Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Alford v. Mohr

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

March 1, 2018

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

          Dlott, J.


          Karen L. Litkovitz United States Magistrate Judge

         Plaintiff Brian K. Alford, 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) motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim to relief filed by defendants Ernie Moore, J. Schweitzer, Dan Hudson, R. Malott, Officer Walder, Officer Gay, Officer Whitlow, Cynthia Hill, Lt. Nelson, Dr. Eddy, Timothy Heyd, Amy Mclntosh, Norm Evans, and F. Epperson (Doc. 56), plaintiffs response in opposition to the motion (Doc. 81), and defendants' reply in support of the motion (Doc. 88); (2) plaintiffs motion for an extension of time to serve defendants Dr. Carlson, Mona Parks, Brenda Tilton, M. Westall, George D. Crutchfield and the remaining individuals named as defendants in plaintiffs supplemental and second supplemental complaints (Doc. 95); (3) plaintiffs motion for the District Judge to recuse herself from this case (Doc. 101); and (4) plaintiffs third motion for leave to supplement the amended complaint under Fed.R.Civ.P. 15(d) (Doc. 104).

         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). After the Court of Appeals vacated the District Court's decision denying plaintiff leave to proceed in forma pauperis and remanded the case for further proceedings (Doc. 26), plaintiff filed a second amended verified complaint on April 10, 2017. (Doc. 35). Plaintiff brought claims under 42 U.S.C. § 1983 against the Ohio Department of Rehabilitation and Correction (ODRC); Gary Mohr, the director of the ODRC; Ernie Moore, the warden of LeCI; J. Schweitzer, the deputy warden of LeCI; Dan Hudson, Institutional Inspector at LeCI; M. Westall, the supervisor of maintenance at LeCI; R. Malott, the supervisor of the "Heating Ventilation and Refrigeration Department" at LeCI; LeCI Correctional Officers Walder, Gay, and Whitlow; Mona Parks, R.N. and ODRC Assistant Chief Inspector; George Crutchfield, warden of WCI; Cynthia Hill; Lt. Nelson; Dr. Eddy; Dr. Timothy Heyd, a doctor at WCI; Dr. Carlson, a podiatrist at WCI; Brenda Tilton, a nurse practitioner at WCI; Amy Mclntosh, the hospital administrator at WCI; Norm Evans, the assistant hospital administrator at WCI; WCI Correctional Officers R. Wingate and F. Epperson; and "Jane/John Does x 100." (Id., ¶¶ 8-29). 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).

         II. Allegations of the second amended complaint (Doc. 35)

         Plaintiff makes the following factual allegations in the second amended complaint: From February 5 to October 8, 2013, plaintiff worked in the HVAC apprenticeship program at LeCI. (Doc. 35, ¶ 42). Throughout that time frame, defendant Malott intentionally vented dangerous refrigerants into the atmosphere, putting plaintiff, other inmates and staffs lives in imminent danger of death or serious bodily harm. (Id., ¶ 44). Malott never used recovery equipment or recovery cylinders to meet safe disposal requirements before disposing of or repairing refrigeration equipment, and upon information and belief, the recovery machine in the refrigeration department was inoperable during this time period. (Id., ¶ 46; Exh. A).[1] As a result of Malott's actions, plaintiff suffered permanent damage to his eyes and required two surgeries and three hospitalizations; his vision in his left eye is "still very bad, " he suffers constant pain and pressure with "a flashing pulse, " and he experiences extreme dryness; and since the first surgery to repair a retinal tear in his left eye, he has the feeling that something is in the eye due to a corneal scar. (Id., ¶ 44). His vision changed twice in 2013, requiring eye exams for new eyeglass prescriptions. (Id., ¶ 45).

         Plaintiff reported violations of the Clean Air Act (CAA) to the EPA administrator in early October 2013 and requested protective measures from an LeCI case manager on October 8, 2013 to prevent Malott from retaliating against him. (Id., ¶¶ 45, 47). Plaintiff was 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 on October 17, 2013, which was denied. (Id., ¶¶ 48, 49; Exh. D). Defendants Moore, Schweitzer, Hudson and Westall refused to investigate clear violations of the CAA for retaliatory reasons. (Id., ¶ 49). Defendant Walder threatened plaintiff without provocation for filing the informal complaint against Malott. (Id., ¶ 50; Exh. B).

         In further retaliation, on March 10, 2014, plaintiff was transferred to WCI but one HVAC refrigeration book and 1, 654 pages of legal transcripts did not arrive with his property. (Id., ¶ 52; Exh. E). He filed an informal complaint regarding the missing property. (Id.). On April 11, 2014, plaintiff filed a complaint with the Ohio Court of Claims. (Id.). In furtherance of their retaliatory agenda, plaintiff was sent to defendant Hill's office on Crutchfield's recommendation. Hill advised plaintiff there was nothing further she could do regarding the loss/destruction of plaintiffs property even though she allegedly was required by Ohio Admin. Code 5120-9-31(L) to provide an appropriate remedy for his grievance. Defendants Crutchfield, Hill and Parks denied plaintiff access to the courts for retaliatory reasons by failing to provide appropriate remedies for his valid grievance. On October 7, 2014, the Court of Claims administratively dismissed his claim and later affirmed the dismissal. (Id., ¶¶ 53, 54). Plaintiff filed two grievances on October 20, 2014 and January 15, 2015. (Id.). Hill returned the first one without responding to it "pursuant to Ohio Admin. Code 5120-9-32(Q" and the second one was denied for retaliatory reasons and subsequently affirmed by the Chief Inspector. (Id.). In August 2015, Hill and Moore settled a claim for destruction of plaintiff s CD player two years earlier. (Id., ¶ 54). Plaintiff indicates defendants' conduct was manifestly outside the scope of their employment. (Id.).

         In furtherance of the retaliatory scheme, on May 8, 2014, defendant Timothy Heyd, a doctor at WCI, halved the normal dosage of plaintiff s blood pressure medication, causing plaintiffs blood pressure to rise. (Id., ¶ 55). The week of July 17, 2014, plaintiff experienced elevated blood pressure and symptoms of dizziness, headache in the right temple area, and vision loss in his left eye. (Id., ¶ 56). In furtherance of the retaliatory scheme, defendant Heyd examined plaintiff on July 21, 2014 and jokingly expressed disbelief that plaintiff could not see out of his eye; however, after Dr. Heyd examined plaintiff and was unable to see into the back of plaintiffs eye, he referred plaintiff to the eye doctor at WCI and increased his blood pressure medication to the regular dosage. (Id., ¶ 58). The eye doctor did not show for his scheduled appointment the following day. (Id.). On July 23, 2014, plaintiff reported to unit staff he could not see out of his left eye, he felt dizzy, he had a headache, and he was concerned for his life due to further bleeding into his left eye. (Id., ¶ 59). In furtherance of the retaliatory agenda, Dr. Heyd examined plaintiff and after he determined that he could not see into plaintiffs left eye, Dr. Heyd sent plaintiff to Ohio State University (OSU) Hospital. (Id.). Plaintiff was diagnosed by OSU Hospital medical staff with a retinal tear to his left eye and holes in his left and right retinas and was told he would be seen in one week to schedule surgery. (Id., ¶ 60).

         On July 24, 2014, when defendant Heyd examined plaintiff following his return from OSU Hospital, Heyd became unprofessional and belligerent for retaliatory reasons and informed plaintiff he was tired of plaintiff s "bellyaching, " he had bent over backwards to send plaintiff out on medical emergency, and plaintiff was still not satisfied. (Id., ¶ 61).

         An ophthalmologist at OSU Hospital performed surgery to repair plaintiffs left retina on July 29, 2014, and a cataract resulted which required a second surgery for lens replacement on June 2, 2015. (Id., ¶ 62). Since July 29, 2014, plaintiff has not been able to see clearly through his left eye and he has been experiencing a flashing pulse in his left eye, extreme dryness, and the feeling that something has been left in his left eye. Plaintiff has a left corneal scar that required hospitalization in August 2014. For retaliatory reasons, he had been waiting since June 2, 2015 for the WCI staff to schedule a return trip to OSU Hospital for laser surgery to clear up the vision in his left eye. (Id.). On December 16, 2014, doctors examined plaintiff at OSU Hospital and prescribed a preservative free artificial tears ointment to prevent irritation to his left eye. (Id., ¶ 63). On December 23, 2014 and January 1, 2015, defendant Tilton examined plaintiff for continued eye problems and advised plaintiff he would be placed on the list to see the WCI eye doctor as soon as possible. (Id., ¶ 64).

         Plaintiff was transported to OSU Hospital on March 5, 2015 and advised that a pre-operative visit would be scheduled for lens replacement surgery on the left eye with possible cornea replacement due to a scar caused by a herpetic infection; on March 9, 2015, defendant Tilton advised plaintiff surgery was recommended by OSU Hospital within 30 days and consultation would be submitted to collegial review with testing to be performed; on March 17, 2015, Tilton advised plaintiff that collegial review had been denied; and on March 27, 2015, plaintiff was referred to the WCI eye doctor, who examined him on March 30 and decided to make a submission for collegial review as soon as possible because a cataract was forming in plaintiffs right eye and he had vision loss in his left eye. (Id., ¶¶ 65, 66). On April 8, 2015, plaintiff "signed for medical round trip" to OSU Hospital and collegial review was approved on April 16, 2015. (Id.). Plaintiff was examined for problems with his eyes and other issues on May 8, 2015 and was given a pass to purchase ibuprofen and allergy medication; medical tests and bloodwork were ordered on May 13-14; and surgical replacement of plaintiff s left eye lens was performed at OSU Hospital on June 2, 2015. (Id., ¶ 67). On follow-up at OSU Hospital on June 11, 2015, plaintiff was told his left eye was slightly off center creating double vision and he had possible nerve damage and laser surgery was to be completed within 30 days. (Id., ¶ 68). On August 6, 2015, in furtherance of the retaliatory agenda, Tilton requested that plaintiff report to WCI medical services and informed plaintiff she was discontinuing artificial tears ointment that had been prescribed by OSU medical staff for two weeks and all allergy medication until it could be determined that plaintiff has dry eyes, and Tilton ordered defendant Wingate to confiscate these items from plaintiffs possession. (Id., ¶ 69). Since August 6, 2015, plaintiff had experienced a flashing pulse and acute pain and the feeling of something being left in his left eye, and extreme dryness and decreasing vision in his right eye. (Id.).

         On August 10, 2015, defendant Wingate called WCI medical hospital to report plaintiffs problems with his eyes, and plaintiff was denied medical care. (Id., ¶ 62). On August 17, 2015, defendant Hill advised plaintiff that defendant Eddy had removed plaintiff from artificial tears ointment "rather than provide non-formulary ointment." On August 26, 2015, Dr. Wolfe examined plaintiff, and he determined something was pulling on plaintiffs retina and causing the flashing pulse and plaintiffs eye was dry and looked rough. He ordered that plaintiff be allowed to purchase artificial tears drops through the commissary and wrote a referral for plaintiff to return to OSU Hospital for laser surgery because he could not see into the back of plaintiff s eye. (Id.).

         In furtherance of the retaliatory agenda and campaign of harassment for filing a grievance against Malott, defendant Schweitzer approved an order for medically approved size 12eee boots on October 7, 2013, and then refused to issue the boots on January 6, 2014. (Id., ¶51; Exh. B). For retaliatory reasons, defendants Heyd, Tilton, Mclntosh and Evans refused to verify plaintiffs need for medically approved size I2eee boots so that the mailroom would allow plaintiff to purchase them at his own expense, and these defendants and defendant Carlson attempted to alter plaintiffs shoe size on May 8, 2014. (Id., ¶ 69). Defendant Nelson ordered plaintiffs medically approved shoes, which had been authorized by defendant Crutchfield in 2014, to be returned to the vendor without justification in July of 2015. (Id., ¶ 70). In addition, two birthday cards that plaintiffs mother had mailed to him in 2015 were returned to her marked "unable to identify inmate." (Id.). In addition, defendant Nelson denied approval for plaintiff to order a new CD player in place of the one destroyed by LeCI staff in 2013. (Id.; Exh. F).

         In furtherance of the retaliatory agenda, on July 23, 2015, defendant Epperson accused plaintiff of masturbating while in his cell in the presence of a case manager. (Id., ¶ 71(a)). Six days later, defendant Epperson came to plaintiffs cell door after the case manager had been in the house area and left and plaintiff had returned to his cell and asked plaintiff if he was alright. On July 31, 2015, plaintiff filed an informal complaint resolution against Epperson for harassment and violation of ODRC policies, which plaintiff did not pursue after being advised he had to refile it with another supervisor. On August 3, 2015 at 8:50 p.m., defendant Epperson shone his light into plaintiffs cell, opened the door, and asked plaintiff and his cellmate, "what are we having here[, ] a meeting of the minds?" Defendant Wingate made similar accusations to plaintiffs cellmate some time later in August. (Id.).

         Since he has been in the custody of ODRC on January 7, 2013, plaintiff has been denied treatment for Hepatitis C which was diagnosed in 2001 despite recurring symptoms of weight loss, fatigue, pain in his abdomen on the left side, diarrhea, and abnormal blood test results. (Id., ¶ 71(a)).

         Since filing the complaint in this lawsuit, Wingate has harassed and retaliated against plaintiff. (Id.). On December 2, 2015, defendant Wingate entered his cell and rummaged through the commissary on plaintiffs bunk. He then returned a few minutes later and turned the water on in the cell sink. Wingate later called plaintiff to the front desk and told him he had checked plaintiffs bunk to make sure plaintiff was not lying on it and discovered plaintiffs commissary was on the bunk, and Wingate checked his cell a second time because he was doing a work order for repairs for low water pressure in a neighbor's sink. On December 10, 2015, in an attempt to harass plaintiff for filing administrative complaints, defendant Wingate requested that plaintiff report to the Rules Infraction Board (RIB) in isolation. (Id.). An unidentified officer walked over to defendant Nelson, who was sitting as the RIB chairperson, and obtained a paper from him which plaintiff later learned was the decision from the Chief Inspector's Office in LeCI-10-15-000113, brought it to plaintiff, and then advised plaintiff he was free to go. Defendant Nelson continued to look at plaintiff in an attempt to intimidate him the entire time this exchange was occurring. (Id.).

         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 and that these issues were in retaliation for the exercise of his constitutional rights. Plaintiff told Unit Manager P. Sarwar on December 28, 2015, that he believed Wingate and Epperson initiated "these actions" (an apparent reference to Millers' actions) against him with other inmates' assistance because several inmates approached Miller and spoke to her prior to her actions. Plaintiff was found not guilty of the rule infraction on January 19, 2016 and informed that same day that he was being given a security level reduction and transferred to another facility. (Id.). 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. (Id.).

         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, including the denial of adequate medical care, and he alleges he was retaliated against for using the prison grievance procedure and reporting violations of the CAA and EPA standards. (Id., ¶¶ 73, 74). He seeks declaratory relief, a preliminary injunction, nominal damages, and punitive damages.

         II. Plaintiffs motion for extension of time (Doc. 95)

         Plaintiff requests an extension of time until counsel is appointed for him in this case to serve defendants Dr. Carlson, Mona Parks, Brenda Tilton, M. Westall, R. Wingate, and George D. Crutchfield. To date, summons have been returned executed for defendants Eddy, Evans, Hill, Nelson, Whitlow, Gay, Epperson, Malott, Mclntosh, and Walder. (Docs. 42, 46). The undersigned issued a Report and Recommendation on January 5, 2018, recommending that plaintiffs complaint against defendants Carlson, Parks, Tilton, Westall, Wingate, and Crutchfield be dismissed for lack of service. (Doc. 99).

         The Court has found that plaintiff is not entitled to counsel in this case. (See Docs. 31, 99). Further, the Report and Recommendation that plaintiffs complaint against the unserved defendants be dismissed based on plaintiffs failure to show good cause for lack of service is pending before the District Judge. (Doc. 99). Plaintiff must present any objections he has to the recommendation that the unserved defendants be dismissed to the District Judge. Plaintiff is not entitled to an extension of time to serve defendants Carlson, Parks, Tilton, Westall, Wingate, and Crutchfield.

         III. Plaintiffs motion for recusal of the District Judge (Doc. 101)

         Plaintiff filed a Notice of Appeal (Doc. 100) and Motion Requesting Recusal (Doc. 101) on January 8, 2018.[2] Plaintiff requested that the Sixth Circuit Court of Appeals "recuse District Judge Susan J. Dlott from this case" pursuant to 28 U.S.C. § 455 to "remove any appearance of bias" on her part. (Doc. 101 at 1-2). As grounds for recusal, plaintiff states he previously filed a motion in February 2016 for Judge Dlott to recuse herself, which she denied (Doc. 18); Judge Dlott was previously appointed as the District Judge in Alford v. Rice, Case No. 3:10-cv-424; and Judge Dlott issued a decision denying plaintiff in forma paupehs status in this action on November 30, 2016, which the Court of Appeals vacated on appeal.

         Judges are bound by the recusal standard set forth in 28 U.S.C. § 455(a), which provides that any United States judge "shall disqualify h[er]self in any proceeding in which h[er] impartiality might reasonably be questioned." Ragozzine v. Youngstown State Univ., 783 F.3d 1077, 1079 (6th Cir. 2015) (quoting 28 U.S.C. § 455(a)). Section 455(a) requires a judge to recuse herself "if a reasonable, objective person, knowing all of the circumstances, would have questioned the judge's impartiality." Id. (quoting Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990) (discussing 28 U.S.C. § 455(a)). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Burley v. Gagacki, 834 F.3d 606, 617 (6th Cir. 2016) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

         Plaintiff has not made any allegations that indicate Judge Dlott's impartiality might reasonably be questioned in this case. Plaintiff has alleged no circumstances that create an appearance of bias. Plaintiff relies only on prior judicial rulings and Judge DIott's involvement in another lawsuit brought by plaintiff which are not enough, standing alone, to support a bias claim and a recusal request. Accordingly, plaintiffs motion for Judge Dlott's recusal (Doc. 101) should be denied.

         IV. Plaintiffs third motion to supplement the second amended complaint (Doc. 104)

         Plaintiff moves for leave to supplement the complaint pursuant to Fed.R.Civ.P. 15(d) to set forth transactions or occurrences which allegedly have taken place since the date of the second amended complaint. Plaintiff seeks to add claims for violations of the Ohio Administrative Code and the Ohio Revised Code, which he claims in turn violated his First, Fifth, Eighth, and Fourteenth Amendment rights, against Gary Mohr, Director of the Ohio Department of Rehabilitation and Correction (ODRC)[3]; Andre Imbrogno, Chief of the Adult Parole Authority (APA); and APA members Ron Nelson, Michael Jackson, Kathleen Kovac, Thomas Cholar, Jr., Mark Houk, R.F. Rauschenberg, Alice Hanwork, Ms. Williams, and Ms. Smith. Plaintiff alleges their actions have resulted in his loss of freedom from incarceration, interference with his due process and equal protection rights, cruel and unusual punishment, and exposure to retaliation, harassment and dangerous chemicals which permanently damaged plaintiffs eyes.

         Plaintiff makes the following allegations in support on his motion to amend: On March 20, 2017, plaintiff attended a full panel hearing before the APA members at the London Correctional Institution. Plaintiff attempted to address alleged due process violations which the APA caused in revoking his parole and which he claimed occurred at previous APA hearings in February 2011, July 2012, and May 2015. The individual administering the hearing told plaintiff those matters would not be discussed at the hearing and advised him, "You say you have litigation on this issue, continue to litigate." (Id. at 2). In December 2016 and January 2017, plaintiff requested reconsideration of his "twenty-four month continuance in 2015" based on the Sixth Circuit's decision in this case which vacated this Court's Order denying plaintiff leave to proceed in forma pauperis. (Id.). The APA denied reconsideration in January 2017 even though plaintiff provided proof that he was under the threat of imminent danger when he "refused to lock" while at LeCI after reporting defendant Malott for intentionally venting dangerous refrigerants which caused permanent damage to plaintiffs eyes. (Id.). After plaintiff completed a program on May 31, 2017 as requested by the APA, he was placed in Limited Privilege Housing while at London Correctional Institution based on erroneous conduct reports prepared by ODRC staff in June 2017 and was transferred from Level 1A to 4A in July 2017. Plaintiff contacted the APA in August 2017 to inform the members about the retaliatory transfer to maximum security and requested a full board hearing after waiting for a "COBR" decision since March 2017. In September 2017, the Quality Assurance Analyst responded by informing plaintiff his request for a full board hearing had been received and, "In light of the fact there is pending litigation regarding your case, this office defers to the Attorney General's office. The attorneys assigned to your case are: Christopher Conomy and Christopher Bagi." (See Doc. 104-1 at 3). The APA subsequently continued his release until September 1, 2022 without notifying plaintiff in writing as required under Ohio Admin. Code 5120:1 -1-11 and Ohio Rev. Code § 5149.101.

         Plaintiff alleges the APA violated Ohio Admin. Code 5120:1-1-31 by placing a detainer on him in June 2000 but failing to act within two business days; instead, plaintiff alleges that he was held in the Montgomery County Jail from June 2000 until December 2002 without a determination having been made on the detainer issued by the APA defendants. He alleges the APA defendants violated Ohio Rev. Code § 2921.45(A), which prohibits public servants from knowingly depriving or conspiring to deprive an individual of his constitutional rights, by deferring to Attorneys Conomy and Bagi (the attorneys representing the ODRC in plaintiffs Ohio Court of Claims Case No. 2016-00038 for defamation and excessive force) to determine plaintiffs release suitability. He also alleges the potential defendants violated DRC Policy 59-LEG-01 .V, which prohibits reprisals against an inmate for challenging his conviction, sentence or conditions of confinement.

         Supplementation of a complaint is governed by Fed.R.Civ.P. 15, which states in part:

On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense.

Fed. R. Civ. P. 15(d). Whether to grant or deny a request to supplement a pleading is left to the sound discretion of the trial court. Burse v, Robinson, No. 2:14-cv-403, 2015 WL 2337781, at *2 (S.D. Ohio May 13, 2015) (King, M.J.) (citations omitted). In exercising its discretion under Rule 15(d), the Court considers "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure 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." Id. (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Spies v. Voinovich, 48 Fed.Appx. 520, 527 (6th Cir. 2002) (same standard of review and rationale apply to motions filed under Fed.R.Civ.P. 15(a) and 15(d)). A proposed amendment is futile if it could not withstand a Rule 12(b)(6) motion to dismiss. Rose v. Hartford Underwriters Ins, Co., 203 F.3d 417, 420 (6th Cir. 2000).

         Proposed amendments and supplements to a prisoner's complaint must be sua sponte reviewed under 28 U.S.C. §§ 1915 and 1915A. Courts have generally held that "[u]nrelated claims against different defendants belong in different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing fees - for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees." George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28 U.S.C. § 1915(g)). See also Hetep v. Warren, 27 Fed.Appx. 308, 309 (6th Cir. 2001) (citation omitted) (proposed amendment adding new unrelated claims against new defendants not allowed).

         It is clear when the second amended complaint, which is the operative complaint, and the motion to supplement are compared that the allegations made in each are not connected in any relevant manner. The allegations involve different types of claims, against different defendants, covering vastly different time frames. Whereas the second amended complaint is based on alleged acts and omissions by prison staff at LeCI and WCI beginning in May 2013 and continuing through December 2015, plaintiffs proposed supplement is based on acts and omissions by the appointing authority for the APA, the head of the APA, and APA members related primarily to his parole proceedings. In his motion to supplement, plaintiff challenges the legality of his parole proceedings under Ohio law, the impact of the proceedings on plaintiffs sentence, and resulting alleged violations of plaintiff s constitutional rights. Plaintiff alleges the APA's acts and omissions occurred as early as June 2000 and as late as September 2017. Plaintiffs unrelated claims are properly addressed in a separately filed new civil rights complaint and not in a supplemental complaint filed in this action. See George, 507 F.3d at 607; Hetep, 27 Fed.Appx. at 309. Accordingly, plaintiffs motion to supplement his complaint to add claims against the APA based on transactions and events that allegedly occurred subsequent to the transactions and occurrences set forth in the second amended complaint (Doc. 104) should be denied.

         V. Defendants' motion to dismiss the complaint (Doc. 56)

         Defendants move to dismiss plaintiffs claims on the grounds that his claims against defendants in their official capacity are barred by the Eleventh Amendment (Doc. 56 at 10-11); the claims are barred by the Leaman doctrine, res judicata and collateral estoppel (Id. at 11-14); and plaintiff has failed to state a claim to relief under 42 U.S.C, § 1983 against defendants in their individual capacity because he has failed to state a plausible claim to relief and defendants are entitled to qualified immunity on plaintiffs claims for monetary damages (Id. at 14-24). Defendants further argue that plaintiffs claims should be dismissed pursuant to Fed.R.Civ.P. 20 because the second amended complaint is a "buckshot complaint" that joins unrelated claims against multiple defendants from two different prisons. (Id. at 24-26).

         Plaintiff alleges that the facts in support of his claims are fully set forth in his second amended complaint and he also refers to the Court to Exhs. A, B, C, D and G attached to his memorandum in opposition to the motion. (Doc. 81). Plaintiff asserts that he engaged in protected activity, including filing grievances and pursuing litigation, that was a substantial or motivating factor for defendants' adverse actions. (Id. at 2, citing Doc. 35, Complaint; Doc. 41, Objections to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.