Young v. Mulvaine

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

AARON E. YOUNG, CASE NO. 3:18 CV 2807

Plaintiff,

v. JUDGE JAMES R. KNEPP II

DEAN MULVAINE, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

On October 22, 2018, Plaintiff filed an initial complaint against Management and

Training Corporation (“MTC”) and current and former employees of MTC in the Court of

Common Pleas of Marion County. (Doc. 1-1, at 1). Defendants removed the case to this Court on

December 5, 2018. (Doc. 1). Plaintiff subsequently filed an amended complaint. See Doc. 36.

Plaintiff brings claims for damages under 42 U.S.C. § 1983, alleging: “(1) retaliation in violation

of the First Amendment of the United States Constitution, (2) interference with counsel in

violation of the Sixth and Fourteenth Amendments of the United States Constitution, (3) unequal

treatment and confiscation of property in violation of the Fourteenth Amendment of the United

States Constitution, and (4) excessive force in violation of the Eighth Amendment of the United

States Constitution.” (Doc. 36, at 1-2). Plaintiff also brings state law claims of negligence and

false light. Id. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. Currently pending

before the Court is Defendants’ Motion for Summary Judgment (Doc. 72), to which Plaintiff

filed an amended opposition (Doc. 87-1) and Defendants replied (Doc. 88). Plaintiff also filed a

Motion for Telephone Status Conference (Doc. 69). For the reasons stated below, Defendants’

motion is granted and Plaintiff’s motion is denied.

BACKGROUND

At all relevant times, Plaintiff was an inmate at the North Central Correctional Complex

(“NCCC”), a private facility managed by Defendant MTC. (Doc. 38, at 1). While incarcerated at

NCCC, Plaintiff filed several unrelated lawsuits against MTC. (Doc. 71-1, at 11). Throughout

August and September 2017, officers repeatedly blocked Plaintiff’s access to his attorney for

these cases or monitored their calls. Id. at 18-20. However, Plaintiff admits he never missed a

case deadline because of these hinderances nor was he prevented from filing any lawsuit. Id. at

25. Plaintiff was still able to communicate with his attorney via mail. Id. at 23. Plaintiff never

filed any form of complaint with the prison regarding these allegations. (Doc. 72-1, at 2).

On two occasions in October 2017, Plaintiff had legal materials taken from his cell. The

first instance was on October 12, 2017 (“October 12 complaint”). (Doc. 71-1, at 29). Plaintiff

believed Defendant Officer Brandi Smith confiscated the documents, but he did not see her do

so. Id. at 31. The second instance occurred on October 26, 2017 (“October 26 complaint”). Id.

Again, Plaintiff did not see who took the documents. Id. However, another inmate saw

Defendant Smith search Plaintiff’s cell outside of his presence, fold up a piece of paper from

inside the cell, and place it in her pocket. Id. at 33. Plaintiff was still able to meet all court

deadlines despite the confiscations. Id. Plaintiff filed informal complaints with the prison

regarding both incidents. (Doc. 72-1, at 3).

After the October 12 informal complaint was dismissed, Plaintiff elevated the complaint

to a grievance. Id. at 12. Defendant Shuler informed Plaintiff that after further investigation, it

was found there was “no violation of any rule, law or policy in this grievance, so therefore this

grievance is being denied and this office will take no further action.” Id. at 13. Plaintiff then

elevated the decision to an appeal, and the decision was affirmed. Id. at 13-14.

After the October 26 informal complaint was dismissed, Plaintiff elevated the complaint

to a grievance. Id. at 10. Once again, Defendant Shuler informed Plaintiff “[t]here [was] no

documentation to prove that the officer took your legal documents and kept them” and denied the

grievance. Id. Plaintiff did not appeal this decision. Id. at 3.

On November 17, 2017, NCCC staff received an anonymous letter threatening the safety

of Defendant Smith. See Doc. 72-3, at 4. Sergeant Dean Mulvaine considered Plaintiff a

“possible person of interest” and placed Plaintiff in restrictive housing pending an investigation.

Id. After investigation, the Rules Infraction Board held a hearing and subsequently found

Plaintiff guilty of writing the letter. Id. at 5. Because of Plaintiff’s disciplinary history, reviewing

officer Cynthia Miller recommended Plaintiff’s security level be increased. (Doc. 72-2, at 55).

The Ohio Department of Rehabilitation and Correction’s Bureau of Classification affirmed this

recommendation. (Doc. 72-4, at 2).

After the disciplinary hearing, Mulvaine and Lieutenant Benjamin Blankenship escorted

Plaintiff back to his cell. (Doc. 71-1, at 47). While returning to his cell, Mulvaine pushed

Plaintiff against a wall, made several threatening remarks and slurs, and punched Plaintiff in the

face. Id. at 49-50. Plaintiff told Defendant Officer Lorri Shuler about the incident, but again,

Plaintiff did not file an informal complaint about the incident. Id. at 50-51.

Plaintiff began his disciplinary segregation on November 17, 2017. Id. at 47. Plaintiff

asserts that while his security level was increased, he was unable to use the “JPay” machine to

file informal complaints. (Doc. 71-1, at 53-56). When Plaintiff requested paper forms instead, his

requests went ignored. Id. On December 7, 2017, Sergeant Steve Jones granted Plaintiff’s

request to use a JPay machine to file an informal complaint. (Doc. 72-2, at 29). After conducting

a security check a short time later, Jones discovered Plaintiff looking at personal pictures. Id. at

29. Jones informed Plaintiff he was not allowed to view these pictures because Plaintiff was

sentenced to restrictive housing. (Doc. 87-2, at 4). After Plaintiff told Jones there was no such

rule, Jones began to call Plaintiff a child molester in front of other inmates. (Doc. 71-1, at 51-52).

Once again, Plaintiff did not file a complaint regarding the incident. (Doc. 72-1, at 3).

STANDARD OF REVIEW

Summary judgment is appropriate when the evidence shows there is “no genuine dispute

as to material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). When deciding a motion for summary judgment, the Court must consider all

underlying facts “in the light most favorable to the party opposing the motion.” Matushita Elec.

Indus. Co. v. Zenith Radio Corp., 457 U.S. 574, 587 (1986). The Court cannot weigh the

evidence or determine the truth of the disputed matter and must determine only whether there is a

genuine issue for trial. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th Cir.

2016). The moving party bears the initial burden of proof. Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). However, this burden may be discharged if the moving party can show “there is

an absence of evidence to support the nonmoving party's case.” Id. Once this is shown, the

nonmoving party must “go beyond the pleadings” and “designate specific facts showing that

there is a genuine issue for trial.” Id. at 324

DISCUSSION

Plaintiff brings claims of retaliation, interference with counsel, unequal treatment and

confiscation of property, excessive force and failure to intervene, negligent hiring, training, and

supervision, and false light. (Doc. 36, at 1-2). In response, Defendants claim they are entitled to

summary judgment as Plaintiff failed to exhaust all administrative remedies as required by the

Prison Litigation Reform Act (“PLRA”) or, alternatively, that Plaintiff’s claims are without

merit. See generally Doc. 72. Each point will be discussed in turn.

Failure to Exhaust Administrative Remedies

Defendants argue Plaintiff failed to exhaust his administrative remedies as required by

the PLRA, warranting dismissal. (Doc. 72, at 9).

An inmate must exhaust all available administrative remedies before bringing an action

under 42 U.S.C. § 1983. Dellis v. Corr. Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001); PLRA,

42 U.S.C. § 1997e(a). Proper exhaustion of administrative remedies requires “compliance with

an agency’s deadlines and other critical procedural rules[.]” Cook v. Caruso, 531 F. App’x 554,

562 (6th Cir. 2013) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)); see also Risher v.

Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (“A prisoner must adhere to the institutional grievance

policy . . .”).

There is “no question” exhaustion is mandatory under the PLRA and unexhausted claims

cannot be brought in court. Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter v. Nussle, 534

U.S. 516, 524 (2002)); 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.”). Failure to exhaust is an affirmative defense. Maxwell v. Corr. Med. Servs., Inc.,

538 F. App’x 682, 687 (6th Cir. 2013) (citing Bock, 549 U.S. at 216; Surles v. Andison, 678 F.3d

452, 455 (6th Cir. 2012)). Therefore, Defendants bear the burden of proof on exhaustion. Id.

(citing Surles, 678 F.3d at 455). Summary judgment will only be granted if Defendants establish

the “absence of a ‘genuine dispute as to any material fact’ regarding non-exhaustion.” Troche v.

Crabtree, 814 F.3d 795, 798 (6th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).

However, an exception to this rule applies when administrative remedies are not made

available to a prisoner. Does 8-10 v. Snyder, 945 F.3d 951, 962 (6th Cir. 2019). An

administrative remedy is not “available”: (1) when officers [are] “unable or consistently

unwilling to provide any relief”; (2) when the procedure is “so opaque” that it is “incapable of

use”; or (3) when officers “thwart inmates from taking advantage of a grievance process.” Ratliff

v. Graves, 761 F. App’x 565, 567 (6th Cir. 2019) (quoting Ross v. Blake, 578 U.S. 632, 643-44

(2016)). If a remedy is deemed unavailable, an exhaustion defense is defeated. Does 8-10, 945

F.3d at 966.

Ohio Admin. Code § 5120-9-31

Under Ohio’s prison grievance procedures, inmates must file: (1) an informal complaint

(“ICR”) within fourteen days of the alleged incident; (2) a notification of grievance to the

inspector of institutional services (“grievance”) within fourteen days of the dismissal of the ICR;

and (3) an appeal to the office of chief inspector (“appeal”). Ohio Admin. Code § 5120-9-

31(J)(1)-(3). Thus, an inmate will have exhausted all available administrative remedies only

when he pursues review at all three levels. See Rodgers v. Morgan, 2021 WL 3169154, *2 (S.D.

Ohio) (quoting Blissit v. Fiquris, 345 F. Supp. 3d 931, 938 (S.D. Ohio 2018)) (“An inmate does

not exhaust his remedies under § 5120-9-31 until he has received a decision in an appeal to the

Office of the Chief Inspector.”). The PLRA’s exhaustion requirement applies to prisoners held in

public and private facilities. De la Cruz v. United States, 2012 WL 4505997, *4 (N.D. Ohio)

(citing Boyd v. Corr. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2004)).

Defendants submit affidavits from prison staff and other records asserting (1) Plaintiff

was never denied use of JPay kiosks to file informal complaints; (2) if the JPay kiosks were to

malfunction or otherwise become unavailable, paper copies of informal complaint forms were

available in the housing units; (3) Plaintiff was never denied a request for a paper form; (4)

Plaintiff filed several informal complaints, grievances, and appeals before and after some of the

alleged violations took place; and (5) Plaintiff failed to file an appeal with the Office of the Chief

Inspector for all but one of his claims (claim that C.O. Smith confiscated his legal documents on

October 12, 2017). See Doc. 72-1.

In response, Plaintiff argues he could not follow proper procedures because they were not

made available to him while he was in segregation in December 2017. See Doc. 36; Doc. 87-1.

Plaintiff asserts that while he was in segregation, he was only able to use the JPay kiosk twice.

(Doc. 83, at 5). Plaintiff further states “[o]ther than the two times that I was permitted to use the

kiosk, when I would ask to use the kiosk to file a grievances, prion [sic] officials would tell me

that it was either broke, or that they would come back to get me but they would not come back.

When I would ask for a paper grievance, they would say that there were none.” Id.

However, the mere unavailability of or malfunctioning of JPay kiosks and paper forms

does not demonstrate a genuine issue of material fact that Plaintiff was prevented from

exhausting his administrative remedies. Hargrove v. Holley, 2020 WL 1042620, at *4 (S.D.

Ohio), report and recommendation adopted, 2020 WL 5651476 (S.D. Ohio) (citing Jones v.

Smith, 266 F.3d 399, 400 (6th Cir. 2001)). Plaintiff must present evidence “that there was no

other source for obtaining a grievance form or that he made [another] attempt to obtain a form or

to file a grievance without a form.” Jones, 266 F.3d at 400.

Even viewing the facts in a light most favorable to Plaintiff, Defendants have established

the absence of a genuine dispute regarding non-exhaustion. Troche, 814 F.3d at 798. Per

Plaintiff’s own declaration, Plaintiff used the kiosk twice while in segregation. (Doc. 87-2, at 5).

Plaintiff does not offer any explanation as to why he did not file any informal complaints during

either of these times. Additionally, on December 7, 2017, Plaintiff asked permission from

Sergeant Jones “to use the Jpay machine to write a grievance” and Jones allowed him to do so.

(Doc. 72-2, at 29). Plaintiff was only removed from the kiosk after Jones discovered Plaintiff

viewing personal pictures, which, as Jones explained to Plaintiff, was prohibited because of

Plaintiff’s placement in restrictive housing. (Doc. 87-2, at 4). Based on Plaintiff’s own

admissions, he was not denied access to the electronic grievance system.

Similarly, Plaintiff’s claim that his requests for paper forms went ignored is insufficient

to establish that administrative remedies were unavailable to him. Because Plaintiff admits he

had access to the JPay kiosks in segregation, he cannot show there was “no other source for

obtaining a grievance form[.]” Jones, 266 F.3d at 400. Likewise, Plaintiff has not offered any

evidence to show he attempted “to file a grievance without a form.” Id.

Thus, Plaintiff is unable to genuinely dispute Defendants’ assertion that Plaintiff failed to

exhaust all available administrative remedies. Plaintiff failed to file any form of informal

complaint, grievance, or appeal for all but two of his claims for relief. See Doc. 36, at ¶¶ 67, 69-

80; Doc. 72-1, at 2-3. And while Plaintiff did submit an informal complaint relating to Smith

taking his legal documents on October 26, 2017 and escalated the complaint to a grievance, he

did not appeal the decision to the Office of the Chief Inspector after his complaint was denied.

(Doc. 72-1, at 2). However, Plaintiff fully exhausted his claim regarding Smith taking his legal

documents on October 12, 2017. (Doc. 72-1, at 12-14). Because this was the only time Plaintiff

received a decision from the Office of the Chief Inspector, the only claim that has been fully

exhausted and able to be brought in this Court is the claim relating to Smith’s confiscation of

Plaintiff’s legal documents on October 12, 2017 (Count II). Rodgers, 2021 WL 3169154 at *2;

see also Doc. 36, ¶ 68. Thus, summary judgment is granted as to all other claims.

Ohio Rev. Code §§ 2969.26(A), 2969.25(A)

Defendants also contend Plaintiff’s claims should be dismissed due to Plaintiff’s failure

to comply with Ohio Rev. Code §§ 2969.26(A) and 2969.25(A). (Doc. 72, at 13). In response,

Plaintiff argues he is not subject to the requirements of the statutes. (Doc. 87-1, at 27-30).

Ohio Rev. Code §§ 2969.26(A) and 2969.25(A) lay out affidavit requirements that

inmates must follow when filing a civil action or appeal against a government entity. Under Ohio

Rev. Code § 2969.21:

(B)(1) “Civil action or appeal against a government entity or employee” means any of the

following:

(a) A civil action that an inmate commences against the state, a political

subdivision, or an employee of the state or a political subdivision in a court of

common pleas, court of appeals, county court, or municipal court;

(b) An appeal of the judgment or order in a civil action of the type described in

division (B)(1)(a) of this section that an inmate files in a court of appeals.

Defendants argue that because Plaintiff has not complied with the affidavit requirement,

his claims must be dismissed. The Court disagrees. This case is no longer in an Ohio state court.

See Ohio Rev. Code § 2969.21(B)(1)(a). Additionally, Plaintiff has brought federal claims that

have been removed to federal court, making state law defenses inapplicable. See Armstead v.

Baldwin, 2020 WL 1694850, at *2 (S.D. Ohio) (“Defendants argue that [Plaintiff] has not

satisfied the requirements of a particular provision of Ohio law (Section 2969.26(A) of the Ohio

Revised Code), but this argument is inapt. [Plaintiff] has brought federal claims in federal court.

Ohio law has no relevance here.”). Therefore, summary judgment cannot be granted based on

non-compliance with Ohio Rev. Code §§ 2969.26 and 2969.25.

Count II

The only remaining fully-exhausted federal claim in Plaintiff’s complaint is Count II

wherein, Plaintiff alleges “Smith violated [Plaintiff’s] First, Sixth, and Fourteenth Amendment

rights under the United States Constitution when she retaliated against [Plaintiff], for filing the

lawsuit against MTC, by confiscating his legal documents, reading them and not retaining them.”

(Doc. 36, at 12).1

To establish a retaliation claim, Plaintiff must show: “(1) [he] engaged in protected

conduct; (2) an adverse action was taken against [Plaintiff] that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) … the adverse action was motivated

at least in part by Plaintiff’s protected conduct.” Berkshire v. Dahl, 928 F.3d 520, 531 (6th Cir.

2019) (quoting King v. Zamiara (“King II”), 680 F.3d 686, 694 (6th Cir. 2012)).

An inmate has “an undisputed First Amendment right to file grievances against prison

officials on his own behalf.” Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2018) (quoting

Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)); see also Violett v. Reynolds, 76 F.

App’x 24, 27 (6th Cir. 2003) (“Filing grievances through the inmate grievance mechanism is

protected conduct.”). Plaintiff bears the burden of showing “the exercise of the protected right

was a substantial or motivating factor in [Defendants’] alleged retaliatory conduct.” Clark v.

Stone, 998 F.3d 287, 303 (6th Cir. 2021) (quoting Smith v. Campbell, 250 F.3d 1032, 1037 (6th

1. In their Motion for Summary Judgment, Defendants argue Plaintiff’s claims of denial of

access to the courts and interference with legal material in Count II are without merit. (Doc. 72,

at 13). Plaintiff responded by stating he “is not making out a denial to access to court claim as

the Defendants strongly suggest.” (Doc. 87-1, at 4). Thus, to the extent Count II alleges

violations of Plaintiff’s Sixth Amendment rights, this claim is dismissed.

Cir. 2001)). If Plaintiff makes such a showing, Defendants have the burden of showing the action

would have been taken even absent the protected activity. Holsapple v. Cunningham, 817 F.

App’x 95, 102 (6th Cir. 2020) (citing Smith, 250 F.3d at 1037).

As noted, the only remaining claim relates to Smith’s alleged taking of Plaintiff’s legal

documents on October 12, 2017. On that day, Plaintiff’s legal materials were in a laundry bag on

his bed when they were taken. (Doc. 71-1, at 30). However, after further grievance investigation,

Defendant Shuler informed Plaintiff that while the laundry bag was taken off the end of the

bunk, there was no evidence to prove his materials were taken from his cell. (Doc. 72-1, at 13).

Shuler further informed Plaintiff “[t]he officer was following the rules in the inmate hand book

page 10 requiring that ‘jackets and laundry bags can only be hung at the left corner of the bed to

prevent blocking staff view.’” Id.

Even assuming, arguendo, there was evidence that legal materials were taken from his

cell, Plaintiff cannot show he suffered an adverse action that would deter a person of ordinary

firmness from continuing to engage in that conduct. Berkshire, 928 F.3d at 531. Plaintiff admits

the alleged confiscation did not cause him to miss any deadlines or make him unable to file

anything in his lawsuits. (Doc. 71-1, at 33).

Further, even if the confiscation is to be considered an adverse action, Defendants have

shown the action would have been taken even absent the protected activity. Holsapple, 817 F.

App’x at 102. As Shuler wrote in the grievance report, “[t]his officer has not violated any rules

on the unit, the officer is only enforcing the rules on the unit.” (Doc. 72-1, at 13). Plaintiff

acknowledged this rule is in place to ensure officers have a clear view of the cell. See Doc. 71-1,

at 30 (“You can only hang it on one side so the officers can have a clear view inside the

cubicle.”). Prisons are afforded “wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” J.H. v. Williamson Cty., 951 F.3d 709, 718 (6th Cir. 2020)

(quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). Therefore, Plaintiff has not created a

genuine dispute as to the causal connection between his protected conduct and the alleged

adverse action. Summary judgment is therefore granted as to Count II.

State Law Claims

Plaintiff’s remaining claims are state law claims of negligent hiring, training, and

supervision, and false light. (Doc. 36, at 2). The exhaustion requirement of the PLRA does not

apply to state law claims. See Napier v. Laurel Cty., 636 F.3d 218, 226 (6th Cir. 2011)

(“Therefore, [Plaintiff] failed to exhaust the available administrative remedy. He is still free to

pursue his state law claims, but as to the federal claims, we AFFIRM the district court’s grant of

summary judgment.”).

Because all federal claims alleged in this case have been dismissed, this Court declines to

exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. §

1367(c)(3). See 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Fed. Prac. & Proc. § 3567.3,

(3d ed. 2008) (“Once it has dismissed the claims that invoked original bases of subject matter

jurisdiction, all that remains before the federal court are state-law claims . . . . The district court

retains discretion to exercise supplemental jurisdiction [over them]”); see also Gaff v. FDIC, 814

F.2d 311, 319 (6th Cir. 1987) (“It is generally recognized that where, as in this case, federal

issues are dismissed before trial, district courts should decline to exercise pendent jurisdiction

over state law claims.”); Coleman v. Wirtz, 745 F. Supp. 434, 441 (N.D. Ohio 1990) (citing

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 727 (1966)) (“Courts have interpreted

Gibbs … as allowing courts, in their discretion, to dismiss, sua sponte, pendent state law claims

…”); Wolotsky v. Huhn, 960 F.2d 1331, 1338 (6th Cir. 1992) (“Where a district court exercises

jurisdiction over state law claims solely by virtue of pendent jurisdiction and the federal claims

are dismissed prior to trial, the state law claims should ordinarily be dismissed without reaching

their merits.”). As such, Plaintiffs’ state law claims (Counts XIII and XIV) are dismissed without

prejudice.

In conclusion, Plaintiff has failed to comply with Ohio Admin. Code § 5120-9-31 for all

but one federal claim, thus barring the claims under the PLRA. Plaintiff has also failed to raise a

genuine dispute regarding the retaliation claim in Count II. Finally, the Court declines

supplemental jurisdiction over Plaintiff’s state law claims. For these reasons, summary judgment

is granted as to all federal claims and Plaintiff’s state law claims are dismissed without prejudice.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion for Summary Judgment (Doc. 72) be, and the same

hereby is, GRANTED, and it is

FURTHER ORDERED that Plaintiff’s state law claims be, and the same hereby are,

DISMISSED WITHOUT PREJUDICE, and it is

FURTHER ORDERED that Plaintiff’s Motion for a Telephone Status Conference (Doc.

69)be, and the same hereby is, DENIED AS MOOT; and the Court

FURTHER CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be taken in good faith.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE