United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
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
Background and Facts
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).
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.
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.
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.
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.
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
Doc. 17, Ex. B.2) (emphasis added).
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
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 ...