Searching over 5,500,000 cases.


searching
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.

Cook v. Woodard

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

June 4, 2019

JOHNNIE D. COOK, Plaintiff,
v.
RYAN WOODARD, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge.

         Plaintiff is an experienced pro se prisoner-litigant who has filed three lawsuits, including this one, over the same incident.[1] 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 retaliation claim.

         I. Background

         Plaintiff, 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.

         In 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 4-5).[2]

         After 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, [3] the undersigned found that the new allegations were sufficient to proceed with a retaliation claim against Defendant Cool. The second R&R explained:

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).

         Following 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.

         II. Pending Dispositive Motions

         A. Standard of Review

         Federal 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).

         Once 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)).

         B. Defendant Woodard's Motion for Summary Judgment (Doc. 35)

         Despite 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.

         1. Res Judicata (Claim Preclusion and Issue Preclusion)

         Defendant 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).

         “[T]he 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).

         2. Suit Barred under the Leaman Doctrine

         In 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. § 2743.02(A)(1) provides:

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 manner.

         Plaintiff's 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.

         In 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. 1995) (same).

         The 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 Woodard.

         3. Alternatively, Summary Judgment Should be Granted on the Merits

         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 qualified immunity.

         C. Defendant Cool's Motion for Summary Judgment (Doc. 37)

         Plaintiff's 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.[4] (Doc. 4 at 4-5).

         In an amended complaint, however, Plaintiff brought entirely new allegations against Defendant Cool based on alleged retaliatory conduct in June and July 2017.[5]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.

         Plaintiff 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.

         Ultimately, 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.[6]

         Defendant 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.

         1. Whether Plaintiff Fully Exhausted Administrative Remedies

         Defendant 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).

         Ohio provides a three-step grievance system to every inmate at each of its institutions. See Ohio Admin. Code 5120-9-31(K).[7] 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 ...


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.