“At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” (citation omitted)
How later courts described this case
- “At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” (citation omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Curtis Al’ Shahid,
Plaintiff, Case No. 2:18-cv-33
Vv. Judge Michael H. Watson
Gary C. Mohr, ef ai., Magistrate Judge Deavers
Defendants.
OPINION AND ORDER
Curtis Al’ Shahid (“Plaintiff”), a prisoner proceeding pro se, originally sued
Andre Imbrogno (“Imbrogno”), former Chairperson of the Ohio Parole Board
Authority (“OPBA”), and Gary Mohr (“Mohr”), former Director of the Ohio
Department of Rehabilitation and Corrections (“ODRC”), under 42 U.S.C. § 1983.
Am. Compl., ECF No. 7. Plaintiff alleged they falsified information about his
criminal conviction in a Parole Board Information Sheet (“report”) submitted to the
OPBA and Ohio legislature to sabotage his parole hearing, in violation of his due
process rights. /d. J] 7-8. The magistrate judge determined on an initial screen
that Plaintiff could proceed with that claim. Order, ECF No. 10.
The Court thereafter substituted Stuart Hudson (“Hudson”), who was
named interim Director of ODRC,' for Mohr and Trayce Thalheimer
1 Annette Chambers-Smith, the current Director, is automatically substituted under the
same rule. It appears Mohr and Imbrogno were improperly terminated as defendants
upon the substitution. They should have remained as defendants on the personal-
(“Thalheimer”) (together, “Defendants”), who replaced Imbrogno as Chairperson
of the OPBA upon Imbrogno’s passing, as defendants on the official-capacity
claims pursuant to Federal Rule of Civil Procedure 25(d). Order, ECF No. 13.
Defendants later moved to dismiss Plaintiffs Complaint, Mot. Dismiss,
ECF No. 16, and the magistrate judge issued a Report and Recommendation
(“R&R”) recommending the Court grant in part and deny in part that motion.
R&R, ECF No. 24. Plaintiff failed to timely object to that R&R, the Court adopted
it without further review, and dismissed the claims against Defendants in their
official capacities for damages. Order, ECF No. 31.
Defendants moved for summary judgment on the remainder of the claims,
Mot. Summ. J., ECF No. 77, and the magistrate judge issued an R&R
recommending the Court grant that motion. R&R, ECF No. 85. The R&R
recommended dismissing Plaintiff's official-capacity claims for injunctive relief as
moot in part after concluding that the undisputed evidence showed that Plaintiffs
prior parole hearing result was rescinded, a corrected report was provided to
OPBA, and Plaintiff was granted a new parole hearing based on the corrected
report. /d. at 12-15. The R&R further concluded that, although the request for
an injunction ordering Defendants to send a corrected report to the Ohio
capacity claims. As for the personal-capacity claim against Imbrogno, who passed
away on June 27, 2018, there was no suggestion of death filed on the record or motion
to substitute. Even assuming Plaintiffs claim against Imbrogno in his personal capacity
was not extinguished and that a proper party was substituted, it fails on the merits for
the reasons addressed below.
Case No. 2:18-cv-33 Page 2 of 6
legislature was not moot, Plaintiff was not entitled to such relief because his case
did not qualify for review by the legislature due to his age. /d. at 15-16.
In sum, the R&R recommended that the Court dismiss all of Plaintiff's
official-capacity claims against Hudson and Thalheimer insofar as they sought
injunctive relief. Plaintiff did not timely object to that portion of the R&R, and the
Court therefore ADOPTS it without further review.
Regarding Plaintiff's individual-capacity claims against Mohr and Imbrogno
for damages, the R&R recommended dismissal due to Plaintiff's inability to raise
a genuine dispute of material fact regarding their personal involvement in any
unconstitutional conduct. /d. at 17-19 (noting Plaintiff testified at deposition that
Imbrogno and Mohr did not personally submit false information but were aware
that a person not named in the lawsuit submitted the false information).
In his objections, Plaintiff does not dispute the R&R’s conclusion that
Plaintiffs claim against Mohr fails because there is no respondeat superior
liability under § 1983. Obj. 3, ECF No. 88. The Court ADOPTS this conclusion
as well without further review.
Plaintiff has, however, timely objected to the portion of the R&R that
recommends granting summary judgment to Imbrogno based on lack of personal
involvement. Obj. 1, 3, ECF No. 88. He argues that the magistrate judge
committed an abuse of discretion by weighing the evidence and making
credibility determinations at the summary judgment stage: failing to view the
evidence in the light most favorable to Plaintiff; and concluding the record was
Case No. 2:18-cv-33 Page 3 of 6
void of evidence that Imbrogno authorized the placement of false information in
Plaintiff's file. fd. at 3.
As a preliminary matter, the Court does not apply an abuse of discretion
standard of review. The R&R was issued pursuant to Federal Rule of Civil
Procedure 72(b), and the Court reviews the properly objected-to portion of the
R&R de novo.
Plaintiff argues that a genuine dispute of material fact exists in this case as
to Imbrogno’s personal involvement in the inclusion of false information in the
report. See Obj. 4, ECF No. 88. Plaintiff supports this assertion first with a
citation to his own deposition testimony wherein he testified that, as Chairperson,
Imbrogno was “responsible for reviewing any information that may be erroneous
or false.” Al’ Shahid Dep. 106:8~12, ECF No. 76-1. But Plaintiff's opinion that
Imbrogno was responsible for reviewing any information that may be false is not
relevant, not based on personal knowledge, and inadmissible. Further, in the
very same answer at deposition, Plaintiff continued by stating,
[t]he person who | haven’t named in my lawsuit, . . . the facilitator, is
the one... like Brenda Parker, that’s the facilitator who obviously
changed this or corrected this. That person knew. | mean it’s
obvious [sic] knew that the information that they was putting in my
parole file information records knew that the information was
incorrect.
Id. at 106:12-19. He further clarified that his theory was that Imbrogno “ignored .
. . [his] responsibility in correcting the information. . . . They knew that the
information was incorrect, and they refused to change it.” /d. at 107:24—108:3.
Case No. 2:18-cv-33 Page 4 of 6
But Plaintiff cites to nothing to support his assertion that Imbrogno knowingly
permitted false information in the report to be submitted to OPBA. In short,
Plaintiffs own deposition testimony is not evidence from which a jury could find
Imbrogno was personally involved in the submission of false evidence. Bellamy
v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (“At a minimum, a § 1983 plaintiff
must show that a supervisory official at least implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending
subordinate.” (citation omitted)).
Second, Plaintiff argues that Thalheimer’s responses to Plaintiff's first set
of interrogatories is evidence of Imbrogno’s personal involvement, but he does
not cite to any specific response. The Court has reviewed the responses and
finds they do not support Plaintiff's allegation that Imbrogno personally included
or approved the inclusion of false information contained in the report.2 See
Thalheimer Resp. Interr. #3, ECF No. 68-1 at PAGEID # 522 (which does not
state that the chairperson has a duty to review information for accuracy); id. at
# 18, PAGE ID # 527 (“Response: Brenda Bonn was the Parole Board Parole
Officer who prepared the information for the parole hearing.”).
Accordingly, Plaintiff failed to raise a genuine dispute of material fact
regarding Imbrogno’s personal involvement in the inclusion of false information
before the OPBA.
2 Nor would a grant of Plaintiff's pending motion to compel possibly result in such
evidence, which makes Plaintiffs motion to compel moot.
Case No. 2:18-cv-33 Page 5 of 6
Plaintiff also appears to argue on objection that he raised a genuine
dispute of material fact regarding whether Imbrogno retaliated against him. Obj.
5, ECF No. 88.
But as the R&R found, Plaintiff did not include a retaliation claim in his
Complaint and cannot expand his causes of action in his response to a summary
judgment motion. R&R 19-20, ECF No. 85. Plaintiff does not object to that legal
proposition, asserting only that he raised a genuine dispute of material fact
regarding the merits of a retaliation claim. Obj. 5, ECF No. 88. Because Plaintiff
cannot expand his causes of action through responding to a summary judgment
motion, his objection regarding the merits of such a claim are irrelevant.*
IT §S SO ORDERED.
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
3 The argument is also incorrect. Plaintiff argues that his deposition testimony raises a
genuine dispute of material fact regarding whether Imbrogno retaliated against Plaintiff
by convening a new parole hearing with the corrected information. At deposition,
Plaintiff was asked what proof he had that Imbrogno retaliated against him, and Plaintiff
responded, “the proof that | have is that, you know, the witnesses that I’m going to
cail[,]” namely Shirley Smith and Karen Kasler. Al’ Shahid Dep. 109:2-18, ECF No. 76-
1. This testimony that Plaintiff will be able to prove his allegation at trial is insufficient to
raise a genuine dispute of material fact.
Case No. 2:18-cv-33 Page 6 of 6