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Dodson v. Mohr

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

December 9, 2019

RICARDO VERNAIR DODSON, Plaintiff,
v.
GARY C. MOHR, et al., Defendants.

          George C. Smith District Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Ricardo Vernair Dodson is an inmate at the Richland Correctional Institution in Mansfield, Ohio. He explains in his Complaint, brought under 42 U.S.C. §1983, that he was convicted of kidnapping and rape in 1991 and sentenced to serve 56 to 130 years in prison. The Ohio Parole Board has declined to release him on parole on seven separate occasions. Generally speaking, Dodson's Complaint challenges the constitutional validity of the decisions denying him parole.

         The Court has previously dismissed many-but not all-of Dodson's claims. He asserts two remaining groups of claims: “(1) First Amendment retaliation claims against Defendants Alicia Handwerk, Ron Nelson, Jr., Tracy Reveal, Shirley A. Smith, and Ellen Venters; and (2) Fourteenth Amendments claims based on false reports when Dodson parole was denied.” (Doc. #7, PageID #169).

         Defendants seek dismissal of Dodson's First Amendment retaliation claims under Fed.R.Civ.P. 12(b)(6) as barred by res judicata and for lack of validity. Defendants also seek Rule 12(b)(6) dismissal of Dodson's Fourteenth Amendment claims.

         Dodson opposes dismissal of his remaining claims under Rule 12(b)(6). He also argues that Defendants' Motion constitutes an improper pleading and asks the Court to strike, deny, or ignore it. (Doc. #24). Further, he asks the Court to reconsider the previous denial of his Motion to Amend Complaint and allow him to file a second Motion for Leave to Amend Complaint. (Doc. #27).

         II. Dodson's Complaint

         The Court previously reviewed Dodson's Complaint and detailed his allegations and claims. Rather than repeating that review in full, it is incorporated herein by reference. (Doc. #s 6, 7). Still, some highlights will provide context for the parties' present Rule 12(b)(6) dispute.

         In September 2017, Dodson obtained a copy of his parole file in connection with a previous case he had filed in the Northern District of Ohio-Dodson v. Berenson, No. 1:17cv327 (N.D. Ohio).[2] He alleges in the present case that when he reviewed his parole file, he realized it contained false information and that the Parole Board has relied on the false information to find him ineligible for parole. He also asserts that the reasons the Parole Board provided for denying parole are different from the reasons indicated in documents in his parole file. (Doc. #5, PageID #136, ¶45).

         The falsehoods in Dodson's parole file, according to Dodson, relate to his expulsion from, and failure to complete, the Comprehensive Sex Offender Treatment Program (CSOP). He asserts that in his previous case-Dodson v. Berenson, 1:17cv327 (N.D. Ohio 2017)-U.S. District Judge James S. Gwin concluded, “Jennifer Whitten and David Berenson lied about the grounds used to support termination from the CSOP and they prevented Plaintiff from reporting staff misconduct.” (Doc. #5, PageID #138).

         Dodson did not advance claims against the Parole Board in his previous case. He did, however, challenge his dismissal from the CSOP. He claimed that Whitten and Berenson had “removed him from the CSOP without due process and in retaliation for reporting Ms. L's inappropriate behavior.” Dodson v. Berenson, No. 18-3092, 2018 WL 7135183, at *1 (6th Cir. 2018). The U.S. Court of Appeals for the Sixth Circuit described his supporting allegations:

In November 2016, Dodson claimed that, while he was working his assigned food service job, a prison staff member identified as “Ms. L” began “sharing personal history and information relating to her being raped and sexually abused.” Ms. L purportedly told Dodson that she knew that he was a convicted rapist because she had looked him up on the internet. Dodson purportedly “stopped the staff member, told her that he felt very uncomfortable with the conversation, and walked away.”
Dodson later spoke about this encounter during a CSOP group session, at which time Jennifer Whitten, the CSOP administrator, allegedly “became very hostile and angry with [him].” Dodson alleged that Whitten ordered him to leave the room and ultimately informed him that “he was being removed from group” pending an investigation because she suspected that he had violated the female worker's confidentiality. He also alleged that Whitten had him fired from his food service job. Dodson further claimed that David Berenson, the director of [CSOP], later informed him that he was being terminated from the CSOP because he had taken advantage of a vulnerable female worker and had manipulated her into sharing her personal information.

Id. Ultimately in Dodson's previous case, the Sixth Circuit concluded that his retaliation claims against Whitten and Berenson failed because his allegations, when taken as true, showed he “was not engaged in protected conduct.” Id. at *3. This conclusion is significant for present purposes and will be revisited below. See infra, §IV.

         The Sixth Circuit also rejected Dodson's parole-interference claim, explaining:

Although Dodson argues that his removal from the CSOP interfered with his eligibility for parole, we have previously rejected the notion that Ohio inmates have a liberty interest in being paroled. Jergens v. Ohio Dep't of Rehab. & Corr. Adult Parole Auth., 492 Fed. App'x 567, 570 (6th Cir. 2012)). Because Dodson has no substantive liberty interest in parole, his allegations that the defendants interfered with his ability to obtain parole do not state a due-process claim.

Dodson, 2018 WL 7135183, at *3.

         In the present case, Dodson again challenges the decisions denying him parole. He alleges that when he attended his July 2018 parole hearing, he was questioned about his expulsion from the CSOP, particularly about the fact that he told others in the program (inmates) that an institutional staff member told him she was a sexual-assault victim. According to Dodson, Defendant Smith-a Parole Board member-angrily asked him, “‘you told a group of sex offenders that a staff member had been a victim of rape?'” Id. Dodson says he responded, “That is not what happened. The staff member lied about being a sexual assault victim.” Id. Other Parole Board members, Defendants Handwerk and Venters, appeared “quite agitated” and further questioned Dodson about this. Dodson emphasized that the staff member had lied to him because she had not been sexually assaulted. Id.

         Dodson describes his constitutionally protected activities to include “[l]odging a verbal complaint against the staff for harassment and reporting misconduct.” (Doc. #5, ¶120(1)). He further claims that Defendants retaliated against him because he had been terminated from, and failed to compete, the Comprehensive Sex Offender Treatment Program. Id.

         Dodson identifies three retaliatory acts:

1. Defendants refused to refer him for a second time to the Comprehensive Sex Offender Treatment Program, knowing that he could not take or complete the Program without a referral.
2. Defendants refused to make this second referral while simultaneously requiring completion of this Program as prerequisite for parole eligibility.
3. Defendants denied him paroled based on false reports about information related to his expulsion from the CSOP.

(Doc. #5, PageID #147).

         Dodson asserts that Defendants' wrongful acts have denied him a meaningful statutory-parole-eligibility hearing ...


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