United States District Court, S.D. Ohio, Western Division
BRIAN K. ALFORD, Plaintiff,
GARY MOHR, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
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). 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).
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).
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).
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).
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).
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.).
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).
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.
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.
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.
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)).
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.
Plaintiffs pending motions to supplement the second amended
complaint (Docs. 43, 48) 1. Proposed supplemental
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).
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
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).
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).
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
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
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.
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.
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.
Leave to supplement the ...