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
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).
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).
Allegations of the second amended complaint (Doc.
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.
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).
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).
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.).
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).
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).
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).
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.).
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.).
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).
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.
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)).
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
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
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.
Plaintiffs motion for extension of time (Doc. 95)
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).
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.
Plaintiffs motion for recusal of the District Judge (Doc.
filed a Notice of Appeal (Doc. 100) and Motion Requesting
Recusal (Doc. 101) on January 8, 2018. 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.
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)).
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.
Plaintiffs third motion to supplement the second amended
complaint (Doc. 104)
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); 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.
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.
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
of a complaint is governed by Fed.R.Civ.P. 15, which states
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).
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).
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.
Defendants' motion to dismiss the complaint (Doc.
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).
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 ...