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Durham v. Jeffreys

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

August 8, 2019

ROY A. DURHAM, JR., Plaintiff,
v.
ROB JEFFREYS, et al., Defendants.

          Black, J.

          ORDER AND REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.[1]

         I. Procedural Background

         This 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).[2] 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).

         In June 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).

         Defendants 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).

         Plaintiff 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).

         On 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).

         On June 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.

         II. Motion for Summary Judgment (Doc. 178)

         A. Standard

         A 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. 2000).

         The 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)).

         Because 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 485).

         B. Facts on Summary Judgment

         The pertinent allegations[3] 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) ("Claim One")
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 ...

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