McCain v. Jenkins

UNITED STATES DISTRICT COURT

- §OUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Michael D. McCain, Sr.,

Plaintiff,

Vv. - Case No. 2:15-cv-1262

Charlotte Jenkins, ef ai., Judge Michael H. Watson

Defendants. Magistrate Judge Newman

. OPINION AND ORDER

Plaintiff Michael D. McCain, Sr. (“Plaintiff”), proceeding without the

assistance of counsel, brings this action under 42 U.S.C. § 1983 against twenty-

seven Defendants’ at Chillicothe Correctional Institution (“CCI”) for actions taken

during Plaintiff's detention there from April 2014 to April 2016. Defendants

moved for judgment on the pleadings and summary judgment.?, ECF Nos. 95,

110. Plaintiff opposed both motions. ECF No. 143. The Magistrate Judge

issued a Report and Recommendation (“R&R”) recommending that:

(1) Defendants’ motion for judgment on the pleadings be GRANTED

IN PART and DENIED IN PART;

(2) Defendants’ motion for partial summary judgment be GRANTED;

(3) Plaintiffs First Amendment retaliation claims against Defendants

Farrar and Troute remain pending;

‘Baliss, Ball, Bethal, Brown, Cain, Clark, Clarkson, Cocenhour, Cunningham, DiSantos,

Farrar, Free, Hamilton, Hester, Jenkins, Kimper, Law, Mack (or Mick), McGill, Pence,

Pummal, Saunders, Shoemaker, Tackett, Troute, Wells, and White. (First names were

not provided in the Amended Complaint). .

2 The Magistrate Judge construed Defendants’ motion as a motion for partial summary

judgment because they failed to address all of the claims in Plaintiffs Amended

Complaint. See R&R 2, n.2, ECF No. 143. □

(4) Plaintiffs Eighth Amendment conditions of confinement claim

against Defendant Free remain pending; and

(5) Plaintiff's remaining claims be DISMISSED.

R&R 16-17, ECF No. 148.

Thereafter, the parties both filed timely objections to the R&R.

Upon de novo review, and for the reasons set forth below, the parties’

objections to the R&R are OVERRULED, and the Court hereby AFFIRMS and

ADOPTS the R&R. .

I. BACKGROUND

The Magistrate Judge set forth the pertinent facts of this case in the R&R.

See R&R, ECF No. 148. The Court will address any additional relevant facts as .

necessary in its analysis below.

□□□ STANDARD OF REVIEW

Under Rule 72(b), the Court must determine de novo any part of the

Magistrate Judge’s disposition to which a party has properly objected. Fed. R.

Civ. P. 72(b){3). The Court may accept, reject, or modify the R&R, receive

further evidence, or return the matter to the Magistrate Judge with instructions.

ld. A pro se litigant’s pleadings must be, and in this instance are, construed

liberally and held to less stringent standards than formal pleadings drafted by

attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Case No. 2:15-cv-1262 . . Page 2 of 9

ll. ANALYSIS

As explained in the R&R, Plaintiff's Amended Complaint is lengthy and

lacks “simple, concise, and direct” allegations. See R&R 5. Nonetheless, the

Magistrate Judge adeptly parsed out the following § 1983 allegations from

Plaintiff's Amended Complaint:

(1) Defendants’ filing of false disciplinary charges against him

(2) A lack of due process in the prison grievance process

(3) Defendants’ failure to comply with Ohio Department of

Rehabilitation and Correction’s (“ODRC”) internal

procedures

(4) Defendants’ use of foul, abusive, or threatening language

(5) First Amendment retaliation for filing grievances and/or

lawsuits □

_(6)Conditions of confinement that violate the Eighth

Amendment

(7) Use of excessive force, and

(8) Interference with access to the courts.

See generally R&R, ECF No. 148.

The Magistrate Judge recommends disposal of all claims except for: (1) a

First Amendment Retaliation claim against Defendants Farrar and Troute; and

(2) an Eighth Amendment conditions-of-confinement claim against Defendant

Free. /d. The Court will address Defendants’ objections to the R&R before

addressing Plaintiffs’ objections. .

“Case No. 2:15-cv-1262 0 | : Page 3 of 9

A. Defendants’ Objections

1. Conditions of Confinement Claim against Defendant Free

As summarized in the R&R, Plaintiff raised:

several allegations regarding his dissatisfaction with the conditions of

his confinement at CCI. Doc. 52. McCain complains of pigeon

droppings on windows (PagelD 255), thick dust and poor ventilation

(PagelD 256), mold under a sink (PagelD 257), being deprived of use

Of arestroom for a few hours (PagelD 277-79), and being placed in a

suicide cell covered in feces and urine for up to four days (PagelD

280).

R&R 10, ECF No. 148. The only remaining conditions of confinement claim

concerns Plaintiff's placement in a suicide cell covered in feces for up to four

days. Id. Defendants object to this claim’s survival, contending thatthe

magistrate judge was incorrect when he determined that a period of four days

was not “temporary” under Sixth Circuit precedent. Defs.’ Obj. 4-5, ECF No.

156. Defendants also argue that an “injury” is required, but Plaintiff failed to

allege any harm from those conditions. /d. Finally, Defendants contend that

Plaintiffs allegations fail to allege sufficient facts of Defendant Free’s

involvement. /d. at 6.

The problem with Defendants’ objection is that they are raising much of

this for the first time. See R&R 12, ECF No. 148 (explaining that “Defendants do

not address [Plaintiff's] Eighth Amendment claim concerning the condition of the

suicide cell other than to argue in the motion for judgment on the pleadings that

[Plaintiff's] exposure to the feces was temporary.”). Thus, this Court will only

Case No. 2:15-cv-1262 Page 4 of 9

address Defendants’ objection as it relates to the temporal nature; because the

other arguments are not properly before it. See Hicks v. Fed. Bureau of Prisons,

2017 U.S. App. LEXIS 16304, at *2 (6th Cir. June 5, 2017) (“claims raised for the

first time in an objection to a magistrate judge’s report and recommendation are

deemed waived.” (citing Swain v. Comm'r of Soc. Sec., 379 F. App’x 512, 517

(6th Cir. 2010)). Upon de novo review, the Court does not find Defendants’

objection to the temporal nature to be meritorious. The cases upon which

Defendants rely do not establish that four days is considered “temporary” under

Sixth Circuit law. See Defs.’ Obj. 4-5, ECF No. 156 (citing Delis v. Corr. Corp.

of Am., 257 F.3d 508, 511 (6th Cir. 2001), which addressed different conditions

than alleged here and did not address how many days would exceed a finding of

“temporal’). Moreover, Plaintiff's allegations, accepted as true, are troubling. He

alleges that the suicide cell, in relevant part, was:

feces infested, pee infested, bloody rags, standing stinky fece [sic]

water on the floor, the mattress was fece standed [sic] and smelled

like death. The tolit [sic] did not work and had old [unintelligible] feces

all over it, and | was not given any chimicals [sic] to clean the cell and

the porter was told to mop the standing water only and nothing more.

| had no running water and was not given a shower for 3 days... .

Feces was behind the bed smered [sic] on the bed and walls.

Am. Compl. ff 99-101 at PAGEID ## 280-81, ECF No. 52. He goes on to

allege that he smelled like feces and that he “felt like an animal.” Id. The Court

finds that the conditions here are distinguishable from Dellis based on the

exposure to unsanitary conditions permeating the suicide watch cell. See Krutko

- Case No. 2:15-cv-1262 : : Page 5 of 9

V. Franklin Cty., No. 2:11-cv-610 2014 U.S. Dist. LEXIS 165589, at “*12-13 (S.D.

“Ohio Nov. 26, 2014) (“In unsanitary conditions cases, to resolve the inquiry of

whether the prison officials’ acts or omissions are sufficiently serious, the Court

must examine the length of time of the allegedly cruel condition—in this case,

exposure to the unsanitary conditions. Courts have also found that, while the

length of time of exposure is one factor of the inquiry, equally important is the □

degree of filth endured.” (internal citations and quotations omitted)); see a/so

Taylor v. Larson, 505 F. App’x 475, 477 (6th Cir. 2012) (“confinement for three

days ina cell covered with feces” sufficiently alleged an Eighth Amendment

violation).

Construing the allegations in the light most favorable to Plaintiff, as we

_ must in a motion for judgment on the pleadings, the Court finds that the

Magistrate Judge did not err when he concluded that four days in a feces-

covered cell was not temporary. Defendants’ first objection is OVERRULED. □

2. First Amendment Retaliation Claims against Defendants Farrar

and Troute

The only other claim to survive was Plaintiff's First Amendment Retaliation

claim against Defendants Farrar and Troute. Defendants concede that they

failed to address this argument, in part, because Plaintiff's Amended Complaint

was long and failed to comply with Rule 8. Defs.’ Obj. 8, ECF No. 156. □

Defendants point to no caselaw, however, that permits the Court to set aside a

reasoned R&R on that basis. □

Case No. 2:15-cv-1262 Page 6 of 9

3. Whether Defendants are Entitled to Qualified Immunity .

Defendants finally contend that they are entitled to qualified immunity on all

. Claims and that the.Magistrate Judge failed to address that defense. Defs.’ Obj.

7, ECF No. 156. But the reason the Magistrate Judge did not address the

defense is because Defendants did not adequately raise it. The only argument

advanced in their motion for judgment on the pleadings for why they were entitled

to qualified immunity was: “[flor the reasons argued in the prior sections, all

Defendants are entitled to qualified immunity, as Plaintiff cannot demonstrate that

any constitutional violation occurred.” Mot, for Judgment on the Pleadings 31,

No. 95. ‘Having found that Plaintiff adequately alleged constitutional

violations, it was entirely reasonable for the Magistrate Judge to not go to step

two of the qualified immunity analysis—whether the constitutional right was □□

clearly established—when Defendants did not make that argument for

themselves. Furthermore, as explained above, Defendants waived their right to

argue that now. _

B. Plaintiff's Objections

Plaintiff raises seven objections the R&R. His objections are summarized

as follows:

(1) Insufficient time to object to the R&R—a full 30 days extension of

‘time as requested — .

(2)Defendants cannot rely on the motion for judgment on the

: pleadings because it was terminated by the Magistrate Judge;

(3) Various problems.in the R&R and states reasons why they should

not have been dismissed □

Case'No. 2:15-cv-1262° Page □ □□

(4) Additional perceived defects with the R&R, mostly pertaining to

retaliation allegations □

(5) The R&R failed to address his stolen property claims

(6) Adverse conduct at the parole hearing was an injury, contrary to

the R&R

(7) The R&R misconstrued facts

Pl.’s Obj., ECF No. 157.

Upon de novo review, the Court finds that Plaintiff's objections are not well-

taken. The Court will briefly address each objection. First, Plaintiff has received

numerous extensions of time from the Magistrate Judge. Moreover, it is always

. within the Magistrate Judge’s discretion to grant additional time, upon a finding of

good cause shown. Here, the Magistrate Judge did grant Plaintiff an extension

of time, just not for the full amount requested. Regardless, extensions of time

are nota matter of right; thus, the Magistrate Judge did not err in refusing to

grant Plaintiff his full 30-day request. Second, Plaintiff misunderstands the

Magistrate Judge’s Order terminating ECF No. 95. The Magistrate Judge

terminated Defendants’ motion for judgment on the pleadings only for docket.

management purposes, not because the motion otherwise lacked merit. See

Order, ECF No. 129, The Magistrate Judge properly addressed and considered □

Defendants’ motion for judgment on the pleadings in his R&R.

Third and Fourth, Plaintiff articulates disagreement with the Magistrate

Judge’s R&R and analysis as to certain claims and allegations; however, he fails

to introduce legal reasons why the Magistrate Judge erred in evaluating those

claims. Fifth, to the extent the Magistrate Judge did not specifically address □

_ Case No. -2:15-cv-1262 : Page 80f9 □

Plaintiff's loss of property in allegations, see paragraphs 143-45, it is adequately

encompassed in the Magistrate Judge's R&R addressing his retaliation claims.

Sixth, the Magistrate Judge did not err in concluding that Plaintiff failed to

adequately allege a deprivation of a liberty interest in the parole hearing. Finally,

the Courts finds that the Magistrate Judge properly addressed and construed the

facts. _ .

IV. CONCLUSION

For the reasons set forth above, Defendants’ and Plaintiff's objections

OVERRULED. The R&R is ADOPTED and AFFIRMED. R&R, ECF No. 148.

Finally, Defendants move in the alternative for permission to refile a summary

. judgment motion on the claim they overlooked because the Amended Complaint

did not comply with Federal Rule of Civil Procedure 8.: The Court GRANTS

Defendants’ request to file a second motion for summary judgment on Plaintiff's

First Amendment retaliation claim. The Magistrate Judge will establish the

briefing schedule and issue an R&R on that motion.

ITIS SO ORDERED.

. . UNITED STATES DISTRICT COURT

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