# Bethel v. Warden

> District Court, S.D. Ohio · October 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10378737

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

ROBERT BETHEL,
: Case No. 2:20-cv-5275
Plaintiff

v. District Judge Edmund A. Sargus, Jr.
: Magistrate Judge Michael R. Merz
BRANDIE SMITH, et al.,

Defendants. :

REPORT AND RECOMMENDATIONS

This pro se § 1983 case is before the Court on Plaintiff Robert Bethel’s Motion for
Summary Judgment (ECF No. 22). Defendants Brandie Smith, in her individual capacity, and
Timothy Shoop, Warden of the Chillicothe Correctional Institution (“CCI”), in his official
capacity, filed a memorandum contra (ECF No. 23), and Plaintiff has replied (Reply, ECF No.
26). For the reasons set forth below, it is recommended that Plaintiff’s Motion be DENIED.

I. Factual Background and Procedural History
Plaintiff, a capital inmate at CCI, used the JPay system at CCI to communicate
electronically with his aunt and Rachel Troutman, the attorney representing him in his petition for
writ of habeas corpus (Barbara Harper Decl., ECF No. 22-1, PageID 212, ¶ 4; Bethel Decl., ECF
No. 22-1, PageID 215, ¶¶ 6, 9). In July 2020, Plaintiff attempted to send to Troutman a series of
nine emails that contained inflammatory language, calling CCI staff members “racist assholes,”
supporters of the Ku Klux Klan, and “real gangsters” (Pltf. Ex. 4, ECF No. 22-1, PageID 221-29).
Plaintiff was notified that his emails were being censored for, among other reasons, “[u]se of racial
slur words and wrongful allegations of [sic] CCI staff.” (Pltf. Ex. 5, ECF No. 22-1, PageID 230-
38). The emails were eventually sent without redaction to Troutman on July 29, 2020 (Pltf. Ex. 6,
PageID 239).
On July 19, 2020, Plaintiff was issued a conduct report by Smith, the CCI mailroom

supervisor, for violating Rules 26 and 61, “Disrespect to an officer, staff member, visitor or other
inmate; Any violation of any published Institutional rules, regulations or procedures.” (Pltf. Ex.
7, ECF No. 22-1, PageID 241). Smith stated that: “Inmate continues to make false allegations
against CCI staff and appears to be ‘testing’ the JPay rules and regulations on what will be censored
or sent to security.” Id. at PageID 244. Plaintiff was eventually suspended from using JPay for
thirty days (Bethel Decl., ECF No. 22-1, PageID 216, ¶ 17). On September 1, 2020, Plaintiff sent
a “kite” to Smith, asking her if he “would be subject to further conduct reports for voicing
criticisms against CCI staff in outgoing emails.” (Pltf. Ex. 8, ECF No. 22-1, PageID 246). Smith
responded the next day: “I am not the only one who views JPAY. So you may be given another

conduct report again by someone else.” Id. Plaintiff resumed using JPay but ceased criticizing
CCI staff in messages (Pltf. Exs. 9-10, ECF No. 22-1, PageID 247-48).
Plaintiff filed the instant lawsuit on October 8, 2020 (Complaint, ECF No. 1). On
December 18, 2020, Defendants moved to dismiss the complaint in its entirety (Motion, ECF No.
6). On July 9, 2021, the Court adopted the undersigned’s Report and Recommendations,
dismissing official capacity claims against Smith, but allowing the remainder of the lawsuit
(individual capacity claims against Smith and official capacity claims against Shoop) to proceed
(Order, ECF No. 18, PageID 173-74, citing Report, ECF No. 14). Plaintiff filed the instant Motion
on August 2, 2021 (ECF No. 22).
II. Legal Standard
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Summary judgment must be entered “against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party always bears the initial responsibility of informing the court of the basis for its motion, and
identifying those portions of the record which it believes demonstrate the absence of a genuine
issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).
Once the moving party has met its initial burden, the nonmoving party must present evidence that
creates a genuine issue of material fact making it necessary to resolve the difference at trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Once the burden of production has so
shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its

previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rule 56 requires the nonmoving party to go beyond the (unverified) pleadings and present
some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. “The [non-
movant] must present more than a scintilla of evidence in support of his position; the evidence
must be such that a jury could reasonably find for the [non-movant].” Michigan Prot. & Advocacy
Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
“Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. In determining whether a genuine dispute of material fact exists, a
court must assume as true the evidence of the nonmoving party and draw all reasonable inferences
in favor of that party. Id. at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe. Credibility determinations must be left to the fact-finder. 10A
WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE CIVIL 3D, § 2726 (1998).

In determining whether a genuine dispute of material fact exists, a court need only consider
the materials cited by the parties. Fed.R.Civ.P. 56(c)(3). “A district court is not . . . obligated to
wade through and search the entire record for some specific facts that might support the nonmoving
party’s claim.” lnterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). However, the
court may also consider other properly presented materials in the record. Fed. R. Civ. P. 56(c)(3).

III. Analysis
Plaintiff is not entitled to summary judgment on retaliation claim

A retaliation claim essentially entails three elements: (1) the
plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there is
a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff's
protected conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Plaintiff claims that while his “outgoing
emails may have been a potential overstatement of CCI’s purported censorship practices, or even
defamatory or obscene, [the language in the emails] nevertheless was protected speech.” (Motion,
ECF No. 22, PageID 198, citing Procunier v. Martinez, 416 U.S. 396, 399-400, 413-16 (1974),
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). Further, Plaintiff
argues, Smith cannot present evidence that the censorship was motivated by a valid penological
interest; thus, Plaintiff has met the first element. Id., citing Thornburgh, 490 U.S. at 412. As to
the second element, Plaintiff claims that the potential punishment for future infractions—being
placed in administrative segregation—was sufficient to deter a person of ordinary firmness from
continuing to criticize CCI staff. Id. at PageID 199, quoting Thomas v. Eby, 481 F.3d 434, 441
(6th Cir. 2007); citing Ohio Admin. Code §§ 5120-9-07(F)(5)(f), 5120-9-09(A)(4). Finally,

Plaintiff argues that the record shows that Plaintiff engaged in criticism of CCI, he was disciplined
by Smith because of it, and was warned that if he did it again, he may be subject to future discipline.
This is at least a plausible causal chain, he claims, to satisfy the third element. Id. at PageID 200-
01, citing Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 371-72 (6th Cir. 2011).
Defendants focus on the third element. They claim that Plaintiff was not written up because
of the exercise of his free speech rights, but because he violated prison administrative rules (Memo.
in Opp., ECF No. 23, PageID 258-59, citing Ohio Admin. Code § 5120-9-18; Smith Decl., ECF
No. 23-2, PageID 273, ¶ 15). Thus, there is a genuine factual dispute as to whether there is a causal
connection between Plaintiff’s purported protected conduct and the disciplinary actions taken

against him. The resolution of that question rests on a credibility determination between Plaintiff
and Smith; such resolution must be made by the trier of fact. Accordingly, Plaintiff’s Motion
should be denied as to his retaliation claim.

Plaintiff is not entitled to summary judgment on free speech claim
For the same reasons that Plaintiff’s Motion should be denied as to his retaliation claim,
the Motion should be denied as to his free speech claim. Also, the undersigned notes that there is
a genuine issue of material fact as to whether one of the adverse actions complained of in the free
speech claim—censorship of Plaintiff’s JPay messages—actually occurred (See, e.g., Motion, ECF
No. 22, PageID 201 (Plaintiff’s argument that messages were censored); Memo. in Opp., ECF No.
23, PageID 263, citing Plaintiff’s Ex. 6, ECF No. 22-1, PageID 239 (Defendants noting that all
JPay messages were eventually released without redaction or alteration)). Similarly, there is a
dispute as to whether Smith was acting in furtherance of a valid penological interest (rules
violations) (See, e.g., Memo. in Opp., ECF No. 23, PageID 263, citing Smith Decl., ECF No. 23-

2; Reply, ECF No. 26, PageID 288-89). Finally, there is a dispute as to whether the thirty-day
restriction on JPay use, during which time Plaintiff was allowed to communicate via regular mail,
actually constituted censorship (See, e.g., Memo. in Opp., ECF No. 23, PageID 263-64; Smith
Decl., ECF No. 23-2, PageID 273, ¶ 16; Reply, ECF No. 26, PageID 289-90). Again, these are
disputes that must be resolved by the trier of fact. Accordingly, Plaintiff’s Motion should be denied
as to his free speech claim as well.

Smith is not entitled to qualified immunity

In their memorandum contra, Defendants assert that “Smith enjoys qualified immunity.”
(Memo. in Opp., ECF No. 23, PageID 261; see also Answer, ECF No. 21, PageID 185 (raising
qualified immunity as an affirmative defense)). “The doctrine of qualified immunity shields
officials from civil liability ‘so long as their conduct does not violate clearly established statutory
and constitutional rights which a reasonable person would have known.’” Mullenix v. Luna, 577

U.S. 7, 11 (2015), quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Normally, “clearly established law” means binding precedent of United
States Supreme Court, the United States Court of Appeals for the Sixth Circuit, “the district court
itself, or case law from other circuits which is directly on point.” Barrett v. Harrington, 130 F.3d
246, 264 (6th Cir. 1997), citing Bush v. Rauch, 38 F.3d 842, 848 (6th Cir. 1994); Cameron v. Seitz,
38 F.3d 264, 272-73 (6th Cir. 1994). For the right to be clearly established, “existing precedent
must have placed the statutory or constitutional right question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011).

To establish qualified immunity, the officials bear the burden “of presenting facts which,
if true, would establish that they were acting within the scope of their discretionary authority.”
Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991). The burden then shifts to plaintiff
to establish that defendant violated a right so clearly established that any official in his position
would have clearly understood he was under a duty to refrain from such conduct. Silberstein v.

City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
Qualified immunity analysis has two prongs: (1) determining whether the alleged facts,
taken in the light most favorable to the party asserting the injury, show that the officer’s conduct
violated a constitutional right; and (2) deciding if the right was clearly established at the time the

officer acted. Trial judges are now permitted to use their sound discretion in deciding which of
the two prongs of the qualified immunity analysis should be addressed first. Pearson, 555 U.S. at
232, 236.
There is no dispute that Smith acted in her discretionary authority. Thus, the burden shifts
to Plaintiff to show that Smith violated a clearly established right. Plaintiff has designated

sufficient evidence that the adverse action may have been taken in retaliation for his exercise of
free speech. Further, the right of a prisoner not to be retaliated against in response to exercising
his First Amendment rights was clearly established at the time Smith issued the conduct report and
at the time the JPay suspension was issued. See Maben v. Thelen, 887 F.3d 252, 270 (6th Cir.
2018), citing Bell v. Johnson, 308 F.3d 594, 612 (6th Cir. 2002) (“We have made clear that a prison
officer may not undertake adverse actions in retaliation for a prisoner's exercise of his First
Amendment rights.”). Thus, Smith is not entitled to qualified immunity on the retaliation claim.

Moreover, the right to non-interference with communication was clearly established at the
time that Plaintiff’s JPay messages were delayed. Plaintiff directs the Court to Brooks v. Andolina,
in which the Third Circuit rejected a qualified immunity claim, stating that it was clearly
established that prison officials could not interfere with an inmate’s exercising his free speech
rights through written communication, even if (as in that case and the instant case) the
communications were eventually released uncensored (Motion, ECF No. 22, PageID 206-07,
citing Procunier, 416 U.S. at 413; Brooks, 826 F.2d 1266, 1267-69 (3rd Cir. 1987)). Even though
Brooks is out-of-Circuit, it is directly on point. Thus, it can be considered clearly established law.
Barrett, 130 F.3d at 264. In both instances, the prisoner received a misconduct report from the
individual defendant as a result of the contents of his written communication. Moreover, one of

the reasons that the qualified immunity defense was denied was that “[a]t no time during the
disciplinary proceedings did the prison officials allege that Brooks’s letter presented a threat to
prison security.” Brooks, 826 F.3d at 1268. Similarly, Smith concedes that there were no security
concerns in Plaintiff’s emails, which is why they were released to Troutman. Smith Decl., ECF
No. 23-2, PageID 273, ¶ 12. Thus, in the light most favorable to Plaintiff, the disciplinary action
taken against him—issuance of the conduct report—violated his clearly established rights. Brooks,
826 F.2d at 1268-69. Smith should not receive qualified immunity on Plaintiff’s free speech claim.

Plaintiff is not entitled to damages at this juncture

Plaintiff argues that he is entitled to declaratory and injunctive relief and nominal,
presumed, and punitive damages (Motion, ECF No. 22, PageID 207). Defendants dispute
Plaintiff’s entitlement to injunctive relief (Memo. in Opp., ECF No. 23, PageID 264-65). As
Plaintiff should not receive judgment in his favor at this point, the undersigned need not consider
the propriety of Plaintiff’s damages requests.

IV. Conclusion

For the foregoing reasons, it is recommended that Plaintiff’s Motion for Summary
Judgment (ECF No. 22) be DENIED. Plaintiff’s individual capacity claims against Smith and
official capacity claims against Shoop should proceed to trial.

October 4, 2021.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378737. Public record. Not legal advice.