United States District Court, S.D. Ohio, Western Division
JOHNNIE D. COOK, Plaintiff,
RYAN WOODARD, et al., Defendants.
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge.
is an experienced pro se prisoner-litigant who has filed
three lawsuits, including this one, over the same
incident. This Report and Recommendation
(“R&R”) addresses two separate dispositive
motions in the above-captioned case: (1) Defendant Ryan
Woodard's motion for summary judgment; and (2) Defendant
William Cool's motion for summary judgment. (Docs. 35,
37). For the reasons that follow, the undersigned recommends
granting judgment to Defendant Woodard, but denying judgment
to Defendant Cool on all but one portion of Plaintiff's
who is currently incarcerated at the Southern Correctional
Facility (“SOCF”), filed this §1983 action
alleging violations of his civil rights during his
incarceration. Upon screening under the Prison Litigation
Reform Act (“PLRA”), the undersigned initially
filed a Report and Recommendation (“R&R”)
that recommended that only a single claim against Defendant
Correctional Officer Woodard be permitted to proceed.
pertinent part, Plaintiff's original complaint alleged
that he was involved in a fight with another inmate on
November 18, 2016 while inside the Inmate Dining Room.
Correctional Officer Brannigan, a non-party, was the first to
respond and “tried to separate the both of us.”
(Doc. 3 at 5). Plaintiff alleges that “multiple
Officers responded” shortly thereafter. (Id.)
Plaintiff alleges that while he was “laying on my
stomach in full compliance and handcuffed behind my back, I
heard C/O Ryan Woodard yell ‘use your P.R.s' then I
felt a sharp pain on the right side of my temple.”
(Id.) Although the Court allowed an Eighth Amendment
claim against Defendant Woodard to proceed, the R&R
recommended the dismissal of other claims and defendants,
including a claim against Defendant Cool that was based upon
respondeat superior (which does not apply in §
1983 suits) and/or was otherwise insufficient to state any
claim based on Plaintiff's allegations that Cool
“was negligent… as the supervisor” or
failed to conduct an adequate “use of force”
investigation and/or fully respond to Plaintiff's
grievance against C/O Woodard. (Id. at
the undersigned filed that first R&R, Plaintiff moved for
leave to file an amended complaint to add additional
defendants and allegations, which the undersigned construed
as a supplement to the original complaint. While recommending
dismissal of all claims against Larry Greene,  the undersigned
found that the new allegations were sufficient to proceed
with a retaliation claim against Defendant Cool. The second
Plaintiff claims that during the discovery phase of a prior
lawsuit filed in this Court, 1 he sent three subpoenas to
Warden Ron Erdos, Medical Administrator Mrs. Warren, and
defendant Cool. According to plaintiff, Cool retaliated
against him by writing a false conduct report stating that
plaintiff had forged the subpoenas. In preparation for
contesting the conduct report before the Rules Infraction
Board, plaintiff claims that he requested Cool, Erdos, and
Warren as witnesses. However, on July 7, 2017, he claims he
was told that Erdos and Warren would not be called as
witnesses and that “I needed to dismiss my civil action
or suffer consequences even possibly lose my life.”
(Id. at PageID 52). During the hearing, plaintiff
claims that Cool told the RIB chairperson “to find me
guilty to show me who's in charge and that I have no
rights at all.” (Id. at PageID 54). Plaintiff
was ultimately found guilty by the RIB and sentenced to
twenty days in disciplinary control. (Id. at PageID
54). Plaintiff unsuccessfully appealed the result of the RIB
hearing to defendant Larry Greene on the ground that his
procedural due process rights were violated and that he
presented sufficient evidence to overturn the RIB's
decision. (Id. at PageID 55).
(Doc. 15 at 4).
the conclusion of discovery in this case, both Defendant
Woodard and Defendant Cool filed separate motions for summary
judgment. (Docs. 35, 37). Plaintiff filed a response in
opposition to Defendant Cool's motion, but elected not to
respond to Defendant Woodard's motion.
Pending Dispositive Motions
Standard of Review
Rule of Civil Procedure 56(a) provides that summary judgment
is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” A dispute is
“genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505 (1986). A court must view the
evidence and draw all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986).
The moving party has the burden of showing an absence of
evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548 (1986).
the moving party has met its burden of production, the
nonmoving party cannot rest on the pleadings, but must
present significant probative evidence in support of his case
to defeat the motion for summary judgment. Anderson,
477 U.S. at 248-49. The mere scintilla of evidence to support
the nonmoving party's position will be insufficient; the
evidence must be sufficient for a jury to reasonably find in
favor of the nonmoving party. Id. at 252. As
Plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005). However, his status as a pro se litigant
does not alter his burden of supporting his factual
assertions with admissible evidence when faced with a summary
judgment motion. Maston v. Montgomery Cnty. Jail Med.
Staff Personnel, 832 F.Supp.2d 846, 851-52 (S.D. Ohio
2011) (citing Viergutz v. Lucent Techs., Inc., 375
Fed.Appx. 482, 485 (6th Cir. 2010)).
Defendant Woodard's Motion for Summary Judgment (Doc.
being granted multiple extensions of time, Plaintiff failed
to file any response to Defendant Woodard's motion for
summary judgment. The undersigned now recommends granting
that Defendant's unopposed and well-supported motion.
Res Judicata (Claim Preclusion and Issue Preclusion)
Woodard first persuasively argues that both claim preclusion
and issue preclusion bar Plaintiff's claims, because
Plaintiff previously filed suit in the Ohio Court of Claims
against the Ohio Department of Rehabilitation and Correction
(“ODRC”) concerning the same incident, and that
court granted summary judgment to ODRC. (See Doc.
35-7, Court of Claims No. 2017-00104 (June 16, 2017)). A
comparison of the records confirms that Plaintiff's state
court suit included nearly identical allegations, that
Correctional Officer Woodard used his black night stick to
strike plaintiff in the side of the head after both he and
another inmate had been separated and were being compliant
with staff orders. In granting summary judgment, the state
court pointed out multiple inconsistencies between
Plaintiff's account and the evidence of record. The state
court held that Plaintiff not only failed to prove assault,
but that his allegations of unnecessary or excessive force
failed to demonstrate negligence. (Id. at 5). The
state court concluded:
[P]laintiff's characterization of the alleged injury
sustained is inconsistent with the medical evaluation
conducted shortly after the incident of November 18, 2016.
Furthermore, plaintiff asserted a complete investigation was
not conducted, however, a review of the case file reveals an
appropriate use of force investigation was properly conducted
in accordance with OAR 5120-9-01 and 5120-9-02.
(Id. at 7-8).
res judicata effect of state-court decisions in § 1983
actions is a matter of state law.” Young v. City of
Radcliff, 561 F.Supp. 767, 779 (W.D. Ky. 2008) (quoting
Heck v. Humphrey, 512 U.S. 477, 480 n.2,
114 S.Ct. 2364 (1994) (additional citation omitted)).
Under claim preclusion, a final judgment on the merits bars
any and all claims by the parties or their privies based on
the same cause of action, as to every matter actually
litigated, as well as every theory of recovery that could
have been presented. Id. Under issue preclusion,
once an issue actually is determined by a court of competent
jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action when used against
any party to the prior litigation. Mont. v.
United States, 440 U.S. 147, 152-54, 99 S.Ct. 970,
59 L.Ed.2d 210 (1979).
Cedillo v. TransCor America, LLC, 131 F.Supp.3d 734,
740-41 (M.D. Tenn. 2015). Because Plaintiff's claims in
the prior Court of Claims case were adjudicated on the merits
and involved privies to the same parties, his attempt to
bring the same claims in this federal court under a new legal
theory is barred. McQueen v. Pyles, 2012 4108011 at
*2 (S.D. Ohio Sept. 18, 2012), adopted at 2012 WL 4848910
(Oct. 11, 2012)); see also Foster v. Ohio,
2018 WL 1516776 (S.D. Ohio Mar 28, 2018), adopted at 2018 WL
2287967 (May 18, 2018).
Suit Barred under the Leaman Doctrine
addition to the doctrines of claim preclusion and issue
preclusion, Plaintiff's current claims are subject to
dismissal under Leaman v. Ohio Dept. of Mental
Retardation & Dev. Disabilities, 825 F.2d
946 (6th Cir. 1987) (en banc). It is well
established that states are entitled to sovereign immunity
from suit, absent an express waiver of that immunity.
“The Ohio Court of Claims Act waives the state's
sovereign immunity and declares that the state consents to be
sued in the Court of Claims.” Leaman v. Ohio Dept.
of Mental Retardation & Dev. Disabilities, 825 F.2d
946, 951 (6th Cir. 1987) (en banc), cert. denied,
487 U.S. 1205 (1998). In relevant part, Ohio R.C. §
Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a
complete waiver of any cause of action, based on the same act
or omission, that the filing party has against any [state]
officer or employee, as defined in section 109.36 of the
Revised Code. The waiver shall be void if the court
determines that the act or omission was manifestly outside
the scope of the officer's or employee's office or
employment or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless
prior complaint in the Ohio Court of Claims contained similar
allegations and claims against the Ohio Department of
Rehabilitation and Correction. As stated, the Ohio Court of
Claims case was decided on the merits, with summary judgment
being granted to the ODRC.
Leaman, the Sixth Circuit Court of Appeals held that
neither the legal basis for the claim, nor the difference in
the identity of the defendants (individuals versus the ODRC)
is sufficient to escape the waiver. Instead, filing suit in
the Ohio Court of Claims bars any later federal suit seeking
monetary damages for the same conduct against an individual
state officer or employee. The Leaman court
explained that O.R.C. § 2743.02(A)(1) constitutes
“Ohio's statutory offer to subject itself to suit
in the Court of Claims in exchange for a waiver of claims
against individual state officials.” Id. at
957. Thus, Plaintiff's decision to sue the ODRC in the
Ohio Court of Claims constitutes a waiver of his right to sue
Defendant Woodard in this Court under §1983 for the same
conduct. Id. “Where a claimant elects to sue
the state in the Court of Claims, in other words, the
state's employees are given an affirmative defense which
the federal court has both the jurisdiction and the duty to
recognize.” Id. at 954; see also Turker v.
Ohio Dep't of Rehab. & Corr., 157 F.3d 453, 460
(6th Cir. 1998) (dismissing a plaintiff's request for
monetary relief when she filed an identical complaint in the
Ohio Court of Claims after initiating a federal lawsuit);
Thomson v. Harmony, 65 F.3d 1314, 1321 (6th Cir.
undersigned further concludes that Plaintiff's status as
a pro se litigant does not preclude enforcement of the
waiver, because Plaintiff has extensive litigation experience
in both state and federal courts. See Foster v.
Ohio, 2018 WL 1516776 at **8-9; accord Brown v.
Mason, 2012 WL 2892036 (S.D. Ohio July 16, 2012)
(applying waiver to pro se prisoner plaintiff; Snead v.
Mohr, 2015 WL 1208304 (S.D. Ohio March 16, 2016) (same);
see also McDougald v. Ahmad, Civil No. 1:16-cv-500
(S.D. Ohio April 26, 2017) (Doc. 27, R&R adopted by Order
filed 09/8/17). Other courts have applied the waiver against
pro se prisoner plaintiffs with a less extensive litigation
history. See, e.g. Easley v. Bauer, No.
1:07-cv-37-SJD, 2008 WL 618642, at *1 (S.D. Ohio Feb. 29,
2008) (prisoner plaintiff who had filed up to ten other pro
se actions was experienced litigant and waived his federal
right of action); Williams v. Smith, 2006 WL 2192470
at **10-11 (S.D. Ohio Aug. 1, 2006) (pro se plaintiff
involved in at least three lawsuits based upon the same
alleged facts indicated an “above-average understanding
of the law for a pro se litigant” and
therefore supported application of the waiver). Like the
plaintiff in Williams, Cook's complaints have
all been properly captioned, organized into short and clear
paragraphs, contained requests for appropriate relief, and
cited to federal law. Therefore, the undersigned concludes
that Plaintiff has waived his claims against the Defendant
Alternatively, Summary Judgment Should be Granted on the
undersigned alternatively concludes that Defendant Woodard is
entitled to judgment on the merits. Attached to Defendant
Woodard's motion are multiple affidavits from witnesses
that aver that Woodard did not use his P.R. stick on
Plaintiff at any time during the incident, as well as DVR
video evidence that clearly refutes Plaintiff's claims.
(See generally Docs. 35-1 through 35-10). Plaintiff
filed no response to Defendant's motion, and has
submitted no evidence that creates any genuine issue of
material fact. Therefore, even if a reviewing court were to
disagree concerning the procedural bars of res judicata and
Leaman, Defendant Woodard still would remain
entitled to summary judgment on the merits. Having
recommended dismissal under res judicata and/or
Leaman, and having alternatively recommended that
judgment be entered in Defendant Woodard's favor on the
merits, the undersigned finds no need to review the
additional argument that Defendant Woodard is entitled to
Defendant Cool's Motion for Summary Judgment (Doc.
retaliation claim against Defendant Cool is substantively
distinct from his claim against Defendant Woodard. Of note,
Plaintiff's initial complaint included allegations
against Cool that were more closely related to the underlying
excessive force claim against Defendant Woodard, but were
insufficient to state any claim. Instead, Plaintiff initially
alleged only “supervisory” liability and/or that
Cool should be held liable for failure to properly
investigate and respond to his grievance about the November
2016 use of force by Defendant Woodard. The undersigned
recommended dismissal of those initial claims as
frivolous. (Doc. 4 at 4-5).
amended complaint, however, Plaintiff brought entirely new
allegations against Defendant Cool based on alleged
retaliatory conduct in June and July 2017.Specifically,
Plaintiff's amended complaint alleged that during the
discovery phase of No. 1:17-cv-161, Plaintiff served three
subpoenas through the informal prison “kite”
system, requesting that Warden Ron Erdos, Medical
Administrator Warren, and Defendant Cool appear and produce
documents relating to that case. Plaintiff alleges that not
only did Defendant Cool fail to respond to the subpoena, but
he retaliated by filing a false conduct report against
Plaintiff, accusing him of forging this Court's signature
on the referenced subpoena.
alleges that the conduct report was served on him on June 30,
2017. Prior to the hearing held before the Rules Infraction
Board (“RIB”), Plaintiff alleges that he
requested Cool, Erdos, and Warren to be called as witnesses,
but was told he would not be permitted to call Erdos or
Warren, leaving Cool as his sole witness. He alleges that he
was told that “I needed to dismiss my civil action or
suffer consequences even possibly lose my life.” (Doc.
10 at 5). Plaintiff further alleges that during a break in
the July 14, 2017 RIB proceedings, Cool told the RIB chair
“to find me guilty to show me who's in charge and
that I have no rights at all.” (Id. at 7).
Both the conduct report and the related events were
considered to be sufficient to state a non-frivolous First
Amendment retaliation claim in this case.
Plaintiff was found guilty of the charge by RIB and sentenced
to 20 days in disciplinary control. Plaintiff appealed his
disciplinary conviction but was unsuccessful.
Cool's motion for summary judgment on Plaintiff's
retaliation claim argues that he is entitled to judgment
based upon: (1) Plaintiff's failure to exhaust his
administrative remedies; (2) a lack of any material issue of
fact showing retaliation; and (3) qualified immunity.
Whether Plaintiff Fully Exhausted Administrative
first argues that Plaintiff failed to fully exhaust his
administrative remedies, as required under the PLRA, prior to
filing suit in federal court. See42 U.S.C. §
1997e (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
exhausted.”) (emphasis added); see also, generally
Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983
(2002). “[E]xhaustion is mandatory under the PLRA and
unexhausted claims cannot be brought in court.”
Jones v. Bock, 549 U.S. 201, 204 (2007). The PLRA
requires “proper exhaustion of all administrative
remedies, ” meaning all applicable procedures and
deadlines must be followed. Woodford v. Ngo, 548
U.S. 81, 88-90, 126 S.Ct. 2378, (2002) (emphasis added). If a
prisoner fails to exhaust available administrative remedies
before filing a complaint in federal court, or only partially
exhausts them, dismissal of the complaint is appropriate.
Hopkins v. Ohio Dep't of Corr., 84 Fed.Appx.
526, 527 (6th Cir.2003) (citing 42 U.S.C. § 1997e(a));
see also White v. McGinnis, 131 F.3d 593,
595 (6th Cir.1997).
provides a three-step grievance system to every inmate at
each of its institutions. See Ohio Admin. Code
5120-9-31(K). The first step allows inmates to submit an
informal complaint, commonly referred to as an “ICR,
” to the supervisor of the department or staff member
directly responsible for the issue, no later than fourteen
days from the date of the event giving rise to the grievance.
OAC § 5120-9-31(K)(1). Inmates dissatisfied with the
results of step one may proceed to step two by obtaining a
Notification of Grievance (“NOG”) from the
Inspector of Institutional Services, and filing that form
within fourteen days from the date that the inmate receives a
response to his step one complaint. OAC §
5120-9-31(K)(2). If dissatisfied at step two, the inmate may
proceed to step three of the grievance process by requesting
an appeal form from the Inspector ...