The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KEVIN A. TOLLIVER,
Plaintiff,
vs. Case No.: 2:16-cv-1020
Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson
WARDEN NOBEL, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of a Report and Recommendation and
Order issued by the Magistrate Judge on July 24, 2020, (ECF No. 86), addressing pro se Plaintiff
Kevin A. Tolliver’s Objection to the Report and Recommendation and Order. (ECF No. 101). This
matter is also before the Court for consideration of a Report and Recommendation and Order
issued by the Magistrate Judge on December 18, 2020, (ECF No. 112), addressing Plaintiff’s
Objection to that Report and Recommendation and Order. (ECF No. 114). For the reasons stated
below, the Court OVERRULES Plaintiff’s objections, (ECF Nos. 101, 114), and ADOPTS the
both the July and the December Report and Recommendation. (ECF Nos. 86, 112). Defendants
Noble’s, Jefferies’, Cahill’s, Taylor’s, Moore’s, Lawrence’s, Davis’, and Hunyadi’s (“ODRC
Defendants”) Motion for Judgement on the Pleadings, (ECF No. 79), is GRANTED. Plaintiff’s
Motion for Declaratory Judgement, (ECF No. 110), is DENIED.
I. Facts and Background
Plaintiff did not object to the background section of the Magistrate Judge’s July Report and
Recommendation and Order, (ECF No. 86), which put forth the following:
Plaintiff is an inmate at Grafton Correctional Institution, who has previously been
incarcerated at London Correction Institution (“LoCI”), Madison Correctional
Institution (“MaCI”), Belmont Correctional Institution (“BeCI”), Ross Correctional
Institution (“RCI”), and Pickaway Correctional Institution (“PCI”). (Doc. 30, ¶ 7).
Defendants are numerous Ohio Department of Rehabilitation and Corrections
(“ODRC”) employees and contractors. (Id., ¶¶ 8–11).
In 2012, ODRC transferred Plaintiff to MaCI. (Id., ¶ 16). While at MaCI,
Defendant Abdul Rahman Shahid was an ODRC contractor who served as an
Islamic Services Provider. (Id., ¶ 19). Defendant Sunni Ali Islam served in the same
role at PCI. (Id.). Plaintiff alleges that Defendants Shahid and Islam (the
“Defendant Contractors”) generally discriminated against Muslim inmates that
were not supporters of the Nation of Islam. (See, e.g., id., ¶¶ 19–30). While at MaCI,
Plaintiff allegedly complained to unidentified ODRC administrators and staff about
the Defendant Contractors’ behavior, which he asserts resulted in retaliation in the
form of denied grievances, denied medical treatment, and limited program
opportunities. (Id., ¶ 35).
After several years at MaCI, in 2016, ODRC transferred Plaintiff to LoCI “for
programming consistent with his parole board and re-entry plan.” (Id., ¶ 40).
Defendant Shahid served as the Islamic Services Provider at LoCI as well. (Id., ¶
43). According to Plaintiff, unidentified ODRC administrators and employees
employed Defendant Contractors knowing that it would suppress Muslim inmates’
religious exercise and conserve resources for Christian inmates. (Id., ¶ 50). And
Plaintiff takes issue with ODRC’s policies which he maintains do not adequately
distinguish between different sects of Islam, resulting in the discriminatory actions
of Defendant Contractors. (Id., ¶¶ 54–57).
In September 2016, Defendants Christler and Sibalski “shook down Plaintiff” and
conducted a search of Plaintiff’s belongings. (Id., ¶ 88). Plaintiff subsequently
reported to the investigators who placed him in segregated housing. (Id., ¶ 90).
After two weeks in “maximum security isolation,” Defendant Sibalski informed
Plaintiff of the results of his investigation. (Id., ¶ 90). The investigation began based
on Defendant Shahid’s allegation that Plaintiff was trying to radicalize other
Muslim inmates; Defendant Sibalski found no evidence to support that allegation.
(Id.). Plaintiff alleges that unidentified Defendants subjected him to more than 50
days “in isolation as punishment for his use of the grievance process.” (Id., ¶ 94).
Defendant Jefferies allegedly “personally approved this retaliatory action.” (Id.).
The next month, unidentified Defendants allegedly arranged Plaintiff’s transfer to
PCI to impose “additional hardships” on Plaintiff, knowing that Defendant Islam
worked at PCI and would continue to harass Plaintiff as Defendant Shahid had. (Id.,
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¶ 99). Defendants Jefferies, Noble, and Taylor “and others had great sway over”
Defendant Contractor’s false reports and their effect on Plaintiff. (Id., ¶ 102).
Unidentified Defendants have allegedly denied him a reduction in his security level
due to his history of successful grievances challenging his conditions of
confinement and violations of civil rights. (Id., ¶ 107).
As part of their alleged retaliation against him, unidentified Defendants confiscated
Plaintiff’s legal materials and limited his access to other legal materials. (Id., ¶¶
115–19). Unidentified Defendants also failed to process his theft reports after
Plaintiff lost other personal property. (Id., ¶ 120). Further, unidentified Defendants
disrupted his completion of various prison programming by transferring him
between facilities. (Id., ¶¶ 126–30).
Plaintiff filed the initial Complaint (Doc. 1) in October 2016. After the Court
ordered that the Complaint be dismissed, (Docs. 14, 17), the Sixth Circuit directed
it to permit Plaintiff to file an Amended Complaint, (Doc. 24). Plaintiff promptly
filed his Amended Complaint, alleging that Defendants: retaliated against him in
violation of the First Amendment, violated his right to practice his religion, denied
him access to the courts, and are liable for numerous state law contract and tort
claims. (See generally Doc. 30). Defendants Noble, Jefferies, Cahill, Taylor,
Moore, Lawrence, Davis, and Hunyadi (the “ODRC Defendants”) filed a Motion
for Judgment on the Pleadings (Doc. 79). The Motion is fully briefed and ripe for
resolution.
(ECF No. 86, PageID #579–581). After the aforementioned Defendants filed their Motion for
Judgement on the Pleadings, but before the Magistrate Judge issued her July Report and
Recommendation and Order, the case was reassigned to this Judge. (ECF No. 80).
Near the end of her July Report and Recommendation and Order, the Magistrate Judge
denied the Plaintiff’s request for a second opportunity to amend his complaint, finding it not
warranted here. (ECF No. 86, at PageID #585–86). The Court then granted Plaintiff two extensions
to the deadline for him to file any objections. (ECF Nos. 88, 98). Approximately one month before
Plaintiff filed his objection, Plaintiff requested a stay so that he could amend and/or supplement
his amended complaint. (ECF No. 93). The request was denied. (ECF No. 94). When the Plaintiff
then filed his objection, he also filed a motion for leave to amend/supplement his Amended
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Complaint along with the proposed second amended/supplemented complaint. (ECF Nos. 100,
101). Defendants responded in opposition both to Plaintiff’s objection and to Plaintiff’s motion to
amend/supplement his Amended Complaint. (ECF No. 106-1).
On December 16, 2020, Plaintiff filed a “Motion for Declaratory Judgement.” (ECF No.
110).1 That motion is the subject of the December Report and Recommendation and Order. (ECF
No. 112). As part of the order in that Report and Recommendation and Order, the Magistrate Judge
denied Plaintiff’s motion for leave to amend/supplement his Amended Complaint. On January 6,
2021, Plaintiff objected, and Defendants responded on January 20, 2021. (ECF Nos. 114, 116).
II. Statement of Law
If a party objects within the allotted time to a report and recommendation, 28 U.S.C.
§ 636(b)(1) provides that a district court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which the objection is made. The
district court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate.”
However, the standard of review is different when the district court reviews a non-
dispositive order of the magistrate judge, as is the case here. This Court will reconsider the
Magistrate Judge’s order denying leave to amend a complaint only where it has been shown that
the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).
Courts enjoy broad discretion in deciding motions for leave to amend. See Gen. Elec. Co.
v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). A party can amend their pleading “once
as a matter of course” within “21 days after serving it” or if the pleading requires a response, “21
1 Plaintiff dated this Motion November 22, 2020. (ECF No. 110). This case has a history of lag between the
prisoner-Plaintiff’s sending of documents and their receipt at the courthouse. (See, e.g., ECF No. 16).
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days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f).” Fed. R. Civ. Pro. 15(a)(1). After this time has passed, a party may amend its pleading
only with the opposing party’s consent or by leave of court. Id. at 15(a)(2). “[L]eave shall be freely
given when justice so requires.” Id. Defendants have not consented to the amendment.
“A court need not grant leave to amend . . . where amendment would be ‘futile.’” Miller
v. Calhoun Cty, 408 F.3d 803, 817 (6th Cir. 2005) (citing Forman v. Davis, 371 U.S. 178, 182
(1962)). “Amendment of a complaint is futile when the proposed amendment would not permit
the complaint to survive a motion to dismiss.” Id. Importantly, in interpreting this Rule, “[i]t
should be emphasized that the case law in this Circuit manifests liberality in allowing amendments
to a complaint.” Parchman v. SLM Corp., 896 F.3d 728, 736 (6th Cir. 2018) (citation and internal
quotation marks omitted).
III. Discussion
Plaintiff objects to the July Report and Recommendation on the ground that the Magistrate
Judge should have allowed him to file a second amended complaint; he objects to the December
Report and Recommendation for the same reason. (ECF No. 101 at PageID #696; ECF No. 114 at
PageID #815). Plaintiff asserts that he had a right to amend his Amended Complaint under Federal
Rule of Civil Procedure 15(a)(1). (See ECF No. 101 at PageID #696; ECF No. 114 at PageID
#816). He believes this right exists because at the time of the July Report and Recommendation
two Defendants had not yet been served, meaning 21 days had not lapsed since their service. (Id.;
id.). Alternative, he believes this right exists because a party has a right to amend the complaint
after being served a motion to dismiss. (Id.; id.). Plaintiff asserts that the Magistrate Judge should
have allowed him to file a second amended complaint pursuant to Rule 15(a)(2), which allows for
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additional amendments when justice so requires. (See ECF No. 101 at PageID #696–697,699).
This Court has reviewed both the Magistrate Judge’s July Report and Recommendation
and Order, and December Report and Recommendation and Order. In both instances the
Magistrate Judge analyzed and denied Plaintiff’s request for leave to file a second amended
complaint. The Court finds that the Magistrate Judge’s orders denying leave to amend are neither
clearly erroneous nor contrary to law. Moreover, even if these denials were reviewed under a more
stringent standard, the Court would come to the same conclusion.
IV. Conclusion
Accordingly, the Court ADOPTS and AFFIRMS both the July Report and
Recommendation and Order, (ECF No. 86), and the December Report and Recommendation and
Order, (ECF No. 112). The Plaintiff’s objections, (ECF Nos. 101, 114), are OVERRULED. The
Motion for Judgement on the Pleadings (ECF No. 79) is GRANTED, and Defendants Noble,
Jefferies, Cahill, Taylor, Moore, Lawrence, Davis, and Hunyadi are thus entitled to judgment in
their favor. Plaintiff’s Motion for Declaratory Judgement, (ECF No. 110), is DENIED. The
remaining four Defendants in this case are Investigators Christler and Sibalski, Abdul Rahman
Shahid, and Sunni Ali Islam. The Clerk shall remove ECF Nos. 79, 86, 110, and 112 from the
Court’s pending motions list.
IT IS SO ORDERED.
1/21/2021 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
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