTED (Doc. 70). The Court
further RECOMMENDS that Plaintiff’s Motion for a Preliminary Injunction be DENIED as
MOOT. (Doc. 75).
I.

BACKGROUND
Plaintiff Perrin Burse, who was an inmate at Chillicothe Correctional Institution (“CCI”)

at the time he filed this lawsuit, is no stranger to litigation. Indeed, this case concerns his
numerous other pending actions and is related to another matter he filed in this Court, which was
terminated on May 22, 2017. (See Burse v. Robinson, 2:14-cv-403). As one would imagine,
Plaintiff’s numerous lawsuits generate a lot of paperwork.
However, CCI, like many institutions, has rules about how much paperwork a prisoner is
permitted to maintain.

Specifically, Ohio Department of Rehabilitation and Correction

(“ODRC”) Policy 59-LEG-01 provides the following:

The parties’ conduct relative to this Policy is at the heart of this case.
Plaintiff’s claims begin with his temporary move from the A-1 housing unit to the E-2

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housing unit at CCI on February 13, 2015, because of asbestos removal. (Doc. 4 at ¶¶ 20–21).
According to Plaintiff’s allegations, he was authorized to take three boxes with him during the
temporary move, but Correctional Officer (“CO”) Smith and Sgt. Farrar disagreed. (Id. at ¶¶ 21–
22) (stating that CO Smith “ha[d] an issue” with the boxes). On Tuesday, February 17, 2015,
Sgt. Farrar allegedly stated that he was “going to make an example” of Plaintiff and told him to
reduce his legal materials to one box. (Id. at ¶ 22).
Although Plaintiff reduced his legal materials by mailing some documents out and
discarding others, two boxes remained. (Id.). After Sgt. Farrar spoke with Institutional Inspector
Corby Free (“Inspector Free”) concerning the situation, Sgt. Farrar instructed Plaintiff to put the
boxes under his bed and report to Inspector Free on Thursday. (Id.). Plaintiff’s boxes passed
inspection on Wednesday, February 18, 2015. (Id. at ¶ 23).
Plaintiff states that, on Thursday, February 19, 2015, he was unable to follow Sgt.
Farrar’s order to see Inspector Free, because Inspector Free did not come to work that day. (Id.
at ¶ 22). On the same day, Plaintiff learned that legal mail was being held for him in the mail
room. (Id. at ¶ 24). Plaintiff states that the legal mail was from the Ohio Innocence Project, and
it consisted of trial transcripts, attorney notes, and a DVD from an interview conducted by the
Springfield Township Police Department.

(Id.).

According to Plaintiff, only the written

materials were released to him because the DVD was required to be released to a Unit Manager.
(Id.).
Plaintiff explains that time was of the essence because “[t]he instructions were for [him]
to review the DVD, and write a Motion, to include the DVD, as newly discovered evidence for
his new trial hearing, scheduled by the First District Court of Appeals for March 17, 2015.”
(Id.). Plaintiff states that he looked for, but was unable to find, Unit Manager Clark (“UM

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Clark”). (Id.). Plaintiff informed the Case Manager for the D4 dormitory, Ms. Alford, who
attempted to convey the message to UM Clark. (Id.).
Plaintiff states that, on Friday, February 20, 2015, UM Clark yelled at him, telling him
that he had to reduce his legal materials down to one box by the end of the day. (Id. at ¶ 25).
Plaintiff attempted to explain to UM Clark that Sgt. Farrar, after speaking with Inspector Free,
directed him to place the two boxes under his bed. (Id.). Plaintiff claims to have had just fifteen
minutes to downsize his legal materials when UM Clark called him into his office. (Id.).
Plaintiff alleges that UM Clark told the E2 dormitory Case Manager, Ms. Bayless, that Plaintiff
“need[ed] to learn the hard way.” (Id.). UM Clark then directed Plaintiff to “pack up [his]
stuff,” because he was “going to the hole.” (Id.).
Plaintiff was placed in segregation, where he claims he was prohibited from viewing the
DVD or accessing the legal materials he needed to prepare for the March 17, 2015 hearing. (Id.).
Plaintiff further alleges that being placed in segregation also prohibited him from taking
necessary action to litigate various pending cases. (Id. at ¶ 26). According to Plaintiff, he was
“released from segregation, with no incident reporting a guilty finding” eleven days later, on
Tuesday, March 3, 2015. (Id.). Upon his release, Plaintiff states that UM Clark, along with Sgt.
Farrar, Sgt. Parnell, and CO Smith, forced him once again “to mail out his legal materials on his
pending legal actions….” (Id. at ¶ 27).
Plaintiff claims that he was allowed to view the DVD for the first time on Friday, March
6, 2015, fifteen days after CCI received it. (Id. at ¶ 28). Plaintiff delivered the DVD for mailing
by the institution to the Hamilton County Court of Common Pleas on Monday, March 9, 2015.
(Id. at ¶ 29). On Wednesday, March 11, 2015, Plaintiff mailed a request for an extension of his
new trial hearing scheduled for Tuesday, March 17, 2015. (Id. at ¶ 30). Plaintiff received a

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denial of his Motion for an Extension of Time on March 16, 2015. (Id. at ¶ 31).
The Hamilton County Court of Common Pleas received the DVD on Tuesday, March 17,
2015. (Id. at ¶ 32). Plaintiff states that, on Wednesday, March 25, 2015, he “started receiving
the contents that were within the box of mail that [he] was forced to mail out.” (Id. at ¶ 33).
Plaintiff states, however, that some of his legal documents “were lost, and never to be returned.”
(Id. at ¶ 34). Plaintiff explains that he needed his legal documents to litigate his pending cases,
and Defendants’ conduct resulted in rulings adverse to him. (Id.). Plaintiff states that, most
notably, Defendants’ conduct deprived him of the opportunity to present the DVD to the
Hamilton County Court of Common Pleas, and the interview with the Springfield Township
Police Department on that recording would have exonerated him on the underlying theft
convictions. (Id.).
There are cross-motions for summary judgment pending. (See Docs. 67, 70). Plaintiff
also filed a Motion for a Preliminary Injunction. (Doc. 75). According to the ORDC website,
Plaintiff was released from CCI on August 28, 2017. See Ohio Department of Rehabilitation and
Correction Offender Search, available at https://appgateway.drc.ohio.gov/OffenderSearch (last
visited September 13, 2017).
II.

STANDARD OF REVIEW
Summary judgment is appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 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 that demonstrate “the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the nonmoving party to “set forth specific facts showing that there is a

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genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see id. at
255 (“The evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor.”) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A
genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (explaining that “genuine” amounts to more than “some metaphysical
doubt as to the material facts”). Consequently, the central issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
III.

DISCUSSION
Plaintiff filed a Dispositive Motion consisting of a recitation of facts, allegations

concerning discovery, and numerous exhibits, on April 25, 2017. (See generally Doc. 67).
Defendants filed their more traditional Motion for Summary Judgment on May 4, 2017. (Doc.
70). Both Motions are ripe for resolution. (See Doc. 71 (opposition to Plaintiff’s motion), Doc.
72 (opposition to Defendants’ motion), Doc. 73 (Defendants’ reply)).
A.

Exhaustion of Administrative Remedies

Defendants contend that they are entitled to summary judgment because Plaintiff failed to
exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Section 1997e of the
Prison Litigation Reform Act (“PLRA”) states that “no action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Under Ohio Administrative Code § 5120-931, inmates “must follow a three-step grievance procedure.” Troche v. Crabtree, 814 F.3d 795,

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799 (6th Cir. 2016); see also Willis v. Mohr, No. 1:11-cv-808, 2013 WL 5773932, at *3 (S.D.
Ohio Oct. 24, 2013).
The record in this case demonstrates that Plaintiff followed just the first step in the
grievance procedure by filing an informal complaint alleging that he was improperly forced to
reduce his legal materials and placed in segregation, which impaired his ability to litigate his
pending cases. 1 (Doc. 4-2, PAGEID #: 309–310). However, Plaintiff did so on August 5, 2015,
some six months after the events giving rise to his complaint. (See id.; see also id., PAGEID #:
315 (disposition of grievance)).

Ohio Administrative Code § 5120-9-31(K)(1) requires the

informal complaint to be filed within “fourteen calendar days of the event giving rise to the
complaint….” Id. Thus, Plaintiff’s informal complaint was untimely. For this reason and
because there is no evidence to suggest that Plaintiff made any effort to follow the remaining two
steps in the grievance procedure, Plaintiff failed to timely exhaust his administrative remedies.
(Doc. 70-7, PAGEID #: 732–33 at ¶¶ 17–18) (declaration of Inspector Free).
Moreover, even if the Court were to consider the merits of Plaintiff’s claims, Defendants
demonstrate they are entitled to summary judgment.
B.

Merits
1. Denial of Access to the Courts

Federal courts generally refrain from intervening in the day-to-day operation of state
prisons, even when an inmate’s constitutional rights are implicated. Carter v. Wilkinson, No.
2:05-cv-380, 2007 WL 2874722, at *1 (S.D. Ohio Sept. 27, 2007), adopted by Carter v.
Wilkinson, No. 2:05-cv-380, 2008 WL 5142998, at *1 (S.D. Ohio Dec. 5, 2008).

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However,

Plaintiff also provides this Court with a second informal complaint he filed on January 27, 2014,
concerning “holding legal mail.” (Doc. 4-2, PAGEID #: 279). This informal complaint was the subject of
Plaintiff’s prior lawsuit in this Court, Burse v. Robinson, 2:14-cv-403, and because it does not pertain to the facts of
this case, the Court need not address it here.

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federal courts will intervene if the challenged prison regulation is not reasonably related to
legitimate penological goals. Id. (citing Turner v. Safler, 482 U.S. 87 (1987)). Relevant here,
regulations that limit the amount of property a prisoner may have are found constitutional unless
their effect is to “deprive an inmate completely of the right to access the courts.” Id. (citing
Green v. Johnson, 977 F.2d 1383, 1389 (10th Cir. 1992); Savko v. Rollins, 749 F. Supp. 1403 (D.
Md. 1996)); see also Doc. 70-6, PAGEID #: 728 at ¶ 10 (declaration of Unit Manager Shane
Clark explaining that the storage limitation exists to avoid “over-crowding and security risks”).
In this case, Plaintiff has not alleged a complete denial of his access to the courts based on
Defendants’ enforcement of its policy, which resulted in Plaintiff discarding or mailing some of
his legal materials. See id. That alone is a fatal flaw of Plaintiff’s claim.
Moreover, even when considering Plaintiff’s time in isolation and the delay in viewing
the DVD, Plaintiff’s claim is still without merit. In order to state a claim for denial of access to
the courts, Plaintiff must show that he suffered an “actual injury.” Lewis v. Casey, 518 U.S. 343,
349 (1996). More specifically, “a prisoner must demonstrate actual prejudice to pending or
contemplated litigation,” that pertains to the inmate’s conviction, sentence, or the conditions of
confinement. See id. at 355; see also Gyekye v. Gilliam, No. 2:11-cv-353, 2012 WL 1900927, at
*8 (S.D. Ohio May 24, 2012) (stating that “the injury requirement is not satisfied by just any
type of legal claim” and is limited to situations where the action prevented the pursuit or caused
the rejection “of a specific non-frivolous criminal defense, direct appeal, habeas corpus
application, or civil rights action”), adopted by Gyekye v. Gilliam, No. 2:11-cv-353, 2012 WL
5378826, at *1 (S.D. Ohio Oct. 30, 2012).
Plaintiff generally alleges injury in the following cases: Burse v. Vaughn, C1400139;
Burse v. Lambert, C1400161; Burse v. Haas, C1400543; Burse v. Bennett, A1307236; Burse v.

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Garrison, A1307236; Burse v. Robinson, 2:14-cv-403; and State of Ohio v. Burse, C1400356
(Doc. 4 at ¶ 26). Several of these cases do not constitute a challenge to his conviction, sentence,
or the conditions of his confinement. See, e.g., Burse v. Vaughn, C1400139 (breach of contract);
Burse v. Lambert, C1400161 (breach of contract); Burse v. Haas, C1400543 (malpractice); and
Burse v. Bennett, A1307236 (malpractice); Burse v. Garrison, A1307236 (malpractice).
Burse v. Robinson, 2:14-cv-403 is instructive here because in that case, like in this one,
Plaintiff alleged problems litigating various state proceedings while incarcerated at CCI. (See
Robinson, 2:14-cv-403, Doc. 94) (Watson, J.). Although the relevant events occurred in 2013
and 2014, Plaintiff relied on his placement in segregation in February 2015 to demonstrate a fear
of retaliation which rendered him unable to exhaust the grievance procedure. (Id. at 14–15).
The Court held that even if it were to accept as true that Plaintiff’s placement in segregation in
February 2015 was retaliatory, he failed to demonstrate that it was related to the exercise of his
constitutional right. (Id.) (adding that “the Court fail[ed] to see how a later incident” could have
caused Plaintiff’s failure to grieve earlier conduct). Ultimately, the Court entered summary
judgment in favor of Defendants and against Plaintiff, and the matter was terminated for reasons
unrelated to his alleged ability to litigate during the relevant time. (Id. at 20). Thus, Plaintiff
demonstrates no actual injury in Burse v. Robinson, 2:14-cv-403 to support his denial of access
to courts claim. (Id.).
Finally, Plaintiff focuses primarily on State of Ohio v. Burse, C1400356, arguing
Defendants’ actions impaired his ability to prepare for a new trial hearing scheduled for March
17, 2015 in that case. (Doc. 4 at ¶ 25). Although Plaintiff produced a letter indicating that such
a hearing was scheduled to take place as of January 9, 2015 (see Doc. 4-2, PAGEID #: 263), on
February 12, 2015, the Ohio Court of Appeals issued an entry overruling his pro se motion to

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convey him for oral argument (Doc. 73-1, PAGEID #: 779). The February 12, 2015 decision
stated:
This cause came on to be considered upon the pro se motion of the appellant to
convey him to Court for oral argument on March 17, 2015. The Court finds that
the motion is not well taken and is overruled. The Court further orders that the
case be submitted on the briefs in accordance with Local Rule 21.1.
(Id.). Plaintiff filed his brief on October 9, 2014. (See Doc. 73 at 5).
On March 11, 2015, Plaintiff filed a “motion to extend time due to [CCI] unjustly
committing [him] to isolation for 12 days in an attempt to deny [him] access to the courts.”
(Doc. 4-2, PAGEID #: 272). In the motion, Plaintiff requested time to file a supplemental brief
and claimed an extension was necessary because he “was delayed in receiving and viewing the
newly discovered DVD of the initial interview with Detective Cantron of the Springfield
Township Police Dept.” (Id.). Plaintiff argued that the delay was caused by his “unjust and
manipulated insolation.” (Id.). He likewise stated that he “was in the process of obtaining legal
counsel for the appearance of the March 17, 2015 hearing, when he was placed in isolation.”
(Id.).
The Ohio Court of Appeals denied Plaintiff’s motion, observing that it had “not granted
[him] leave to file a supplemental brief.” (Id., PAGEID #: 273). The Ohio Court of Appeals
also stated that the matter was “scheduled for submission to the Court on March 17, 2015.” (Id.).
Based on the foregoing, Plaintiff is unable to demonstrate actual injury in this case.
Although there is no doubt that a prisoner has a constitutional right of access to the
courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), Plaintiff fails to set forth evidence to support
his claim that his right was violated here. In particular, Plaintiff fails to demonstrate that being
deprived of his legal materials or placed in segregation caused him to suffer actual prejudice in
any of his cases. Consequently, Plaintiff’s denial of access to the courts claim fails.

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2. First Amendment Retaliation
In order to establish a claim for First Amendment retaliation, a plaintiff must demonstrate
that (1) he was engaged in protected conduct; (2) the defendant took the adverse action 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 the [prisoner’s] protected conduct.”
Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010), quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999). A prisoner engaged in protected conduct may still be disciplined if the discipline
is reasonably related to legitimate penological objectives. Griffin v. Berghuis, 563 F. App’x 411,
416 (6th Cir. April 21, 2014); see also Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001)
(“A prisoner retains First Amendment rights that are not inconsistent with the status of a prisoner
or with the legitimate penological objectives of the corrections system.”).
Here, Plaintiff fails to demonstrate that Defendants were motivated in part to place him in
segregation because he exercised his constitutional right to access the courts. Rather, the record
reflects that Plaintiff was given a conduct report for violating ODRC Policy 59-LEG-01, which
was reasonably related to legitimate penological objectives of avoiding overcrowding and
reducing security risks. (Doc. 4-2, PAGEID #: 265 (conduct report); Doc. 70-6, PAGEID #:
728, at ¶ 10 (declaration of UM Clark); see also Doc. 70-1, PAGEID #: 720 (noting Plaintiff’s
apparent confusion over permission to hold the legal locker boxes for a certain period of time);
Doc. 4-2, PAGEID #: 315 (disposition of grievance finding proper enforcement of ODRC Policy
59-LEG-01)).
Further, a memo dated March 5, 2015 explained to Plaintiff:
You were placed in segregation for refusing a direct order to reduce your legal
materials. Mr. Clark was not aware of the DVD. Unit staff has been instructed to
retrieve the DVD from the mailroom and set up a time when you can review the
material.

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(Doc. 70-1, PAGEID #: 720). Thus, the evidence reflects that UM Clark, the individual who
placed Plaintiff in segregation, had no knowledge of the DVD or its desired use. (See id.).
It is worth noting that Plaintiff also made, and the Court rejected, the alternate argument
in State of Ohio v. Burse, C1400356, that the same placement in segregation was in retaliation
for his use of the grievance procedure. (See Doc. 94 at 15 in State of Ohio v. Burse, C1400356).
Putting aside Plaintiff’s speculation as to what motivated his placement in segregation, evidence
supports Defendants’ position that he was placed there for his failure to adhere to a policy that is
reasonably related to legitimate penological objectives. (See Doc. 70-7, PAGEID #: 730–32)
(declaration of Inspector Free). Because Plaintiff fails to provide any evidence in support of his
theory that the adverse action was motivated at least in part by his protected conduct, his First
Amendment retaliation claim fails.
C.

Personal Involvement and Qualified Immunity

Having recommended that Plaintiff failed to exhaust his administrative remedies and that
his claims fail on the merits, the Court need not address Defendants’ remaining arguments
concerning lack of personal involvement and qualified immunity.
D.

Injunctive Relief

Finally, Plaintiff moved for a preliminary injunction “to maintain the status quo” and to
prevent Defendants from inhibiting him from “effectively participating in court proceedings….”
(Doc. 75). The ODRC website reveals that Plaintiff has been released from custody at CCI.
Consequently, the Motion for a Preliminary Injunction should be denied as moot.
IV.

CONCLUSION
Based upon the foregoing, the Court RECOMMENDS that Plaintiff’s Dispositive

Motion be DENIED (Doc. 67) and Defendants’ Motion for Summary Judgment be GRANTED

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(Doc. 70).

The Court further RECOMMENDS that Plaintiff’s Motion for a Preliminary

Injunction be DENIED as MOOT. (Doc. 75).
V.

PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

(14) 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).

A judge 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. Upon proper 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). 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, 152–53 (1985).
IT IS SO ORDERED.

Date: September 13, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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