Ramilla v. Jennings

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSEPH RAMILLA, )

) CASE NO. 4:21CV1799

Plaintiff, )

) JUDGE BENITA Y. PEARSON

v. )

)

OLIVIA JENNINGS, et al., ) MEMORANDUM OF OPINION

) AND ORDER

Defendants. ) [Resolving ECF Nos. 20 and 25]

Pending in this prisoner civil rights action under 42 U.S.C. § 1983 is Pro Se Plaintiff

Joseph Ramilla’s Motion for Preliminary Injunction (ECF No. 20). Also pending is Plaintiffs

Motion to Strike Defendant David Ritz’s Memorandum in Opposition to Plaintiff's Motion for

Preliminary Injunction (ECF No. 25). The Court has been advised, having reviewed the record,

the parties’ briefs,’ and the applicable law. The Court has also considered the statements of

' Plaintiff did not file a permissive reply memorandum in support of his Motion

to Strike (ECF No. 25). See Case Management Plan (ECF No. 27) at PageID #: 263, 4

15.

Furthermore, “[n]o sur-replies will be permitted absent advance leave of Court.”

ECF No. 27 at PagelID #: 265, 19. Ritz did not seek leave of Court to file his Sur-Reply

to Plaintiff's Motion for Preliminary Injunction (ECF No. 31). The primary purpose for

allowing the moving party to serve and file a reply memorandum in support of a motion is

so it can respond to any new issues raised by the memorandum in opposition.

Consideration of ECF No. 31 would frustrate the purpose of allowing Plaintiff to be the

first and last to be heard on his pending Motion for Preliminary Injunction (ECF No. 20).

See Bickerstaff v. Cuyahoga Cty., No. 1:18CV1142, 2019 WL 7500494, at *6 (N.D.

Ohio, Aug. 12, 2019) (citing Key v. Shelby Cty., 551 Fed.Appx. 262, 265 (6th Cir, 2014)

(“the Federal Rules of Civil Procedure do not expressly permit the filing of sur-replies”)),

report & recommendation adopted, 2019 WL 5303967 (N.D. Ohio Oct. 21, 2019); Jn re

Steinle, 835 F. Supp.2d 437, 443-44 (N.D. Ohio 2011) (same). Therefore, the Court has

not considered ECF No. 31.

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Plaintiff and counsel offered at the August 22, 2022 Telephonic Case Management Conference

(“CMC”). For the reasons set forth below, ECF Nos. 20 and 25 are denied.

I. Background

Plaintiff is an inmate at the Trumbull Correctional Institution (“TCT”) serving a life

sentence.’ Ritz is a TCI Investigator. On July 5, 2022, the Court issued an Order denying

Plaintiff's Motion for Default Judgment (ECF No. 13) and granting Ritz’s Motion for Leave to

File Answer Jnstanter (ECF No. 15). See ECF No. 16. The Court also issued a Telephonic CMC

Scheduling Order with attachments setting the case for a conference on August 22, 2022. See

ECF No. 17.

II. Plaintiff’s Motion for Preliminary Injunction (ECF No. 20)

Plaintiff moves the Court to (1) place an immediate order to the mail room staff at TCI to

stop opening and copying legal mail sent by the Court and (2) resend the packet of mail that was

sent out by the Court on July 5, 2022. According to Plaintiff, he did not recetve complete copies

of the Court’s Orders (ECF Nos. 16 and 17) due to the mail room staff at TCI tampering with the

legal mail. See Declaration of Joseph Ramilla (ECF No. 20-1). On July 25, 2022, the Clerk of

Court was ordered, see ECF No. 21, to and did mail another copy of ECF Nos. 16 and 17 to

Plaintiff.

Plaintiff's Motion for Preliminary Injunction (ECF No. 20) is governed by both Fed. R.

Civ. P. 65(a) and 18 U.S.C. § 3626(a)(2) (“Preliminary injunctive relief [in a prison conditions

> See ODRC website

(https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A698694) (last visited

Oct. 12, 2022).

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suit] must be narrowly drawn, extend no further than necessary to correct the harm the court

finds requires preliminary relief, and be the least intrusive means necessary to correct that

harm.”). “A preliminary injunction is an extraordinary measure that has been characterized as

one of the most drastic tools in the arsenal of judicial remedies.” Bonnell v. Lorenzo, 241 F.3d

800, 808 (6th Cir. 2001) (citations and internal quotation marks omitted). As recently stated by

the United States Court of Appeals for the Sixth Circuit:

“A district court must balance four factors in determining whether to grant a

preliminary injunction: ‘(1) whether the movant has a strong likelihood of

success on the merits; (2) whether the movant would suffer irreparable injury

absent the injunction; (3) whether the injunction would cause substantial harm to

others; and (4) whether the public interest would be served by the issuance of an

injunction.’ ” Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty., 796

F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814,

818-19 (6th Cir. 2012)). “These factors are not prerequisites, but are factors that

are to be balanced against each other.” Overstreet v. Lexington-Fayette Urban

Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002). However, “even the strongest

showing on the other three factors cannot ‘eliminate the irreparable harm

requirement.’ ” D.7. v. Sumner Cnty. Schools, 942 F.3d 324, 326-27 (6th Cir.

2019) (quoting Friendship Materials, Inc. vy. Mich. Brick, Inc., 679 F.2d 100, 105

(6th Cir. 1982)). “[T]he party seeking a preliminary injunction bears the burden

of justifying such relief.” Livingston County, 796 F.3d at 642 (quoting McNeilly v.

Land, 684 F.3d 611, 615 (6th Cir. 2012)); see also Tenke Corp., 511 F.3d at 546

n. 2 (“[I]n seeking a preliminary injunction, a federal plaintiff has the burden of

establishing the likelihood of success on the merits.”).

Memphis A. Philip Randolph Institute v. Hargett, 978 F.3d 378, 385 (6th Cir. 2020). No single

factor is determinative except that “a finding that there is simply no likelihood of success on the

merits is usually fatal.” Miles v. Michigan Dept. of Corr., No. 19-2218, 2020 WL 6121438, at *4

(6th Cir. Aug. 20, 2020) (citing Gonzales v. Nat’! Bd. of Med. Examiners, 225 F.3d 620, 625 (6th

Cir, 2000)).

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“(T]he party seeking a preliminary injunction bears the burden of justifying such relief.”

Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021) (quoting ACLU

Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015)); see also Williamson vy.

White, No. 93-6017, 1994 WL 49594, at *1 (6th Cir. Feb. 17, 1994) (movant “bears the burden

of persuading the court that the factors weigh in favor of granting a preliminary injunction”)

(citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local

No. 70 of Alameda Cnty., 415 U.S. 423, 441 (1974)). “The burden of proving that the

circumstances clearly demand such an extraordinary remedy is a heavy one since the party

seeking the injunction must establish its case by clear and convincing evidence.” Hartman □□□

Acton, --- F.Supp.3d ----, No. 2:20-CV-1952, 2020 WL 1932896, at *2 (S.D. Ohio April 21,

2020) (internal quotation marks omitted) (citing Overstreet, 305 F.3d at 573; Honeywell, Inc. v.

Brewer-Garrett Co., No. 97-3673, 1998 WL 152951 (6th Cir. March 23, 1998)). A preliminary

injunction cannot be issued unless these very stringent requirements are met. Leary v.

Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). The Court concludes Plaintiff has not met the

necessary requirements for injunctive relief in the case at bar.

Plaintiff alleges that he did not get all of the pages of the Court’s Orders (ECF Nos. 16

and 17) in the mail he received from the Court. According to Ritz, Plaintiff properly used the

prison grievance system to resolve the matter.’ TCI mailroom staff apparently did not realize the

Court documents were two-sided and only copied one side of the Court’s Orders. Mail room

° Plaintiff agrees. See ECF No. 25 at PageID #: 251; ECF No. 29-1 at PagelD #:

287.

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staff at TCI were reprimanded to be more prudent in copying mail in the future. See ECF No. 23

at PageID #: 241.

In Whitman v. Gray, No. 5:19CV1818, 2022 WL 621553 (N.D. Ohio March 3, 2022), the

petitioner moved the Court to enter an order of protection requiring the Ohio Department of

Rehabilitation & Correction (“ODRC”) staff to open his legal mail in front of him and ordering

ODRC staff to stop its policy of copying his legal mail. The petitioner sought to prevent ODRC

staff from opening his legal mail because he maintained the policy violated his First Amendment

right.

U.S. District Judge James S. Gwin determined the ODRC’s new legal mail policy4

satisfies constitutional requirements and denied the petitioner’s motion. “A prisoner’s right to

receive mail is protected by the First Amendment. That protection is heightened when the

incoming mail is legal mail. Prison officials may open and inspect a prisoner’s legal mail only in

the presence of the prisoner in accordance with appropriately drafted and uniformly applied

regulations. Prison officials may, however, impose [mail-related] restrictions that are reasonably

related to security or other legitimate penological objectives. Further, if screening detect[s] the

4 The new ODRC legal mail policy allows it to avoid illegal contraband within its

institutions. See https://drc.ohio.gov/policies/mail (last visited Oct. 12, 2022). The

policy provides: All attorneys and legal services providers must register with the ODRC.

Once registered, they can access “control numbers” to put on their legal correspondence.

If incoming legal mail has a control number, it will be opened and inspected only in the

presence of the prisoner-addressee. If the mail does not have a control number even if the

mail is marked as legal mail – it will be treated as ordinary mail and will be opened,

copied, and delivered to prisoners. See Whitman, 2022 WL 621553, at *2 n. 12.

Therefore, legal mail that includes a control number is only opened in the presence of the

prisoner-addressee. If there are obvious indications that a piece of mail contains

contraband, ODRC staff will withhold the item and contact the sender. The sender can

then request that the mail be returned. See id. at *2.

5

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presence of any prohibited devices, or instruments, any such packages may be opened for

inspection outside the presence of the prisoner-addressee.” Jd. at *2 (brackets in original;

quotation marks and citations omitted). The Court agrees with Judge Gwin’s determination.

Furthermore, the injunctive relief sought by Plaintiff has nothing to do with the claims

remaining in the case at bar. The Court has already dismissed Plaintiff's due process and

access to the court claims. See Memorandum of Opinion and Order (ECF No. 10) at PageID #:

142-44, Plaintiff's Motion for Preliminary Injunction (ECF No. 20) is both factually and legally

unrelated to his First Amendment retaliation claim and Eighth Amendment claim for deliberate

indifference to serious medical needs set forth in the Amended Complaint (ECF No. 9).

Plaintiff's new claims do not arise out of the same transaction or occurrence as the claims that

remain in the instant matter. See Norris v. Reinbold, No. 5:13CV0721, 2013 WL 6277021, at

*10(N.D. Ohio Dec. 4, 2013) (Pearson, J.) (denying plaintiff's motion for a preliminary

injunction when the allegations in the motion were unrelated to the factual allegations and legal

claims set forth in the complaint).’

> Tn Plaintiff's Reply Memorandum in Support of his Motion for Preliminary

Injunction (ECF No. 29) he seeks additional relief that is also unrelated to the allegations

in the Amended Complaint (ECF No. 9): “T.C.I should shoulder the burden and take

responsibility to notify the prosecuting attorneys and clerk of the courts, who are agents

and employees of the State of Ohio, and their federal counterparts, of the requirement and

necessity of a control number. To do less is negligence on the part of T.C.I and imparts

to inmate’s undue burdens and prejudice which may induce injury on inmates seeking to

litigate issue in Ohio courts. For the above stated reasons, Plaintiff respectfully moves

this court to grant the motion for ‘Preliminary Injunction[.]’”” ECF No. 29-1 at PageID #:

288. See Williams v. Rosenblatt Sec. Inc., 136 F. Supp.3d 593, 616 n.11 (S.D.N.Y. 2015)

(noting that “a party moving for a preliminary injunction must necessarily establish a

relationship between the injury claimed” in the motion and the conduct alleged in the

complaint); see also Brightly vy. Corizon Health Inc., No. CV-21-00127-TUC-JCH, 2022

(continued...)

(4:21CV1799)

In light of the foregoing and in consideration of the relevant factors, the Court concludes

that the prong of Plaintiff's Motion for Preliminary Injunction (ECF No. 20) that requests an

immediate order to the mail room staff at TCI to stop opening and copying legal mail sent by the

Court lacks merit and is not well-taken. Plaintiff has not shown by clear and convincing

evidence his entitlement to this injunctive relief. He has not shown a strong likelihood of success

on the merits. Moreover, Plaintiff has not shown any of the other factors the Court must consider

in determining whether to grant a preliminary injunction.

Il. Plaintiff's Motion to Strike (ECF No. 25)

Plaintiff argues Ritz’s Memorandum in Opposition to Plaintiff's Motion for Preliminary

Injunction (ECF No. 23) and the exhibits attached thereto (ECF Nos. 23-1, 23-2, 23-3, and 23-4)°

should be stricken from the record because (1) “Defendant’s argument . . . is frivolous and has

nothing to do with Plaintiff's request for a preliminary injunction” and (2) the exhibits have not

been authenticated. ECF No. 25 at PageID #: 251; see also ECF No. 29-1 at PageID #: 286-87.

ECF No. 23 is not, however, subject to a motion to strike under Fed. R. Civ. P. 12(f). The

Federal Rules of Civil Procedure do not provide for a motion to strike documents or portions of

documents other than pleadings. Lucas v. JBS Plainwell, Inc., No. 1:11-cv-302, 2011 WL

°(...continued)

WL 2646008, at *2 (D. Ariz. July 8, 2022) (same); McKinney v. Lanigan, No. 18-309

(FLW) (LHG), 2019 WL 355288, at *7 (D.N.J. Jan. 29, 2019) (“the bulk of McKinney’s

motion seeks relief from alleged retaliation for his grievance filings—trelief that is

unrelated to the Complaint’s allegations that McKinney did not receive proper warning of

the risks of a hernia mesh’’).

° The parties also reference an Exhibit E. See ECF No. 23 at PageID #: 241; ECF

No. 25 at PageID #: 251. It is not attached to ECF No. 23 filed with the Court.

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5408843, at *1 (W.D. Mich. Nov. 8, 2011). A motion to strike asks the court to remove “from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” Rule12(f) (emphasis added). Plaintiffs Motion to Strike (ECF No. 25) is not strictly

proper in this instance, for ECF No. 23 is not a “pleading,” but rather a memorandum of law.

The federal rules designate as “pleadings” those filings as set forth in Fed. R. Civ. P. 7(a).

Monroe v. Board of Educ., 65 F.R.D. 641, 645 (D. Conn. 1975).

Therefore, Plaintiff's Motion to Strike (ECF No. 25) is lacking in merit. The Court has,

however, reviewed ECF No. 25 as a reply memorandum in support of Plaintiff's Motion for

Preliminary Injunction (ECF No. 20). See Local Rule 7.1(e).

IV. Conclusion

Plaintiff *s Motions for Preliminary Injunction (ECF No. 20) and to Strike Defendant

David Ritz’s Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction (ECF

No. 25) are denied.

IT IS SO ORDERED.

October 27, 2022 /s/ Benita Y. Pearson

Date Benita Y. Pearson

United States District Judge