Steele v. Neff

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SEAN M. STEELE,

Plaintiff,

Civil Action 2:18-cv-1503

v. Judge James L. Graham

Chief Magistrate Judge Elizabeth P. Deavers

LT. NICHOLAS NEFF, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for

Reconsideration to Amend or Alter Judgment. (ECF No. 36.) For the reasons explained below,

the Undersigned RECOMMENDS that Plaintiff’s Motion be DENIED.

I.

Plaintiff brings his Motion pursuant to Federal Rule of Civil Procedure 59(e). (ECF No.

36 at PAGEID # 340.) A party may move to alter or amend judgment under Rule 59(e) if there

is “‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in

controlling law; or (4) a need to prevent manifest injustice.’” CitiMortgage, Inc. v. Nyamusevya,

No. 2:13-CV-00680, 2015 WL 1000444, at *2 (S.D. Ohio Mar. 5, 2015) (quoting Intera Corp. v.

Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). “The term ‘clear error’ is not well-defined in the

Sixth Circuit, but it does ‘clearly indicate[ ] that a high standard applies.’” Forman v. Meridian

Bioscience, Inc., 387 F. Supp. 3d 791, 796 (S.D. Ohio 2019) (quoting Lonardo v. Travelers

Indem. Co., 706 F. Supp. 2d 766, 809 (N.D. Ohio 2010), on reconsideration in part (July 21,

2010)). The manifest injustice inquiry “is not meant to allow a disappointed litigant to attempt to

persuade the Court to change its mind,” but rather it is “a fact-specific analysis that falls squarely

within the discretionary authority of the Court.” Lonardo, 706 F. Supp. 2d at 809.

“[M]otions to alter or amend, or for reconsideration, are not intended as a mechanism for

a plaintiff to relitigate issues previously considered and rejected, or to submit evidence which in

the exercise of reasonable diligence could have been submitted earlier.” Kittle v. State, No. 2:05-

cv-l 165, 2007 WL 543447, at *1 (S.D. Ohio Feb. 15, 2007) (citing Helton v. ACS Grp., 964 F.

Supp. 1175, 1182 (E.D. Tenn. 1997)); Howard v. United States, 533 F.3d 472, 475 (6th Cir.

2008) (“Rule 59(e) allows for reconsideration; it does not permit parties to effectively ‘re-argue a

case.’”) (quoting Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th

Cir. 1998)).

The decision to grant relief under Rule 59(e) is left to the district court’s sound discretion.

Intera Corp., 428 F.3d at 619-20. Due to the importance of finality in the justice system, a

motion to reconsider a final order should be granted only in unique circumstances, such as a

complete failure to address an issue or claim. Solly v. Mausser, No. 2:15-cv-956, 2016 WL

74986 at *1 (S.D. Ohio Jan. 7, 2016) (internal citation omitted).

In the subject Order, ECF No. 34, the Court held that Plaintiff had failed to state a claim

under 42 U.S.C. § 1983, because he had not shown that the state deprived him of a

constitutionally protected interest in life, liberty, or property without due process of law. (See

generally ECF No. 34.) Specifically, the Court found that Plaintiff failed to allege procedural

deficiencies in the underlying Rules Infraction Board (“RIB”) proceeding, but even if he had,

Plaintiff’s claim still would fail because Plaintiff had not sufficiently alleged that he had been

deprived of a substantive right, such as a liberty right. (Id. at PAGEID ## 333-338.) The Court

rejected each of Plaintiff’s arguments, holding that: (1) even if Defendants had failed to follow

proper state prison procedures, that would not have constituted an infringement of a liberty

interest; (2) Plaintiff’s confinement in the Transitional Programming Unit (“TPU”) did not

implicate a liberty interest; (3) the fact that the RIB decision resulted in Plaintiff being labeled as

a gang member did not implicate a liberty interest; (4) the loss of Plaintiff’s employment did not

implicate a liberty interest; (5) the suggestion that Plaintiff’s parole eligibility may be affected by

the RIB decision did not implicate a liberty interest; and (6) Plaintiff’s increased security

classification and transfer to another institution, as a result of the RIB decision, did not implicate

a liberty interest. (Id.) Without a protected liberty interest at issue, Plaintiff was not entitled to

Fourteenth Amendment procedural due process. The Court accordingly granted Defendants’

Motion to Dismiss Plaintiff’s Amended Complaint (Doc. #9), ECF No. 22, for failure to state a

claim for which relief may be granted. (ECF No. 34 at PAGEID # 338.)

In Plaintiff’s Motion for Reconsideration to Amend or Alter Judgment (ECF No. 36),

Plaintiff argues he has “established several liberty interest[s]: 1) that he did not receive a fair

hearing by an impartial tribunal . . . 2) that he did not receive a written description of the

evidence relied [] upon [outside] of the investigative report, by Lt. Byrd . . . and, 3) that he was

removed from the general population of the prison and placed in a more reduced level of

restricted liberty without a fair hearing.” (ECF No. 36 at PAGEID # 346 (internal citation

omitted).) Plaintiff characterizes these issues as three “Clear Errors of Law” and “Palpable

Defect[s].” (Id. at PAGEID ## 342-345.)

First, Plaintiff asserts that the Court’s reliance on Shehee v. Luttrell, 199 F.3d 295, 300

(6th Cir. 1999), was in clear error. (ECF No. 36 at PAGEID ## 342-343.) Specifically, Plaintiff

argues “[t]his Court’s reliance upon [Shehee] to deny [Plaintiff’s] first objection is a clear error

of law,” because Shehee “deals with a State Official in a supervisory role,” but Defendant Byrd

“was not a supervisor.” (Id.) Plaintiff states that Defendant Byrd was “the sole person

responsible for determining innocence or guilt,” and argues that Defendant Byrd “had a duty to

be impartial,” but his “mindstate before [Plaintiff’s] hearing made it impossible for him to be

impartial.” (Id. at PAGEID # 343.)

As a preliminary matter, Plaintiff has raised these arguments in the Complaint and at

every stage of the briefing. A motion for reconsideration is not an appropriate vehicle to

relitigate these claims. See Howard, 533 F.3d at 475 (“Rule 59(e) allows for reconsideration; it

does not permit parties to effectively re-argue a case.”) (internal quotation omitted). Regardless,

Plaintiff misreads Shehee, and the Court’s reliance on Shehee was proper. In Shehee, the Sixth

Circuit held that four non-supervisory defendants whose “only roles in this action involve the

denial of administrative grievances or the failure to act” could not be liable under § 1983.

Shehee, 199 F.3d at 300. The same holds true for Defendant Byrd here, as Plaintiff affirmatively

admitted that Defendant Byrd did not have a supervisory role. (ECF No. 36 at PAGEID # 342

(“Lt. Byrd was not a supervisor.”).) The four defendants in Shehee could not be liable under §

1983 for “their denial of [plaintiff’s] administrative grievances,” and the same conclusion applies

to Defendant Byrd. Shehee, 199 F.3d at 300. Plaintiff’s argument is not appropriate for a

motion for reconsideration, but it is not well taken regardless.

Next, Plaintiff alleges that it was clear error for the Court to rely on Defendant Neff’s

conduct report, which Plaintiff contends is unsubstantiated. (ECF No. 36 at PAGEID ## 343-

344.) Plaintiff argues the Court’s “heavy reliance” on the conduct report violates the decision in

King v. Wells, 760 F.2d 89 (6th Cir. 1985). (Id.) Plaintiff maintains that, under King, he was

“entitled to a written statement by [Defendant] Byrd as to the evidence relied upon”; “[r]eliance

on the investigative report alone is insufficient”; and “a prisoner does not receive a statement of

the evidence relied on if he only receives a reference to an investigative report.” (Id.)

Again, Plaintiff’s arguments are not new. The Court already rejected these arguments,

indicating that “even assuming the procedural requirements discussed in [Wolff v. McDonnell,

418 U.S. 539 (1974)] are applicable in this case (as discussed below, the court concludes they are

not), the amended complaint and the attached documents fail to allege facts showing that the

disposition report was procedurally deficient in explaining the evidence relied on, or that the

conduct report was false for the reason alleged by plaintiff.” (ECF No. 34 at PAGEID # 334.)

Plaintiff now cites King as the controlling authority – as opposed to Wolff, as Plaintiff cited in the

below briefing – but the outcome is the same because the Sixth Circuit followed the Wolff

standard in King. See King, 760 F.2d at 94 (Confirming that “Wolff was the controlling law at

the time of the prison disciplinary hearing[.]”).

Regardless, Plaintiff is mistaken to suggest that the conduct report does not explain what

evidence the RIB relied upon in reaching its decision, as the Court’s Order detailed all of the

evidence cited in the conduct report:

In response to the disposition form’s request for a statement of the facts which

explain the RIB’s decision, it was stated: “The Board believes the conduct report

to be true and factual as written.” Doc. 9-3. The conduct report, attached to the

amended complaint as Doc. 9-2, states that the inmates who participated in the fight

were interviewed, that they admitted to their involvement in the fight, and that they

indicated that the fight was over the leadership of the Bloods gang and contraband

being brought in by an Aramark staff member. The report indicates that Lt. Neff

reviewed video footage of the fight. The conduct report does not state that plaintiff

was present during the altercation in the yard. In fact, Lt. Byrd found plaintiff not

guilty of actually participating in the fight; plaintiff was only found guilty of

engaging in unauthorized group activity. As support for the latter charge, the

conduct report indicated that prior to his placement in the TPU, plaintiff had Inmate

Reid “move money and unknown contraband over the GTL phone system for an

Aramark employee to bring into Reid and turn over to” plaintiff. The report stated

that plaintiff was involved in a dispute with Inmate Mayes over leadership of the

Bloods, which caused them to split into two groups, and that when plaintiff went to

the TPU, Inmate Mayes saw an opportunity to take control of the leadership of the

Bloods and their contraband.

(ECF No. 34 at PAGEID ## 334-335.) As the Court explained, however, these explanations

were unnecessary, as “there is no constitutionally protected due process violation unless the

process complained of results in conditions of confinement which are atypical and pose a

significant hardship,” which was not the case here. (Id. at PAGEID # 336.) Because Plaintiff

merely attempts to relitigate the Court’s legal analysis, Plaintiff’s second “palpable defect” is not

well taken.

Finally, Plaintiff asserts that the Court’s decision conflicts with McDougald v. Bear, No.

1:17-CV-124, 2017 WL 5178764, at *1 (S.D. Ohio Nov. 7, 2017), report and recommendation

adopted sub nom. McDougald v. Baer, No. 1:17CV124, 2017 WL 5990121 (S.D. Ohio Dec. 4,

2017). (ECF No. 36 at PAGEID ## 344-345.) Plaintiff argues that McDougald stands for the

proposition that “disputed documents . . . cannot be considered at the juncture of a motion to

dismiss[.]” (ECF No. 34 at PAGEID # 345.) Plaintiff contends that the subject conduct report is

false because “there is no written statement that confirms the allegations to be supported by

evidence,” and states that because the plaintiff in McDougald “disputed the contents of a false

conduct report, the court determined that it had to solely consider the plaintiff’s allegations in a

light favorable to him,” and the Court’s failure to do so here constitutes clear error. (Id.)

As stated above, Plaintiff is mistaken that “there is no written statement that confirms the

allegations to be supported by evidence.” (Id.) Plaintiff also is mistaken about the substance and

the applicability of McDougald. In McDougald, the plaintiff brought a § 1983 claim for

excessive force and medical deliberate indifference. The Court declined to consider a conduct

report to rebut plaintiff’s allegations of excessive force for purposes of a motion to dismiss.

McDougald, 2017 WL 5178764, at *3. Here, Plaintiff brings civil rights claims under § 1983,

asserting a violation of his Fourteenth Amendment due process rights. As the Court explained,

Plaintiff must show he had a protected liberty interest at issue in order to survive the motion to

dismiss. (ECF No. 34 at PAGEID # 333.) Because McDougald does not address, let alone

challenge, whether Plaintiff has failed to show he had a protected liberty interest at issue,

Plaintiff’s argument is not well taken.

In sum, Plaintiff has failed to meet the high standard to show that “extraordinary

circumstances” exist to reconsider the Court’s March 5, 2020 Order. Plaintiff’s arguments

appear to be attempts to relitigate the briefing below, and Plaintiff has failed to show a clear error

of law, newly discovered evidence, an intervening change in controlling law, or a need to prevent

manifest injustice. See CitiMortgage, Inc., 2015 WL 1000444, at *2.

For the reasons stated above, the Undersigned finds no grounds to reconsider the Court’s

earlier decision that Plaintiff had failed to state a claim under § 1983. Accordingly, it is

RECOMMENDED that Plaintiff’s Motion for Reconsideration to Amend or Alter Judgment

(ECF No. 36.) be DENIED.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [th defendant’s] ability to appeal the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

Date: September 30, 2020 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE