United States District Court, S.D. Ohio, Western Division, Dayton
C. Smith District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
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.
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).
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.
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).
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.
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). 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,
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).
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
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
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.
Sixth Circuit also rejected Dodson's parole-interference
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.
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.
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.
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).
asserts that Defendants' wrongful acts have denied him a
meaningful statutory-parole-eligibility hearing ...