Tolliver v. Noble et al

Filing 86

REPORT AND RECOMMENDATION and ORDER: It is RECOMMENDED that 79 Motion for Judgment on the Pleadings be GRANTED. Within 14 days, Plaintiff is ORDERED to show cause why this case should not be dismissed with respect to Defendants Abdul Rahman Shahid and Sunni Ali Islam. Objections to R&R due by 8/7/2020. Signed by Magistrate Judge Kimberly A. Jolson on 7/24/2020. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:16-cv-01020-EAS-KAJ Doc #: 86 Filed: 07/24/20 Page: 1 of 10 PAGEID #: 579

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN A. TOLLIVER,
Plaintiff,
v.

Civil Action 2:16-cv-1020
Judge Edmund A. Sargus
Magistrate Judge Jolson

WARDEN NOBLE, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on Defendants Noble’s, Jefferies’, Cahill’s, Taylor’s,
Moore’s, Lawrence’s, Davis’, and Hunyadi’s Motion for Judgment on the Pleadings (Doc. 79).
For the following reasons, it is RECOMMENDED that the Motion be GRANTED. Further,
within 14 days of this Report and Recommendation and Order, Plaintiff is ORDERED to show
cause why this case should not be dismissed with respect to Defendants Abdul Rahman Shahid
and Sunni Ali Islam.
I.

BACKGROUND
Plaintiff is an inmate at Grafton Correctional Institution, who has previously been

incarcerated at London Correction Institution (“LoCI”), Madison Correctional Institution
(“MaCI”), Belmont Correctional Institution (“BeCI”), Ross Correctional Institution (“RCI”), and
Pickaway Correctional Institution (“PCI”). (Doc. 30, ¶ 7). Defendants are numerous Ohio
Department of Rehabilitation and Corrections (“ODRC”) employees and contractors. (Id., ¶¶ 8–
11).
In 2012, ODRC transferred Plaintiff to MaCI. (Id., ¶ 16). While at MaCI, Defendant Abdul
Rahman Shahid was an ODRC contractor who served as an Islamic Services Provider. (Id., ¶ 19).

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Defendant Sunni Ali Islam served in the same role at PCI. (Id.). Plaintiff alleges that Defendants
Shahid and Islam (the “Defendant Contractors”) generally discriminated against Muslim inmates
that were not supporters of the Nation of Islam. (See, e.g., id., ¶¶ 19–30). While at MaCI, Plaintiff
allegedly complained to unidentified ODRC administrators and staff about the Defendant
Contractors’ behavior, which he asserts resulted in retaliation in the form of denied grievances,
denied medical treatment, and limited program opportunities. (Id., ¶ 35).
After several years at MaCI, in 2016, ODRC transferred Plaintiff to LoCI “for
programming consistent with his parole board and re-entry plan.” (Id., ¶ 40). Defendant Shahid
served as the Islamic Services Provider at LoCI as well. (Id., ¶ 43). According to Plaintiff,
unidentified ODRC administrators and employees employed Defendant Contractors knowing that
it would suppress Muslim inmates’ religious exercise and conserve resources for Christian
inmates. (Id., ¶ 50). And Plaintiff takes issue with ODRC’s policies which he maintains do not
adequately distinguish between different sects of Islam, resulting in the discriminatory actions of
Defendant Contractors. (Id., ¶¶ 54–57).
In September 2016, Defendants Christler and Sibalski “shook down Plaintiff” and
conducted a search of Plaintiff’s belongings. (Id., ¶ 88). Plaintiff subsequently reported to the
investigators who placed him in segregated housing. (Id., ¶ 90). After two weeks in “maximum
security isolation,” Defendant Sibalski informed Plaintiff of the results of his investigation. (Id.,
¶ 90). The investigation began based on Defendant Shahid’s allegation that Plaintiff was trying to
radicalize other Muslim inmates; Defendant Sibalski found no evidence to support that allegation.
(Id.). Plaintiff alleges that unidentified Defendants subjected him to more than 50 days “in
isolation as punishment for his use of the grievance process.” (Id., ¶ 94). Defendant Jefferies
allegedly “personally approved this retaliatory action.” (Id.).

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The next month, unidentified Defendants allegedly arranged Plaintiff’s transfer to PCI to
impose “additional hardships” on Plaintiff, knowing that Defendant Islam worked at PCI and
would continue to harass Plaintiff as Defendant Shahid had. (Id., ¶ 99). Defendants Jefferies,
Noble, and Taylor “and others had great sway over” Defendant Contractor’s false reports and their
effect on Plaintiff. (Id., ¶ 102). Unidentified Defendants have allegedly denied him a reduction
in his security level due to his history of successful grievances challenging his conditions of
confinement and violations of civil rights. (Id., ¶ 107).
As part of their alleged retaliation against him, unidentified Defendants confiscated
Plaintiff’s legal materials and limited his access to other legal materials. (Id., ¶¶ 115–19).
Unidentified Defendants also failed to process his theft reports after Plaintiff lost other personal
property. (Id., ¶ 120). Further, unidentified Defendants disrupted his completion of various prison
programming by transferring him between facilities. (Id., ¶¶ 126–30).
Plaintiff filed the initial Complaint (Doc. 1) in October 2016. After the Court ordered that
the Complaint be dismissed, (Docs. 14, 17), the Sixth Circuit directed it to permit Plaintiff to file
an Amended Complaint, (Doc. 24). Plaintiff promptly filed his Amended Complaint, alleging that
Defendants: retaliated against him in violation of the First Amendment, violated his right to
practice his religion, denied him access to the courts, and are liable for numerous state law contract
and tort claims. (See generally Doc. 30). Defendants Noble, Jefferies, Cahill, Taylor, Moore,
Lawrence, Davis, and Hunyadi (the “ODRC Defendants”) filed a Motion for Judgment on the
Pleadings (Doc. 79). The Motion is fully briefed and ripe for resolution.
II.

STANDARD
The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.

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P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish
that no material issue of fact remains to be resolved and that they are entitled to judgment as a
matter of law.” Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-292, 2010 WL 3769136, at *2
(S.D. Ohio Sept. 24, 2010) (citations omitted).
In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses the
same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999). Accordingly, the Court “must
construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual
allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts in
support of those allegations that would entitle them to relief.” Bishop v. Lucent Tech., Inc., 520
F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). To
survive a motion for judgment on the pleadings, the “complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.” Bishop, 520 F.3d at 519 (internal quotation marks omitted). Consequently, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
III.

DISCUSSION
The ODRC Defendants moves for judgment on the pleadings on several grounds:

(1) Plaintiff has failed to allege their personal involvement in any alleged unconstitutional
behavior; (2) Plaintiff’s retaliation claim fails because he has not alleged a causal connection
between his protected conduct and any alleged adverse action; (3) Plaintiff has not demonstrated
an injury to support his access to the courts claim; (4) Defendants are entitled to sovereign
immunity in their official capacity and qualified immunity in their individual capacity; and (5)

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Plaintiff’s state law claims are undeveloped and, in any event, barred by sovereign immunity.
A. Sovereign Immunity – Federal Claims
“State sovereign immunity generally bars damages actions against states from proceeding
in federal court. This immunity also generally applies to state agents and instrumentalities,
including state officials sued in their official capacities.” Kanuszewski v. Michigan Dep’t of Health
& Human Servs., 927 F.3d 396, 413 (6th Cir. 2019) (internal citations and quotations omitted). To
the extent Plaintiff sues the ODRC Defendants in their official capacities for monetary damages,
state sovereign immunity bars those claims. But “[t]he Supreme Court recognizes an exception to
[the state sovereign immunity] rule if an official-capacity suit seeks only prospective injunctive or
declaratory relief.” Cady v. Arenac Cty., 574 F.3d 334, 344 (6th Cir. 2009) (citing Papasan v.
Allain, 478 U.S. 265, 276 (1986)). Plaintiff appears to seek prospective injunctive and declaratory
relief here, (see Doc. 30, ¶ 139, 141–43), and those official capacity claims are not barred as a
result.
B. Sovereign Immunity - State Law Claims
At the end of the Amended Complaint, Plaintiff offers the conclusory statement that
Defendants’ actions establish liability for “torts; Liable [sic], Slander, Malicious Prosecution,
Intentional Infliction of Emotional Distress, Defamation, and False Imprisonment.” (Doc. 30,
¶¶ 137–38). But, as the ODRC Defendants note, (Doc. 79 at 19), the doctrine of sovereign
immunity bars the prosecution of state law claims against the State in federal court. See Ernst v.
Rising, 427 F.3d 351, 368 (6th Cir. 2005) (en banc) (citing Pennhurst St. Sch. & Hosp. v.
Halderman, 465 U.S. 89, 106 (1984)) (“And because the purposes of Ex parte Young do not apply
to a lawsuit designed to bring a State into compliance with state law, the States’ constitutional
immunity from suit prohibits all state-law claims filed against a State in federal court, whether

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those claims are monetary or injunctive in nature.”). And Plaintiff has not addressed this argument
in response. Even assuming Plaintiff had not waived his state law claims against the ODRC
Defendants, they are barred by the doctrine of sovereign immunity.
C. Defendants’ Lack of Personal Involvement
Plaintiff’s claims against the ODRC Defendants fail for a more fundamental reason:
Plaintiff has failed to allege individual misconduct on the part of any of the ODRC Defendants.
“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior. . . . Because vicarious liability is inapplicable
to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Plaintiff
failed to comply with that requirement here. Instead, he refers to various unidentified Defendants
in general terms, implying that they are all liable for the actions of one another. The closest
Plaintiff comes to alleging that individual Defendants violated the Constitution based on their own
individual actions is when he asserts that Defendant Jefferies allegedly “personally approved” his
detention “in isolation as punishment for his use of the grievance process.” (Id., ¶ 94). But even
this allegation is an impermissible legal conclusion that is insufficient for purposes of Rule 12(c).
See Twombly, 550 U.S. at 570. So the ODRC Defendants are entitled to judgment on the pleadings
here. See Iqbal, 556 U.S. at 676.
Although Plaintiff disagrees, (see Doc. 84 at 5–8), his Response confirms as much.1
According to him, he has “explained the unconstitutional conduct and then either specifically
stated the individual involved or otherwise referred to them by ‘ODRC Administrators and Staff’
or other such generalized terms as employee, chaplain, warden, etc.” (Id. at 6). This an accurate

1

Plaintiff concedes that there he has not pled a claim against Defendants Hunyadi or Lawrence in the Amended
Complaint. (See Doc. 84 at 5).

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description of Plaintiff’s Amended Complaint. The only Defendants he identified and alleged
specific facts demonstrating that they engaged in alleged misconduct are the Defendant
Contractors and Defendants Christler and Sibalski. They, of course, have not moved for judgment
on pleadings. But the remaining Defendants have, and for good reason. Plaintiff’s use of
“generalized terms” and legal conclusions couched as factual allegations are insufficient to
establish individual misconduct on the part of the ODRC Defendants. See Iqbal, 556 U.S. at 676.
Plaintiff’s attempt to use his Response to fill in gaps in the Amended Complaint is similarly
ineffective. (See Doc. 84 at 6–7). The Amended Complaint, not Plaintiff’s Response, controls for
purposes of ruling on the Motion. Any new allegations in his Response are, therefore, of no help
to him here.
In Plaintiff’s view, he has provided sufficient allegations to demonstrate that his claims
“are plausible” and “to raise a reasonable expectation that discovery will reveal evidence of …
individual levels of personal involvement in the constitutional violations.” (Doc. 84 at 8). Even
assuming that Plaintiff’s claims were plausible, Plaintiff has failed to comply with the fundamental
requirement that he “plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution,” Iqbal, 556 U.S. at 676. The ODRC Defendants
are entitled to judgment on the pleadings as a result.
The only remaining issue is whether Plaintiff should be permitted another attempt at
amending his complaint. (Doc. 84 at 3 (“[P]laintiff maintains that if this court finds that he has
failed to sufficiently detail the involvement of the individuals being requested for dismissal under
Rule 12(c), then it is requested upon the arguments that follow, the court permit to amend the
complaint with those details elaborated upon herein.”)). A number of factors weigh against
permitting Plaintiff to amend the complaint. This case has been pending for almost four years,

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and, while it may be appropriate to permit a pro se plaintiff an opportunity to amend his complaint
before dismissing it, see Brevaldo v. Muskingum Cty. Sheriff’s Office, No. 2:18-CV-446, 2018 WL
5808761, at *5 (S.D. Ohio Nov. 6, 2018), report and recommendation adopted, No. 2:18-CV-446,
2018 WL 6199008 (S.D. Ohio Nov. 28, 2018) (collecting cases), Plaintiff has already had that
chance here, (see generally Doc. 30). Further, the additional details provided by Plaintiff in his
Response do not suggest that further amendment would cure the fundamental deficiency in the
Amended Complaint; instead, Plaintiff offers more of the same—allegations of general
misconduct on the part of Defendants combined with ineffective legal conclusions couched as
factual allegations. (See, e.g., Doc. 84 at 6 (internal quotation marks and ellipsis omitted)
(“Defendants’ use of Nexus to transfer him, infers at least the warden and/or dept. warden (Noble
and Taylor) and it would have been filled out and filed by some staff member alleging a personal
relationship to plaintiff.”); id. (“[I]t is clear there is a history between Jefferys and Tolliver.
Because of an ODRC policy … which obligates the regional director (in this case Jefferys) to
approve of every inmate segregation after each 14 day period. Jefferys would have signed off by
policy on plaintiff’s segregation no less than three (3) times. The court should note here, that is
three (3) times after the investigator determined that a false report had been filed.”); id. at 7 (“It is
either Dept. Warden Moor or Chaplain Cahill that are responsible for the hiring, or maintaining
after his dismissal from MaCI and offenses at LoCI, the contractor. The errant policy that allows
this is administered by Dr. Davis, who ultimately approves these contracts. He is directly
implicated by inference as Religious Services Administrator, along with Regional Director
Jefferys as implementing and overseeing the issues violating RLUIPA and harming plaintiff.”)).
On these facts, an additional opportunity to amend is not warranted here.

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IV.

SHOW CAUSE ORDER
The Amended Complaint in this action was filed on December 3, 2018 (Doc. 30), and

Plaintiff has yet to effect service on Defendants Abdul Rahman Shahid and Sunni Ali Islam.
Federal Rule of Civil Procedure 4(m) provides in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
The Court ORDERS Plaintiff to show good cause within fourteen (14) days of the date of this
Report and Recommendation and Order why this action should not be dismissed as to Defendants
Abdul Rahman Shahid and Sunni Ali Islam and why an extension of time to effect service should
be allowed. The good cause showing must be supported with sworn affidavits.
V.

CONCLUSION
For the foregoing reasons, it is RECOMMENDED that the ODRC Defendants’ Motion

for Judgment on the Pleadings (Doc. 79) be GRANTED. Further, within 14 days of this Report
and Recommendation and Order, Plaintiff is ORDERED to show cause why this case should not
be dismissed with respect to Defendants Abdul Rahman Shahid and Sunni Ali Islam.
VI.

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 finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

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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).
IT IS SO ORDERED.

Date: July 24, 2020

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

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