Young v. Hunt

Filing 53

REPORT AND RECOMMENDATIONS AND ORDER - The Court recommends that 17 MOTION for Judgment on the Pleadings be denied. Objections to R&R due by 4/10/2017. The following motions are denied as moot: motion for extension of time (Doc. 16 ); motion to compel (Doc. 18 ); motion for extension of time to file dispositive motion (Doc. 23 ); motion for leave to file a delayed reply (Doc. 31 ); motion for a protective order (Doc. 36 ); motion to stay (Doc. 43 ); and the motion to strike (Doc. 47 ). Further, the following motions are denied: the motion for the United States Marshal to serve a subpoena (Doc. 27 ); the motion to seek further discovery (Doc. 33 ); the motion to strike (Doc. 40 ); and the motion for sanctions (Doc. 48 ). The crossmotions for summary judgment (Docs. 25 and 39 ) remain pending. Responses to these motions shall be filed within 21 days. Replies shall be filed within 14 days thereafter. Signed by Magistrate Judge Terence P. Kemp on 3/27/2017. (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
EASTERN DIVISION
Charles Horn,

:

Plaintiff,
v.

:
:

Case No. 2:15-cv-220

:

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

Chad Hunt,
:
Defendant.
:
Aaron E. Young,

:

Plaintiff,

:
Case No. 2:15-cv-3019

v.

:

Chad Hunt,

:
Defendant.

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION AND ORDER
These consolidated cases are prisoner civil rights cases
arising out of an alleged incident at the Correctional Reception
Center in October, 2014.

By order dated February 28, 2017, Case

No. 2:15-cv-220 was dismissed for failure to prosecute.

See Doc.

53 in Case No. 2:15-cv-220 and Doc. 44 in Case No. 2:15-cv-3019.
Currently before the Court are several pending motions relating
to Case No. 2:15-cv-3019.

These motions include defendant Chad

Hunt’s motion for extension of time to complete discovery (Doc.
16); motion for judgment on the pleadings (Doc. 17); motion for
summary judgment (Doc. 25); motion for a protective order (Doc.
36); motion to strike (Doc. 40); and motion to stay (Doc. 43).
Also before the Court are Plaintiff Aaron Young’s motion to
compel discovery (Doc. 18); motion for an extension of time (Doc.
23); motion for service of a subpoena by the United States

Marshal (Doc. 27); motion for an extension of time to respond to
the motion for judgment on the pleadings (Doc. 31); motion for
further discovery (Doc. 33); cross-motion for summary judgment
(Doc. 39); motion to strike (Doc. 47); and motion for sanctions
(Doc. 48).

For the following reasons, the Court will recommend

that Mr. Hunt’s motion for judgment on the pleadings be denied.
The Court resolves the remaining motions as follows.
I.

Facts

Mr. Young’s amended complaint, filed on March 2, 2016,
alleges the following facts, restated here verbatim:
5. At all times herein, Young and Charles Horn
(Horn) worked in the psychiatric hospital at CRC.
6. On 10-01-14, Hunt was in the hospital unit
checking the food temperatures.
7. Young and Horn asked Hunt to put on gloves
while checking the food temperature. Hunt tell Young
and Horn that he does not have to wear gloves.
8. Young recites the policy to Hunt that mandates
him to wear gloves.
9. Hunt began to scream that he did not have to
adhere to ODRC Policies.
10. Young and Horn inform Hunt that they were
going to launch a complaint against him for failing to
adhere to policy.
11. Later that day, and days following, numerous
inmates approach Young and inform him that Hunt was in
the dining hall telling them and other inmates and
Aramark staff members that he and Horn were snitches
because they were going to launch complaints.
12. Young’s religion prohibits him from eating
meat that in not halal. On 3-11-15, chopped-up meat
was placed in the beans that was being served in the
prison dining hall. Young was going through the dining
hall line when he asked an inmate not to put beans on
his food tray.

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13. Hunt tells Young that he was going to get
everything on his food tray. When Young tells him that
his religious diet prohibit it, Hunt states to Young,
“I don’t care, snitch. Go tell about that.”
14. Thereafter, again, an inmate approaches Young
and tell him that Hunt him (the inmate) that he was a
snitch.
Further, his prayer for relief states:
17. By labeling Young a snitch after he informed
Hunt that he was going to launch a complaint against
him, Hunt violates Young’s First Amendment right
secured by the United States Constitution.
II.

The Dispositive Motions

As indicated, there are three dispositive motions currently
pending - Mr. Hunt’s motion for judgment on the pleadings and
motion for summary judgment and Mr. Young’s cross-motion for
summary judgment.

Only one of these motions, the motion for

judgment on the pleadings, has been fully briefed.

Because the

resolution of this motion could preclude the need to address the
various issues surrounding the motions for summary judgment, the
Court will address it first.
A.

Motion for Judgment on the Pleadings

Mr. Hunt raises the following arguments in support of his
motion.

First, he asserts that the right to be free from

retaliation for threatening to file a grievance was not clearly
established in October, 2014.

Stated another way, he contends

that it was not clearly established at the time of the incident
that forms the basis of Mr. Young’s complaint that a prisoner’s
threat to file a grievance was protected conduct.

Further, he

explains that an isolated incident, five months after Mr. Young
filed a grievance, where Mr. Hunt called him a snitch lacks the
temporal proximity necessary to demonstrate retaliation.
these reasons, he contends, Mr. Young’s First Amendment
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For

retaliation claims cannot succeed.
Additionally, Mr. Hunt argues that Mr. Young has not stated
a First Amendment free exercise claim arising from one incident
where he received a daily food offering conflicting with his
religion.

Finally, he contends that, to the extent Mr. Young may

be attempting to assert an Eighth Amendment claim, his
allegations do not include physical harm.

In his reply, Mr. Hunt

argues for the first time that threatening to file a grievance
against a prison official for breaking a prison policy that has
no adverse impact on the prisoner is patently frivolous under
Thaddeus-X v. Love, 215 F.3d 1327 (6th Cir. 2000).
Mr. Young’s response can be summarized in this way.

First,

Mr. Young asserts that it was clearly established in October,
2014, that a prisoner’s threat to file a grievance was protected
conduct for purposes of a First Amendment retaliation claim.
Further, he contends that he has direct evidence that there is a
connection between his filing of a grievance in October, 2014 and
Mr. Hunt’s calling him a snitch on March 11, 2015, which would be
better left to summary judgment.

Finally, Mr. Young explains

that he has not asserted a First Amendment free exercise claim or
an Eighth Amendment claim.
Mr. Young also filed a sur-reply directed to the new
argument raised in Mr. Hunt’s reply.

He contends that Thaddeus-X

v. Love is distinguishable here because Mr. Hunt was a member of
the food service staff and his failure to wear gloves could
result in inmate harm.
1.

Legal Standard

A motion for judgment on the pleadings filed under
Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and
is evaluated under the same standard as a motion to dismiss.
Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.
1979).

In ruling upon such motion, the Court must accept as true
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all well-pleaded material allegations of the pleadings of the
opposing party, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.

Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479
F.2d 478, 480 (6th Cir. 1973).

The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)
motion as to a motion filed under Rule 12(b)(6); that is, the
Court must separate factual allegations from legal conclusions,
and may consider as true only those factual allegations which
meet a threshold test for plausibility.

See, e.g., Tucker v.

Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,
inter alia, Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007).
It is with these standards in mind that the instant motion must
be decided.
2.

Analysis

The Court begins its analysis with a discussion of the
precise nature of Mr. Young’s claim as alleged in the amended
complaint.

In the Opinion and Order consolidating these cases,

the Court described Mr. Young’s claim in this way:
... the complaints in both actions assert a First
Amendment retaliation claim stemming from an alleged
incident on October 1, 2014 at the Correctional
Reception Center in Orient, Ohio. ... According [to]
Young’s complaint, Young and Horn engaged in a verbal
dispute with Hunt after they asked him to put on gloves
while he was checking food temperatures and he told
them that he was not required to do so.
... Likewise, Young’s complaint further alleges
that Young and Horn informed Hunt of their intention to
file a grievance against him. The complaint further
alleges that Hunt told inmates and staff members that
Young and Horn were snitches.
... Both actions arise from the same series of
alleged events - plaintiffs’ request that Hunt wear
gloves, Hunt’s refusal, plaintiffs’ statement to Hunt
that they would file a grievance, and Hunt’s labeling
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of plaintiffs as snitches to inmates and staff members.
...
... The court notes that each complaint contains
an additional factual allegation that is particular to
each plaintiff. Horn alleges that soon after the
October 1, 2014 incident, he was in a fight with an
inmate who warned Horn that there would be “more
problems coming his way” if “he continued to snitch” on
Hunt. Young alleges that on March 11, 2015, after he
objected to a certain food item being put on his tray,
Hunt responded, “I don’t care, snitch.” ...
See Opinion and Order, Doc. 13.
As the Court’s previous discussion indicates, a fair reading
of Mr. Young’s claim indicates that it is premised on his threat
to file a grievance against Mr. Hunt.

Consequently, to the

extent Mr. Hunt appears to construe Mr. Young’s complaint as
asserting a second retaliation claim arising from the eventual
filing of the grievance Mr. Young threatened to file, the Court
will not consider such a claim.

This is so despite Mr. Young’s

suggestion in his response that this is an issue to be addressed
on summary judgment.

Further, based on Mr. Young’s

representations, the Court will not consider the amended
complaint as raising any First Amendment free exercise or Eighth
Amendment claims.
Turning to the retaliation claim arising from Mr. Young’s
threat to file a grievance, Mr. Hunt contends that in October,
2014, it was not clearly established that a threat to file a
grievance constituted protected conduct.

This issue is generally

raised within the framework of a qualified immunity defense.

See

Hall v. Sweet, – Fed.Appx. -, 2016 WL 7321363, *5 (6th Cir. Dec.
16, 2016)(“We follow a two-part inquiry to determine when a grant
of qualified immunity is proper.

To survive a qualified immunity

defense, the facts as alleged must show that the defendant
violated a constitutional right and that the right was ‘clearly
established’ at the time of the event.” (citations omitted)).
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In

making this argument, however, Mr. Hunt does not frame it as the
affirmative defense of qualified immunity.

Nor has he pled such

a defense in his answer to the amended complaint.
“‘[G]enerally, a failure to plead an affirmative defense ...
results in the waiver of that defense,’”

Henricks v. Pickaway

Correctional Inst., 782 F.3d 744, 750 (6th Cir. 2015), quoting
Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994).

However,

“‘a waiver need not waive the defense for all purposes but would
generally only waive the defense for that stage at which the
defense should have been asserted.’”

Id. at 752, quoting English

v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994).

Because Mr. Hunt

has not raised properly the affirmative defense of qualified
immunity, the Court will not consider it.

Consequently, the

motion for judgment on the pleadings will not be granted on this
ground.
The other issue related to Mr. Young’s claim, as clarified
by the Court, raised by Mr. Hunt in connection with his motion
for judgment on the pleadings is that Mr. Young threatened to
file a grievance that was patently frivolous.

Ordinarily, “a

reply brief is not the proper place to raise an issue for the
first time.”

United Telephone Co. of Ohio v. Ameritech Services,

Inc., 2011 WL 53462, *3 n.2 (S.D. Ohio Jan. 7, 2011).

Mr.

Young’s sur-reply, although filed without leave of Court,
addresses this issue.

Under this circumstance the Court will

consider Mr. Hunt’s argument.
To the extent that Mr. Hunt relies on Thaddeus-X v. Love to
support his position, the Court is not persuaded.

As Mr. Young

notes, the facts of that case are readily distinguishable.

In

Love, the prisoner threatened to file a grievance against a
prison guard who was eating at his desk in violation of prison
policy.

In finding the prisoner’s threatened grievance to be

frivolous, the Court of Appeals explained that the violation of
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this particular prison policy had no adverse impact on the
prisoner.
Here, however, Mr. Young contends that Mr. Hunt was handling
food without wearing gloves in violation of prison food safety
regulations.

Mr. Young asserts that this created the potential

for cross-contamination of food and corresponding harm to his
health.

Prison officials are obligated to provide “humane

conditions of confinement,” “guarantee the safety of inmates,”
and “ensure that inmates receive adequate food.”
Brennan, 511 U.S. 825, 832 (1994).

Farmer v.

Prison food safety

regulations would seem to be consistent with these obligations.
As a result, the Court cannot conclude, at least at the pleading
stage, that an inmate’s threat to file a grievance over the
failure of a prison employee to follow a prison regulation
addressed to food safety is patently frivolous.

Consequently,

the motion for judgment on the pleadings will be denied.
B.

Cross-Motions for Summary Judgment

Mr. Young has not filed a response to Mr. Hunt’s motion for
summary judgment.

Instead, he filed a motion to seek further

discovery and a cross-motion for summary judgment.

The former

motion prompted Mr. Hunt to file a motion for a protective order.
Likewise, Mr. Hunt has not responded to Mr. Young’s cross-motion
for summary judgment.
motion to stay.

Instead, he filed a motion to strike and a

Mr. Young filed a motion for sanctions in

response to the motion to strike.
to strike the motion to stay.

Mr. Young also filed a motion

The Court will address these non-

dispositive motions in turn.
With respect to Mr. Young’s motion to seek further
discovery, Mr. Young relies on Rule 56 in stating that he needs
to direct additional interrogatories to Mr. Hunt in order to
adequately respond to Mr. Hunt’s motion for summary judgment.
Although he has submitted an affidavit, he has not specified what
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additional facts he would seek in order to respond to the motion
for summary judgment.

Rather, he states only, “I need additional

time to submit interrogatories to Hunt, to establish facts.”
Doc. 33, Affidavit of Plaintiff Aaron E. Young, ¶3.
insufficient to comply with Fed.R.Civ.P. 56(d).

See

This is

See Fletcher v.

Sheets, 2011 WL 3861831, *2 (S.D. Ohio Aug. 30, 2011)(the
affidavit must indicate the party’s need for discovery, material
facts it seeks to uncover and why it has not previously
discovered this information)(citations omitted).

For this

reason, the motion for an extension of the discovery deadline
will be denied and Mr. Young will be directed to respond to Mr
Hunt’s motion for summary judgment.

Accordingly, Mr. Hunt’s

motion for a protective order will be denied as moot.
With respect to Mr. Hunt’s motion to strike, Mr. Hunt
contends that Mr. Young’s cross-motion for summary judgment
should be stricken as untimely, having been filed without leave
of court 57 days after the dispositive motion deadline.
motion to strike is without merit.

The

Any argument regarding the

timeliness of Mr. Young’s motion can be raised in Mr. Hunt’s
response.

Consequently, the motion to strike will be denied and

Mr. Hunt will be directed to respond to Mr. Young’s cross-motion
for summary judgment.

Additionally, Mr. Young’s motion for

sanctions relating to the motion to strike will be denied.
In light of this, Mr. Hunt’s motion to stay and Mr. Young’s
motion to strike that motion will be denied as moot.
III.

Remaining Motions

Consistent with all of the above, the Court will resolve the
remaining motions as follows.
Mr. Hunt’s motion for an extension of time to extend the
discovery and dispositive motion deadlines will be denied as
moot.
Mr. Young’s motion to compel seeking responses to
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interrogatories and requests for production will be denied as
moot.

Mr. Hunt filed a notice on November 30, 2016,

indicating that he has responded to Mr. Young’s discovery
requests.

Mr. Young has not challenged this representation.

On December 15, 2016, Mr. Young filed a motion seeking to
have the United States Marshal serve a discovery subpoena.
discovery deadline in this case was October 31, 2016.

The

Considered

to be pre-trial discovery, Rule 45 subpoenas must be served
within the designated discovery period, unless they satisfy
narrow exceptions not applicable here.

Ying Liu v. Next Step

Resources of Ohio, Inc., 2013 WL 394518, *1 (S.D. Ohio Jan. 31,
2013).

Consequently, the motion will be denied.

Mr. Young’s motion to extend the dispositive motion deadline
and for leave to file a delayed response in opposition to Mr.
Hunt’s motion for judgment on the pleadings will be denied as
moot.
V.

Recommendation and Order

For the reasons stated above, the Court recommends that the
motion for judgment on the pleadings (Doc. 17) be denied.
following motions are denied as moot:

The

motion for extension of

time (Doc. 16); motion to compel (Doc. 18); motion for extension
of time to file dispositive motion (Doc. 23); motion for leave to
file a delayed reply (Doc. 31); motion for a protective order
(Doc. 36); motion to stay (Doc. 43); and the motion to strike
(Doc. 47).

Further, the following motions are denied: the motion

for the United States Marshal to serve a subpoena (Doc. 27); the
motion to seek further discovery (Doc. 33); the motion to strike
(Doc. 40); and the motion for sanctions (Doc. 48).

The cross-

motions for summary judgment (Docs. 25 and 39) remain pending.
Responses to these motions shall be filed within 21 days.
Replies shall be filed within 14 days thereafter.
PROCEDURE ON OBJECTIONS TO REPORT AND RECOMMENDATION
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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).

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).

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).
MOTIONS 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,
pt. IV(C)(3)(a).

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
thereafter.

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
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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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