Heid v. Hooks

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RAY SCOTT HEID, et al., :

:

Plaintiffs, :

: Case No. 2:17-CV-650

v. :

: CHIEF JUDGE ALGENON L. MARBLEY

MARK HOOKS, et al., :

: Magistrate Judge Chelsey M. Vascura

Defendants. :

OPINION & ORDER

This matter is before the Court on Magistrate Judge Vascura’s Report and

Recommendation recommending that Plaintiffs’ Ray Scott Heid and James Damron claims for

injunctive and declaratory relief be DENIED AS MOOT and that Defendants’ Motion for

Summary Judgment be GRANTED as to all remaining claims. (ECF No. 50). Plaintiffs filed an

objection to this report and recommendation. (ECF No. 51). For the reasons set forth below, this

Court ADOPTS the Report and Recommendation in its entirety based on an independent analysis

of the claims therein. Plaintiffs’ claims for injunctive and declaratory relief are DENIED AS

MOOT and Defendants’ Motion for Summary Judgment is GRANTED.

I. BACKGROUND

Plaintiffs are inmates at Ohio correctional facilities. Plaintiff Ray Scott Heid is incarcerated

at Lebanon Correctional Institution and Plaintiff James Damron is incarcerated at Trumbull

Correctional Institute. Previously, however, both were incarcerated at the Ross Correctional

Institution (“RCI”), where they allege prison officials violated their rights under the Eighth

Amendment, due to Defendants’ deliberate indifference to a substantial risk of serious physical

harm related to their access to prison phones.

Plaintiffs’ housing unit consisted of six phones; inmates had access to the phones twice a

day during their out-of-cell recreation time in the dayroom. (ECF No. 9 at ¶ 13). Plaintiffs allege

that five of the six phones were controlled by inmates who belonged to “black supremacist gangs,”

which limited white inmates to one phone. Id. at ¶12. Plaintiffs’ cell block was divided into two

groups: “top range” and “bottom range.” The top range and bottom range groups did not take

dayroom at the same time. Id. at ¶ 14. At the time the complaint was filed, the top range group had

significantly more inmates than the bottom range group. Id. at ¶¶ 15–16.

Plaintiffs allege that the gangs’ control of the phones resulted in violence among white

inmates attempting to use the one remaining phone. Id., ¶ 17. Plaintiffs further allege that using a

gang-controlled phone without permission would result in threats of violence, in the first instance,

and, thereafter, in: “(1) a direct attack; (2) a compelling position to engage in violence by ones

[sic] own volition – either in a cell, laundry room, T.V. room, and so forth . . .; and

(3) tell the correction officer . . . and be labelled a ‘snitch’.” Id. at ¶ 22. According to Plaintiffs,

“these incidents” often resulted in open attacks by black inmates in the dayroom, with the intent

that the victim is removed from the cell block for their own protection (a practice apparently

referred to as “crashing”). Id. at ¶ 23. For their part, Defendants deny that tensions over the prison

phones were a major source of inmate violence at RCI. (ECF No. 46 at PAGEID #600, 607).

Plaintiffs expressed their concerns regarding the phones to Defendants, through “kites” (a

method for inmates to communicate with RCI staff), on numerous occasions from December 1,

2015 to March 23, 2016. (ECF No. 9, PAGEID #219-30, 235-36). After each notice, Plaintiffs

were informed that Defendants were working to mitigate the phone issue. (Id. at PAGEID #220,

222, 232).

Judge Vascura found that on April 1, 2016, non-party Diehl responded to a kite received

by Plaintiff Heid a week prior regarding the phone issue. (Compl. Ex. 36, Id., PAGEID #274.) In

his response, Diehl acknowledges that RCI administration took the following steps: a phone list

was implemented at Heid’s suggestion; a committee was formed to address the issue and consider

resolution of it; the institution was approved to procure additional phones and was working with

Global Tel Link (“GTL”) to do so; and Heid was offered a relocation to the bottom range, which

experienced less phone congestion by virtue of having fewer inmates. Id. Plaintiffs concede that

each of these responsive actions was taken. (See, e.g., Compl. Ex. 13, ECF No. 9, PAGEID #236;

Compl. Ex. 14, ECF No. 9, PAGEID #237; Pls.’ Mem. in Opp. ¶¶ 11, 16–17, 37–39, ECF No. 46;

Defs.’ Resps. to Pls.’ Interrog. and Reqs. for Admis., ECF No. 46, PAGEID #591–614). Plaintiffs

allege in their objection that this response was not related to Heid’s kite and instead was related to

Plaintiff Heid’s Notification of Grievance filed on March 7, 2016 and was the conclusion of an

investigation into Plaintiff Heid’s claim. (ECF No. 51 at 2).

On July 10, 2016, Damron engaged in a fist fight that arose from his use of a phone that

was allegedly claimed by inmates in the “black supremacist gang.” (ECF No. 46 at PAGEID #583).

While using the phone, Damron was approached by inmate, Brandon Chukes, and was told that he

needed to get off of the phone. Id. Damron shoved Chukes at the phone, afterwards Chukes

summoned Damron to the TV room adjacent to the phones to fight. Id. Aware of Chukes’ intention

to engage in a fight, Damron went into the TV room to carry out the physical altercation. Id.

On July 18, 2016, Damron filed an Informal Complaint Resolution with Howard,

reiterating his concerns over the phones. (Compl. Ex. 28, ECF No. 9, PAGEID #260.) Howard

responded that RCI was not responsible for Damron voluntarily engaging in a fight with Chukes

but was continuing to find a solution to the phone problem. Id. GTL tablet phones were later

distributed to all RCI inmates in 2017. (ECF No. 51, PAGEID # 675). Plaintiffs have each since

been relocated to other Ohio state correctional institutions. (ECF No. 39-3, 39-4.)

Plaintiffs filed their complaint on July 26, 2017. (ECF No. 1.) After initial screening under

28 U.S.C. § 1915A, the Court dismissed Plaintiffs’ Fourteenth Amendment claim and class action

allegation. (ECF No. 12). Subsequently, the Court dismissed Plaintiffs’ claims for monetary

damages against Defendants in their official capacities. (ECF No. 33). Plaintiffs’ only remaining

claim is based on allegations that the Defendants were deliberately indifferent to a serious risk of

harm against Plaintiffs, in violation of the Eighth Amendment. Defendant has moved for summary

judgment. (ECF No. 39). Magistrate Judge Vascura Recommended that Defendants’ Motion for

Summary Judgment be GRANTED. (ECF No. 50). Plaintiffs objected to Judge Vascura’s Report

and Recommendation in a filing received by the Court on February 21, 2020. (ECF No. 51).

Defendants responded to this objection, taking issue with it as being untimely filed. (ECF No. 52).

Plaintiffs responded noting that they timely submitted their objection by giving it to prison

authorities for mailing on February 3, 2020. (ECF No. 53).1

II. STANDARD OF REVIEW

When objections to a Magistrate Judge’s report and recommendation are received on a

dispositive matter, the assigned district judge “must determine de novo any part of the Magistrate

Judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

§ 636(b)(1)(C). After review, the district judge “may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the Magistrate Judge with

instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). Because Defendant has

1 Plaintiffs’ objection was filed upon delivery to prison officials on February 3, 2020, thus, Plaintiffs’ objection is

considered a timely filing. See Houston v. Lack, 487 U.S. 266, 269-72 (1988) (holding that an inmate acting without

counsel’s aid documents are considered filed upon delivery to prison officials).

filed objections to the Report and Recommendation, the Court reviews the recommended

disposition de novo.

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is

appropriate “if the movant shows that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” In evaluating such a motion, the evidence must

be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must

be drawn in the non-moving party’s favor. United States Sec. & Exch. Comm’n v. Sierra Brokerage

Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep’t of City of Zanesville,

463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks “whether ‘the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting

Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986)). “[S]ummary judgment will not lie if the

dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

III. ANALYSIS

Plaintiffs have three objections to Judge Vascura’s report and recommendation. Their first

objection relates to when their claims for injunctive and declaratory relief became moot. They do

not contest that those claims are moot but do object to Judge Vascura’s finding as to when those

claims became moot. Plaintiffs’ second objection is to Judge Vascura’s recommendation that

summary judgment be granted as to Plaintiff Damron’s Eighth Amendment claim. (ECF No. 51 at

8). Finally, Plaintiffs object to Judge Vascura’s decision to deny Plaintiffs’ Motion to Strike. This

Court will address each of these objections in turn, below.

Plaintiffs did not object to Judge Vascura’s recommendation that Defendant’s motion for

summary judgment be GRANTED on the damages claim by Plaintiff Heid. The Report and

Recommendation specifically advised the parties that the failure to object results in a waiver of

the right to have the district judge review the Report and Recommendation de novo, and also

operates as a waiver of the right to appeal the decision of the District Court adopting the Report

and Recommendation. (ECF No. 50 at 14). Accordingly, this Court ADOPTS Judge Vascura’s

report and recommendation and GRANTS Defendants’ Motion for Summary Judgment as to

Plaintiff Heid’s claim for damages.

A. Plaintiffs’ Claims for Injunctive and Declaratory Relief are Moot.

Plaintiffs’ first objection relates to when their claims were mooted. Plaintiffs concede that

their injunctive and declaratory claims are now moot but argue that their claims did not become

moot when they were transferred from RCI in 2018 and 2019, but instead when they were provided

with GTL tablets in October 2017. (ECF No. 51 at 6-7). Plaintiffs argue that the fact that their

claims were mooted by the provision of GTL tablets is a “‘judicially sanctioned change in the legal

relationship of the parties’” that is the “equivalent to providing full injunctive relief” which in turn

entitles them to a sua sponte summary judgment finding in their favor. Id. at 7-8.

Plaintiffs, however, misunderstand the consequences of Judge Vascura’s finding that their

claims are moot. The determination that a claim is moot is not a finding in favor of a defendant

nor a finding in favor of a plaintiff. It is only a determination that there is no live issue for the

court to determine. Article III, § 2 of the United States Constitution vests federal courts with

jurisdiction to address “actual cases and controversies.” Coalition for Gov't Procurement v. Fed.

Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) (citing U.S. CONST. art III, § 2). Federal

courts are prohibited from rendering decisions that “do not affect the rights of the

litigants.” Id. (citing Southwest Williamson County Cmty. Assoc. v. Slater, 243 F.3d 270, 276 (6th

Cir. 2001)). This is broadly known as justiciability doctrine and encompasses the concepts of

mootness and ripeness. A case becomes moot “when the issues presented are no longer live or

parties lack a legally cognizable interest in the outcome.” See Cleveland Branch, N.A.A.C.P. v.

City of Parma, OH, 263 F.3d 513, 530 (6th Cir. 2001) (quoting County of Los Angeles v.

Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). In essence, the mootness

doctrine prohibits federal courts from hearing cases which, due to changed circumstances, can no

longer impact the interests of litigants. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40

L.Ed.2d 164 (1974).

Plaintiffs do not dispute that their claims are currently moot, and this Court agrees with

Judge Vascura that both the distribution of the GTL tablet phones at RCI and the Plaintiffs’ transfer

to different correctional institutions does not allow Defendants to commit the alleged constitutional

violations in the future. Accordingly, this court cannot grant summary judgment sua sponte in

Plaintiffs’ favor. Even if their claims were not moot, the Sixth Circuit disfavors sua sponte grants

of summary judgement because it poses notice issues.2 Accordingly, this court ADOPTS Judge

Vascura’s report and recommendation and determines that that Plaintiff’s claims for injunctive

and declaratory relief are DENIED AS MOOT.

2 See Delphi Automotiove Systems, LLC. V. United Plastics, Inc., 418 F. App’x 374, 379

(6th Cir. 2011) (stating that a sua sponte grant of summary judgment may be entered only “in

certain limited circumstances so long as the losing party was on notice that the nonmoving party

had to come forward with all of [its] evidence”). The district court must “afford the party against

whom sua sponte summary judgment is to be entered ten-days’ notice and an adequate opportunity

to respond.” Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984) (citing Kistner v. Califano, 579

F.2d 1004 (6th Cir. 1978)). In this case, Judge Vascura’s report and recommendation would not

constitute adequate notice because there was no indication to Defendants that summary judgment

was imminent. See Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (holding that a

magistrate judge’s R&R was not sufficient notice to a party that it was at risk of summary

judgment).

B. Plaintiff Damron’s Eighth Amendment Claim

As to Plaintiff Damron’s Eighth Amendment claim, Plaintiffs’ primary objection is that

Judge Vascura “misinterpreted the subjective test for deliberate indifference and the rules for

summary judgment … by accepting the defendants’ contradictory statements as true and drawing

the conclusion that defendants’ actions were reasonable.” (ECF No. 51 at 15). Essentially,

Plaintiffs argue that a reasonable jury could find that Defendants’ responses to Plaintiffs’

complaints were not reasonable measures to protect Plaintiffs’ safety under the circumstances. Id.

To establish an Eighth Amendment violation, an inmate must show that they experienced

a substantial risk of being harmed and that the defendant displayed deliberate indifference to that

substantial risk. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Estelle v. Gamble, 429 U.S.

97, 97 S. Ct. 285, 50 L.ED.2d 251 (1976); Wilson v. Seiter 501 U.S. 294, 111 S. Ct. 2321, 115

L.ED.2d 271 (1991)). This test has both a subjective and an objective component. Objectively, the

substantial risk must be “sufficiently serious.” Farmer, 511 U.S. at 834. Subjectively, the

defendants accused of violating the Eighth Amendment must have acted with a state of mind that

can accurately described as “deliberate indifference.” Morgan v. Lamneck, No. 2:09-CV-218,

2011 WL 1114415, at *4 (S.D. Ohio Mar. 24, 2011) The subjective component of deliberate

indifference requires the inmate to show that the prison official “(1) subjectively perceived facts

from which to infer substantial risk to the prisoner, (2) did in fact draw the inference, and (3) then

disregarded that risk.” Arflack v. County of Henderson, Kentucky, 412 Fed. App’x. 829, 832 (6th

Cir. 2011) (citing Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001). Further, “prison

officials who actually knew of substantial risk to inmate health or safety may be found free from

[Eighth Amendment] liability if they responded reasonably to the risk, even if harm ultimately was

not averted.” Farmer, 511 U.S. at 844.

Plaintiffs argue that a jury could find that the various actions taken by Defendants to

address Plaintiffs’ complaints about the telephones were inadequate and that a jury could find that

their suggested remedies (e.g. “racially balanced phones”) would have been reasonable. (ECF No.

51 at 15, 16). Plaintiffs further argue that they need not “demonstrate Defendants’ deliberate

indifference to [Damron’s] safety.” Id. at 15.

To survive summary judgment, however, Plaintiffs must show that Defendants disregarded

a risk of harm to Plaintiff Damron, not that Defendants’ actions were inadequate. See Arflack v.

County of Henderson, Kentucky, 412 Fed. App’x. 829, 832 (holding that to survive a motion for

summary judgment, the plaintiff must allege facts that, if true, show that the prison officials (1)

subjectively perceived facts from which to infer substantial risk to the prisoner, (2) did in fact draw

the inference, and (3) then disregarded that risk.”) (citing Comstock v. McCrary, 273 F.3d 693,

703 (6th Cir. 2001)).

In this case, Plaintiffs do not deny that Defendants implemented tactics to mitigate the risk

of harm to Plaintiffs, they instead argue that these measures were inadequate. The measures taken

by Defendants to address Plaintiffs’ complaints include: (1) establishing a committee to consider

appropriate solutions to the phone problem; (2) a phone list system (one of the solutions suggested

by Plaintiffs); (3) distributing GTL tablet phones to every inmate (4) the addition of phones to the

block. (ECF No. 50 at 11). In their objection, Plaintiffs challenge the adequacy, efficiency, and

timeliness of each of these actions. (ECF No. 51 at 9-13). As Judge Vascura determined, however,

Plaintiffs point to no evidence indicating that Defendants were deliberately indifferent to a risk of

harm to Plaintiffs.

The Sixth Circuit requires evidence of an obdurate or wanton state of mind, not mere

“inadvertence or good faith error.” Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir. 1992) (noting that

while the existence of a “long duration of a cruel prison condition may make it easier to establish

knowledge and thus intent on the part of prison officials … the existence of cruel prison conditions

does not cause the intent requirement to ‘evaporate.’”). Where a prison official reacts to a risk of

harm posed to an inmate, a Court is not to focus on what the defendant “could have done

differently, but whether [the defendant’s] response was reasonable.” Mangum v. Repp, 674 Fed.

Appx. 531, 540 (6th Cir. 2017) (determining that even viewing the facts in the light most favorable

to plaintiff, where the challenge is to the sufficiency of a defendant’s good faith attempts at a

remedy, that attack “sounds in negligence, not deliberate indifference”). The Sixth Circuit does

not require that “prison officials take every possible step to address a serious risk of harm” and, in

fact, requires courts to “take into account the “‘constraints facing the official[s].’” Wilson v.

Williams, 961 F.3d 829, 844 (6th Cir. 2020); Conley v. Warden, 1:07CV737, 2008 WL 4657084,

at *5 (S.D. Ohio Oct. 21, 2008) (noting that where prison officials undertake a course of actions

to prevent harm to an inmate, they “should be accorded 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”).

The evidence Plaintiffs point to indicates that Defendants reasonably addressed Plaintiffs’

complaints as to the telephone issue. Plaintiffs’ disapproval of Defendant’s solutions or the

effectiveness of their actions is not evidence that Defendants were deliberately indifferent. See

Conley v. Warden, 1:07CV737, 2008 WL 4657084, at *5 (S.D. Ohio Oct. 21, 2008) (dismissing

plaintiff’s eighth amendment claim for deliberate indifference to safety where defendants sent

plaintiff’s claims to committee which considered the claim and issued a decision, noting “[w]hile

the decision is not the one which Plaintiff prefers, we find no evidence that prison administrators

are ignoring his complaints or are being deliberately indifferent to a known risk”); Durham, 2019

WL 3754012, at *7 (“Plaintiff’s disagreement with the ultimate outcome and the manner in which

[prison business] was conducted is insufficient to establish that [defendant] was deliberately

indifferent to a known risk of harm.”); c.f., Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th

Cir. 2002) (finding that “a difference of opinion between [an inmate] and [his] prison health care

providers [or] a dispute over the adequacy of [his] treatment . . . does not amount to an Eighth

Amendment claim” for deliberate indifference in the context of providing medical care) (internal

citation omitted).

Plaintiffs further object to Judge Vascura’s alternate finding that Defendants are not liable

under the Eighth Amendment for Damron’s injuries sustained as a result of his decision to engage

in a physical fight with inmate Chukes. (ECF No. 51 at 13). Plaintiffs contend that Damron and

Chukes’ physical altercation was a direct result of Defendants’ deliberate indifference. Id.

Plaintiffs also dispute Judge Vascura’s finding that Damron followed Chukes “down a hall” to

engage in the physical altercation, instead Plaintiffs insist that the altercation occurred in the TV

room which was adjacent to the phone Damron attempted to use. Id. This detail, however, has no

effect on the fact that Plaintiff Damron made the decision to be involved in the fist fight that lead

to his injury.

The Sixth Circuit recognizes that “[i]mplicit in [the deliberate indifference] standard is the

recognition that the plaintiff must allege that he has suffered or is threatened with suffering actual

harm as a result of the defendants’ acts or omissions before he can make any claim with an arguable

basis in Eighth Amendment jurisprudence.” Wilson v. Yaklich, 148 F.3d 596, 601 (6th Cir. 1998).

While the Eighth Amendment imposes on prison officials a general “duty to protect prisoners from

violence at the hands of other prisoners,” that duty does not extend to situations where an inmate

chooses to engage in a fight. Farmer, 511 U.S at 833. Here, Defendants cannot be held liable for

the injuries that Damron sustained during the altercation because Damron’s injuries were the

product of his own decision to engage in the fight as opposed to an act or omission by Defendants.

See Farmer, 511 U.S. at 834 (noting that “[i]t is not . . . every injury suffered by one prisoner at

the hands of another that translates into constitutional liability for prison officials responsible for

the victim’s safety.”). Damron was a willing participant in the altercation. Although Damron

contends that he was a victim of circumstance, he admits that he pushed Chukes while using the

phone and then met Chukes in the T.V. room to further engage in a fight with him. (ECF No. 46

at PAGEID #583). Damron did not make any prison officials aware of the threat Chukes posed to

him and did not attempt to deescalate the situation. Thus, Defendants did not cause the injuries

that Plaintiff Damron sustained through their alleged deliberate indifference.

For the reasons stated above, this Court OVERRULES Plaintiffs’ Objections to Judge

Vascura’s Report and Recommendation. Based on an independent analysis of the claims herein,

this Court GRANTS Defendants’ Motion for Summary Judgment as to Plaintiff Damron’s claims

for damages.

C. Plaintiffs’ Motion to Strike Defendants’ Summary Judgment Evidence

Plaintiffs also object to Judge Vascura’s decision to deny their motion to strike affidavits

that Defendants attached to their motion for summary judgment. (ECF No. 51 at 17). Plaintiffs

argue that Defendants are “liars and have committed perjury” by offering inconsistent statements.

Id.

Judge Vascura’s decision to deny the motion to strike was a decision on a non-dispositive

matter. When an objection is lodged to a magistrate judge’s decision on a non-dispositive matter,

the magistrate judge’s decision will be reversed only if it is “clearly erroneous or is contrary to the

law.” Fed. R. Civ. P. 72(a); 28 U.S.C § 636(b)(1)(A). A magistrate judge’s factual findings are

reviewed pursuant to the “clearly erroneous” standard, “while her legal conclusions will be

reviewed under the more lenient ‘contrary to law’ standard.” Gandee v. Glaser, 785 F. Supp. 684,

686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994). A factual “finding is ‘clearly erroneous’

when the reviewing court . . . is left with the definite and firm conviction that a mistake has been

committed.” Heights Cmty. Cong. V. Hilltop Realty, Inc., 774 F.2d 135,140 (6th Cir. 1985). A

legal conclusion is “contrary to law” when the conclusions contradict or ignore applicable precepts

of law. M.A. v. Wyndham Hotels & Resorts, Inc., No. 2:19-CV-755, 2020 WL 1983069, at *2

(S.D. Ohio Apr. 27, 2020) (citing Gandee, 785 F. Supp. at 686).

In their motion to strike, Plaintiffs argued that various affidavits submitted by Defendants

should be stricken because they were a sham created only for Defendants to receive summary

judgment. (ECF No. 46, PAGEID #627–37.) Plaintiffs argue that Judge Vascura’s denial of their

motion to strike is wrong because through the affidavits, Defendants have given inconsistent and

contradicting statements of facts, some while under oath, to receive a favorable legal outcome.

(ECF No. 51 at 17 ¶ 38). Hearsay statements and statements not based on personal knowledge

should be disregarded by a court when ruling on a summary judgment motion, however, courts

should consider any remaining portions of an affidavit. Brown v. BKW Drywall Supply, Inc., 305

F. Supp. 2d 814, 821 (S.D. Ohio 2004) (citing Vass v. Riester & Thesmacher Co., 79 F.Supp.2d

853, 858 (N.D. Ohio 2000)). Because this Court can simply disregard inconsistent statements,

Judge Vascura’s determination that the statements should not be stricken is not contrary to law.

Accordingly, Plaintiffs’ objection to the denial of their motion to strike is OVERRULED.

IV. CONCLUSION

For the foregoing reasons, this Court ADOPTS Judge Vascura’s Report (ECF No. 50)

recommending that Plaintiffs’ claims for injunctive and declaratory relief be DENIED AS MOOT

and that Defendants’ Motion for Summary Judgment (ECF No. 39) be GRANTED as to all

remaining claims. Based on independent analysis, Plaintiffs’ claims for injunctive and declaratory

relief are DENIED AS MOOT and Defendants’ Motion for Summary Judgment is GRANTED.

a /

ALGENONL. MARBLEY—————

UNITED STATES DISTRICT JUDGE

DATED: September 1, 2020

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