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Alford v. Mohr

United States District Court, S.D. Ohio, Western Division

January 3, 2018

BRIAN K. ALFORD, Plaintiff,
v.
GARY MOHR, et al., Defendants.

          Dlott, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge

         Plaintiff, an inmate currently incarcerated at the Toledo Correctional Institution, brings this action alleging violations of his civil rights by multiple defendants during his prior incarcerations at the Lebanon Correctional Institution (LeCI) and Warren Correctional Institution (WCI).[1] This matter is before the Court on the following motions: (1) plaintiff s motion to supplement the second amended complaint pursuant to Fed.R.Civ.P. 15(d) (Doc. 43); (2) plaintiffs motion for leave to supplement the second amended complaint under Fed.R.Civ.P. 15(d) and for appointment of counsel (Doc. 48), defendants' opposing memorandum (Doc. 61), and plaintiffs reply (Doc. 86); (3) plaintiffs motion for service on Gary Mohr, for preliminary injunction, and to appoint counsel (Doc. 67) and defendants' opposing memorandum (Doc. 76); (4) plaintiffs motion for documentation (Doc. 74); (5) plaintiffs motion for extension of time to file a response in opposition to defendants' motion to dismiss (Doc. 56) and a reply in support of plaintiffs request for entry of default (Doc. 45) and motion for leave to supplement the second amended complaint and for appointment of counsel (Doc. 48) (Doc. 75); (6) plaintiffs motion to strike the Order granting him leave to proceed in forma pauperis on appeal (Doc. 90); (7) plaintiffs motion to strike defendants' reply in support of motion to dismiss (Doc. 91); and (8) plaintiffs second motion to strike defendants' reply memorandum and to strike defendants' memorandum in opposition to plaintiffs motion to strike (Doc. 98).

         I. Background

         Plaintiff filed the original complaint in this action on October 4, 2015, and a motion for leave to proceed in forma pauperis on November 9, 2015. (Docs. 1, 3). The District Judge adopted the undersigned's Report and Recommendations which recommended that leave to proceed in forma pauperis be denied. (Docs. 5, 11). The District Judge also denied plaintiffs motion to alter or amend the judgment. (Doc. 15). Plaintiff filed a notice of appeal from the Order denying his motion to alter or amend the judgment. (Doc. 17). A Report and Recommendation was issued recommending that the case be dismissed for failure to pay the full filing fee. (Doc. 20). The District Judge stayed her ruling pending a decision on plaintiffs appeal. (Doc. 25). The Court of Appeals issued a decision vacating the District Court's Order and remanded the case for further proceedings on November 30, 2016. (Doc. 26).

         Plaintiff thereafter filed a second amended verified complaint in this action on April 10, 2017. (Doc. 35). Plaintiffs complaint named as defendants Gary Mohr, Ernie Moore, J. Schweitzer, Dan Hudson, M. Westall, R. Malott, Officer Walder, Officer Gay, Officer Whitlow, Mona Parks, George Crutchfield, Cynthia Hill, Lt. Nelson, Dr. Eddy, Timothy Heyd, Dr. Carlson, Brenda Tilton, Amy Mcintosh, Norm Evans, R. Wingate, F. Epperson, Ohio Department of Rehabilitation and Correction (ODRC) and "Jane/John Does x 100." Plaintiff brought claims under 42 U.S.C. § 1983 alleging that defendants retaliated against him for the exercise of his constitutional rights and seeking declaratory and injunctive relief. On sua sponte review of the second amended complaint under 28 U.S.C. §§ 1915 and 1915A, the Court dismissed plaintiffs claims against the named individual defendants to the extent he sued them in their official capacity for money damages; the claims against the ODRC on the ground it is not a "person" subject to suit or liability under § 1983; and his claims against defendant Mohr because the doctrine of respondeat superior does not apply in § 1983 lawsuits to impute liability onto supervisory personnel. (Docs. 36, 64). The Court ordered that service be made on the remaining defendants. (Doc. 36).

         The second amended complaint includes the following allegations: Between February 5 and October 8, 2013, defendant Malott intentionally vented dangerous refrigerants into the atmosphere at LCI and did not comply with safe disposal requirements, which put plaintiff, other inmates and staff in imminent danger of death or serious bodily harm. (Id., ¶¶ 44, 46; Exh. A). As a result of Malott's actions, plaintiff suffered permanent eye damage with long-lasting pain and other symptoms which necessitated surgeries, hospitalizations, and vision exams for new eye glasses prescriptions twice in 2013. (Id., ¶¶ 44, 45).

         Plaintiff reported violations of the Clean Air Act (CAA) to the EPA administrator in 2013 and requested protective measures from an LeCI case manager in October 2013 to prevent Malott from retaliating against him. (Id., ¶¶ 45, 47). Plaintiff was allegedly subjected to a number of retaliatory measures and was forced to transfer to another facility to prevent further retaliation for reporting the CAA violations and filing an informal complaint against Malott with Schweitzer, which was denied. (Id., ¶¶ 48, 49; Exh. D). For retaliatory reasons, defendants Moore, Schweitzer, Hudson and Westall refused to investigate clear violations of the CAA; Walder threatened plaintiff without provocation for filing the informal complaint; and Schweitzer approved an order for medically approved size I2eee boots on October 7, 2013, then refused to issue the boots on January 6, 2014. (Id., ¶¶ 49, 50, 51; Exh. B).

         Plaintiff alleges he was transferred to WC1 in further retaliation on March 10, 2014, after which more acts of retaliation occurred. (Id., ¶ 52). After his transfer, he filed an informal complaint for missing legal and other property, which included an HVAC refrigeration book and legal transcripts. (Id., ¶ 52; Exh. E). On April 11, 2014, plaintiff filed a complaint with the Ohio Court of Claims. Defendants Crutchfield, Hill and Parks then denied him access to the courts for retaliatory reasons by failing to provide appropriate remedies for his valid grievance. (Id.). On October 7, 2014, the Court of Claims administratively dismissed his claim and later affirmed the dismissal for retaliatory reasons. (Id., ¶¶ 53, 54). Plaintiff filed two grievances, which were also denied for retaliatory reasons. (Id.).

         In furtherance of the alleged retaliatory scheme, between May 8, 2014 and August 6, 2015 defendants Heyd, Wingate, Hill, Eddy, Tilton, Mcintosh and Evans discontinued or decreased plaintiffs blood pressure medication, eye medications, and allergy medications for periods of time despite continued symptoms; treated him unprofessionally; denied plaintiff had a condition that was subsequently diagnosed; and refused to verify his need for medically approved size I2eee boots so that the mailroom would allow plaintiff to purchase them at his own expense. (Id., ¶¶ 55-70). Defendant Nelson ordered that the boots be returned to the vendor in Crutchfield's presence. (Id., ¶ 70). Further, since January 7, 2013, when he entered the custody of ODRC, plaintiff has been denied treatment for Hepatitis C despite recurring symptoms of weight loss, fatigue, pain in his abdomen on the left side, diarrhea, and abnormal blood test results. (Id., ¶ 71(a)). Further, two birthday cards that his mother had mailed to him in 2015 were returned to her marked "unable to identify inmate" and defendant Nelson denied approval for plaintiff to order a new CD player in place of one destroyed by LeCI staff in 2013. (Id., ¶ 70; Exh. F).

         On July 23, 2015, defendant Epperson retaliated against plaintiff by falsely accusing him of masturbating while in his cell in the presence of a case manager. (Id., ¶ 71(a)). Plaintiff alleges that defendant Wingate made similar accusations regarding the case manager to plaintiffs cellmate some time later in August. Plaintiff alleges that since filing the complaint in this lawsuit, Wingate has harassed and retaliated against plaintiff. In December 2015, Wingate rummaged through the commissary on plaintiffs bunk and came back and turned on the water in the cell sink for a reason he gave that was not logical.

         On December 10, 2015, in an attempt to harass plaintiff for filing administrative complaints, defendant Wingate requested that plaintiff report to the RIB. (Id.). When plaintiff arrived, defendant Nelson was sitting as the RIB chairman, and two unidentified officers were with him. Nelson handed one of the two a sheet of paper, which was a decision on a complaint filed by plaintiff, and plaintiff was told he was free to go. Nelson stared at plaintiff during this entire process in an attempt to intimidate him.

         On December 26, 2015, CO Miller bumped against plaintiffs cell door for the third time in two or three weeks and apparently made a conduct report that she observed plaintiff with his pants pulled halfway down and his penis exposed and fully erect. (Id.). The report was referred to the RIB for processing. Plaintiff appears to allege there were numerous miscommunications regarding the status of the conduct report and his placement in isolation during the two days following this incident, that these issues were in retaliation for the exercise of his constitutional rights, and that he believed Wingate and Epperson initiated the charge against him with other inmates' assistance. Plaintiff indicates he was found not guilty of the rule infraction and informed that same day that he was being given a security level reduction and transferred to another facility. Plaintiff complains that the transfer was atypical because it occurred without 48 hours' notice, deprived him of the opportunity to complete his computer classes at WCI, and created an "atypical hardship" for visiting purposes.

         Plaintiff also alleges that several John and Jane Doe defendants acted in conjunction with other defendants to retaliate against him. (Id., ¶ 71(b)). He alleges defendants Mohr, Moore, Schweitzer, Hudson and Westall "remained mute and took no corrective active" and "explicitly refused to investigate" violations of the CAA and "Safe Disposal Requirements" by defendant Malott after being put on notice of the violations. (Id., ¶ 71(c)). He further alleges that defendants Walder, Schweitzer, Whitlow and Hudson retaliated against him for exercising his due process rights. (Id., ¶ 71(c)). Plaintiff alleges that defendant Gay failed to act or report Malott's actions, which directly exposed plaintiff to dangerous refrigerants and injured him. (Id., ¶ 71(d)). He alleges defendant Parks failed to investigate constitutional violations by Crutchfield, Hill, Nelson, Heyd, Tilton, Carlton, Eddy, Mcintosh and Evans after being placed on notice of them. (Id., ¶ 71(e)). He alleges defendants Heyd, Tilton, Eddy, Carlton, Mcintosh, Wingate, and Epperson worked in conjunction with each defendant to further the retaliatory agenda/harassment campaign of other defendants for the filing of non-frivolous grievances. (Id., ¶ 71(e)).

         Plaintiff alleges violations of his right to due process, his right to be free from race and other forms of discrimination, and his Eighth Amendment rights, and he alleges he was retaliated against for using the prison grievance procedure and reporting violations of the CAA and EPA standards. (¶¶ 73, 74). Plaintiff also alleges violations of Ohio law. He seeks declaratory relief, a preliminary injunction, nominal damages, and punitive damages.

         II. Plaintiffs pending motions to supplement the second amended complaint (Docs. 43, 48) 1. Proposed supplemental complaints

         Plaintiff has filed two motions for leave to supplement the second amended complaint under Fed.R.Civ.P. 15(d). He filed the first motion on June 26, 2017. (Doc. 43). Plaintiff alleges that the proposed supplement sets forth additional transactions, occurrences or events that have occurred since the date of the second amended complaint. Plaintiff alleges that individuals named in this lawsuit pursued a retaliatory agenda or campaign of harassment that continued after he was transferred to London Correctional Institution (LOCI). Plaintiff alleges the first act of retaliation occurred in October 2016 when Unit Manager Lori Peterman "refused plaintiff a legal call to [a] case manager" in the Court of Appeals to inquire about this case. (Id. at 2). Plaintiff alleges that Peterman told him, "Gary Mohr is my supervisor, he pays my bills, " and when plaintiff stated he did not understand, she yelled at him, 'That's because you don't give a fuck." (Id. at 5).

         Second, plaintiff alleges that Peterman retaliated against him on April 20, 2017 when Captain Richardson sent him to her office so that plaintiff could request a bedside visit for his dying mother. (Id. at 6-7). Plaintiff alleges that Peterman told him three times to leave and return, and when plaintiff reached his daughter at his mother's room 90 minutes later she had died. Plaintiff alleges that after he started to cry, Peterman told him he could go into the "quiet room" for a while if he needed time, but plaintiff declined and left abruptly since the quiet room was Peterman's bathroom and no other staff members were present. Plaintiff alleges he conveyed this information in a letter to his daughter dated June 16, 2017 and in emails to her.

         Third, plaintiff alleges he was "targeted with an erroneous conduct report" for a Rule 14 violation by Officer Tiffany Salyers. (Id. at 2). Plaintiff alleges that Salyers formerly worked as a nurse in Inmate Health Services and he has litigation pending against Inmate Health Services and OSU Medical Center for medical malpractice and negligence. (Id. at 8). Salyers wrote a conduct report on June 5, 2017, charging plaintiff with a Rule 14 violation for masturbating while watching her as she worked at her desk. (Id. at 3; Attachment, p. 22). Plaintiff alleges that Peterman directed Salyers to "write the ticket" while escorting plaintiff to the captain's office. (Id. at 7). Plaintiff contends that Peterman investigated the charge and wrote an allegedly erroneous conduct report the following day charging him with a Rule 59 violation for "stalking females" based on the conduct reported by Salyers and other inmates who reported they saw plaintiff masturbating in the restroom on that date. (Id., Attachment, p. 24). Plaintiff alleges that on June 6, 2017, he reported Salyers and Peterman for sexual misconduct and retaliation "to Prison Rape Elimination Act" via a hotline and a website and instructed his wife to do the same. (Id. at 2).

         Plaintiff alleges he was denied his due process right to present documentary evidence in his defense at the RIB hearing. (Id. at 3). Instead, plaintiff alleges RIB chair Lt. Kyle Webb and hearing officer Sgt. Combs told him prior to the hearing that he would be found guilty no matter what documents he had and he was denied the presence of "both writing officials." (Id. at 3-4). Plaintiff alleges that Peterman's written testimony discloses that when she entered the inmate bathroom, plaintiff was properly dressed and was not doing anything inappropriate. (Id. at 4-5). Plaintiff was found guilty of both violations and received 7 days LPH (Limited Privilege Housing), 6 days credit, and a recommendation for a security level increase with LPH to be increased to 90 days if the recommendation was denied. (Id. at 4). Plaintiff was informed by Sgt. Baker that his appeal to Warden Jeffrey Noble was denied. (Id.). Plaintiff alleges that numerous other inmates, most of whom are white, have not been punished in a similar manner. (Id. at 14). Plaintiff alleges that in addition to being retaliated against by Salyers and Peterman through the filing of conduct reports, he has been retaliated against by being restricted to two hours of recreation daily "per Vicki Justus-CWA" and the cell air conditioning had not been on during 80 to 90 degree weather. (Id. at 13).

         Plaintiff filed his second motion to supplement the second amended complaint under Fed.R.Civ.P. 15(d) on July 20, 2017. (Doc. 48). Plaintiff appears to allege two series of retaliatory actions, the first of which is related to an RIB conviction in June 2017 which led to plaintiffs transfer to SOCF. Plaintiff alleges that Mohr and "Chief BOC" Brian Wittrup, acting in concert with employees of the LOCI, furthered a retaliatory agenda or campaign of harassment. Plaintiff alleges Mohr, Wittrup and LOCI Staff Warden Noble, Unit Manager/Administrator Russell Parrish, Peterman, and Case Manager Casey Brann failed to act, implicitly authorized, approved or knowingly acquiesced in the affirmance of a June 19, 2017 RIB decision and the improper increase of plaintiff s security level without justification. (Id. at 2). Plaintiff alleges that he was interviewed by John/Jane Doe defendant and Investigators Crissler and Westall on June 29, 2017, who threatened plaintiff in order to dissuade him from seeking resolution of complaints of retaliation and sexual misconduct against Peterman and Salyers filed by plaintiff three weeks earlier and complaints of other constitutional violations by Jane/John Doe defendants. (Id. at 2-3; Attached letter).

         Second, plaintiff alleges that after he filed objections to the Magistrate Judge's Reports and Recommendations and the First Supplemental Complaint, he was denied freedom of movement and access to the law library, and his legal materials for this lawsuit and other lawsuits were withheld. (Id., Attachments 5, 6, 7, 8, 9). Plaintiff alleges he was retaliated against by being transferred from LOCI to SOCF and denied access to the law library and legal materials there so that he would not seek redress for grievances related to alleged constitutional violations by John/Jane Doe defendants.

         As relief, plaintiff seeks a preliminary and permanent injunction ordering Mohr and the John/Jane Does to: 1) perform an emergency security review by the "BOCR Chief to restore plaintiff to a level 2A facility and transfer plaintiff to such facility; (2) strictly comply with ODRC policy relating to the criteria for plaintiffs placement and the recommendation for the security level increase; (3) conduct a review of the RIB decision issued on June 9, 2017, including the evidence of plaintiff s medical conditions and his medications for treating those conditions. (Id. at 5). He also seeks an order requiring SOCF administrators to return all of his legal documents that have been withheld since July 11, 2017.

         Defendants Hill, Eddy, Evans, Hyde, Nelson, Whitlow, Mcintosh, Epperson, Malott, Walder, Gay, Moore, Schweitzer and Hudson have a filed a memorandum opposing plaintiffs second motion for leave to supplement the second amended complaint. (Doc. 61). Defendants argue that plaintiff has made only conclusory, implausible allegations of retaliatory motive unsupported by material facts; the proposed amendment would constitute a "buckshot" complaint in violation of Fed.R.Civ.P. 20; and the proposed amendment would be futile because he has failed to state an Eighth Amendment claim. Defendants assert that because the proposed supplement involves individuals who plaintiff has not previously mentioned in this litigation, with the exception of dismissed defendant ODRC Director Mohr, plaintiff should be required to file a separate lawsuit to pursue his unrelated claims.

         In reply, plaintiff alleges that the proposed supplements set forth facts that are sufficient to state a claim to relief under § 1983. (Doc. 86). Plaintiff alleges he engaged in constitutionally protected conduct, the speech was a motivating factor for defendants' actions, and there is a causal connection between his protected speech/conduct and the adverse actions.

         2. Leave to supplement the ...


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