Harris v. Sowers et al

Filing 169

ORDER granting in part and denying in part 139 Motion for Summary Judgment; denying 142 Motion for Partial Summary Judgment; adopting Report and Recommendations re 162 Report and Recommendations.. Signed by Judge James L. Graham on 11/20/20. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Lionel Harris,
Plaintiff,
v.

Case NO. 2:16-cv-888

Aaron Sowers, et al.,
Defendants.
ORDER
This is a civil rights action under 42 U.S.C. §1983 brought by
plaintiff, Lionel Harris, an Ohio inmate, against employees of the
Madison Correctional Institution.

On February 11, 2020, the

magistrate judge filed a report and recommendation in which she
recommended that defendants’ motion for summary judgment be granted
in part and denied in part, and that plaintiff’s motion for partial
summary judgment be denied.
plaintiff’s

objections

Specifically,

plaintiff

to

This matter is before the court on
the

objects

report
to

and

the

recommendation.

magistrate

judge’s

recommendation to grant summary judgment on certain claims in favor
of Mailroom Screeners Aaron Sowers, Jacob Hays, and Mary McCrary,
Financial Associate Supervisor Cynthia Ricker, and Cashier Michelle
Lovette.

Plaintiff alleges that these defendants violated his

constitutional

rights

in

connection

with

their

handling,

destruction and/or theft of his mail and retaliated against him due
to his use or attempted use of the prison grievance system.
I. Standards of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).

Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or
recommendations

made

by

the

magistrate

judge.”

28

U.S.C.

§636(b)(1).
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

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 v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

A

party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in
the record, by showing that the materials cited do not establish
the absence or presence of a genuine dispute, or by demonstrating
that an adverse party cannot produce admissible evidence to support
the fact.

Fed. R. Civ. P. 56(c)(1)(A) and (B).

In considering a

motion for summary judgment, this court must draw all reasonable
inferences and view all evidence in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685, 688 (6th Cir. 2011).
II. Plaintiff’s Objections
A. First Cause of Action - Denial of Access to the Courts - Ricker
and Lovette
Plaintiff objects to the recommendation of the magistrate
judge that summary judgment be granted in favor of Financial

2

Associate Supervisor Cynthia Ricker, and Cashier Michelle Lovette
on his first cause of action alleging denial of access to the
courts.

Plaintiff alleged in his verified amended complaint that

these defendants intentionally held his merit brief appealing the
Ohio Twelfth District Court of Appeals’ denial of his petition for
writ of habeas corpus for more than 48 hours in violation of prison
policy. Plaintiff alleged that the Ohio Supreme Court received his
brief the day after the filing deadline, refused to accept it, and
dismissed his appeal for failure to prosecute.

According to

plaintiff, the primary claim in the habeas petition was that his
trial was void because Judge Donald L. Schott, the retired judge
who presided over the trial, was not reactivated as a judge by the
Ohio Supreme Court.

Plaintiff contended that if his merit brief

had been timely received and considered by the Ohio Supreme Court,
that court would have declared his trial, conviction and sentence
void.
As the magistrate judge noted, an inmate’s right of access to
the courts “extends to direct appeals, habeas corpus applications,
and civil rights claims only.”
378, 391 (6th Cir. 1999).

Thaddeus-x v. Blatter, 175 F.3d

Plaintiff must show actual injury,

Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005), that is,
plaintiff must demonstrate that a nonfrivolous legal claim was
frustrated or impeded, see Lewis v. Casey, 518 U.S. 343, 353
(1996).
Plaintiff objects to the magistrate judge’s statement that his
appeal to the Ohio Supreme Court was discretionary.

See Doc. 162,

p. 17, n. 7.

His appeal to

In this respect, plaintiff is correct.

the Ohio Supreme Court from the decision of the court of appeals

3

denying his habeas petition was one of right.
Mitchell, 88 Ohio St.3d 453 (2000).

See Taylor v.

However, this court agrees

with the remainder of the magistrate judge’s analysis of this
claim.
First, the magistrate judge noted the decision of the Twelfth
District Court of Appeals, which stated that plaintiff could prove
no set of facts that would entitle him to relief.

The magistrate

judge concluded that plaintiff’s appeal from this decision would be
frivolous.

This court notes that in May, 2019, plaintiff filed

another complaint for writ of habeas corpus in the Ohio Third
District Court of Appeals.

In that case, plaintiff argued, as he

did in the Twelfth District, that his conviction was void because
Judge Schott did not have a certificate of assignment, and further
argued that the signatures on Judge Schott’s commission were
forged.

Plaintiff appealed the Third District’s denial of his

habeas complaint to the Ohio Supreme Court. The Ohio Supreme Court
concluded that plaintiff failed to prove that the governor’s
signature on Judge Schott’s commission was forged.
rel. Harris v. Turner, No. 2019-1228,

N.E.3d

2461449, at *2 (Ohio Sup. Ct. May 13, 2020).

See State ex
, 2020 WL

That court further

noted that “even if Judge Schott were somehow improperly assigned,
‘[i]n

a

court

that

possesses

subject-matter

jurisdiction,

procedural irregularities in the transfer of a case to a visiting
judge render the judgment voidable, not void.’” Id. (quoting In re
J.J., 111 Ohio St.3d 205, syllabus paragraph one (2006)).

The

court concluded that because plaintiff had not alleged facts
sufficient to establish that the trial court lacked subject-matter
jurisdiction, and because he had an adequate remedy in law by way

4

of an appeal to challenge the assignment of the case to Judge
Schott, the court of appeals correctly denied his habeas petition.
Id. at *3.

The Ohio Supreme Court’s decision firmly establishes

that, as a matter of Ohio law, plaintiff’s habeas claims were not
meritorious.
Second, the magistrate judge noted that in Sampson v. Garrett,
917 F.3d 888 (6th Cir. 2019), the Sixth Circuit held that Heck v.
Humphrey, 512 U.S. 477 (1994), bars an access to courts claim if
the plaintiff could prevail on that claim only by showing that the
information impeded would make a difference in a nonfrivolous
challenge to his convictions. Here, plaintiff alleged that Lovette
and Ricker thwarted an appeal which challenged the validity of his
state court conviction. The magistrate judge correctly concluded
that plaintiff’s §1983 claim for denial of access to the courts
against Lovette and Ricker is barred under Heck and Sampson.
Plaintiff’s objection to the proposed dismissal of the denial
of access to courts claim against Lovette and Ricker is not well
taken.
B. Second Cause of Action - Retaliation Claim Against Hays
Plaintiff

alleged

that

Jacob

Hays,

a

mailroom

retaliated against him for filing grievances.

screener,

Plaintiff alleged

that Hays threatened him, destroyed photographs which had been
mailed to him, and opened envelopes which were marked as “legal
mail”

and

stole

documents

from

them.

The

magistrate

judge

recommended that summary judgment be granted to Hays on this claim.
The court agrees with the magistrate judge’s recommendation.
To

establish

a

claim

for

retaliation

under

the

First

Amendment, plaintiff must show that: (1) he engaged in protected

5

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 the plaintiff’s protected conduct.
928 F.3d 520, 531 (6th Cir. 2019).

Berkshire v. Beauvais,

The magistrate judge concluded

that there was sufficient evidence that the plaintiff had engaged
in protected conduct by filing grievances. However, the magistrate
judge further found that plaintiff failed to show that a genuine
dispute of fact existed on the adverse action element.

This

element requires proof of an adverse action that would deter a
person of ordinary firmness from continuing to engage in that
conduct.

Berkshire, 928 F.3d at 531.

As to the threat incident, plaintiff alleged that on August
18, 2015, he was at the mail room picking up legal mail.

Hays

allegedly stated, “There’s a lot of talk going on about your legal
mail lately.

What’s going on?”

Amended Complaint, ¶¶ 24-25.

Plaintiff explained that the Ohio Supreme Court had dismissed his
case because his mail had been held at the institution, resulting
in plaintiff having to file a motion for reconsideration and
complaints against the cashier and mail room, to which Hays
allegedly responded, “Oh yeah?

It’s going to suck to be you.”

Hays denied making threats to plaintiff.
¶ 4.

Doc. 139-5, Hays Affid.

The magistrate judge correctly concluded that even assuming

that Hays made the above statement, it was too vague to deter a
person of ordinary firmness from engaging in protected conduct.
See Snelling v. Gregory, No. 1:17-cv-P41, 2017 WL 2602591, at *3
(W.D. Ky. June 14, 2017)(noting that “courts have generally held
that vague threats of unspecified harm do not constitute adverse

6

actions); see also Hardy v. Adams, No. 16-2055, 2018 WL 3559190, at
*3 (6th Cir. Apr. 13, 2018)(“The alleged threat by Adams that she
would make Hardy’s life ‘hell’ is simply too vague to pass this
threshold”).

The magistrate judge correctly concluded that Hays’

statement, even assuming it was made, did not arise to the level of
an adverse action.
In regard to the destruction of photographs, plaintiff alleged
that on two occasions, he received letters from his wife with
photographs enclosed.

The envelopes were stapled through the

center, damaging the photographs.

Plaintiff alleged that the

common practice for processing envelopes containing photographs was
to tape the open edge. Hays denied targeting plaintiff’s mail with
staples in an attempt to retaliate against plaintiff. Hays Affid.,
¶ 6.

The magistrate judge noted that although plaintiff provided

evidence that his photographs had been stapled, he offered nothing
but speculation based on unspecified “[i]nformation and belief”
that Hays was the person who stapled his photographs.

Amended

Complaint, ¶¶ 29,31. Hays was not the only mail room handler named
as a defendant in plaintiff’s complaint.
As the magistrate judge observed, an affidavit filed in
opposition to a motion for summary judgment "shall be made on
personal

knowledge,

shall

set

forth

such

facts

as

would

be

admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
Fed. R. Civ. P. 56(e).

Affidavits of persons who lacked the

requisite personal knowledge or experience to testify as to the
matter at issue are not sufficient to defeat summary judgment.
Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir. 1992); see

7

also Ondo v. City of Cleveland, 795 F.3d 597, 605 (6th Cir.
2015)(statements made on belief or “on information or belief”
cannot

be

used

in

a

summary

judgment

motion).

Conclusory

allegations, speculation, and unsubstantiated assertions are not
evidence and will not defeat a well-supported motion for summary
judgment.

Jones v. City of Franklin, 677 F. App’x 279, 282 (6th

Cir. 2017); see also Hartsel v. Keys, 87 F.3d 795, 804 (6th Cir.
1996)(mere

subjective,

vague

or

conclusory

insufficient to preclude summary judgment).

allegations

are

The magistrate judge

correctly found that there was no competent evidence that Hays
stapled plaintiff’s photos or that the two stapling incidents
constituted an adverse action by Hays.
In regard to his claims of interference with legal mail,
plaintiff alleged that Hays opened his legal mail on September 19,
2015, removed the most recent complaint plaintiff had filed against
the

mailroom

staff,

resealed

the

envelope,

and

mailed

it.

Plaintiff further alleged that on September 29, 2015, Hayes opened
an

envelope

from

the

Correctional

Institutional

Inspection

Committee (“CIIC”) marked “legal mail” outside of plaintiff’s
presence and stole the enclosed grievance filing brochure relating
to

plaintiff’s

attempt

to

challenge

his

prison

conditions.

Plaintiff also alleged that on November 13, 2015, prison officials
granted plaintiff’s grievance #MACI-11-15-000019, in which he
accused the mailroom of stealing his legal mail from the CIIC.
In analyzing this claim, the magistrate judge noted that
although plaintiff’s evidence showed that his outgoing mail was
opened and a copy of a grievance was removed, and that his legal
mail from CIIC was opened outside his presence, the evidence did

8

not show that Hays was the person who committed these acts.

The

magistrate judge observed that plaintiff’s allegations regarding
the September 19th and September 29th incidents were based on
plaintiff’s “information and belief” and were therefore deficient.
The

magistrate

judge

also

noted

that

Hays

denied

opening

plaintiff’s legal mail and removing any grievance from his mail.
Hays Affid., ¶¶ 9-11.

Based on a lack of evidence to identify Hays

as the person responsible for interfering with plaintiff’s legal
mail, the magistrate judge properly concluded that no adverse
action on the part of Hays had been shown in that regard.
With his objections to the magistrate judge’s recommendation
on this claim, plaintiff has submitted new evidence not previously
provided in the summary judgment proceedings before the magistrate
judge, specifically, a November 17, 2015, inspector’s report and a
page from the institutional rules applicable to mail handlers.
Matters raised for the first time in objections to the magistrate
judge’s report and recommendation need not be considered by this
court. See Becker v. Clermont County Prosecutor, 450 F. App’x 438,
439 (6th Cir. 2011)(citing Jurr v. United States, 200 F.3d 895,
902-03 n. 1 (6th Cir. 2000)); see also United States v. Church, No.
19-1528, 2020 WL 2494431 (6th Cir. Apr. 22, 2020)(district court
did not abuse its discretion in holding that defendant could not
rely on evidence presented for the first time as exhibits to
objections to the report and recommendation); AES-Apex Emp’r Servs.
Inv. v. Rotondo, 924 F.3d 857, 867 (6th Cir. 2019)(a “[d]istrict
court never abuses its discretion when it holds that an issue not
actually presented to a magistrate judge is forfeited”).
Plaintiff argues that the failure to produce this evidence

9

earlier should be excused due to his lack of legal training.
Although the filings of a pro se litigant are construed liberally,
a pro se party will not be relieved of the responsibility to comply
with basic rules of court.

McNeil v. United States, 508 U.S. 106,

113 (1993); see also Moore v. Holbrook, 2 F.3d 697, 705 (6th Cir.
1993)(pro se litigants are not excused from federal rules governing
summary judgment).

The evidence in question should have been

submitted in opposition to defendants’ motion for summary judgment.
Even if the court were to consider this evidence, it would not
save plaintiff’s retaliation claim against Hays.
report,

The inspector’s

see Doc. 165, pp. 18-19, addressed plaintiff’s Grievance

No. MACI-10-15-000102, which involved a notice to plaintiff on
September 14, 2015, that he had received mail containing 41 pages,
which exceeded the 5-page limit.

The report states that plaintiff

requested that the pages be returned to the sender, but as of
November 13, 2015, the papers had not been returned, and the cash
slip submitted by plaintiff had not been processed.

The report

further stated that Hays was unable to find these papers or to
locate them on the log. This report relates to the claim plaintiff
asserted against defendants McCrary and Chamberlin in his third
cause of action.

The mail room regulations, see Doc. 165, p. 20,

state that mail clerk/screeners are required to sort incoming mail
and enter items on the log.
Plaintiff argues that because the report refers to Hays being
unable to find the unauthorized mail, Hays must be the person who
was responsible for the destruction of his photographs and the
mishandling of his legal mail.

As noted above, Hays was not the

only mail screener working at the institution.

10

The fact that an

inspector consulted Hays, a mailroom employee, about the location
of the lost mail, a matter unrelated to the adverse acts alleged in
the second cause of action, does not establish that Hays committed
those adverse actions.
Plaintiff’s objection to the magistrate judge’s recommendation
on this claim is denied.
of

fact

has

been

The court finds that no genuine dispute

demonstrated

regarding

plaintiff’s

lack

of

evidence supporting his retaliation claim against Hays, and Hays is
entitled to summary judgment on this claim.
C. Third Cause of Action - Retaliation Claim Against McCrary
Plaintiff alleged that Mary McCrary, a mailroom screener,
retaliated against him for filing complaints against the mailroom
and cashier’s office on August 18, 2015, and September 11, 2015.
The magistrate judge concluded that there was sufficient evidence
that plaintiff engaged in protected conduct.
Addressing the adverse action element, the magistrate judge
noted plaintiff’s allegations that on September 3, 2015, the
mailroom received a 41-page letter from plaintiff’s wife, which
plaintiff alleges contained legal materials.

Plaintiff asserted

that on September 14, 2015, he received five pages of this letter
along with a notice of unauthorized item completed by McCrary (he
refers to her as “McQueary” in the amended complaint), which
indicated that nuisance contraband consisting of 36 pages over the
limit had been received.

Plaintiff filed an informal complaint

alleging that the letter was withheld for eleven days in violation
of applicable mailroom regulations.

A subsequent investigation

confirmed that the letter was received on September 3, 2015, but
that plaintiff was not notified about this letter until September

11

14, 2015.

The investigation also determined that the proper

procedure was not followed, and that the unauthorized items were
lost

(plaintiff

alleged

that

another

defendant,

Lt.

Julia

Chamberlain, intentionally destroyed those items, see Doc. 57, ¶
39).
The magistrate judge discussed whether the holding the mail
for

eleven

days

and

its

later

constitute an adverse action.

loss

would

be

sufficient

to

Noting that an adverse action need

not be great to be actionable, see Hill v. Lappin, 630 F.3d 410,
473 (6th Cir. 2000), the magistrate judge concluded that the
withholding of mail and the subsequent loss of the mail were not
inconsequential or de minimis, and that the evidence was sufficient
to establish the adverse action element.
The magistrate judge then addressed the element of causation.
The magistrate judge stated that plaintiff must show that his
protected conduct was a motivating factor for the retaliatory
action.

See Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018).

The motivation element can be supported by circumstantial evidence
such as temporal proximity between the protected conduct and the
retaliatory acts.

Campbell v. Mack, 777 F. App’x 122, 134-35 (6th

Cir. 2019); Paige v. Coyner, 614 F.3d 273, 283 (6th Cir. 2010).
The magistrate judge correctly observed that the record did not
reflect that plaintiff had filed any complaints against McCrary.
The magistrate judge observed that plaintiff relied on complaints
he filed against the mailroom on August 18, 2015, and September 11,
2015, but that McCrary’s uncontroverted affidavit established that
she did not begin working as a mail screener at the Madison
Correctional Institution until September 14, 2015 (citing

12

McCrary

Affid., ¶ 2).

Thus, the magistrate judge reasoned, plaintiff’s

August 18, 2015, and September 11, 2015, complaints could not have
been

against

McCrary

retaliatory motive.
statements

that

institutional

and

did

not

provide

an

inference

of

The magistrate judge also noted McCrary’s

she

did

complaints

not

recall

against

her,

plaintiff
and

that

filing
she

intentionally withhold plaintiff’s mail for eleven days.

did

any
not

McCrary

Affid., ¶¶ 7, 9. The magistrate judge concluded that plaintiff had
not

presented

evidence

tending

to

prove

the

element

of

causation/motivation, and recommended that summary judgment on this
claim be granted in favor of McCrary.
Plaintiff argues in his objections that the evidence noted by
the magistrate judge was insufficient to establish that McCrary was
not employed in the mail room prior to September 14, 2015. McCrary
stated in her affidavit, “During the time relevant to Plaintiff’s
allegations against me, approximately September 14, 2015 through
November 15, 2015, I was employed at the Madison Correctional
Institution as a Mail Clerk Screener.”

McCrary Affid., ¶ 2.

Plaintiff argues that the language “[d]uring the time relevant to
Plaintiff’s allegations” defines the scope of McCrary’s employment
in

the

mailroom,

rather

than

the

ensuing

limiting

phrase

“approximately September 14, 2015 through November 15, 2015.”

He

further contends that the word “approximately” also undermines her
attempt to narrow her employment to between September 14, 2015, and
November 15, 2015. Plaintiff also argues that the fact the McCrary
did “not recall” plaintiff filing any institutional complaints
against her at the time her affidavit was signed, see McCrary
Affid., ¶ 7, did not prove that she was unaware of any such

13

complaints in September, 2015.
The court concludes that the evidence is insufficient to
create a genuine dispute as to whether McCrary was employed in the
mailroom at the time of plaintiff’s complaint and grievance.
lack

of

regarding

a

more
her

definitive

employment

in

statement
the

in

mail

McCrary’s

room

does

The

affidavit

not

create

affirmative evidence that she was in fact employed in the mail room
on August 18, 2015, and September 11, 2015, when plaintiff filed
his complaint and grievance.

Plaintiff states in his complaint

that McCrary was a mailroom screener at the Madison Correctional
Institution at all times mentioned in his complaint.
10.

Doc. 57, ¶

However, he has produced no evidence as to how he had personal

knowledge of her employment.

This conclusory and unsubstantiated

assertion is not sufficient to defeat summary judgment. Jones, 677
F. App’x at 282.

The notice of unauthorized mail McCrary prepared

was dated September 14, 2015, which was within the time frame she
noted in her affidavit.
The evidence is also insufficient to show that McCrary could
have been motivated to retaliate against plaintiff for filing his
informal complaint and grievance.

McCrary was only one of three

mailroom screeners named as defendants in the instant case.

The

informal complaint filed by plaintiff on August 18, 2015, does not
mention McCrary by name; rather, it only refers to the “mailroom.”
See Doc. 57-1, p. 11.

This complaint primarily addresses the

procedures employed by the cashier’s office, and it was submitted
to the supervisor of the cashier’s office.

Plaintiff’s September

11, 2015, grievance also does not refer specifically to McCrary or
to the mail screeners; it simply requests that the “mailroom staff”

14

be instructed not to delay his mail.

See Doc. 57-1, p. 12.

These

documents do not implicate McCrary specifically in any wrongdoing,
nor would they lead McCrary to believe that she was the target of
plaintiff’s

complaints

or

provide

a

basis

for

inferring

a

retaliatory motive on her part.
The court further concludes that the evidence is insufficient
to create a genuine dispute as to whether McCrary was responsible
for the adverse action of holding his mail for eleven days.
Plaintiff’s conclusory allegation in his complaint that McCrary
withheld his mail for eleven days, with no facts explaining the
basis for his knowledge, see Doc. 57, ¶ 34, is insufficient to
defeat summary judgment.

See Mitchell, 964 F.2d at 584.

The

documents referenced by him, including the notice of unauthorized
item

completed

by

McCrary,

see

Doc.

57-1,

p.

29,

and

the

disposition of grievance, see Doc. 57-1, p. 34, do not refer to
McCrary by name or identify her as the person responsible for
holding plaintiff’s mail for eleven days.

McCrary stated in her

affidavit that she did not intentionally withhold plaintiff’s
contraband mail for eleven days, that she did not have any reason
to take any adverse action against him, and that she did not
retaliate against him.
The

court

Doc. 139-6, McCrary Affid., ¶¶ 8, 9.

concludes

that

the

evidence

presented

is

insufficient to create a genuine dispute of fact or to support his
claim against McCrary in his third cause of action, and his
objection to the magistrate judge’s recommendation on this claim is
denied.
D. Sixth Cause of Action - Retaliation Claim Against Sowers
In his Sixth Cause of Action, plaintiff alleged that on

15

January

14,

2016,

Aaron

Sowers,

a

mailroom

screener,

opened

plaintiff’s legal mail from a law firm outside of plaintiff’s
presence and stole plaintiff’s letter to the attorneys and copies
of four disposition of grievance forms. Plaintiff alleged that the
letter detailed his legal strategy for a §1983 civil rights lawsuit
against

Madison

Complaint, ¶ 48.

Correctional

Institution

employees.

Amended

Plaintiff contended that Sowers opened his legal

mail in retaliation for him using the grievance process.

Amended

Complaint, ¶ 49.
The magistrate judge noted that defendants did not dispute
that plaintiff’s use of the grievance system was protected conduct.
The magistrate judge further observed that the record was ambiguous
as

to

whether

Sowers

opened

plaintiff’s

plaintiff’s presence on January 14, 2016.

legal

mail

outside

However, the magistrate

judge noted Sowers’ sworn statement in his affidavit that he began
working in the mailroom on January 11, 2016.
Affid.

¶

6.

The

magistrate

judge

Doc. 139-8, Sowers

concluded

that

because

plaintiff’s complaints and grievances about the mailroom prior to
that date could not have included any alleged acts by Sowers, no
inference of a retaliatory motive due to temporal proximity between
any grievances and the alleged adverse action on January 14, 2016,
could be drawn.

Because there was no evidence sufficient to

satisfy the third element of causation/motivation, the magistrate
judge recommended that summary judgment be awarded in favor of
Sowers on this retaliation claim.
The court disagrees with the magistrate’s asessment that the
evidence

on

whether

Sowers

opened

16

plaintiff’s

legal

mail

is

ambiguous.1

Sowers stated in his affidavit that he did not open

plaintiff’s legal mail or remove any documents from plaintiff’s
legal mail on January 14, 2016, as that was only his fourth day
working in the mailroom and he did not have permission to open any
inmate mail at that time. Sowers Affid., ¶¶ 6-7. This information
is consistent with his responses to interrogatories filed on
February 15, 2018.

See Doc. 78.

Sowers again stated that he

started working in the mail room on January 11, 2016, and he did
little opening and scanning of mail his first week because he was
still learning the job.

Doc. 78, p. 4.

scanning any legal mail that week.

He denied opening or

Doc. 78, p. 6.

In responding to plaintiff’s January 15, 2016, grievance
regarding his legal mail on February 4, 2016, Lt. Williams stated
that Sowers “has been in the mail room for (1) month as a screener
admitted that he honestly missed your legal mail and processed it
with regular mail.” Doc. 57, p. 52. However, Sowers disputed this
unsworn statement in his response to Interrogatory 11, stating that
he “did write the lock2 on the envelope but did not scan that mail”
and that “it was my first week down there.”

Doc. 78, p. 8.

The

unsworn statement of Lt. Williams is not sufficient to create a
genuine dispute of fact.
Plaintiff alleged in his amended complaint that Sowers opened
his legal mail on January 14, 2016, and removed items from the
1

Some confusion may have arisen due to the fact that the
interrogatory responses also addressed other claims against Sowers
asserted in the seventh and eighth causes of action.
2

The use of this term in the mailroom regulations suggests
that the inmate’s “lock” is the location where he is confined in
the institution.
It is used along with the inmate’s name and
number to identify where the mail should be sent.
17

mail.

Doc. 57, ¶ 48.

However, this conclusory statement, with no

facts explaining the basis for his knowledge, see Doc. 57, ¶ 34, is
insufficient to defeat summary judgment. See Mitchell, 964 F.2d at
584.

Plaintiff also relies on the February 22, 2016, disposition

of his February 8, 2016, grievance concerning the opening of his
legal mail.

Doc. 57, p. 54.

This document indicated that

plaintiff’s grievance was approved, but did not mention Sowers by
name or find him guilty of any misconduct.
The court agrees with the conclusion of the magistrate judge
that the evidence is insufficient to raise a genuine dispute on the
issue of whether Sowers had any motive to retaliate based on
grievances filed by plaintiff.

Sowers stated that as of January

14, 2016, he did not have any prior interaction with plaintiff, he
had no knowledge of who plaintiff was, and he had no reason to
retaliate against him.

Doc. 78, p. 7.

Because Sowers began

working in the mailroom on January 11, 2016, he was not the subject
of any of the previous grievances plaintiff had filed against the
mailroom, so no inference of retaliatory motive arises by reason of
the temporal proximity of those earlier grievances and the alleged
retaliatory action.
In his objection, plaintiff notes the magistrate judge’s
analysis of his seventh cause of action against Melanie Fultz, a
secretary and notary public at the institution.

The magistrate

judge concluded that a genuine dispute existed on the issue of
causation because there was evidence of a temporal proximity
between Fultz’s review of plaintiff’s §1983 complaint against
Madison Correctional Institution employees prior to notarizing it
and her alleged adverse action of taking the complaint to the

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administration building instead of to the mailroom, resulting in
the complaint being lost. Plaintiff argues that Sowers’ inspection
of his legal mail, which included a discussion of a proposed §1983
action, was close in time to Sowers’ removal of documents from the
mail and was sufficient to provide a retaliatory motive.
However, plaintiff alleged in his complaint that Sowers opened his
legal mail in retaliation for him using the grievance process, see
Amended Complaint, ¶ 49, not for considering a §1983 action.

In

addition, the magistrate judge’s analysis of the claim against
Fultz is distinguishable.

Fultz admitted in her affidavit that

prior to notarizing a document, she is required to inspect the
document and to verify that it constitutes legal work. Doc. 139-9,
Fultz Affid., ¶¶ 4-5.

This indicates that Fultz was aware of the

nature of the document she was notarizing.

In contrast, there is

no competent evidence that Sowers opened or inspected plaintiff’s
legal mail on January 14, 2016, or that he was aware of its
contents.
Plaintiff’s objection to the magistrate judge’s recommendation
that summary judgment be granted in favor of Sowers on the fourth
cause of action is denied.
III. Conclusion
In accordance with the foregoing, the court adopts in part and
rejects in part the analysis of the magistrate judge, and adopts
the

recommendations

of

the

magistrate

judge

(Doc.

162).

Plaintiff’s motion for partial summary judgment (Doc. 142) is
denied.

Defendants’ second motion for summary judgment (Doc. 139)

is granted in part and denied in part.

The defendants’ second

motion for summary judgment is granted as to:

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1) First Cause of Action - denial of access to courts
claim against Lovette and Ricker
2) Second Cause of Action - retaliation claim against
Hays
3) Third Cause of Action - retaliation claim against
McCrary
4) Fourth Cause of Action - retaliation claim against
Ricker
5) Fifth Cause of Action - retaliation claim against
Chamberlin
6) Sixth Cause of Action - retaliation claim against
Sowers
7) Seventh Cause of Action - retaliation and denial of
access to courts claims against Sowers
8) Eighth Cause of Action - denial of access to courts
claim against Sowers
Defendants’ motion for summary judgment is denied as to:
1) First Cause of Action - retaliation claim against
Lovette and Ricker
2) Third Cause of Action - retaliation claim against
Chamberlin
3) Seventh Cause of Action - retaliation and denial of
access to courts claims against Fultz
4) Eighth Cause of Action - retaliation claim against
Sowers
The

remaining

pending

claims

are:

the

retaliation

claim

against Lovette and Ricker (First Cause of Action; the retaliation
claim against Chamberlin (Third Cause of Action); the retaliation
and denial of access claims against Fultz (Seventh Cause of
Action); the retaliation claim against Sowers (Eighth Cause of
Action) and the equal protection claims against Hays and Sowers
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(Second, Seventh and Eighth Causes of Action).

Date:

November 20, 2020

s/James L. Graham
James L. Graham
United States District Judge

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