Byerly v. Warden, Lebanon Correctional Insititution

Filing 59

REPORT AND RECOMMENDATION and ORDER: Magistrate Judge RECOMMENDS granting 24 Motion for Judgment on the Pleadings; granting in part and denying in part 46 Motion for Miscellaneous Relief; and denying as moot 27 Motion for Injunction and 29 Mo tion for Leave of Court to Amend Motion for Injunction. ECF 33 Motion to Stay Discovery, 34 Motion for an Order to Produce Discovery, 51 Objection, and 54 Motion to Strike Objection are DENIED as moot. Objections to R&R due by 6/19/2019. Signed by Magistrate Judge Kimberly A. Jolson on 6/5/2019. (ew)(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
STEPHEN W. BYERLY,
Plaintiff,
v.

Civil Action 2:18-cv-388
Judge Algenon L. Marbley
Magistrate Judge Jolson

WARDEN, LEBANON CORRECTIONAL
INSTITUTION,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings (Doc.
24), Plaintiff’s Motion for Injunction (Doc. 27), Plaintiff’s Motion for Leave of Court to Amend
Motion for Injunction (Doc. 29), Defendants’ Motion to Stay Discovery (Doc. 33), Plaintiff’s
Motion for an Order to Produce Discovery (Doc. 34), Plaintiff’s Motion for Miscellaneous Relief
(Doc. 46), Plaintiff’s Objection (Doc. 51), and Defendants’ Motion to Strike Objection (Doc. 54).
For the reasons that follow, it is RECOMMENDED that: Defendants’ Motion for Judgment on
the Pleadings (Doc. 24) be GRANTED; Plaintiff’s Motion for Miscellaneous Relief (Doc. 46) be
GRANTED in part and DENIED in part; and Plaintiff’s Motion for Injunction (Doc. 27) and
Plaintiff’s Motion for Leave of Court to Amend Motion for Injunction (Doc. 29) be DENIED as
moot. Further, Defendants’ Motion to Stay Discovery (Doc. 33), Plaintiff’s Motion for an Order
to Produce Discovery (Doc. 34), Plaintiff’s Objection (Doc. 51), and Defendants’ Motion to Strike
Objection (Doc. 54) are DENIED as moot.
I.

BACKGROUND
Plaintiff Stephen Byerly is a state prisoner at Marion Correctional Institution. He was

formerly incarcerated at Lebanon Correctional Institution (“LECI”). Defendants are Thomas

Scheitzer, the warden of LECI; the State of Ohio; Mike DeWine; Gary Mohr, the Director of the
Ohio Department of Rehabilitation and Corrections (“ODRC”); and Roger Wilson, the Chief
Inspector for ODRC. (Doc. 10 at 4).
Plaintiff suffers from vision impairments that allegedly impaired his ability to use the
grievance process at LECI. (Id. at 8, 9; Doc. 10-1 at 1–2). Although difficult to follow, Plaintiff
generally alleges that Defendants failed to respond to his grievances and that they denied him
access to the courts. (Doc. 10 at 5–8). Specifically, Plaintiff appears to allege that, in August
2017, prison officials lost his motion for authorization to file a second or successive federal habeas
petition. 1 (See id. at 5 (“Lost legal motion handed to prison officials on August 8th 2017 – habeas
corpus 28 U.S.C. 2244 denial federal right failed make it’s destination sent to Circuit Judge
Southern Dist. Court of Ohio.”); id. at 8 (“By losing legally mailed file habeas corpus – 28 U.S.C.
2244 is serious offence in Mr. Byerly’s challenge to courts for proof of his innocences?”)).
According to Plaintiff, prison officials, including Defendants, have failed to respond to his
grievances and complaints regarding the same. (Id. at 5–8).
Plaintiff filed his Complaint on May 2, 2018 (Doc. 5). Several months later, he filed his
Amended Complaint (Doc. 10). To address the alleged problems discussed above, Plaintiff
requests that the Court: (1) provide an alternative grievance process for visually impaired inmates;
(2) provide him with a magnification tool or handheld lens to allow him to read small print; (3)
provide prison officials with retraining so they follow ODRC policy regarding their obligation to

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Prior to August 2017, Plaintiff had filed several unsuccessful federal habeas actions in the district courts. See Byerly
v. OHIO, State of et al, 1:14-cv-01183 (N.D. Ohio Mar. 19, 2014) (transferred to the Sixth Circuit and dismissed for
lack of prosecution); Byerly v. Warden Ross Correctional Institution, 1:12-cv-01841 (N.D. Ohio July 13, 2012)
(transferred to the Sixth Circuit, which denied Plaintiff’s motion for authorization to file a second or successive
petition); Byerly v. Haviland, 1:05-cv-01095 (N.D. Ohio May 2, 2005) (dismissed due to procedural default). Plaintiff
has been similarly unsuccessful moving the Sixth Circuit to authorize his filing of a second or successive petition. See
In re: Stephen W. Byerly, 10-3122, Doc. 41 (6th Cir. Sept. 24, 2010) (denying Plaintiff’s motion for authorization to
file a second or successive petition).
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respond to prisoners’ grievances; (4) find Plaintiff’s lost legal motion; (5) order prison officials
not to interfere with Plaintiff’s mail; (6) order prison officials to facilitate his access to the courts;
(7) order prison officials to implement a system by which prisoners can file paper, rather than
electronic, grievances; and (8) order prison officials to pay for all costs and filing fees necessary
to remedy these issues. (Id. at 9–12).
Defendants filed their Motion for Judgment on the Pleadings (Doc. 24) on November 30,
2018. The briefing deadline for that Motion has passed, and the Motion is now ripe for resolution.
II.

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (Doc. 24)
Defendants move for judgment on the pleadings for three reasons. First, they argue,

Plaintiff has failed to state a claim upon which relief may be granted. (Doc. 24 at 2). Second, they
assert, Plaintiff’s claims are based on the doctrine of respondeat superior, which cannot be used to
establish liability in § 1983. (Id.). Third, they contend, they are immune pursuant to the Eleventh
Amendment. (Id.).
A. STANDARD OF REVIEW
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.
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

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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).
B. DISCUSSION
1. Lack of Effective Grievance Process
Plaintiff generally alleges that Defendants have failed to ensure his access to an effective
grievance process. According to him, Defendants have repeatedly denied or failed to respond to
his grievances.
“The Sixth Circuit has held that prisoners do not have a constitutionally protected liberty
interest in an inmate grievance procedure.” Archibald v. Warren Cty. Reg’l Jail, No. 1:18-CVP63-GNS, 2018 WL 5270337, at *5 (W.D. Ky. Oct. 23, 2018) (collecting cases). Defendants’
“failure to respond, or other deficiencies in the grievance process, . . . do not give rise to a plausible
claim of federal constitutional dimension because [Plaintiff] has no right under the Constitution to
an effective prison grievance procedure.” Haywood v. Gifford, No. 1:17-CV-398, 2017 WL
5633316, at *3 (S.D. Ohio Oct. 4, 2017), report and recommendation adopted, No. 1:17-CV-398,
2017 WL 5598167 (S.D. Ohio Nov. 21, 2017) (collecting cases); see also Argue v. Hofmeyer, 80
F. App’x 427, 430 (6th Cir. 2003) (“Argue’s allegations do not state a claim because there is no

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inherent constitutional right to an effective prison grievance procedure.” (collecting cases));
Fugate v. Erdos, No. 1:19-CV-30, 2019 WL 1117348, at *3 (S.D. Ohio Feb. 14, 2019), report and
recommendation adopted, No. 1:19CV30, 2019 WL 1115701 (S.D. Ohio Mar. 11, 2019) (“To the
extent plaintiff complains the ODRC Chief Inspector failed to properly respond to plaintiff’s
grievance appeal, plaintiff’s complaint fails to state a claim for relief for a denial of due process
because plaintiff has no constitutional right to an effective grievance procedure.”). Plaintiff’s
Amended Complaint, therefore, fails to state a claim upon which relief may be granted with respect
to this issue.
2. Denial of Access to Courts
Plaintiff alleges that, in August 2017, Defendants lost his motion for authorization to file a
second or successive federal habeas petition. Liberally construing the Amended Complaint,
Plaintiff appears to allege that the loss of his motion in August 2017 resulted in “dismissal of his
case.” (Doc. 10 at 11).
“Prison officials may not erect any barriers that impede an inmate’s access to the courts.”
Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). “In order to state a claim for interference with
access to the courts, however, a plaintiff must show actual injury.” Harbin-Bey, 420 F.3d at 578
(citing Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). “Examples of actual
prejudice to pending or contemplated litigation include having a case dismissed, being unable to
file a complaint, and missing a court-imposed deadline.” Harbin-Bey, 420 F.3d at 578 (citing
Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)).
Plaintiff’s claim fails for several reasons. First, “[g]overnment 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

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Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal citations omitted). Plaintiff
has failed to allege that any of the Defendants were personally involved in the loss of his motion
for authorization. (See generally Doc. 10). To the contrary, he explicitly alleges that Defendants
are liable here in their supervisory capacity. (See, e.g., id. at 5 (alleging that Defendant Scheitzer,
the Warden of LECI, is the “legal/duly responsible party over all prison official” and that “he is
liable . . . when staff fails!”); id. (alleging that Defendant Mohr is liable because “all” prison
officials “report directly” to him and that he is a “liable party” because he has control “over all
prisons and person over all D.R.C. policies liable party . . . over all employee’s/contractors!”)).
Because he relies on the doctrine of respondeat superior, his claim fails as a result. See Iqbal, 556
at U.S. at 676.
Second, “[a] successful § 1983 claimant must establish that the defendant acted knowingly
or intentionally to violate his or her constitutional rights . . . such that mere negligence or
recklessness is insufficient.” Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999) (internal citation
omitted); see also Wojnicz v. Davis, 80 F. App’x 382, 384 (6th Cir. 2003) (“[N]egligence does not
suffice to state an access to the courts violation under § 1983.”). But here all Plaintiff alleges is a
one-time loss of his mail, a quintessential example of negligence. In the absence of allegations of
intentional conduct on the part of Defendants, Plaintiff’s denial-of-access-to-courts claim fails.
Third, any request for injunctive relief fares no better. A party seeking injunctive relief
must establish ongoing or imminent future harm—a prior injury cannot justify the grant of such
relief. Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 970–971 (6th Cir. 2009); see
also Int’l Techs. Consultants, Inc. v. Stewart, No. 07-13391, 2012 WL 750154, at *2 (E.D. Mich.
Mar. 8, 2012) (“A party seeking injunctive relief must make a showing of concrete and

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particularized allegations of a threat of a future injury as the result of the defendant’s actions.”
(collecting cases)). Here, Plaintiff alleges only that prison officials lost his mail on one past
occasion. He does not identify any ongoing state custom or policy that will cause imminent future
harm. Therefore, any claim for injunctive relief based on Plaintiff’s denial-of-access-to-courts
claim fails.
Finally, to the extent the Amended Complaint can be read to request injunctive relief with
respect to Plaintiff’s denial-of-access-to-courts claim, that request for relief is now moot. In
August 2018, Plaintiff was transferred to Marion Correctional Institution, (Doc. 51 at 1), mooting
his claim for injunctive relief. See Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (“As noted
above, any declaratory or injunctive relief that Colvin seeks stemming from his complaint has been
mooted by his transfer to a different prison facility.”); Wilson v. Yaklich, 148 F.3d 596, 601 (6th
Cir. 1998) (“Wilson is no longer incarcerated at Mansfield Correctional Institution, where the
events that form the basis for his allegations in this case took place. Consequently, any claim for
injunctive relief against the defendants in their official capacities is also unavailing.”); Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (“[T]o the extent Kensu seeks declaratory and injunctive
relief his claims are now moot as he is no longer confined to the institution” where the alleged
unconstitutional conduct occurred.).
For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion for Judgment
be GRANTED.
III.

PLAINTIFF’S MOTION FOR MISCELLANEOUS RELIEF (Doc. 46)
Although difficult to follow, Plaintiff’s Motion for Miscellaneous Relief appears to seek

leave to file a number of motions, briefs, and exhibits that he attempted to mail but were returned
to him due to insufficient funds in his prison account. (See Doc. 46). Plaintiff argues that prison

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officials prevented him from timely mailing these documents. Defendants, not surprisingly, insist
that Plaintiff is responsible for the failure to mail the relevant documents. (See Doc. 48). They
contend that the Court should deny Plaintiff’s Motion because he has failed to comply with the
Local Rules and the motions, briefs, and exhibits Plaintiff seeks to file are irrelevant to the claims
set forth in the Amended Complaint. (Id. at 2–8).
Given Plaintiff’s status as a pro se prisoner, the Undersigned prefers to resolve the issues
raised by his Motion on the merits, rather than on his failure to comply with the relevant Local
Rules and Federal Rules of Civil Procedure. To the extent the attachments to Plaintiff’s Motion
for Miscellaneous Relief (Docs. 46-1–46-9) contain arguments that could be read to oppose
Defendants’ Motion for Judgment on the Pleadings, the Court RECOMMENDS that the Motion
(Doc. 46) be GRANTED in part to allow those arguments to be considered as part of the record.
The Undersigned, accordingly, has reviewed and considered those arguments in ruling on
Defendants’ Motion for Judgment on the Pleadings.
The Undersigned reaches a different conclusion to the extent Plaintiff’s Motion for
Miscellaneous Relief seeks to supplement or amend the Amended Complaint. Rule 15(a)(2) of
the Federal Rules of Civil Procedure provides that, when a party must seek leave of court to amend
a pleading, “[t]he court should freely give leave when justice so requires.” This rule, which allows
a liberal policy in favor of granting amendments, “reinforce[s] the principle that cases ‘should be
tried on their merits rather than the technicalities of the pleadings.’” Inge v. Rock Fin. Corp., 388
F.3d 930, 936 (6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir.
1986)). Thus, the trial court enjoys broad discretion in deciding motions for leave to amend. See
Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 119, 1130 (6th Cir. 1990). In exercising its discretion,
the trial court may consider such factors as “undue delay, bad faith or dilatory motive on the part

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of a movant, repeated failures to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment and futility of the
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Liberally construed, Plaintiff’s filings seek to add new claims and new defendants to this
action for alleged misconduct that post-dates the Amended Complaint. In August 2018, Plaintiff
was transferred to Marion Correctional Institution. (Doc. 51 at 1). In December 2018, employees
at Marion Correctional Institution allegedly began to interfere with Plaintiff’s access to his legal
materials. (Doc. 46-2 at 5). Plaintiff, therefore, seeks to add a number of defendants to this action:
Marion Correctional Institution (“MCI”), (Doc. 46-4 at 3); unidentified prison officials at MCI
(Doc. 46-2 at 3); and Sergeant Griffin and unknown accomplices (id. at 4). He would like to
pursue claims against those proposed defendants based on their alleged responsibility for denying
him access to his legal materials and destroying his legal materials (See, e.g., Doc. 46-2 at 3–4;
Doc. 46-3 at 7; id. at 14; Doc. 46-6 at 3–5; id. at 8–9). In short, Plaintiff seeks to file a new lawsuit
against unrelated defendants for unrelated claims and combine it with the current action.
“[C]ourts have generally held that ‘unrelated claims against different defendants belong in
different suits, not only to prevent the sort of morass a multiple claim, multiple defendant suit
produces but also to ensure that prisoners pay the required filing fees.’” Burfitt v. Erving, No.
1:18-CV-260, 2018 WL 6313377, at *1–2 (S.D. Ohio Oct. 30, 2018), report and recommendation
adopted, No. 1:18CV260, 2018 WL 6308993 (S.D. Ohio Dec. 3, 2018) (alterations omitted)
(quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). To the extent Plaintiff’s Motion
(Doc. 46) attempts to supplement or amend the Amended Complaint, it should be denied “because
he seeks to add new causes of action and new defendants.” Burfitt, 2018 WL 6313377, at *2; see
also Rice v. Turner, No. 4:17CV2684, 2018 WL 3067767, at *1 (N.D. Ohio June 21, 2018)

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(“Plaintiff filed a Motion for Leave to Amend the Complaint (ECF No. 8) on February 5, 2018.
His proposed Amended Complaint is actually a proposed supplemental pleading and pertains to
an incident completely unrelated to any of the incidents described in the Complaint. Furthermore,
it is directed primarily at a person who is not named as a Defendant, either in this action or in the
supplemental pleading. Given that the Complaint already contains 331 paragraphs, describing
incidents occurring over a two-year period of time, the Court denies his request for leave to add
another incident to the pleading. Because it is unrelated to any events described in this action,
Plaintiff can file another action against the individuals against whom he intends to bring those
claims. His Motion for Leave to Amend Complaint (ECF No. 8) is denied.”). It is, therefore,
RECOMMENDED that Plaintiff’s Motion for Miscellaneous Relief (Doc. 46) be DENIED to
the extent it seeks to supplement or amend the Amended Complaint.
IV.

INJUNCTION-RELATED MOTIONS (Docs. 27, 29)
Having found that Defendants’ Motion for Judgment on the Pleadings (Doc. 24) should be

granted and that Plaintiff’s attempts to supplement or amend his Amended Complaint via his
Motion for Miscellaneous Relief (Doc. 46) should be denied, the remaining motions in this case
are moot. It is, therefore, RECOMMENDED that Plaintiff’s Motion for Injunction (Doc. 27) and
Plaintiff’s Motion for Leave of Court to Amend Motion for Injunction (Doc. 29) be DENIED as
moot.
V.

DISCOVERY-RELATED MOTIONS (Docs. 33, 34, 51, 54)
Having found that Defendants’ Motion for Judgment on the Pleadings (Doc. 24) should be

granted and that Plaintiff’s attempts to supplement or amend his Amended Complaint via his
Motion for Miscellaneous Relief (Doc. 46) should be denied, the remaining motions in this case
are moot. Defendants’ Motion to Stay Discovery (Doc. 33), Plaintiff’s Motion for an Order to

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Produce Discovery (Doc. 34), Plaintiff’s Objection (Doc. 51), and Defendants’ Motion to Strike
Objection (Doc. 54) are, therefore, DENIED as moot.
V.

CONCLUSION
For the foregoing reasons, it is RECOMMENDED that: Defendants’ Motion for Judgment

on the Pleadings (Doc. 24) be GRANTED; Plaintiff’s Motion for Miscellaneous Relief (Doc. 46)
be GRANTED in part and DENIED in part; and Plaintiff’s Motion for Injunction (Doc. 27) and
Plaintiff’s Motion for Leave of Court to Amend Motion for Injunction (Doc. 29) be DENIED as
moot. Further, Defendants’ Motion to Stay Discovery (Doc. 33), Plaintiff’s Motion for an Order
to Produce Discovery (Doc. 34), Plaintiff’s Objection (Doc. 51), and Defendants’ Motion to Strike
Objection (Doc. 54) are DENIED as moot.
IT IS SO ORDERED.

Date: June 5, 2019

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

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