# Clay v. Weidner

> District Court, N.D. Ohio · June 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10368625

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** June 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10368625

## How later opinions describe it (automated extraction)

- finding that the issuance of a minor misconduct ticket could constitute an adverse action
- finding that because a misconduct ticket “did not involve a de minimis retaliatory action, this question cannot be resolved as a matter of law”
- noting that whether the threat to file a grievance was oral versus in writing was inconsequential

## Opinion text

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL CLAY, )
) CASE NO. 1:19CV1916
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
MCKALEE WEIDNER, et al., )
) MEMORANDUM OF OPINION AND
Defendants. ) ORDER [Resolving ECF Nos. 7, 15]

Pending are Defendants’ motion to dismiss (ECF No. 7) and motion to strike Plaintiffs
sur-reply (ECF No. 15). The motion to dismiss has been fully briefed. ECF Nos. 7, 11, 13, and
14. For the reasons explained below, the motion to dismiss is granted in part and denied in part.
The motion to strike is granted.
I. Introduction
Plaintiff Michael Clay is a prisoner confined in a state correctional institute in Lebanon,
Ohio. This civil rights lawsuit stems from alleged interactions with Defendants at Mansfield
Correctional Institute (“Mansfield”).
A. Law Library
While at Mansfield, Plaintiff was a law clerk in the prison’s law library. ECF No. 1 at
PagelD #: 3,920. Plaintiff alleges that when he attempted to make copies of affidavits from a
trauma nurse and forensic pathologist for his post-conviction proceedings, Defendant McKalee
Weidner, the law librarian, prohibited him from doing so. /d. Plaintiff subsequently filed a

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complaint against Weidner to her supervisor, alleging that she was misapplying prison policy and
violating his access to the courts. /d. 4.21. The complaint was denied. /d. at PageID#: 4, □ 22.
Plaintiff subsequently filed a grievance against Weidner. His grievance was denied by Defendant
Assistant Institutional Inspector Charles Moore. Jd. {| 22-23.
Weidner learned of the grievances, confronted Plaintiff about the grievances, and fired
Plaintiff from his position as a law clerk on August 10, 2017. /d. 426. After he was fired,
Plaintiff filed an informal complaint alleging that Weidner had retaliated against him when she
fired him. /d. at PageID #: 5, 930. Plaintiff alleges that Weidner fabricated an evaluation of
Plaintiff's work performance to justify firing him. /d. A meeting was subsequently held
with Plaintiff, Weidner, and Weidner’s supervisor wherein Plaintiff was reinstated as a law clerk.
Id. at PageID #: 6, 436.
According to Plaintiff, Weidner continued to harass Plaintiff after he was reinstated by
deleting his personal legal documents along with those of other inmates he was assisting. □□□ at
PageID #: 7, 39.
B. Digital Grievance Procedure
Plaintiff alleges that the grievance procedure was digital and required an inmate to draft
his complaint at a kiosk system. /d. at PageID #: 4, 27. He claims that the grievance procedure
operates under a time system that prevents an inmate from submitting the grievance if not
completed within a set time frame. /d. at PageID #: 4-5, 27-28.

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C. Assisting Other Inmates, Misconduct Report, and Administrative Segregation
In late May 2018, Plaintiff attempted to type out complaints, at the kiosk, against
Weidner for other prisoners. /d. at PageID #: 7,42. R. Bacon, Weidner’s other supervisor,
allegedly told the inmates that the documents were not deleted but merely moved. /d. □□□□ In
addition, Bacon informed the inmates that Plaintiff could not help them because he was no longer
associated with the law library. /d. Plaintiff again attempted to file a grievance, claiming that
Bacon’s response was nonresponsive to the other inmates’ concerns. /d. 146. This grievance
was denied and Defendant Assistant Institutional Inspector Charles Moore noted that the
grievance was filed by Plaintiff, not by the inmate whose name was associated with the file; this,
the report indicated, was not permitted. Jd. 9.47.
On June 12, 2018, Plaintiff met with Defendant Institutional Inspector Lisa Booth and her
assistant, Defendant Charles Moore. /d. Plaintiff claims that Booth informed him he could
not assist other inmates with their grievances, a conduct report would be issued against him, and
he was being restricted from access to the grievance procedure. /d. at PageID #: 8-9, □□ 49-50.
Plaintiff insists that there was never a policy prohibiting inmates from working with one another
to draft grievances against correctional officers. /d. at PageID #: 8, [ 48.
Booth allegedly responded that she had spoken to Defendant Chief Inspector Roger Moors
beforehand and they both agreed to restrict Plaintiff's grievance access due to Plaintiffs abuse of
the grievance system. /d. at PageID #: 9,451. In response, Plaintiff told them that he planned to
sue them for restricting his right to file grievances. /d. On that same day, Plaintiff was placed in
administrative segregation for “falsifying documents, disrespect[ing] [Booth], and disobey[ing] a

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direct order.” /d. 52. Plaintiff alleges Chief Inspector Roger Moore ordered that he be placed ir
administrative segregation. /d. at PageID #: 17, 107.
D. Rules Infraction Board Hearings
Plaintiff was called to a hearing before the Rules Infraction Board (“RIB”) led by
Defendant Lieutenant Kirk Dolby on June 22, 2018. /d. at PageID #: 9, 4156. According to
Plaintiff, he was charged with three offenses: forgery, disobeying a direct order, and disrespecting
an officer. /d. §[52. Plaintiff maintains that he was found not guilty of the first two offenses but
was found guilty of offense of disrespecting an officer. /d. at PageID #: 10, 60. When
announcing that Plaintiff was guilty of the aforementioned offense, Dolby allegedly stated that he
could not permit Plaintiff to be found not guilty on all the offenses because it was Plaintiff's worc
against Booth’s. Jd. Because he was found guilty of one of the offenses, Plaintiff was placed
back in administrative segregation. /d. □□□ Although Plaintiff was set to be released from
administrative segregation on June 25, 2018, he was not released that day. /d. §§| 61-62.
On June 28, 2018, the RIB held another hearing to reconsider the charges against Plaintiff
463. Before the hearing, Plaintiff was allegedly informed to leave his written defenses in his
cell. Jd. 64. According to Plaintiff, Defendant Scott Basquin, the Warden’s assistant, ordered
the matter be remanded back to RIB to reconsider the charges against Plaintiff and permit the
charging officer to testify. /d. Plaintiff alleges that Basquin, Chief Inspector Roger Moore, and
Booth all engaged in the decision to amend the offense brought against Plaintiff. See id. at
PageID #: 17,9 109. The forgery offense, which Plaintiff was adjudicated not guilty, was
amended to a violation of mail rule. /d. at PageID #: 11, 66. Booth, who sat with Dolby at the

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hearing, allegedly declared: “[M]e and the chief inspector still think you’re guilty of forgery, and
you ought to be found guilty.” /d. Plaintiff alleges that Booth sat behind the desk of Dolby and
served as a member of the RIB panel reviewing the charges. /d. {| 65, 70. At this second
hearing, Booth testified and Plaintiff was found guilty of the amended offense (instead of forgery)
and all other charges in Booth’s conduct report. /d. [§167-68. Plaintiff was placed back in
administrative segregation for fourteen days. /d. 968.
Plaintiff requested the disposition of the hearing in writing so that he could appeal. Jd.
Plaintiff claims that he never received the disposition. /d. at PageID #: 12, 75. Because he was
prohibited from filing any grievances, Plaintiff claims he was unable to appeal the RIB’s ruling o1
time. /d. Plaintiff also alleges this resulted in him being unable to apply to Ashland University.
478.
E. Plaintiff’s Claims
Plaintiff filed this civil rights action against Defendants under 42 U.S.C. § 1983. The
Court construes Plaintiff's Complaint as raising the following claims against Weidner: (1) First
Amendment denial of access to the courts; and (2) First Amendment retaliation.'_ The remaining
claims raised against the other Defendants are: (1) First Amendment retaliation; (2) Fourteenth
Amendment Due Process violations; and (3) civil conspiracy. Plaintiff raises all of his claims

' Defendants only construe Plaintiff's Complaint as alleging denial of access to
the court against Weidner. See ECF No. 7 at PageID #: 103. As explained below,
however, Plaintiff provides makes a claim for First Amendment retaliation against
Weidner.

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against Defendants in their individual and official capacities. Defendants subsequently filed the
pending motion to dismiss.
II. Standard of Review
To survive a Fed. R. Civ. P.12(b)(6) motion to dismiss, a plaintiff's complaint must allege
enough facts to “raise a right to relief above the speculative level.” Ass ’n of Cleveland Fire
Fighters vy. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Fed. R. Civ. P. 8(a)(2) requires only that a pleading contair
“a short and plain statement of the claim showing that the pleader is entitled to relief.” However,
“a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief? requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citing Papasan vy. Allain, 478 U.S. 265, 286 (1986)). A
complaint requires “further factual enhancement,” which “state[s] a claim to relief that is plausibl
on its face.” Jd. at 557,570. A claim has facial plausibility when there is enough
factual content present to allow “the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). When a claim
lacks “plausibility in th[e] complaint,” that cause of action fails to state a claim upon which relief
can be granted. Zwombly, U.S. 550 at 564.
Additionally, when a party files a motion to dismiss for lack of subject matter jurisdiction
under Fed. R. Civ. P.12(b)(1) in conjunction with other Rule 12 motions, the court generally
considers the Rule 12(b)(1) motion first. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.
549 U.S. 422, 430-31 (2007) (“[A] federal court generally may not rule on the merits of a case

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without first determining that it has jurisdiction[.]”). “It is the plaintiffs burden .. . to prove that
this court has jurisdiction over [the plaintiff's] claim.” Kiser v. Reitz, 765 F.3d 601, 607 (6th Cir.
2014). “[W]here a defendant argues that the plaintiff has not alleged sufficient facts in her
complaint to create subject matter jurisdiction, the trial court takes the allegations in the complain
as true.” Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003).
Ill. Discussion
A. Eleventh Amendment Immunity
Actions brought against the State or an “arm of the state” are subject to the doctrine of
sovereign immunity under the Eleventh Amendment. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir.
2005). The “arm of the state” includes state officials in their official capacity. Experimental
Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007). Although a state may waive its
sovereign immunity, Ohio has not done so. McCormick v. Miami Univ., 693 F.3d 654, 664 (6th
Cir, 2012). Accordingly, any claims raised against Defendants in their official capacities and
seeking monetary damages must be dismissed.
Plaintiff's claims for monetary relief against Defendants in their individual capacities,
however, are not barred by the Eleventh Amendment. Hafer v. Melo, 502 U.S. 21, 30-31 (1991)
(“That is, the Eleventh Amendment does not erect a barrier against suits to impose ‘individual anc
personal liability’ on state officials under § 1983.”)
B. Injunctive Relief
Under the Ex Parte Young exception, Eleventh Amendment immunity does not attach to
suits “filed against a state official for purely injunctive relief enjoining the official from violating

(1:19CV 1916)
federal law.” Ernst, 427 F.3d at 358-59 (citing Ex parte Young, 209 U.S. 123, 155-56 (1908)).
Because, however, Plaintiff has been transferred to a different facility since he filed this action,
his claims seeking injunctive relief are moot. See Parks v. Reans, 510 F. App’x 414, 415 (6th Cir
2013) (“A prisoner’s request for injunctive and declaratory relief is moot upon his transfer to a
different facility.”) (citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)). Additionally, to the
extent Plaintiff seeks injunctive relief against Defendants in their official capacities, those claims
are dismissed as moot.
In sum, the claims against Defendants in their official capacities, for monetary damages
and injunctive relief, are dismissed. At this juncture, the remaining claims are those brought
against Defendants in their individual capacities for monetary damages. The Court considers the
remaining claims against each individual Defendant in their individual capacities for monetary
damages below.
C. Claims against McKalee Weidner
1. Statute of Limitations
Plaintiff's claims are governed by a two-year statute of limitations. See Browning v.
Pendleton, 869 F.2d 989, 990-91 (6th Cir. 1989). “[F]ederal law governs the question of when
that limitations period begins to run.” Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984)
(citations omitted). The statute of limitations is measured from the “two years from the date that
[Plaintiff] knew or should have known of his injury.” Hunt v. City of Cleveland, 563 F. App’x
404, 407 (6th Cir. 2014) (citations omitted). To determine when the statute of limitations began
accruing, the Court must “focus[] on the harm incurred, rather than the plaintiff's knowledge of

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the underlying facts which gave rise to the harm.” Friedman v. Estate of Presser, 929 F.2d 1151,
1159 (6th Cir. 1991) (citation omitted). “A plaintiff has reason to know of his injury when he
should have discovered it through the exercise of reasonable diligence.” Sevier, 742 F.2d at 273.

Plaintiff’s Complaint is considered filed with the Court on August 16, 2019, the date he
“executed” the pleading. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (“[A] pro se
prisoner’s complaint is deemed filed when it is handed over to prison officials for mailing to the
court.”) (citations omitted). Based on the facts alleged, however, the statute of limitations for his
retaliation claim pertaining to being fired from his position as a law clerk began to run on August
10, 2017, the date that he was terminated. See Hunt, 563 F. App’x at 407 (“To the extent that
Hunt bases any of his constitutional claims on the car accident, the district court was correct in
holding that such claims are barred by the statute of limitations, because the harm was known to

Hunt on the date of the accident . . . .”) This is underscored by the fact that Plaintiff filed a
grievance against Weidner for retaliation on or around August 10, 2017 and that he alleges
Weidner filed a false evaluation against him to justify firing him that same day. See ECF No. 1 at
PageID #: 4-5, ¶ 26-31. Because Plaintiff filed his Complaint on August 16, 2019, six days past
the statute of limitations for his retaliation claim against Weidner regarding his firing, this claim is
dismissed as time-barred.
Plaintiff’s First Amendment claims against Weidner, however, are not entirely time-

barred. Plaintiff alleges that after he was restored to his position as a law clerk on August 16,
2017, “Weidner continued with her campaign of harassment against Clay, e.g. Weidner began to

9
(1:19CV1916)
delete his personal legal documents and the documents of the inmates he was assisting.” ECF No.
1 at PageID #: 7, ¶ 39. Among the documents Plaintiff alleges were deleted include his own legal
files and other inmates’ motions and a federal habeas brief. Id. Plaintiff maintains that although

Weidner generally deleted documents from the law library computers after thirty days, his
documents, and those of the inmates he assisted, were deleted sooner. Id. It is unclear exactly
when Plaintiff alleges this conduct occurred but he does indicate that it was after August 16, 2017.
Additionally, Plaintiff filed a complaint against Weidner regarding this practice in May 2018 and
requested a meeting with Lisa Booth and Charles Moore two weeks before June 12, 2018 to speak
about ongoing issues he had with Weidner. Id. at PageID #: 7-8, 42-49. The alleged retaliatory
conduct of deleting legal documents falls within the two-year statute of limitations. To the extent
that any of Plaintiff’s claims against Weidner for retaliatory conduct concern behavior that

occurred after August 16, 2017, Plaintiff’s First Amendment claims are not barred.
2. Merits of Claims Against Weidner
Below, the Court considers whether Plaintiff’s denial of access to the courts and his First
Amendment retaliation claims against Weidner are actionable.
a. Denial of Access to the Courts Claim
In a denial of access to the courts claim, the plaintiff alleges that a government officials
“barr[ed] the courthouse door by concealing or destroying evidence so that the plaintiff is unable

to ever obtain an adequate remedy on the underlying claim.” Flagg v. City of Detroit, 715 F.3d
165, 173 (6th Cir. 2013). To succeed on this claim, Plaintiff must demonstrate: (1) a
non-frivolous underlying claim; (2) obstructive actions by state actors, (3) substantial prejudice to
10
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the underlying claim that cannot be remedied by the state court; and (4) a request for relief which
the plaintiff would have sought on the underlying claim and is now unattainable. /d. (citations
and internal quotations omitted). The right of access to the courts is directly related to an
underlying claim, without which a plaintiff cannot be said to have suffered injury by being shut
out of court. Christopher v. Harbury, 536 U.S. 403, 415 (2002). Plaintiff must therefore “plead
and prove prejudice stemming from the asserted violation.” Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996). “Examples of actual prejudice include having a case dismissed, being unable
to file a complaint, and missing a court-imposed deadline.” Fitts v. Sicker, 232 F. App’x 436, 44.
(6th Cir. 2007) (citations omitted).
Plaintiff does not allege that, after Weidner allegedly deleted his legal files, he was unable
to file those legal documents despite any delay caused, or was precluded from seeking legal
redress in those cases.” See Weatherspoon v. Woods, No. 16-1277, 2017 WL 3923335, at *3 (6th
Cir, Feb. 24, 2017); Winburn v. Howe, 43 F. App’x 731, 733-34 (6th Cir. 2002) (finding that “a
prison official’s intentional destruction of legal materials that delays, but does not preclude, a
prisoner’s access to courts” is insufficient to state a denial of access to the courts claim). Against
this backdrop, Plaintiff has failed to demonstrate any actual prejudice he might have incurred. Se
Houston v. Seng, 20 F. App’x 384, 385 (6th Cir. 2001).
Accordingly, Plaintiff's denial of access to the courts claim against Weidner is dismissed.

* As explained above, Plaintiff cannot anchor his denial of access to the courts
claim on any alleged interference occurring before August 16, 2017.
11

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b. Retaliation
The Court construes Plaintiff’s Complaint as raising a First Amendment retaliation claim
against Weidner regarding the deletion of his legal files. To properly plead retaliation, Plaintiff

must show: “(1) the plaintiff engaged in protected conduct; (2) defendant took an adverse action
against plaintiff that would deter a person of ordinary firmness from continuing to engage in that
conduct; and (3) a causal connection between the first two elements, that is, the adverse action
was motivated at least in part by the plaintiff’s protected conduct.” Clark v. Corr. Corp. of Am.,
113 F. App’x 65, 68 (6th Cir. 2004) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999) (en banc)).
Plaintiff engaged in protected conduct under the First Amendment when he filed a
grievance against Weidner. See Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000).

Plaintiff has also demonstrated that Weidner took an adverse action against him.
Confiscating legal documents from an inmate is sufficient to demonstrate that prison officials
engaged in an adverse action. See Bell v. Johnson, 308 F.3d 594, 604-05 (6th Cir. 2002); see also
Clark, 113 F. App’x at 67 (“Notably, plaintiff did not allege that the search of his cell and the
seizure of his legal materials was retaliatory, and documents appended to plaintiff’s complaint
reflect that the legal materials were returned to plaintiff.”) (emphasis added). The Court sees no
meaningful difference between grabbing printed legal documents in an inmate’s cell and deleting

documents from the law library computer before Plaintiff can file them. Both actions can
arguably deter the party being retaliated against from exercising his right to access to the courts.

12
(1:19CV1916)
See also Maben v. Thelen, 887 F.3d 252, 267 (6th Cir. 2018) (“Because this case [does] not
involve de minimis retaliatory action, this question cannot be resolved as a matter of law.”)
Plaintiff has also sufficiently pled that “the adverse action was motivated at least in part by

the plaintiff’s protected conduct.” Thaddeus-X, 175 F.3d at 394. In the case at bar, Plaintiff
alleges that the files were deleted as “her campaign of harassment against Clay” after he filed a
grievance against her. ECF No. 1 at PageID #: 7, ¶ 39; see also Maben, 887 F.3d at 262 (plaintiff
need only demonstrate “his protected conduct was a motivating factor behind any harm”) (quoting
Thaddeus-X, 175 F.3d at 399). Plaintiff has demonstrated that he filed a complaint against her,
continued to complain after he was restored to his law clerk position after originally being
terminated, and Weidner subsequently deleted his legal filings. These allegations are sufficient at
the pleading stage to form a plausible First Amendment retaliation claim.

In sum, Plaintiff’s First Amendment retaliation claim against Weidner is time-barred to the
extent it is based on Plaintiff’s alleged firing. Plaintiff’s denial of access to the courts claim is
dismissed for failing to plead sufficient facts of prejudice. Plaintiff’s First Amendment
retaliation claim, however, concerning the allegations that Weidner deleted his legal documents, is
not dismissed.
C. Claims against the other Defendants
1. Retaliation

Plaintiff also raises First Amendment retaliation claims against the following Defendants:
Institutional Inspector Lisa Booth, Assistant Institutional Inspector Charles Moore, and Chief
Inspector Roger Moore.
13
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a. Lisa Booth
First, the Court must determine whether Plaintiff engaged in protected conduct. The two
potential instances of protected conduct for Plaintiffs claim are assisting other inmates and
threatening to file a lawsuit. See Clark v. Johnston, 413 F. App’x 804, 814 n.5 (6th Cir. 2011).
The right of an inmate acting as a “jailhouse lawyer” to access the courts is “wholly
derivative” from the other inmates’ right to access the courts. Thaddeus-X, 175 F.3d at 395
(citation omitted). “[P]rison officials may prohibit or limit jailhouse lawyering unless doing so
interferes with an inmate’s ability to present his grievances to a court.” /d. (citation omitted). In
other words, Plaintiff must demonstrate that the other inmates he assisted “[were] incapable of
pursuing [their] own grievances or had no other source of help.” Hermansen v. Ky. Dep’t of
Corr., 556 F. App’x 476, 477 (6th Cir. 2014), Plaintiff has sufficiently pled that neither of the
inmates he assisted “could have prepared, articulated, or authored any of the legal documents” an
were unable to type out their complaint at the grievance kiosk in the time allotted by the device.
ECF No. | at PageID #: 7, [| 40-42. He also claims that duties at the law library included
authoring complaints for other inmates and assisting them in articulating their claims. /d. □□□
At this juncture, these facts sufficiently indicate that the inmates would have been unable to
access the grievance process without Plaintiffs assistance.
Even if Plaintiff did not engage in protected conduct when he filed grievances for the othe
inmates, he did so when he threatened Booth and Charles Moore with a lawsuit for restricting his
ability to file grievances. See Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018) (noting that
whether the threat to file a grievance was oral versus in writing was inconsequential); see also

14

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White v. McKay, No. 18-1473, 2019 WL 5420092, at *2 (6th Cir. June 27, 2019) (“The claim of
retaliation against these two defendants arguably states a claim. First, White’s threat to file
grievances against the defendants that were not obviously frivolous constituted protected
conduct.) (citing Pasley v. Conerly, 345 F. App’x 981, 984-85 (6th Cir. 2009)). Additionally, th
Court cannot conclude at this juncture that the threatened lawsuit against Defendants was
frivolous or whether Plaintiff violated a legitimate prison regulation. See, e.g., Maben, 887 F.3d
at 266 (rejecting defendant’s contention that even if plaintiff was engaged in protected activity he
became disruptive and violated a legitimate prison regulation).
On the facts alleged at this early stage of litigation, the Court does not find that Plaintiff's
threatened lawsuit against Defendants for restricting his access to the grievance process is patenth
frivolous. Compare ECF No. 1 (Plaintiff's Complaint) with Scott v. Kilchermann, 230 F.3d 1359
at *2 (6th Cir. 2000) (unpublished table decision) (plaintiff did not have a “constitutionally
protected right to be free from verbal abuse”); Thaddeus-X v. Love, 215 F.3d 1327, at *3 (6th Cir.
2000) (unpublished table decision) (finding that plaintiff had not alleged he engaged in protected
conduct because his grievance that the prison official was eating food at the prison guard desk wa
frivolous); Herron, 203 F.3d at 415; Robinson v. Stephan, No. 1:18-1166, 2018 WL 6444282, at’
3 (W.D. Mich. Dec. 10, 2018) (grievance of “closing the recreation room a half hour early [was]

... plainly frivolous.”). The Court’s analysis is also guided by the principle that Plaintiff's
“allegations are to be construed in the light most favorable to him at this early stage of the
proceedings.” Hill v. Lappin, 630 F.3d 468, 472 (6th Cir. 2010).
Next, the Court considers whether Booth undertook adverse action against Plaintiff.

15

(1:19CV 1916)
Although merely modifying an inmates’ access to the grievance procedure is not enough to
constitute an adverse action, Plaintiff appears to allege that he was being restricted from accessing
the grievance procedure entirely.’ See Jackson v. Madery, 158 F. App’x 656, 660 (6th Cir. 2005).
overruled on other grounds by Maben, 887 F.3d at 262; Walker v. Mich. Dep’t of Corr., 128 F.
App’x 441, 446 (6th Cir. 2005) (“As the district court found, this Court and other courts have
noted that placement on modified access status does not impinge upon a prisoner's ability to file
either meritorious grievances in prison or actions in federal court.”) (emphasis added).
Foreclosing an inmate’s ability to file any grievances completely would arguably deter an ordinar
person from engaging in protected conduct. See Maben, 887 F.3d at 267 (detailing other acts that
prison officials allegedly engaged in that were considered to be an adverse action).
Additionally, even if the restriction on Plaintiff's access to the grievance procedure was
inadequate to constitute an adverse action, Plaintiff has sufficiently pled that Booth took an
adverse action against him by placing him in administrative segregation. See Brown v. Crowley,
312 F.3d 782 (6th Cir. 2002) (“[T]his court has concluded that placing a prisoner in administrativ
segregation is an adverse action.”’) (citations omitted); see also Maben, 887 F.3d at 266 (finding
that the issuance of a minor misconduct ticket could constitute an adverse action).
Plaintiff has satisfied the third element because he has credibly suggested a but-for
connection at this juncture. Plaintiff alleges that he was placed in administrative segregation

> Plaintiff alleges that Booth informed him that “he was being placed on
restriction from the grievance procedure.” ECF No. | at PageID #: 9, 50. As opposed
to merely modifying his status, the term “restriction” implies that he was completely
prohibiting from filing grievances.
16

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shortly after he threatened to sue Booth and Charles Moore on the same day. See Maben, 887
F.3d at 268 (noting that there was “a suspicious temporal proximity between Maben’s grievance
and the alleged retaliatory action” when plaintiff was disciplined “immediately after” plaintiff
complained to the correctional officer) (emphasis in original); Muhammad v. Close, 379 F.3d 413
417-18 (6th Cir. 2004) (“[T]emporal proximity alone may be ‘significant enough to constitute
indirect evidence of a causal connection so as to create an inference of retaliatory motive.’”)
(citation omitted).
Additionally, Plaintiff's finding of guilt at a disciplinary hearing does not preclude a First
Amendment retaliation claim. See Maben, 887 F.3d at 262. Plaintiff has sufficiently pled a First
Amendment retaliation claim against Defendant Lisa Booth.
b. Roger Moore
The Court must also consider whether Plaintiff has alleged sufficient facts of First
Amendment retaliation against Defendant Chief Inspector Roger Moore. “Persons sued in their
individual capacities under § 1983 can be held liable based only on their own unconstitutional
behavior.” Heverman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012). In other words, “

[t]o state a claim against a defendant in his individual capacity, plaintiff must allege personal
involvement of the defendant in causing plaintiff's injury.” Dotson v. Wilkinson, 477 F. Supp. 2d
838, 847 (N.D. Ohio 2007) (citing Hardin v. Straub, 954 F.2d 1193, 1196 (6th Cir. 1992)). A
party cannot be held liable under Section 1983 “unless the party personally participated in, or
otherwise authorized, approved or knowingly acquiesced in, the allegedly unconstitutional

17

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conduct.” Dotson, 477 F. Supp. 2d at 847 (citing Leach v. Shelby Cty. Sheriff, 891 F.2d 1241,
1246 (6th Cir. 1989)).
Plaintiff's claim against Chief Inspector Roger Moore pleads sufficient facts alleging
direct engagement in the alleged retaliatory conduct. Supervisors, such as Roger Moore, are liabl
when they “‘either encouraged the specific incident of misconduct or in some other way directly
participated in it. At a minimum, a plaintiff must show that the official at least implicitly
authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending
officers.’” Heyerman, 680 F.3d at 647. Plaintiff must demonstrate “that the supervisor
encouraged the specific incident of misconduct or in some other way directly participated in it.”
Taylor v. Larson, 505 F. App’x 475, 478 (6th Cir. 2012) (citation omitted). Plaintiff alleges that
Chief Inspector Roger Moore ordered Plaintiff to be placed in administrative segregation. See
ECF No. | at PageID #: 17,9107. Additionally, Plaintiff alleges that Roger Moore actively
participated in the decision to bring an amended charge against Plaintiff after he was found not
guilty of the original forgery offense.* /d. at 109. Because Plaintiff has sufficiently alleged that
Roger Moore engaged in the alleged retaliatory conduct against Plaintiff, Plaintiff's First
Amendment retaliation claim survives.

* Although Plaintiff claims that Roger Moore “directed and conspired . . . to
amend the alleged rule violation of forgery,” see ECF No. 1| at PageID #: 17, {.109,
Plaintiff also alleges the warden’s assistant, Scott Basquin, ordered the remand, id. at
PageID #: 10, 465.
18

(1:19CV1916)
c. Charles Moore
Next, the Court considers the First Amendment retaliation claim against Defendant
Assistant Institutional Inspector Charles Moore. Although Plaintiff has sufficiently pled that he

engaged in protected conduct, he has not alleged that Charles Moore engaged in any adverse
action against him. Plaintiff’s assertion that “C. Moore continuously conferred with Booth before
confronting Clay,” ECF No 1. at PageID #: 16-17, ¶ 103, or that Charles Moore denied Plaintiff’s
grievances against Weidner is insufficient to demonstrate that Charles Moore himself engaged in
any retaliatory conduct. The only other connection to Plaintiff’s retaliation claim is Charles
Moore’s presence at the meeting where Plaintiff threatened to file a lawsuit. Plaintiff has not
suggested that Charles Moore played a role in drafting the conduct, restricting Plaintiff’s access to
the grievance procedure, ordering him to be placed in administrative segregation5, or was actively

involved in the adjudication of his charged offenses. Notably, Plaintiff does not allege that
Charles Moore had any role in the second RIB disciplinary hearing. See ECF No. 1 at PageID #:
17, ¶ 109 (“R. Moore directed and conspired with Dolby, and Booth to amend the alleged rule
violation of forgery to an inapplicable rule and making a finding of guilt against Clay in
furtherance of the conspiracy that caused injury.”)6 Plaintiff has failed to plead that Charles

5 For his retaliation claim against Charles Moore, Plaintiff generally lists
“[p]lacing Clay in segregation” as an instance of retaliatory conduct. See ECF No. 1 at
PageID #: 16, ¶ 102. Plaintiff alleges, however, that “[t]he pod officer informed Clay that
Booth wrote a conduct report, and placed Clay in the hole.” Accordingly, on the facts
alleged, Plaintiff has not demonstrated that Charles Moore engaged in any retaliatory
conduct against Plaintiff.
6 As explained below, these facts are also relevant for Plaintiff’s civil conspiracy
(continued...)
19
(1:19CV 1916)
Moore engaged in any adverse action against him. Accordingly, the retaliation claim against
Charles Moore is dismissed.
d. Kirk Dolby and Scott Basquin’
The Court construes Plaintiff's Complaint as raising retaliation claims against Defendants
Scott Basquin and Lieutenant Kirk Dolby, the officers who ordered a second hearing before the
RIB and the hearing officer who presided over the second hearing respectively. See ECF No. | at
PageID #: 10, 65; #17, 105. As explained above, Plaintiff has adequately demonstrated he
engaged in protected conduct. Plaintiff alleges that, after a hearing that cleared him of all charges
except disrespecting Booth, Scott Basquin remanded the case back to the RIB for a second hearin
to “aid and abet Booth’s retaliation” against Clay. /d. at PageID #: 17,9105. Additionally,
Plaintiff alleges that Dolby, who presided over the hearing, permitted the officer that drafted the
report, Lisa Booth, to participate, even after Booth blurted out “Me and the chief inspector still
think you’re guilty of forgery and you ought to be found guilty.” See id. at PageID #: 11. The
second hearing resulted in Clay being placed in administrative segregation for more time than he

*(...continued)
claim.
’ Defendants do not address any retaliation claims against Defendants Kirk Dolby
and Scott Basquin. See ECF No. 7. Although “a court cannot ‘create a claim which [a
plaintiff] has not spelled out in his pleadings,” Brown v. Matauszak, 415 F. App’x 608,
613 (6th Cir. 2011) (citation omitted and alterations made in original), courts are bound
to observe that pled. The Court finds that Plaintiff has pleaded a retaliation claim against
Kirk Dolby and Scott Basquin under the liberal pro se pleading standard. See ECF No. |
at PageID #: 18, 112 (asking the Court for relief against, among other Defendants, “Kirk
Dolby and Scott Basquin to cease their retaliation.”) (emphasis added); see also id. at
PageID #: 12, 78; 17, 7105.
20

(1:19CV 1916)
was originally sentenced after the first hearing, id. at PageID #: 11,168. See Maben, 887 F.3d at
266-67 (finding that because a misconduct ticket “did not involve a de minimis retaliatory action,
this question cannot be resolved as a matter of law”). On the facts alleged at this stage, this is
sufficient to suggest the remand for the second hearing, and the hearing itself, were adverse
actions against Plaintiff.
Next, the Court considers whether Plaintiff has sufficiently pled a causal connection
between his protected conduct and the adverse action of holding a second RIB hearing. To
establish causation, Plaintiff must demonstrate “the adverse action was motivated at least in part
by the plaintiffs protected conduct.” Thaddeus-X, 175 F.3d at 394. The Court may rely on
circumstantial evidence to find that the causation element has been satisfied. See King v.
Zamiara, 680 F.3d 686, 695 (6th Cir. 2012); see also Harris v. Bornhorst, 513 F.3d 503, 519 (6th
Cir, 2008) (“‘Usually, the question of causation is a factual issue to be resolved by a jury, and ma‘
be satisfied by circumstantial evidence.’”) (citation omitted). With respect to Dolby, Plaintiff
alleges that Dolby barred Plaintiff from bringing his written defenses to the second hearing but
permitted the officer who wrote the conduct report against Plaintiff to participate as a panel
member of hearing. Moreover, Plaintiff was then found guilty of an amended charge and offense:
he was originally acquitted for in the first hearing. As a result of the second hearing, □□□□□□□□□□ □
time in administrative segregation was enlarged. Plaintiff further suggests he was never provided
with a written explanation of the findings and the lack of a written disposition foreclosed any
appeal. Plaintiff's Complaint “ includes a ‘chronology of event from which retaliation may
plausibly be inferred.’” Desmone v. Adams, 165 F.3d 27, at *3 (6th Cir. 1998) (unpublished table

21

(1:19CV1916)
decision) (citation omitted); see also Guile v. Schneider, No. 1:15–cv–1069, 2017 WL 8135054,
at * 9 (W.D. Mich. Dec. 27, 2017) (finding that plaintiff has sufficiently pleaded that the alleged
retaliatory transfer to higher-security level prison was pretext). Taken together, this is sufficient

circumstantial evidence indicating that Dolby’s adjudication of the second hearing and amended
charges were motivated in part by Plaintiff’s protected conduct.
Additionally, this second hearing only occurred within a few weeks of Plaintiff’s
threatening to file a lawsuit.8 Although not as immediate as Booth’s order to place Plaintiff in
administrative segregation after Plaintiff threatened to file the lawsuit, “temporal proximity
between the protected conduct and the adverse action by the state actor” may be sufficient
evidence of causation. See Paige v. Coyner, 614 F.3d 273, 283 (6th Cir. 2010) (one week after

protected speech); see also Ehrlich v. Kovack, 135 F. Supp. 3d 638, 668 (N.D. Ohio 2015)
(finding sufficient causal connection when termination occurred six months after plaintiff engaged
in protected conduct). Furthermore, Plaintiff alleges that “Booth collud[ed] with Dolby to further
her retaliatory antics” and that he “wilfully . . . aid[ed] and abet[ted]” Booth’s retaliation,
suggesting that Dolby’s handling of the second hearing was motivated in part by Plaintiff’s
protected conduct. See ECF No. 1 at PageID #: 12, 77-78 (emphasis added). At the pleadings
stage, the Court finds that Plaintiff has sufficiently pled the causation element for a First
Amendment retaliation claim against Kirk Dolby at this stage.

8 Plaintiff alleges that he was placed in administrative segregation on June 12,
2018, the first RIB hearing was conducted on June 22, 2018, and then the second hearing
was held on June 28, 2018. ECF No. 1 at PageID #: 9-11.
22
(1:19CV1916)
The discussed evidence of causation applies with equal force to Scott Basquin. Plaintiff
alleges that Basquin ordered the second hearing be conducted and “willfully . . . den[ied] Clay a
fair hearing when aiding, and abetting Booth’s” retaliation. Id. at PageID #: 17, ¶ 105. In other

words, Plaintiff alleges that Basquin remanded for a second hearing to retaliate against Plaintiff
for engaging in protected conduct. Given the temporal proximity and the aforementioned
circumstantial evidence, Plaintiff has established causation at this juncture. “And because
[Plaintiff’s] allegations are at least plausible, his complaint also establishes this element without
being frivolous.” Hill, 630 F.3d at 476 (citations omitted).
In sum, Plaintiff has sufficiently pled First Amendment retaliation claims Defendants Lisa
Booth, Chief Inspector Roger Moore, Lieutenant Kirk Dolby, and Scott Basquin. Plaintiff’s
retaliation claim against Assistant Institutional Inspector Charles Moore, however, is dismissed.

2. Procedural Due Process Claims
Plaintiff raises Fourteenth Amendment Due Process claims against Defendants Lieutenant
Kirk Dolby and Scott Basquin.
In order to bring a Due Process claim, a prisoner must demonstrate that he has a
constitutionally protected liberty interest. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In the
prison context, a liberty interest can only be found when the “segregation imposes an ‘atypical and
significant’ hardship on the inmate ‘in relation to the ordinary incidents of prison life.’” Jones v.

Baker, 155 F.3d 810, 812 (6th Cir. 1998) (quoting Sandin v. Conner, 515 U.S. 472, 483 (1995)).
“[A]dministrative segregation alone does not involve an ‘atypical and significant’ hardship

23
(1:19CV 1916)
implicating a protected liberty interest.” Joseph v. Curtin, 410 F. App’x 865, 868 (6th Cir. 2010).
The length of the duration of segregation is a factor to be considered. See Harden-Bey vy. Rutter,
524 F.3d 789, 793 (6th Cir. 2008) (“As Sandin and Austin indicate and as the cases from our siste
circuits suggest, the duration of prison discipline bears on whether a cognizable liberty interest
exists.”) Plaintiff alleges that he was placed in segregation for around the same 30-days baseline
set in Sandin found to not bestow a liberty interest.” 515 U.S. at 486; see also Langford v.
Koskela, No. 16-1435, 2017 WL 6803554, at *3 (6th Cir. Jan. 24, 2017) (thirty days was
insufficient to find a constitutionally protected liberty interest). Plaintiffs time in segregation
does not come near the “extreme circumstances, such as when the prisoner's complaint alleged
that he is subject to indefinite administrative segregation.” Joseph, 410 F. App’x at 868 (citations
omitted). Additionally, Plaintiff pleads no facts indicating that the administrative segregation
affected the duration of his sentence. See Sandin, 515 U.S. at 486-87.
Even if the prison failed to follow its own procedures during Plaintiff's second RIB
disciplinary hearing, Plaintiff has not establish a liberty interest subject to the Due Process Clause
See Grinter v. Knight, 532 F.3d 567, 574-75 (6th Cir. 2008); see also Ford v. Harvey, 106 F.
App’x 397, 399 (6th Cir. 2004).
Because Plaintiff cannot demonstrate that he has endured a significant and atypical

* Plaintiff was placed into administrative segregation on June 12, 2018, the first
hearing was held, and then he remained in segregation until his second hearing on June
28, 2018. ECF No. | at PageID #: 9-11, 9952-68. After the second hearing, Plaintiff was
sanctioned to fourteen days in administrative segregation. /d. at PageID #: 11, 68.
24

(1:19CV 1916)
hardship, he has no liberty interest protected under the Due Process Clause. Ford, 106 F. App’x
at 399.; see also Carter v. Tucker, 69 F. App’x 678, 680 (6th Cir. 2003). Accordingly, his Due
Process claims are dismissed.
3. Civil Conspiracy”
Plaintiff raises a claim for civil conspiracy against Defendants Lisa Booth, Chief Inspectot
Roger Moore, Lieutenant Kirk Dolby, Assistant Institutional Inspector Charles Moore, and
Warden’s Assistant Scott Basquin.
A claim for civil conspiracy alleges that there is “an agreement between two or more
persons to injure another by unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir.
1985). Plaintiff must demonstrate that (1) there was a plan to conspire against him; (2) the allege
coconspirator shared in the general conspiratorial objective; and (3) and that an overt act was
committed in furtherance of the conspiracy that caused injury to Plaintiff. See id. (internal
quotation marks omitted). Civil conspiracy “must be pled with some degree of specificity, and
vague and conclusory allegations unsupported by material facts are not sufficient to state a claim.
Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010) (citation omitted). The Sixtt
Circuit has indicated that “pleading requirements governing civil conspiracies are relatively
strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008) (citation omitted). Notwithstanding the
strict pleading requirements, Plaintiff “may rely on circumstantial evidence to demonstrate an

'° Plaintiff's civil conspiracy claims implicate the intracorporate conspiracy
doctrine recognized as applicable in Section 1983 actions in Jackson v. City of Cleveland,
925 F.3d 793 (6th Cir. 2019). Defendants have not raised this affirmative defense in their
motion to dismiss or Answer. See ECF No. 7 at PageID #: 112-13; ECF No. 8. Because
of the potential prejudice to Plaintiff, the Court will not consider the doctrine in its ruling.
25

(1:19CV1916)
agreement among the conspirators.” Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012)
(citations omitted).
a. Charles Moore

A civil conspiracy claim cannot be properly pled if Plaintiff has failed to show that
unlawful action was taken against him. See Bauss v. Plymouth Twp., 233 F. App’x 490, 500 (6th
Cir. 2007); Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004). As explained above, Plaintiff has
failed to allege that Defendant Charles Moore engaged in unlawful activity so the civil conspiracy
claim against him must be dismissed.
b. Lisa Booth, Roger Moore, Scott Basquin, and Kirk Dolby
Plaintiff has sufficiently alleged Defendants Lisa Booth, Roger Moore, Scott Basquin, and
Kirk Dolby undertook unlawful action against him. Plaintiff alleges that, in retaliation for

threatening to file lawsuits against them, these Defendants conspired to suppress his First
Amendment right to file grievances against correctional officers and to prevent him from assisting
other inmates with their legal filings. Plaintiff’s allegations of conspiracy are not vague and he
has provided sufficient factual details to survive dismissal. Plaintiff alleges that Booth explicitly
stated that Booth and Roger Moore agreed to restrict his access to the grievance procedures due to
Plaintiff’s abuse of the grievance process. Plaintiff subsequently threatened to sue Defendants.
On that same day, Lisa Booth, allegedly acting on orders from Roger Moore, placed him in

administrative segregation after the meeting with Plaintiff at which Plaintiff informed them he
could sue them for restricting his access to the grievance process. Plaintiff was then allegedly

26
(1:19CV1916)
given a hearing at which he was at first cleared of some of the charges against him.11 Scott
Basquin, allegedly to aid and abet Booth’s retaliation against Plaintiff, remanded to RIB for a
second hearing and allegedly denied Plaintiff a fair hearing. Plaintiff further alleges Roger Moore

and Booth actively participated in the decision to amend his offense to be charged in a second
hearing.12 In this second hearing, Lieutenant Kirk Dolby allegedly permitted Booth to participate
in the review of a new charge brought against him. Booth then allegedly stated that both she and
Roger Moore thought that Plaintiff should have been found guilty of the original forgery offense.
Plaintiff is subsequently placed back in administrative segregation having been found guilty of the
newly amended charge against him, and all other charges raised in the original conduct report,
after having been acquitted of the original charges (other than disrespecting Booth) in the first
hearing. He further claim he was never given the opportunity to appeal the RIB’s decision

because he was never provided with the second hearing’s disposition. These alleged facts suggest
that there was an agreement between Lisa Booth, Roger Moore, Scott Basquin, and Kirk Dolby
and a shared conspiratorial objective, to retaliate against Plaintiff.
In sum, Plaintiff’s civil conspiracy claims against Defendant Charles Moore is dismissed.
Plaintiff’s civil conspiracy claims against Defendants Lisa Booth, Roger Moore, Scott Basquin,
and Kirk Dolby are not dismissed.

11 In the first hearing, he was found guilty of disrespecting Booth. ECF No. 1 at
PageID #: 10, ¶ 60.

27
(1:19CV1916)
C. Motion to Strike
Plaintiff filed a sur-reply styled as a “Motion in Opposition to Defendant’s Reply” without
leave to do so. Defendants moved for the sur-reply to be stricken. Defendants’ motion to strike is

granted. Plaintiff’s motion in opposition to Defendant’s reply (ECF No. 14) is stricken.
IV. Conclusion
For the reasons given above, Defendants’ motion to dismiss is granted in part and denied
in part. Accordingly,
- All of Plaintiff’s claims against Defendants in their official capacities are dismissed.
- Plaintiff’s First Amendment retaliation claim against McKalee Weidner is time-barred
to the extent it alleges any retaliatory conduct before Plaintiff was fired from his position

as a law clerk.
- Plaintiff’s retaliation claim against McKalee Weidner on his allegation that Weidner
deleted his legal files remains.
- Plaintiff’s denial of access to the courts claim against Weidner is dismissed.
- Plaintiff’s First Amendment retaliation claim against Charles Moore is dismissed.
- Plaintiff’s First Amendment retaliation claims against Lisa Booth, Roger Moore, Scott
Basquin, and Kirk Dolby remain.
- All of Plaintiff’s Fourteenth Amendment Due Process claims are dismissed.

- Plaintiff’s civil conspiracy claim is dismissed against Defendant Charles Moore.
- As there are no remaining claims pending against him, Defendant Charles Moore is
dismissed from this action.
28
(1:19CV1916)
- Plaintiff’s civil conspiracy claims against Defendants Lisa Booth, Roger Moore, Scott
Basquin, and Kirk Dolby remain.
Defendants’ motion to strike is granted.

IT IS SO ORDERED.
June 16, 2020 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368625. Public record. Not legal advice.