United States District Court, S.D. Ohio, Western Division
ROY A. DURHAM, JR., Plaintiff,
ROB JEFFREYS, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
a former inmate at the Warren Correctional Institution
("WCI") in Lebanon, Ohio initiated this action in
April 2013 by filing a pro se complaint under 42 U.S.C.
§ 1983 challenging his treatment at WCI where he was
incarcerated from October 2011 to April 1, 2012. This matter
is before the Court on defendants' motion for summary
judgment (Doc. 178). Plaintiff has not filed a response in
opposition to the motion.
case has a lengthy procedural history. Plaintiff filed his
initial complaint in April 2013 and was granted leave to
proceed in forma pauperis in June 2013. Soon
thereafter, plaintiff filed a motion for leave to amend the
complaint, which was granted in light of a recent decision by
the Sixth Circuit in LaFountain v. Harry, 716 F.3d
944 (6th Cir. 2013). On August 1, 2013, plaintiff filed a
339-page amended complaint against 99 defendants, challenging
his treatment at WCI (as alleged in the original complaint),
as well as his treatment over the course of several years at
various penal institutions in Ohio. (Doc. 20). On August 19,
2013, the undersigned found that the amended complaint failed
to comply with Fed.R.Civ.P. 8(a) and ordered plaintiff to
resubmit another amended complaint limited to 20 pages and
"to causes of action that arose in a location that is
covered by this Court's venue jurisdiction
(i.e., Warren Correctional Institution) based on
incidents occurring within two years of the filing of the
instant action." (Doc. 22). Plaintiff filed a second
amended complaint in accordance with the August 2013 Order on
September 9, 2013. (Doc. 28). On October 17, 2013, plaintiff
requested leave of Court to submit approximately 230 pages of
exhibits that were referenced in the second amended
complaint. (Doc. 30). On November 22, 2013, the undersigned
granted plaintiffs request and held that the exhibits were to
be considered as attached to plaintiffs second amended
complaint. (Doc. 35 at 3, 11) (granting plaintiffs motion to
submit exhibits, Docs. 30, 34). The undersigned also
conducted a sua sponte review of plaintiff s second
amended complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b) and recommended dismissal of
several of plaintiff s claims. (See Id. at 10-11).
2014, defendants' first motion for judgment on the
pleadings was denied. (Doc. 57). On November 26, 2014, the
undersigned issued a Report recommending that plaintiffs
motion for leave to file a third amended complaint be denied
and that plaintiffs claims against the unserved defendants
named in the second amended complaint be dismissed in their
entirety. (Doc. 69). The District Judge adopted this
recommendation on December 31, 2014. (Doc. 75).
filed a second motion for judgment on the pleadings on the
issue of exhaustion of administrative remedies. (Doc. 65).
The undersigned converted defendants' motion into one for
summary judgment and on July 2, 2015, the undersigned issued
a Report and Recommendation that defendants' motion be
granted. (Doc. 93). The District Judge adopted the Report and
Recommendation and terminated this case from the docket of
this Court. (Doc. 102).
filed a notice of appeal to the Sixth Circuit. (Doc. 104). In
September 2016, the Sixth Circuit vacated this Court's
grant of summary judgment to defendants in this case and
remanded for further proceedings. (Doc. 108).
March 14, 2017, the undersigned issued a Report and
Recommendation that plaintiffs second motion to file a third
amended complaint be denied, (Doc. 137). On May 31, 2017, the
District Court adopted the Report and Recommendation, but
inadvertently ordered the case be terminated from the docket
of this Court. (Doc. 140). On June 12, 2017, plaintiff filed
a notice of appeal of the District Court's Order
terminating his case. (Doc. 143).
29, 2017, the District Court filed a notice of intent to
enter an amended order pursuant to Fed.R.Civ.P. 60(a) and
reopen plaintiffs case, vacate its May 31, 2017 Order, and
replace it with an amended order adopting the March 14, 2017
Report and Recommendation without terminating the case in
order to allow plaintiffs remaining claims to proceed. (Doc.
145). On September 13, 2017, the Sixth Circuit dismissed
plaintiffs appeal and granted the District Court leave to
issue an amended order, which it issued on January 2, 2018.
(Docs. 149, 154). This background forms the basis for the
Court to now resolve defendants' motion for summary
judgment, which was filed on November 29, 2018.
Motion for Summary Judgment (Doc. 178)
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A grant of summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Satterfield v. Tennessee, 295 F.3d 611,
615 (6th Cir. 2002). The Court must evaluate the evidence,
and all inferences drawn therefrom, in the light most
favorable to the non-moving party. Satterfield, 295
F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Little Caesar
Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.
trial judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine factual issue for trial.
Anderson, 477 U.S. at 249. The trial court need not
search the entire record for material issues of fact,
Street v. J.C Bradford & Co., 886 F.2d 1472,
1479-80 (6th Cir. 1989), but must determine "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue
for trial.'" Matsushita, 475 U.S. at 587.
"In response to a properly supported summary judgment
motion, the non-moving party 'is required to present some
significant probative evidence which makes it necessary to
resolve the parties' differing versions of the dispute at
trial."" Maston v. Montgomery Cty. Jail Med.
Staff Pers., 832 F.Supp.2d 846, 849 (S.D. Ohio 2011)
(quoting Sixty Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987)).
plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972) (stating that the Court holds pleadings
of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999) (pro se
plaintiffs enjoy the benefit of a liberal construction of
their pleadings and filings). However, a party's status
as a pro se litigant does not alter his duty to support his
factual assertions with admissible evidence. Maston,
832 F.Supp.2d at 851-52 (citing Viergutz v. Lucent
Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010)).
When opposing a motion for summary judgment, a pro se party
cannot rely on allegations or denials in unsworn filings.
Id. (citing Viergutz, 375 Fed.Appx. at
Facts on Summary Judgment
pertinent allegations contained in plaintiffs second amended
complaint are summarized as follows:
1. Defendants Johnson and Reese were deliberately indifferent
to plaintiffs safety in contravention of his constitutional
Eighth Amendment right to be free from cruel and unusual
punishment by telling various inmates that plaintiff is a
snitch. (Second Amended Complaint, Doc. 28 at ¶ 38)
2. On December 9, 2011, defendant Keesler was deliberately
indifferent to plaintiffs safety in violation of his Eighth
Amendment right to be free from cruel and unusual punishment
by failing to take reasonable measures to abate the risk of