Jones v. Pummill

Filing 17

REPORT AND RECOMMENDATION that 10 MOTION for Default Judgment be denied and that 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted. Objections to R&R due by 4/5/2017. Signed by Magistrate Judge Terence P. Kemp on 3/22/2017. (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
Keith Lamarr Jones,

:

Plaintiff,

: Case No.

v.

2:16-cv-519

:

Cathy Pummill, et al.

: JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
:

Defendants.

REPORT AND RECOMMENDATION
On March 3, 2016, an inmate at the Chillicothe Correctional
Institution whose last name is McCain said, in the presence of
(and perhaps directed to) Colleen Bethel, an assistant prison
librarian, “this is war.”

Plaintiff Keith Lamarr Jones, who was

present at the time, said that he agreed.
conduct reports on both inmates.
solely on that conduct report.

Ms. Bethel then wrote

Mr. Jones sued Ms. Bethel based

Ms. Bethel has moved to dismiss.

For the following reasons, the Court recommends that her motion
(Doc. 11) be granted.
I. Background
Mr. Jones filed his complaint on July 8, 2016, against Cathy
Pummill and Colleen Bethel, both of whom were employed at the
prison library at CCI while Mr. Jones was housed at that
institution.

He alleges that Ms. Pummill engaged in behavior

that obstructed his First Amendment right of access to the
courts. Those claims are not currently at issue here.
There is one paragraph of the complaint pertaining to Ms.
Bethel.

It reads as follows:

Colleen Bethel issued a ... conduct report in
retaliation impeding Plaintiff’s constitutional right
to Freedom of Speech when another inmate stated, “this

is war”. Plaintiff agreed as it is a war when inmates
are litigating a case in any court. Because Plaintiff
agreed, Defendant retaliated and issued a conduct
report.
Complaint, Doc. 6, ¶7.
Mr. Jones did not attach a copy of the conduct report to his
complaint, but he did provide a copy with his response to the
motion to dismiss.

It says this:

Inmate Jones 649367 came into the library to sign into
the legal side. The was with inmate McCain 479429.
McCain said “[t]his is war” for my benefit although I
did not act like I heard his statement. Jones agreed.
Jones then went to the computer and wrote out a page of
lies concerning Mrs. Pummill. It was very threatening
and a[n] attempt to intimidate me and Mrs. Pummill
because they do not agree or like that we enforce the
policy that states we cannot let anyone be in
possession of another’s lega[l] materials or others
[sic] legal work for payment. I and Mrs. Pummill both
feel very threaten [sic] by both of these men. There is
a larger ring that is in on this as well. They have
been repeat offenders with this many many times.
The report says that Mr. Jones violated Rule 08.27, which is
described as “Threatening bodily harm to another (with or without
a weapon).
employees.”

Giving false information or lying to departmental
Mr. Jones’ theory, and claim, is that the conduct

report was issued in retaliation for his exercise of his First
Amendment rights.

Ms. Bethel argues that the statement in which

he concurred was not protected speech, which, if true, would
fatally undermine his claim of constitutional violation.
II.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded
factual allegations must be taken as true and be construed most

2

favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009). A complaint may be dismissed pursuant to Fed. R. Civ. P.
12(b)(6) only if there is no law to support the claims made, or
if the facts alleged are insufficient to state a claim, or if on
the face of the complaint there is an insurmountable bar to
relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702
(6th Cir. 1978).
III. Discussion
In order to establish liability upon a government official
in a §1983 action a plaintiff must show that “the official,
‘acting under color of state law, caused the deprivation of a
federal right.’” Hafer v. Melo, 502 U.S. 21, 25 (1991).

Ms.

Bethel argues that Mr. Jones has failed to state a valid claim
against her because he was not engaged in conduct protected by
the First Amendment. “A prisoner retains First Amendment rights
that are not inconsistent with his status of a prisoner or with
the legitimate penological objectives of the corrections system.”
Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001).

To

establish the essential elements of a First Amendment retaliation
claim, a prisoner must show that (1) he engaged in protected
conduct; (2) the defendant took an adverse action that was
capable of deterring 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, 398 (6th
Cir. 1999) (en banc).
The key question to consider is whether Mr. Jones’ agreement
with the other inmate’s statement about “war” constituted
protected speech.

A prisoner has the right to speak about

various matters, but prisoners may still be disciplined for
speaking out if the discipline is reasonably related to
3

legitimate penological objectives. Hill, supra; see also Griffin
v. Berghuis, 563 Fed.Appx. 411, 416 (6th Cir. April 21,
2014)(“[e]ven though ‘a prisoner may have a right to file
grievances against prison officials, he or she cannot exercise
that right in a manner that violates legitimate prison
regulations or penological objectives,’” quoting Smith v.
Campbell, 250 F.3d at 1037).

A prison official’s right to punish

inmate speech if there is a sound penological reason for doing so
extends even to truthful speech; if that speech, while accurate,
“is made in a manner incompatible with the institution's
legitimate penological objectives,” see Griffin, supra, the
speech may be prohibited or punished.

As the Court of Appeals

for the Seventh Circuit observed in Caffey v. Maue, __ Fed.Appx.
__, 2017 WL 659349, *3 (7th Cir. Feb. 15, 2017),
“[i]nsubordinate, verbal remarks to prison staff are inconsistent
with the status of a prisoner....”
Here, the circumstances permit only one plausible inference
- that Ms. Bethel, faced with two inmates referring to litigation
with prison officials as “war” - had a sound penological reason
for concluding that such speech was not protected by the First
Amendment because it was an inappropriate (and even threatening)
way to express the prisoners’ views or grievances about the
litigation process.

Her decision to write a conduct report was,

consequently, not retaliation for the exercise of free speech,
but was a legitimate response to an inappropriate comment.

See

Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (noting
that words, actions, or other behavior which is intended to
harass, degrade, or cause alarm in a prison official is not
protected conduct); Goddard v. Kentucky Dep’t of Corrections,
2000 WL 191758 (6th Cir. Feb. 7, 2000) (a prisoner’s “cursing to
correctional officials and complaining about his treatment he
received...is not an activity that may be protected under the
4

First Amendment”); Blevins v. County of Franklin, Ohio, 2010 WL
3119417, *5 (S.D. Ohio Aug. 6, 2010) (“Even if a prisoner’s
‘yelling and swearing’ at a deputy does not violate prison
regulations, such conduct is not protected under the First
Amendment”).

While the comment made by inmate McCain is not

quite so offensive as cursing, yelling, or swearing, it was
confrontational and adversarial, and made in a face-to-face
setting with Ms. Bethel where other inmates were present.

The

Court concludes, consistent with the cases cited here, that such
speech runs afoul of legitimate penological objectives and can be
punished.

Since that is what occurred here, the Court recommends

granting Ms. Bethel’s motion to dismiss.
IV.

Motion for Default Judgement

Before Ms. Bethel responded to the complaint, Mr. Jones
filed a motion for default judgment pursuant to Fed.R.Civ.P.
55(a).

However, the summons served on Ms. Bethel on October 6,

2016, gave her 45 days to move or plead.

See Doc. 9.

She filed

her motion to dismiss on Monday, November 21, 2016, which was
timely (that was actually the 46th day after service, but
Fed.R.Civ.P. 6(a) extends such time periods if the last day is a
Saturday, Sunday, or legal holiday).

For this reason, the Court

should also deny the motion for a default judgment.
V. Recommendation
For the foregoing reasons, it is recommended that Mr. Jones’
motion for default judgment (Doc. 10) be denied and Ms. Bethel’s
motion to dismiss (Doc. 11) be granted.
VI.

Procedure on Objections

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).
5

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).

/s/ Terence P. Kemp
United States Magistrate Judge

6