Price v. Ohio Department of Rehabilitation and Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TERRELL PRICE, Case No. 1:19-cv-740

Plaintiff, Cole, J.

Bowman, M.J.

v.

OHIO DEPT. OF REHABILITATION

AND CORRECTIONS, et. al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, presently incarcerated at the Warren Correctional Institution, filed this civil

rights action against multiple defendants concerning conditions of his incarceration at the

Lebanon Correctional Institution (“LeCI”). Upon initial review in the Eastern Division of

this Court, claims against the Ohio Department of Rehabilitation and Corrections

(“ODRC”) were dismissed under the Eleventh Amendment. The case was then

transferred to the Western Division and reassigned to the undersigned magistrate judge

for initial review. (Docs. 2, 4, 5). After additional screening, additional claims and

defendants were dismissed, but a single claim against four Defendants in their individual

capacities was permitted to proceed. (Docs. 7, 11). In that claim, Plaintiff alleges that

Defendants failed to protect him from an attack by his cellmate.

Through counsel, Defendants Unit Manager Snively, Case Manager Ford,

Sergeant Dupuis,1 and Correctional Officer Cooper have now moved for summary

judgment. Plaintiff has filed a response in opposition, to which Defendants have filed a

1The record reflects that Plaintiff’s complaint misspelled this Defendant’s surname as “Dubuis.” The motion

for summary judgment and Defendant’s affidavit reflect the correct spelling as “Dupuis.”

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reply.2 For the following reasons, Defendants’ motion should be GRANTED.

I. Summary Judgment Standard of Review

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts . . . in the light most favorable to the non-moving party.”

Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(e)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment—rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id.

After a moving party has carried its initial burden of showing that no genuine issues

of material fact remain in dispute, the burden shifts to the non-moving party to present

specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986). “The ‘mere possibility’ of a

factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)

(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to survive

summary judgment, the non-moving party must present probative evidence that supports

its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505

2On December 2, 2020, Plaintiff filed a “Response to Defendant[‘] Reply,” docketed as a “supplemental

memorandum” in opposition to summary judgment. (Doc. 26). As Defendants point out, the supplemental

memorandum constitutes a surreply, which is not authorized by the civil rules and may not be considered

without leave of court. (Doc. 27). The undersigned nevertheless has reviewed the supplemental

memorandum, but finds no new material or argument that would alter the conclusion that summary

judgment should be granted.

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(1986). The non-moving party’s evidence “is to be believed, and all justifiable inferences

are to be drawn in his favor.” Id. at 255. The court determines whether the evidence

requires submission to a jury, or whether one party must prevail as a matter of law

because the issue is so one-sided. Id. at 251-52.

Although reasonable inferences must be drawn in favor of the opposing party, see

id. at 255, he must present significant probative evidence tending to support the

complaint. First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 290, 88 S.Ct. 1575

(1968). To demonstrate a genuine issue, the opposing party “must do more than simply

show that there is some metaphysical doubt as to the material facts . . . . Where the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party,

there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

II. Findings of Fact

The following facts are largely undisputed. In accordance with Rule 56 standards,

where discrepancies exist, the facts have been construed in Plaintiff’s favor except for

instances in which unrebutted record evidence flatly contradicts Plaintiff’s allegations.

In 2014, Plaintiff was convicted of drug trafficking and related offenses, and

sentenced to a term of fourteen years imprisonment. (Doc. 17-5 at 6; Doc. 17-6 at 3). In

June 2018, Plaintiff was moved within LeCI to a new cell occupied by Joshua Morrissette

who allegedly told him “how things were going to be or be assaulted.” (Doc. 3, Complaint

at PageID 45). Just before that cell move, Plaintiff had been approved for a visitation

transfer to Mansfield Correctional Institution to be closer to his family. (Doc. 17-12,

Dupuis Aff at ¶ 8; Doc. 17-13, Snively Aff. at ¶ 8; Doc. 17-11, Schweitzer Aff. at ¶8).

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On the evening of June 8, 2018, non-party correctional officers Bratcher and

Flowers discovered a small amount of marijuana and suboxone strips in Plaintiff’s cell,

under Plaintiff’s mattress. (Id., Dupuis Aff. at ¶8, Snively Aff. at ¶8, Schweitzer Aff. at ¶7).

Upon questioning, Plaintiff admitted to ownership of the contraband. (Id.) C/O Bratcher

drafted a Conduct Report charging Plaintiff with a Rule 39 violation (unauthorized

possession of drugs) based upon Plaintiff’s verbal admission. (Doc. 17-1). Plaintiff

alleges in his complaint that after he was taken “out of sight” of Morrissette, he informed

the correctional officer (presumably Bratcher) that he was “forced” to admit to the

contraband by his cellmate. (Doc. 3 at PageID 46.). However, the Conduct Report makes

no reference to Morrissette, (Doc. 17-1 at 1), and Plaintiff does not allege that any

Defendant was aware of his claim on June 8.

On June 11, 2018, prior to being served with the Conduct Report, Plaintiff was en

route pursuant to his previously-approved transfer. Upon learning of the pending charge,

Unit Manager Defendant Snively directed Plaintiff’s return to LeCI that same day. (Snively

Aff. at ¶ 8; Doc. 18, Ford Aff. at ¶9). A finding of guilt would result in the cancellation of

the transfer. (Schweitzer Aff. at ¶¶ 8-9, Snively Aff. at ¶9, Ford Aff at ¶9).

On June 12, 2018, Defendant Dupuis served a copy of the Conduct Report on

Plaintiff. (Doc. 17-1 at 2-3; Dupuis Aff. at ¶9). Plaintiff entered a plea of “not guilty” and

made the following statement: “Not guilty. I took out for it cause I was afraid of the other

guy it belonged to. He is affiliated.” (Id. at 3; Dupuis Aff. at ¶9). Plaintiff’s formal response

to the Conduct Report after his return to LeCI marks the first date in which Plaintiff

conveyed any fear of Morrissette to any Defendant. However, his “fear” was expressed

only as a basis for recanting his prior admission to guilt on the Conduct Charge.

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On June 15, 2018, Plaintiff appeared for a hearing before the Rules Infraction

Board (“RIB”), on which Dupuis sat. Plaintiff presented his defense that he “took out for

fear of retaliation,” but nevertheless was found guilty. (Doc. 17-1 at 4-7). The RIB finding

was based upon the facts stated in Braxton’s Conduct Report, including drugs discovered

under Plaintiff’s mattress, Plaintiff’s contemporaneous confession, and the evidence

collected by Lt. Flowers including laboratory results identifying the drugs.

The RIB form contains multiple check-box style questions and responses. In one

apparent inconsistency, “yes” instead of “no” is checked in response to the query: “Did

the Board believe the inmate’s defense?” However, the narrative response to the follow-

up question “Why?” states: “RIB believes the DCR [Disciplinary Conduct Report] to be

factual and substantiates the rule violation 39.” (Id. at 7). The facts stated in the Conduct

Report do not reference Morrissette and contradict Plaintiff’s RIB defense.3

As a result of the Rule 39 violation, Plaintiff was sentenced to limited privilege

housing until June 22, with 30 days visitation restrictions and a corresponding loss of

good time. His prison transfer was canceled. Plaintiff’s appeals of the Rule 39 conviction

were denied on June 28 and 30, 2018. (Doc. 17-1 at 10-11).

Plaintiff’s complaint alleges that he communicated to Defendant Cooper that he

did not want to return to the same cell after the conclusion of his limited privilege housing

confinement, but that Cooper “ignored” him. In contrast to that allegation, Defendant

Cooper has submitted unrebutted affidavit testimony that “[a]t no point whatsoever did

Price ever voice to me any problems, issues, or concerns, regarding his J-Block cellmate

3Plaintiff insists that the “yes” mark accurately reflects the RIB’s acceptance of his hearing testimony, while

Defendants suggest that the mark reflects a typographical error. A challenge to the disciplinary conviction

itself is not a cognizable claim in this lawsuit. See Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v.

Balisok, 520 U.S. 641 (1997).

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(‘Morrissette’).” (Doc. 17-15, Cooper Aff. at ¶¶ 8-9). Plaintiff also alleges that while being

transported by a non-party correctional officer on June 22, he told that officer that he did

not want to enter the cell but the officer told him to go in anyway. Shortly after entering

the cell on June 22, 2018, Plaintiff alleges that he was “attacked with a knife type object”

by Morrissette, suffered “two black eyes[,] cuts to his back and face[,] slices to his neck

shoulder area, stomach and was left on the floor to die.” (Doc. 3 at PageID 47).

There were no witnesses to the altercation, but multiple records confirm that an

altercation occurred. In contrast to Plaintiff’s allegations, no weapon was recovered and

unrefuted contemporaneous medical records reflect that Plaintiff suffered only minor

wounds. A Conduct Report issued at the time by non-party C/O Paul also contradicts the

allegations of the complaint. Although Plaintiff alleges that he was “left on the floor to

die,” (id. at PageID 47), the Conduct Report states that Plaintiff approached C/O Paul at

12:50 p.m. to report that “he was in a fight with his Cellmate Morrissette.” (Doc. 17-2 at

1). Paul “sent Inmate Price to speak with unit manager Snively. He was then placed into

handcuffs by a relief officer and escorted to the infirmary.” (Id.)

A contemporaneous Medical Exam report reflects Plaintiff’s statement: “I am trying

to get a bed move” but contains no mention of a “stabbing” or “assault” or reference to

any weapon. (Doc. 17-2 at 21). Medical findings reflect only superficial wounds:

“abrasions on left lateral neck, cut that encompasses back half of neck, left abdomen has

abrasion, contusion above bridge of nose, abrasion right neck.” (Doc. 17-2 at 21). In

multiple records, Plaintiff refers to the altercation as a “fight.” For example, Plaintiff later

complained of chest pain that he attributed to “stress” and open wounds that he attributed

to “the fight I had earlier.” (Doc. 17-9 at 7). Staff noted a normal heart rhythm and found

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“no open wounds” and “no bleeding at this time.” (Id.) Additional medical records reflect

that after reporting to medical for treatment after a “fight,” the examining nurse cleaned

the cut and abrasions, applied antibiotic ointment, and gave Plaintiff a tetanus shot prior

to releasing him to segregation. No stitches were required. (See Doc. 17-9 at 5-6; Doc.

17-2. at 21). On June 26, 2018, Plaintiff was examined at a follow-up appointment, at

which he presented with “additional complaints of nose injury and missing tooth” from the

same altercation. (Doc. 17-9 at 15). The examining nurse noted “facial bruising” and

“scratches to neck” which were noted to be “healing without s/s of infection.” (Doc. 17-9

at 15).

Both Plaintiff and Morrissette were charged with the same Rule 19 Violation

(fighting) based on the incident. (Doc. 17-2. at 2; Doc. 17- at 2). Plaintiff pleaded not

guilty, making the following statement: “I was assaulted. He stabbed me and has been

extorting me.” (Doc. 17-2 at 8). Plaintiff asserted: “I walked in the room started using the

restroom and the inmate hit me from behind with an object, …he started cutting me

around my neck and stomach area. He must have had a weapon of some kind because

I have the marks and bruises to prove it.” (Doc. 17-2 at 14). In contrast to Plaintiff’s

account, however, Morrissette claimed that the fight was a result of him refusing to take

responsibility for the drugs and Plaintiff becoming angry as a result. (Doc. 17-6 at 3-4).

Investigators found that both inmates’ injuries were “consistent with fighting marks and

scratches caused by their cell bunks” and noted that no weapon was ever found. (Ford

Aff. at ¶ 14).

At a hearing on June 28, the RIB found Plaintiff guilty of fighting, citing the facts

contained in the Conduct Report and the medical examination report. The RIB checked

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the box indicating that they considered but did not believe Plaintiff’s defense and instead

“believe[d] the DRC…to be factual.” (Doc. 17-2 at 11; Dupuis Aff. at ¶14). Plaintiff’s

appeal was denied and the conviction was affirmed. (Doc. 17-2 at 19).

Plaintiff was again confined to restricted housing beginning on June 22. Upon his

scheduled release from segregation, he was assigned to be housed in a different cell than

Morrissette. However, he refused to return to J-Block based upon his asserted fear of

Morrissette’s “gang” associates. (Doc. 17-15, Cooper Aff. at ¶11). Therefore, Plaintiff

initially remained housed in C-Block. He remained housed apart from Morrissette for

several months until he was transferred to a different penal institution, WCI. (Id.) During

the months prior to his transfer, Plaintiff formally requested protective control (protective

housing) but his requests were denied.

Investigators who reviewed Plaintiff’s protective control requests believed that

there was no credible evidence to support Price’s allegations that Morrissette was

threatening and/or extorting him.4 Rather, having interviewed both Price and Morrissette,

the Protective Control Committee determined that Price was trying to pin the Rule 39 drug

violation on Morrissette “in the hopes of reinstating his prison transfer.” (Doc. 17-11 at ¶¶

9-11; Doc. 18, Ford Aff. at ¶13). Ford attested that unlike Plaintiff,5 Morrissette had no

previous drug infractions, a factor that “was considered only to the extent it weighed on

4In support of summary judgment, Defendants have submitted evidence that Morrissette is not listed in any

Security Threat Group profile that would reflect gang association. In opposition to summary judgment,

Plaintiff argues that the fact that Morrissette’s name is not listed does not prove he is not affiliated. (Doc.

23 at 6). However, whether Morrissette was or was not affiliated with any gangs is not material; what is

relevant is Defendants’ assessment of whether a credible threat existed.

5Plaintiff’s disciplinary record reflects several convictions for drug-related offenses during his incarceration.

(Doc. 17-5 at 7-8).

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Price’s credibility and not as a conclusive indicator of guilt.” (Ford Aff. at ¶ 14). Likewise,

Defendant Dupuis has attested that the Protective Control Committee

determined that Price’s Rule 39 drug violation had cancelled his visitation

transfer. However, in an effort to reinstate his transfer, Price attempted to

have Morrissette claim ownership of the drugs, and when Morrissette

refused, a fight broke out between the inmates. The committee further

found there was no credible threat to Price’s health or safety, that protective

control was not warranted, and that Price was trying to manipulate the

system for a visitation transfer. Thereafter, on July 9, 2018, Warden

Schweitzer approved the committee’s recommendation of no protective

control…and ordered Price to return to general population.

(Doc. 17-12, Dupuis Aff. at ¶ 16). From June 28 through his ultimate transfer to WCI,

Plaintiff continued to attempt to protest his disciplinary convictions and to reinstate his

transfer to Mansfield. He filed 42 grievances relating his concerns over the disciplinary

convictions and denial of his protective control request.

III. Analysis of Plaintiff’s Eighth Amendment “Failure-to-Protect” Claims

In the context of the pending motion, Plaintiff’s complaint is liberally construed to

assert two distinct failure-to-protect claims against the four Defendants: (1) a claim based

upon the Defendants’ alleged failure to protect Plaintiff from being attacked by his

cellmate on June 22; (2) a claim based upon the denial of Plaintiff’s requests for protective

control after the altercation with Morrissette. The seminal case setting forth the standards

for Plaintiff’s claims is Farmer v. Brennan, 511 U.S. 825, 833 (1994). In Farmer, the

Supreme Court held that the Eighth Amendment imposes on prison officials a duty to take

“reasonable measures to guarantee the safety of the inmates,” Farmer v. Brennan, 511

U.S. 825, 832, 114 S.Ct. 1970 (1994), which includes “protect[ing] prisoners from violence

at the hands of other prisoners.” Id. at 833, 114 S.Ct. 1970 (internal citation omitted); see

also Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001). A prisoner can show a violation of

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the Eighth Amendment if he proves both an objective and subjective component of a

“failure to protect” claim.

Under the objective component of the claim, the plaintiff first must show that he

was “incarcerated under conditions posing a substantial risk of serious harm.” Id., 511

U.S. at 834. Second, under the subjective component, the court examines the

defendant’s state of mind to determine whether he acted with “deliberate indifference”

equivalent to an intent to punish inmate health or safety. Id.; see also Molton v. City of

Cleveland, 839 F.2d 240, 243 (6th Cir. 1988). To establish the subjective component, a

plaintiff must show that the defendant official knew of and disregarded an excessive risk

to inmate health or safety; the official must be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must draw the

inference. Farmer, 511 U.S. at 837. Therefore, a prison official can be liable if he

disregards that risk by failing to take reasonable measures to abate it. Id. at 847.

Defendants persuasively argue that they are entitled to summary judgment. On

the record presented, Plaintiff cannot show either the objective or the subjective

components of any claim either prior to the June 22, 2018 altercation with Morrissette, or

after that date.

A. Objective and Subjective Components Before June 22

Plaintiff alleges that he confessed to ownership of the contraband on June 8 based

upon a reported “fear” of Morrissette if he did not confess at that time. However, Plaintiff

was separated from Morrissette for the 14-day period between the seizure of drugs on

June 8 and June 22, due to disciplinary proceedings and his corresponding sentence.

Neither in his complaint nor in opposition to summary judgment does Plaintiff allege any

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specific threat by Morrissette after Plaintiff admitted to ownership of the drugs on June 8

but before Plaintiff was returned to the cell on June 22.

According to Plaintiff’s own account, the “threat” was a conditional one requiring

Plaintiff to confess or to face retribution by the alleged true owner, Morrissette, if he did

not. Plaintiff alleges that he complied with the threat and confessed on June 8.6 At the

disciplinary hearing, Plaintiff attempted to retract that confession based upon his

professed fear of Morrissette if he had not confessed. However, the RIB panel rejected

Plaintiff’s retraction and convicted Plaintiff.

Plaintiff does not allege that he had any additional contact with Morrissette during

his two-week confinement to restricted housing, nor does he allege that Morrissette

conveyed any new threat after Plaintiff confessed and was convicted of the drug charge.

While not articulating any specific new threat, Plaintiff more generally alleges in his

complaint that he asked Defendant Cooper not to return him to Morrissette’s cell.

However, Defendant Cooper has offered unrebutted testimony that Plaintiff did not tell

him prior to June 22 (or after) that Plaintiff had concerns about returning to his previous

cell. In his response in opposition to summary judgment, Plaintiff suggests - for the first

time - that the reason he did not speak out prior to being returned to the same cell with

Morrissette is because “[i]f an inmate refuses an order from LeCI staff ‘they get beat up.’”

6Plaintiff has made inconsistent statements about whether Morrissette only implicitly or explicitly threatened

him on June 8. For example, in a written appeal of his disciplinary conviction dated June 17, 2018, Plaintiff

states that after Morrissette denied ownership, Plaintiff admitted to the drugs based upon an implicit threat.

(See Doc. 17-1 at 16, “I’m thinking, if he’s not gonna take out, then I better, cause I know he’s in like 2

gangs, so I truly didn’t want problems, so I took out soon as my celly left, I told that Lt. and c/o they really

aren’t mine.”; see also Doc. 17- at 18, grievance stating that after Morrissette denied that the drugs were

his, “that told me what he was expecting me to do out of fear of his gang members, I did it, plus I thought

since I’m leaving anyway, e.t.c.” (emphasis added)). However, in his federal complaint, Plaintiff alleges

that Morrissette’s threat was explicit. (See Doc. 3 at PageID 45, alleging that Morrissette expressly told him

“take out for anything they find or get fucked up.”).

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(Doc. 23 at 4).7 However, Plaintiff’s response fails to demonstrate any factual or legal

dispute concerning whether Plaintiff alerted the Defendants to an objectively serious

threat.8 Plaintiff’s failure to convey any specific threat beyond the June 8 “if-you-don’t-

confess” conditional threat (asserted in defense to disciplinary proceedings) is insufficient

to demonstrate the objective component of a claim prior to June 22.

“When an inmate fails to allege that he received specific threats and that he

communicated those specific threats or fears to prison personnel, the Complaint fails to

state an Eighth Amendment claim for failure to protect.” Mosquera v. Delgado, 2010 WL

2010973 at *4 (additional citations omitted) (inmate who alleged that he repeatedly told

defendants that he feared for his health and safety due to “serious threats and conflict”

with gang members did not show objective conditions posing a substantial risk because

inmate identified only general conflict and failed to ask prison personnel for protection

after notifying them of threat). In order to prove the objective element of his claim, Plaintiff

must do more than allege a generalized concern for his safety and welfare. Because the

record does not reflect that Plaintiff alerted any of the Defendants to a specific threat

before June 22, beyond the conditional threat that allegedly caused him to falsely confess

to the drugs, the facts alleged by Plaintiff fall short of the requisite standard.

The essence of Plaintiff’s claim is that the Defendants failed to prevent the “attack”

on June 22. In addition to arguing that Plaintiff has not offered proof of a sufficiently

objectively serious threat, Defendants maintain that Plaintiff’s allegation that he was

7Plaintiff’s response also asserts that Plaintiff told an unidentified correctional officer during his transport to

the cell that he did not want to be housed with Morrissette. (Id.) Aside from the lack of evidence to support

that general assertion, it is irrelevant because Plaintiff does not allege that he alerted any Defendant of any

specific and continuing threat from Morrissette.

8In his response, Plaintiff freely admits “I have no documents in my possession to support my claims….but

do rely on …conduct reports and RIB’s determination….” (Doc. 23 at 7, “Affidavit of Terrell Price”).

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“stabbed” by Morrissette “is blatantly contradicted by the record.” (Doc. 17 at 12).

Defendants contend that a failure-to-protect claim cannot stand when a plaintiff himself

initiates a fight with another inmate. It is true that medical and disciplinary conviction

records undermine Plaintiff’s claim that a weapon was involved as well as his claim of any

serious injury. However, there were no witnesses other than Plaintiff and Morrissette.

Nothing in the record conclusively shows which inmate initiated the altercation; both were

charged and convicted of fighting. Rather than who initiated the fight, the more critical

fact is Plaintiff’s failure to show that he communicated to Defendants any substantial

threat after Plaintiff admitted to ownership of the drugs on June 8 but before he was

returned to the same cell on June 22, 2018.

All four Defendants are entitled to judgment based upon Plaintiff’s failure to prove

that any of them were subjectively aware of but disregarded a substantial risk to Plaintiff’s

safety prior to June 22, 2018. A culpable state of mind requires “[o]bduracy or

wantonness,” not mere inadvertence. Gibson v. Foltz, 963 F.2d 851, 853 (6th Cir.1992);

accord Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970 (1994)(holding that official

must know of and disregard an excessive risk to inmate health or safety); see also Scott

v. Odmark, 107 F.3d 871, 1997 WL 76213 (6th Cir. 1997) (Table, text available in

Westlaw, affirming dismissal of failure to prove claim where, despite knowledge that

cellmates fought when first placed together, it was reasonable for Defendant to assume

that inmates could co-habitate when they were able to sustain civility toward each other

for a period of five days); O’Connell v. Williams, 241 Fed. Appx. 55, 58 (3rd Cir. 2007) (an

inmate cannot establish subjective awareness of serious risk simply by asserting that staff

were informed that inmate was not getting along with other inmates).

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The RIB conviction and subsequent record provide conclusive evidence that none

of the institutional authorities, including but not limited to the identified Defendants,

believed there was a credible continuing threat. Instead, the RIB conviction and rejection

of Plaintiff’s appeal show that LeCI authorities subjectively believed Plaintiff was

attempting to evade discipline after realizing it would result in the cancellation of his prison

transfer. Thus, prior to June 22, there is nothing in the record to suggest that any

Defendant was actually aware of and deliberately disregarded any serious threat to

Plaintiff’s safety. The fact that Plaintiff was injured during an altercation with Morrissette

on June 22 does not change the record before that date.

2. Objective and Subjective Components After June 22

Plaintiff was separated from Morrissette on June 22 as a result of the altercation

and was again confined to disciplinary housing. As a result of the altercation, Plaintiff

was assigned a different roommate, albeit in the same housing block. When later

scheduled for release from his restricted housing, and upon learning he was to return to

the same housing block (J-Block) where Morrissette resided, Plaintiff refused.

Plaintiff alleges that although he was never again physically attacked, unidentified

gang-related associates of Morrissette continued to verbally threaten him with physical

harm if Plaintiff did not pay Morrissette for the drugs and a pair of glasses that had been

confiscated on June 8. Plaintiff communicated this alleged new threat during disciplinary

proceedings on the fighting conviction, as well as in multiple grievances filed after

disciplinary proceedings had concluded. Plaintiff also submitted a request for protective

control on June 28, 2018. (Dupuis Aff. at ¶ 15, Schweitzer Aff. at ¶ 10).

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Defendant Dupuis completed an Interview Assessment that detailed Plaintiff’s

stated reasons for requesting protective control. (Id.; see also Doc. 17-5 at 9-12). On

July 5, 2018, after interviewing both Plaintiff and Morrissette and reviewing relevant

documentation, the Protective Control Committee recommended denying Plaintiff’s

request. (Doc. 17-5 at 2; Schweitzer Aff. at ¶11, Snively Aff. at ¶¶ 12-13; Ford Aff. at

¶¶12-13). Defendants’ disbelief of Plaintiff’s allegations does not constitute deliberate

indifference on the record presented. “Prison officials charged with deliberate indifference

might show… that they did not know of the underlying facts indicating a sufficiently

substantial danger and that they were therefore unaware of a danger, or that they knew

the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave

rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844; see also Knight v. Gill,

999 F.2d 1020, 1022 (6th Cir. 1993) (stating that defendants need only “take reasonable

steps to protect inmates from violence at the hands of other inmates.”).

Here, the Committee reasoned that Plaintiff was attempting to have Morrissette

take ownership of the drugs in order to manipulate the system and reinstate his prison

transfer. (Doc. 17-5 at 2, Schweitzer Aff. at ¶11, Snively Aff. at ¶13; Ford Aff. at ¶13).

The Committee believed that the fight broke out on June 22 after Morrissette refused

Plaintiff’s request. (Id.; Dupuis Aff. at ¶ 16; Snively Aff. at ¶13; Ford Aff. at ¶13). The

Committee’s recommended findings were reviewed by Warden Schweitzer, who

approved the denial of protective control. Even though Plaintiff alleges that he remained

fearful based upon verbal threats from unidentified inmates on unspecified dates, Plaintiff

remained separated from Morrissette and was not involved in any additional altercations

after June 22. After exhausting his appeals and being denied protective control even

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after review by Warden Schweitzer, Plaintiff submitted 42 grievances in protest, all of

which were rejected or denied.

In August 2018, Defendant Warden Schweitzer was reassigned to Madison

Correctional Institution and Warden Harris took over at LeCI. (Harris Aff. at ¶ 8). On

September 19, 2018, Warden Harris ordered an additional Protective Control Assessment

notwithstanding the prior denial. (Id. at ¶ 9). After completing a second investigation,

the Protective Control Committee again found no facts to support a credible threat to

justify placement in protective control. (Doc. 17-6 at 3-4). The Committee recommended

that Plaintiff be released to limited privilege housing on the north side of LeCI in order to

limit his interaction with Morrissette. (Id. at 4). However, as a secondary precaution and

in lieu of protective control, Harris transferred Plaintiff to WCI. (Doc. 17-4; see also Harris

Aff. at ¶ 11).

To the extent that Plaintiff seeks to hold Defendants liable for a failure to protect

Plaintiff after June 22, the Defendants also are entitled to summary judgment. Although

Plaintiff alleges that unidentified inmates verbally threatened him sometime after June 22,

he offers no evidence to support the objective element of his claim. The record also

undermines the existence of any serious threat because Plaintiff remained separated

from Morrissette at all times and alleges only verbal threats (without providing any details

such as dates or by whom the threats were made) after June 22.

Plaintiff also fails to show the subjective element of any claim after June 22. To

prove the subjective element, Plaintiff must show that each of the Defendants were aware

of a substantial risk, and actually disregarded it. “[P]rison officials who actually knew of

a substantial risk to inmate health or safety may be found free from liability if they

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responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer,

511 U.S. at 844. In response to Plaintiff’s expressed concerns, the Protective Control

Committee conducted two separate investigations. Neither of those investigations found

any credible threat. In addition, as a practical matter Plaintiff remained separated from

Morrissette and suffered no harm after June 22, suggesting a lack of recklessness or

deliberate intent to ignore any legitimate threat to Plaintiff’s safety. Ultimately, a new

warden transferred Plaintiff to a different institution.

B. Qualified Immunity

Last, as government officials engaged in performing discretionary functions, all

four Defendants are entitled to qualified immunity because their conduct did not violate

“clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For the reasons

discussed, the evidence falls short of showing either the objective and subjective

components of an Eighth Amendment claim of deliberate indifference to health or safety.

III. Conclusion and Recommendation

Accordingly, IT IS RECOMMENDED THAT Defendants’ motion for summary

judgment (Doc. 17) should be GRANTED, and this case should be dismissed and closed.

/s Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TERRELL PRICE, Case No. 1:19-cv-740

Plaintiff, Cole, J.

Bowman, M.J.

v.

OHIO DEPT. OF REHABILITATION

AND CORRECTIONS, et. al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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