Heid et al v. Hooks et al

Filing 57

ORDER granting 39 Motion for Summary Judgment; adopting Report and Recommendations re 50 Report and Recommendations.. Signed by Chief Judge Algenon L. Marbley on 9/1/2020. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAY SCOTT HEID, et al.,

:
:
:
: Case No. 2:17-CV-650
:
: CHIEF JUDGE ALGENON L. MARBLEY
:
: Magistrate Judge Chelsey M. Vascura
:

Plaintiffs,
v.
MARK HOOKS, et al.,
Defendants.

OPINION & ORDER
This matter is before the Court on Magistrate Judge Vascura’s Report and
Recommendation recommending that Plaintiffs’ Ray Scott Heid and James Damron claims for
injunctive and declaratory relief be DENIED AS MOOT and that Defendants’ Motion for
Summary Judgment be GRANTED as to all remaining claims. (ECF No. 50). Plaintiffs filed an
objection to this report and recommendation. (ECF No. 51). For the reasons set forth below, this
Court ADOPTS the Report and Recommendation in its entirety based on an independent analysis
of the claims therein. Plaintiffs’ claims for injunctive and declaratory relief are DENIED AS
MOOT and Defendants’ Motion for Summary Judgment is GRANTED.
I.

BACKGROUND

Plaintiffs are inmates at Ohio correctional facilities. Plaintiff Ray Scott Heid is incarcerated
at Lebanon Correctional Institution and Plaintiff James Damron is incarcerated at Trumbull
Correctional Institute. Previously, however, both were incarcerated at the Ross Correctional
Institution (“RCI”), where they allege prison officials violated their rights under the Eighth
Amendment, due to Defendants’ deliberate indifference to a substantial risk of serious physical
harm related to their access to prison phones.

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Plaintiffs’ housing unit consisted of six phones; inmates had access to the phones twice a
day during their out-of-cell recreation time in the dayroom. (ECF No. 9 at ¶ 13). Plaintiffs allege
that five of the six phones were controlled by inmates who belonged to “black supremacist gangs,”
which limited white inmates to one phone. Id. at ¶12. Plaintiffs’ cell block was divided into two
groups: “top range” and “bottom range.” The top range and bottom range groups did not take
dayroom at the same time. Id. at ¶ 14. At the time the complaint was filed, the top range group had
significantly more inmates than the bottom range group. Id. at ¶¶ 15–16.
Plaintiffs allege that the gangs’ control of the phones resulted in violence among white
inmates attempting to use the one remaining phone. Id., ¶ 17. Plaintiffs further allege that using a
gang-controlled phone without permission would result in threats of violence, in the first instance,
and, thereafter, in: “(1) a direct attack; (2) a compelling position to engage in violence by ones
[sic] own volition – either in a cell, laundry room, T.V. room, and so forth . . .; and
(3) tell the correction officer . . . and be labelled a ‘snitch’.” Id. at ¶ 22. According to Plaintiffs,
“these incidents” often resulted in open attacks by black inmates in the dayroom, with the intent
that the victim is removed from the cell block for their own protection (a practice apparently
referred to as “crashing”). Id. at ¶ 23. For their part, Defendants deny that tensions over the prison
phones were a major source of inmate violence at RCI. (ECF No. 46 at PAGEID #600, 607).
Plaintiffs expressed their concerns regarding the phones to Defendants, through “kites” (a
method for inmates to communicate with RCI staff), on numerous occasions from December 1,
2015 to March 23, 2016. (ECF No. 9, PAGEID #219-30, 235-36). After each notice, Plaintiffs
were informed that Defendants were working to mitigate the phone issue. (Id. at PAGEID #220,
222, 232).

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Judge Vascura found that on April 1, 2016, non-party Diehl responded to a kite received
by Plaintiff Heid a week prior regarding the phone issue. (Compl. Ex. 36, Id., PAGEID #274.) In
his response, Diehl acknowledges that RCI administration took the following steps: a phone list
was implemented at Heid’s suggestion; a committee was formed to address the issue and consider
resolution of it; the institution was approved to procure additional phones and was working with
Global Tel Link (“GTL”) to do so; and Heid was offered a relocation to the bottom range, which
experienced less phone congestion by virtue of having fewer inmates. Id. Plaintiffs concede that
each of these responsive actions was taken. (See, e.g., Compl. Ex. 13, ECF No. 9, PAGEID #236;
Compl. Ex. 14, ECF No. 9, PAGEID #237; Pls.’ Mem. in Opp. ¶¶ 11, 16–17, 37–39, ECF No. 46;
Defs.’ Resps. to Pls.’ Interrog. and Reqs. for Admis., ECF No. 46, PAGEID #591–614). Plaintiffs
allege in their objection that this response was not related to Heid’s kite and instead was related to
Plaintiff Heid’s Notification of Grievance filed on March 7, 2016 and was the conclusion of an
investigation into Plaintiff Heid’s claim. (ECF No. 51 at 2).
On July 10, 2016, Damron engaged in a fist fight that arose from his use of a phone that
was allegedly claimed by inmates in the “black supremacist gang.” (ECF No. 46 at PAGEID #583).
While using the phone, Damron was approached by inmate, Brandon Chukes, and was told that he
needed to get off of the phone. Id. Damron shoved Chukes at the phone, afterwards Chukes
summoned Damron to the TV room adjacent to the phones to fight. Id. Aware of Chukes’ intention
to engage in a fight, Damron went into the TV room to carry out the physical altercation. Id.
On July 18, 2016, Damron filed an Informal Complaint Resolution with Howard,
reiterating his concerns over the phones. (Compl. Ex. 28, ECF No. 9, PAGEID #260.) Howard
responded that RCI was not responsible for Damron voluntarily engaging in a fight with Chukes
but was continuing to find a solution to the phone problem. Id. GTL tablet phones were later

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distributed to all RCI inmates in 2017. (ECF No. 51, PAGEID # 675). Plaintiffs have each since
been relocated to other Ohio state correctional institutions. (ECF No. 39-3, 39-4.)
Plaintiffs filed their complaint on July 26, 2017. (ECF No. 1.) After initial screening under
28 U.S.C. § 1915A, the Court dismissed Plaintiffs’ Fourteenth Amendment claim and class action
allegation. (ECF No. 12). Subsequently, the Court dismissed Plaintiffs’ claims for monetary
damages against Defendants in their official capacities. (ECF No. 33). Plaintiffs’ only remaining
claim is based on allegations that the Defendants were deliberately indifferent to a serious risk of
harm against Plaintiffs, in violation of the Eighth Amendment. Defendant has moved for summary
judgment. (ECF No. 39). Magistrate Judge Vascura Recommended that Defendants’ Motion for
Summary Judgment be GRANTED. (ECF No. 50). Plaintiffs objected to Judge Vascura’s Report
and Recommendation in a filing received by the Court on February 21, 2020. (ECF No. 51).
Defendants responded to this objection, taking issue with it as being untimely filed. (ECF No. 52).
Plaintiffs responded noting that they timely submitted their objection by giving it to prison
authorities for mailing on February 3, 2020. (ECF No. 53).1
II.

STANDARD OF REVIEW

When objections to a Magistrate Judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the Magistrate
Judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.
§ 636(b)(1)(C). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the Magistrate Judge with
instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). Because Defendant has

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Plaintiffs’ objection was filed upon delivery to prison officials on February 3, 2020, thus, Plaintiffs’ objection is
considered a timely filing. See Houston v. Lack, 487 U.S. 266, 269-72 (1988) (holding that an inmate acting without
counsel’s aid documents are considered filed upon delivery to prison officials).

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filed objections to the Report and Recommendation, the Court reviews the recommended
disposition de novo.
Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is
appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence must
be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must
be drawn in the non-moving party’s favor. United States Sec. & Exch. Comm’n v. Sierra Brokerage
Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep’t of City of Zanesville,
463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks “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.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)). “[S]ummary judgment will not lie if the
dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
III.

ANALYSIS

Plaintiffs have three objections to Judge Vascura’s report and recommendation. Their first
objection relates to when their claims for injunctive and declaratory relief became moot. They do
not contest that those claims are moot but do object to Judge Vascura’s finding as to when those
claims became moot. Plaintiffs’ second objection is to Judge Vascura’s recommendation that
summary judgment be granted as to Plaintiff Damron’s Eighth Amendment claim. (ECF No. 51 at
8). Finally, Plaintiffs object to Judge Vascura’s decision to deny Plaintiffs’ Motion to Strike. This
Court will address each of these objections in turn, below.

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Plaintiffs did not object to Judge Vascura’s recommendation that Defendant’s motion for
summary judgment be GRANTED on the damages claim by Plaintiff Heid. The Report and
Recommendation specifically advised the parties that the failure to object results 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. (ECF No. 50 at 14). Accordingly, this Court ADOPTS Judge Vascura’s
report and recommendation and GRANTS Defendants’ Motion for Summary Judgment as to
Plaintiff Heid’s claim for damages.
A. Plaintiffs’ Claims for Injunctive and Declaratory Relief are Moot.
Plaintiffs’ first objection relates to when their claims were mooted. Plaintiffs concede that
their injunctive and declaratory claims are now moot but argue that their claims did not become
moot when they were transferred from RCI in 2018 and 2019, but instead when they were provided
with GTL tablets in October 2017. (ECF No. 51 at 6-7). Plaintiffs argue that the fact that their
claims were mooted by the provision of GTL tablets is a “‘judicially sanctioned change in the legal
relationship of the parties’” that is the “equivalent to providing full injunctive relief” which in turn
entitles them to a sua sponte summary judgment finding in their favor. Id. at 7-8.
Plaintiffs, however, misunderstand the consequences of Judge Vascura’s finding that their
claims are moot. The determination that a claim is moot is not a finding in favor of a defendant
nor a finding in favor of a plaintiff. It is only a determination that there is no live issue for the
court to determine. Article III, § 2 of the United States Constitution vests federal courts with
jurisdiction to address “actual cases and controversies.” Coalition for Gov't Procurement v. Fed.
Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) (citing U.S. CONST. art III, § 2). Federal
courts are prohibited from rendering decisions that “do not affect the rights of the

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litigants.” Id. (citing Southwest Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th
Cir. 2001)). This is broadly known as justiciability doctrine and encompasses the concepts of
mootness and ripeness. A case becomes moot “when the issues presented are no longer live or
parties lack a legally cognizable interest in the outcome.” See Cleveland Branch, N.A.A.C.P. v.
City of Parma, OH, 263 F.3d 513, 530 (6th Cir. 2001) (quoting County of Los Angeles v.
Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). In essence, the mootness
doctrine prohibits federal courts from hearing cases which, due to changed circumstances, can no
longer impact the interests of litigants. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40
L.Ed.2d 164 (1974).
Plaintiffs do not dispute that their claims are currently moot, and this Court agrees with
Judge Vascura that both the distribution of the GTL tablet phones at RCI and the Plaintiffs’ transfer
to different correctional institutions does not allow Defendants to commit the alleged constitutional
violations in the future. Accordingly, this court cannot grant summary judgment sua sponte in
Plaintiffs’ favor. Even if their claims were not moot, the Sixth Circuit disfavors sua sponte grants
of summary judgement because it poses notice issues.2 Accordingly, this court ADOPTS Judge
Vascura’s report and recommendation and determines that that Plaintiff’s claims for injunctive
and declaratory relief are DENIED AS MOOT.

2

See Delphi Automotiove Systems, LLC. V. United Plastics, Inc., 418 F. App’x 374, 379
(6 Cir. 2011) (stating that a sua sponte grant of summary judgment may be entered only “in
certain limited circumstances so long as the losing party was on notice that the nonmoving party
had to come forward with all of [its] evidence”). The district court must “afford the party against
whom sua sponte summary judgment is to be entered ten-days’ notice and an adequate opportunity
to respond.” Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984) (citing Kistner v. Califano, 579
F.2d 1004 (6th Cir. 1978)). In this case, Judge Vascura’s report and recommendation would not
constitute adequate notice because there was no indication to Defendants that summary judgment
was imminent. See Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (holding that a
magistrate judge’s R&R was not sufficient notice to a party that it was at risk of summary
judgment).
th

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B. Plaintiff Damron’s Eighth Amendment Claim
As to Plaintiff Damron’s Eighth Amendment claim, Plaintiffs’ primary objection is that
Judge Vascura “misinterpreted the subjective test for deliberate indifference and the rules for
summary judgment … by accepting the defendants’ contradictory statements as true and drawing
the conclusion that defendants’ actions were reasonable.” (ECF No. 51 at 15). Essentially,
Plaintiffs argue that a reasonable jury could find that Defendants’ responses to Plaintiffs’
complaints were not reasonable measures to protect Plaintiffs’ safety under the circumstances. Id.
To establish an Eighth Amendment violation, an inmate must show that they experienced
a substantial risk of being harmed and that the defendant displayed deliberate indifference to that
substantial risk. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Estelle v. Gamble, 429 U.S.
97, 97 S. Ct. 285, 50 L.ED.2d 251 (1976); Wilson v. Seiter 501 U.S. 294, 111 S. Ct. 2321, 115
L.ED.2d 271 (1991)). This test has both a subjective and an objective component. Objectively, the
substantial risk must be “sufficiently serious.” Farmer, 511 U.S. at 834. Subjectively, the
defendants accused of violating the Eighth Amendment must have acted with a state of mind that
can accurately described as “deliberate indifference.” Morgan v. Lamneck, No. 2:09-CV-218,
2011 WL 1114415, at *4 (S.D. Ohio Mar. 24, 2011) The subjective component of deliberate
indifference requires the inmate to show that the prison official “(1) subjectively perceived facts
from which to infer substantial risk to the prisoner, (2) did in fact draw the inference, and (3) then
disregarded that risk.” Arflack v. County of Henderson, Kentucky, 412 Fed. App’x. 829, 832 (6th
Cir. 2011) (citing Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Further, “prison
officials who actually knew of substantial risk to inmate health or safety may be found free from
[Eighth Amendment] liability if they responded reasonably to the risk, even if harm ultimately was
not averted.” Farmer, 511 U.S. at 844.

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Plaintiffs argue that a jury could find that the various actions taken by Defendants to
address Plaintiffs’ complaints about the telephones were inadequate and that a jury could find that
their suggested remedies (e.g. “racially balanced phones”) would have been reasonable. (ECF No.
51 at 15, 16). Plaintiffs further argue that they need not “demonstrate Defendants’ deliberate
indifference to [Damron’s] safety.” Id. at 15.
To survive summary judgment, however, Plaintiffs must show that Defendants disregarded
a risk of harm to Plaintiff Damron, not that Defendants’ actions were inadequate. See Arflack v.
County of Henderson, Kentucky, 412 Fed. App’x. 829, 832 (holding that to survive a motion for
summary judgment, the plaintiff must allege facts that, if true, show that the prison officials (1)
subjectively perceived facts from which to infer substantial risk to the prisoner, (2) did in fact draw
the inference, and (3) then disregarded that risk.”) (citing Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001)).
In this case, Plaintiffs do not deny that Defendants implemented tactics to mitigate the risk
of harm to Plaintiffs, they instead argue that these measures were inadequate. The measures taken
by Defendants to address Plaintiffs’ complaints include: (1) establishing a committee to consider
appropriate solutions to the phone problem; (2) a phone list system (one of the solutions suggested
by Plaintiffs); (3) distributing GTL tablet phones to every inmate (4) the addition of phones to the
block. (ECF No. 50 at 11). In their objection, Plaintiffs challenge the adequacy, efficiency, and
timeliness of each of these actions. (ECF No. 51 at 9-13). As Judge Vascura determined, however,
Plaintiffs point to no evidence indicating that Defendants were deliberately indifferent to a risk of
harm to Plaintiffs.
The Sixth Circuit requires evidence of an obdurate or wanton state of mind, not mere
“inadvertence or good faith error.” Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992) (noting that

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while the existence of a “long duration of a cruel prison condition may make it easier to establish
knowledge and thus intent on the part of prison officials … the existence of cruel prison conditions
does not cause the intent requirement to ‘evaporate.’”). Where a prison official reacts to a risk of
harm posed to an inmate, a Court is not to focus on what the defendant “could have done
differently, but whether [the defendant’s] response was reasonable.” Mangum v. Repp, 674 Fed.
Appx. 531, 540 (6th Cir. 2017) (determining that even viewing the facts in the light most favorable
to plaintiff, where the challenge is to the sufficiency of a defendant’s good faith attempts at a
remedy, that attack “sounds in negligence, not deliberate indifference”). The Sixth Circuit does
not require that “prison officials take every possible step to address a serious risk of harm” and, in
fact, requires courts to “take into account the “‘constraints facing the official[s].’” Wilson v.
Williams, 961 F.3d 829, 844 (6th Cir. 2020); Conley v. Warden, 1:07CV737, 2008 WL 4657084,
at *5 (S.D. Ohio Oct. 21, 2008) (noting that where prison officials undertake a course of actions
to prevent harm to an inmate, they “should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security”).
The evidence Plaintiffs point to indicates that Defendants reasonably addressed Plaintiffs’
complaints as to the telephone issue. Plaintiffs’ disapproval of Defendant’s solutions or the
effectiveness of their actions is not evidence that Defendants were deliberately indifferent. See
Conley v. Warden, 1:07CV737, 2008 WL 4657084, at *5 (S.D. Ohio Oct. 21, 2008) (dismissing
plaintiff’s eighth amendment claim for deliberate indifference to safety where defendants sent
plaintiff’s claims to committee which considered the claim and issued a decision, noting “[w]hile
the decision is not the one which Plaintiff prefers, we find no evidence that prison administrators
are ignoring his complaints or are being deliberately indifferent to a known risk”); Durham, 2019

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WL 3754012, at *7 (“Plaintiff’s disagreement with the ultimate outcome and the manner in which
[prison business] was conducted is insufficient to establish that [defendant] was deliberately
indifferent to a known risk of harm.”); c.f., Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th
Cir. 2002) (finding that “a difference of opinion between [an inmate] and [his] prison health care
providers [or] a dispute over the adequacy of [his] treatment . . . does not amount to an Eighth
Amendment claim” for deliberate indifference in the context of providing medical care) (internal
citation omitted).
Plaintiffs further object to Judge Vascura’s alternate finding that Defendants are not liable
under the Eighth Amendment for Damron’s injuries sustained as a result of his decision to engage
in a physical fight with inmate Chukes. (ECF No. 51 at 13). Plaintiffs contend that Damron and
Chukes’ physical altercation was a direct result of Defendants’ deliberate indifference. Id.
Plaintiffs also dispute Judge Vascura’s finding that Damron followed Chukes “down a hall” to
engage in the physical altercation, instead Plaintiffs insist that the altercation occurred in the TV
room which was adjacent to the phone Damron attempted to use. Id. This detail, however, has no
effect on the fact that Plaintiff Damron made the decision to be involved in the fist fight that lead
to his injury.
The Sixth Circuit recognizes that “[i]mplicit in [the deliberate indifference] standard is the
recognition that the plaintiff must allege that he has suffered or is threatened with suffering actual
harm as a result of the defendants’ acts or omissions before he can make any claim with an arguable
basis in Eighth Amendment jurisprudence.” Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998).
While the Eighth Amendment imposes on prison officials a general “duty to protect prisoners from
violence at the hands of other prisoners,” that duty does not extend to situations where an inmate
chooses to engage in a fight. Farmer, 511 U.S at 833. Here, Defendants cannot be held liable for

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the injuries that Damron sustained during the altercation because Damron’s injuries were the
product of his own decision to engage in the fight as opposed to an act or omission by Defendants.
See Farmer, 511 U.S. at 834 (noting that “[i]t is not . . . every injury suffered by one prisoner at
the hands of another that translates into constitutional liability for prison officials responsible for
the victim’s safety.”). Damron was a willing participant in the altercation. Although Damron
contends that he was a victim of circumstance, he admits that he pushed Chukes while using the
phone and then met Chukes in the T.V. room to further engage in a fight with him. (ECF No. 46
at PAGEID #583). Damron did not make any prison officials aware of the threat Chukes posed to
him and did not attempt to deescalate the situation. Thus, Defendants did not cause the injuries
that Plaintiff Damron sustained through their alleged deliberate indifference.
For the reasons stated above, this Court OVERRULES Plaintiffs’ Objections to Judge
Vascura’s Report and Recommendation. Based on an independent analysis of the claims herein,
this Court GRANTS Defendants’ Motion for Summary Judgment as to Plaintiff Damron’s claims
for damages.
C. Plaintiffs’ Motion to Strike Defendants’ Summary Judgment Evidence
Plaintiffs also object to Judge Vascura’s decision to deny their motion to strike affidavits
that Defendants attached to their motion for summary judgment. (ECF No. 51 at 17). Plaintiffs
argue that Defendants are “liars and have committed perjury” by offering inconsistent statements.
Id.
Judge Vascura’s decision to deny the motion to strike was a decision on a non-dispositive
matter. When an objection is lodged to a magistrate judge’s decision on a non-dispositive matter,
the magistrate judge’s decision will be reversed only if it is “clearly erroneous or is contrary to the
law.” Fed. R. Civ. P. 72(a); 28 U.S.C § 636(b)(1)(A). A magistrate judge’s factual findings are

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reviewed pursuant to the “clearly erroneous” standard, “while her legal conclusions will be
reviewed under the more lenient ‘contrary to law’ standard.” Gandee v. Glaser, 785 F. Supp. 684,
686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994). A factual “finding is ‘clearly erroneous’
when the reviewing court . . . is left with the definite and firm conviction that a mistake has been
committed.” Heights Cmty. Cong. V. Hilltop Realty, Inc., 774 F.2d 135,140 (6th Cir. 1985). A
legal conclusion is “contrary to law” when the conclusions contradict or ignore applicable precepts
of law. M.A. v. Wyndham Hotels & Resorts, Inc., No. 2:19-CV-755, 2020 WL 1983069, at *2
(S.D. Ohio Apr. 27, 2020) (citing Gandee, 785 F. Supp. at 686).
In their motion to strike, Plaintiffs argued that various affidavits submitted by Defendants
should be stricken because they were a sham created only for Defendants to receive summary
judgment. (ECF No. 46, PAGEID #627–37.) Plaintiffs argue that Judge Vascura’s denial of their
motion to strike is wrong because through the affidavits, Defendants have given inconsistent and
contradicting statements of facts, some while under oath, to receive a favorable legal outcome.
(ECF No. 51 at 17 ¶ 38). Hearsay statements and statements not based on personal knowledge
should be disregarded by a court when ruling on a summary judgment motion, however, courts
should consider any remaining portions of an affidavit. Brown v. BKW Drywall Supply, Inc., 305
F. Supp. 2d 814, 821 (S.D. Ohio 2004) (citing Vass v. Riester & Thesmacher Co., 79 F.Supp.2d
853, 858 (N.D. Ohio 2000)). Because this Court can simply disregard inconsistent statements,
Judge Vascura’s determination that the statements should not be stricken is not contrary to law.
Accordingly, Plaintiffs’ objection to the denial of their motion to strike is OVERRULED.
IV.

CONCLUSION

For the foregoing reasons, this Court ADOPTS Judge Vascura’s Report (ECF No. 50)
recommending that Plaintiffs’ claims for injunctive and declaratory relief be DENIED AS MOOT

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and that Defendants’ Motion for Summary Judgment (ECF No. 39) be GRANTED as to all
remaining claims. Based on independent analysis, Plaintiffs’ claims for injunctive and declaratory
relief are DENIED AS MOOT and Defendants’ Motion for Summary Judgment is GRANTED.

________
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 1, 2020

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