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Bullocks v. Mummert

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

July 15, 2019

GERALD BULLOCKS, Plaintiff,
v.
AARON MUMMERT, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), filed a pro se civil rights complaint against defendants Aaron Mummert and Linnea Mahlman. This matter is now before the Court on the parties' cross motions for summary judgment.

         I. Background and Facts

         In the complaint, Plaintiff alleges that on or about February 12, 2017, he filed an informal complaint resolution because he had been denied recreation on several occasions. In the informal complaint, Plaintiff complains that certain inmates are not getting basketballs during recreation, that his block has outside recreation more than inside recreation, and that he was “refused” recreation “at least 5 times in the past 2 weeks.” (Doc. 17, Ex. D).

         On February 14, 2017, in response to Plaintiff's complaint, Defendant found: “After pulling documentation, I have seen where your block has gone on a consistent basis. Your block has been rotated as all other blocks with inside/outside rec every other day.” (Doc. 17 at Ex. D).

         Thereafter, that same day, Defendant issued Plaintiff a conduct report. The report states that “[Plaintiff] made accusations that his housing block J3 is being denied recreation on a consistent basis. After pulling over a month of recreation documentation the inmate has lied about being denied recreation as well as not getting to go to inside recreation these accusations have been proven to be false.” Id. The conduct report charged Plaintiff with a violation of Rule 27.

         An institutional hearing was held to resolve the conduct report. (Doc. 17, Ex. E). The hearing report found that “[s]egregation sheets and DVR video show this inmate coming and going from recreation. [Plaintiff] is using the ICR system to harass and intimidate staff by using falsehoods as a lie and threat.” Id. The Hearing Officer found Plaintiff guilty of a Rule 27 violation, giving false information or lying to departmental employees. Id. As a result, Plaintiff was “placed on a recreation restriction from 02/15/2017 through 03/07/2017.” Id. at Ex. G.

         On March 6, 2017, Plaintiff filed another grievance asserting that he was given a conduct report in retaliation for filing his prior grievance complaining about his lack of recreation. (Doc. 17, Ex. G). Plaintiff's grievance was denied because the conduct report was not greivable since a separate appeal process was available. Id. Plaintiff then filed an appeal to the Chief Inspector. Id. at Ex. H.

         Upon review, the Chief Inspector determined that there was not an investigation into Plaintiff's claim of retaliation and whether the conduct report was issued as a result of utilizing the grievance process in violation of AR 5120-9-31(F). Such provision states, in relevant part:

An inmate may be subject to disciplinary action for disrespectful threatening or otherwise inappropriate comments made in an informal complaint, grievance, or grievance appeal. Only the inspector of institutional services, with the approval of the chief inspector or designee, may initiate disciplinary action based upon the contents of an informal complaint, grievance or grievance appeal.

Doc. 17, Ex. B.2) (emphasis added).

         Defendant Mummert, the recreation supervisor, was not authorized to issue a conduct report. Accordingly, the decision of the Inspector was reversed. Id. The conduct report was overturned and removed from Plaintiff's institutional disciplinary history.

         Thereafter, Plaintiff filed the instant action asserting that Defendant Mummert retaliated against him in violation of his constitutional rights under the First Amendment. Plaintiff's complaint further asserted that Defendant Mahlman failed in her duty to investigate the claims of retaliation. Upon sua sponte review of the complaint pursuant to the Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b), Plaintiff's complaint was ...


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