# Tolliver v. Noble

> District Court, S.D. Ohio · September 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10380927

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 20, 2022
- **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

KEVIN A. TOLLIVER,

Plaintiff,

v. Civil Action 2:16-cv-1020
Judge Edmund A. Sargus
Magistrate Judge Jolson

WARDEN NOBLE, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on the Defendant Abdul Rahman Shahid’s Motion for Leave
to File Summary Judgment (Doc. 187) and Motion for Summary Judgment (Docs. 188, 190). For
the reasons that follow, Defendant’s Motion for Leave to File Summary Judgment (Doc. 187) is
GRANTED. It is RECOMMENDED that Defendant’s Motion for Summary Judgment (Docs.
188, 190) be DENIED.
I. BACKGROUND
The Court previously summarized the allegations from Plaintiff’s Amended Complaint:
Plaintiff is an inmate at Grafton Correctional Institution, who has previously been
incarcerated at London Correction[al] 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 [Crisler] and [Sabulsky] “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 [Sabulsky] 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 [Sabulsky] 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). . . .

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., ¶ 99). . . .
(Doc. 86 at 1–3).
The Court previously dismissed several Defendants from the case and narrowed Plaintiff’s
allegations to First Amendment retaliation claims against four Defendants. (Docs. 117, 149).
Three of the four Defendants then had summary judgment granted in their favor. (Doc. 183).
Defendant Shahid, having failed to move for summary judgment by the dispositive motion
deadline, later secured representation (Doc. 186), and now brings a Motion for Leave to File
Summary Judgment (Doc. 187) and Motion for Summary Judgment (Docs. 188, 190). Plaintiff
has opposed both Motions (Docs. 203, 204), to which Defendant did not reply. The Motions are
fully briefed and ripe for consideration.
II. STANDARD
Summary judgment is granted when “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 is appropriately 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). When a
defendant shows there is insufficient evidence to support any element of the plaintiff’s claim and
moves for summary judgment, the burden shifts to the plaintiff to demonstrate a genuine issue for
trial on which a reasonable jury could return a verdict in its favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Evidence is viewed in the light most favorable to the nonmoving party, meaning that
“any direct evidence offered by the [nonmovant] in response to a summary judgment motion must
be accepted as true.” Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004), citing Liberty Lobby,
477 U.S. at 251–52, and Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). Ultimately, the Court

asks “whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S.
at 251–52.
III. DISCUSSION
A. Motion for Leave to File
As a threshold matter, the Undersigned must decide whether to allow the filing of
Defendant’s Motion for Summary Judgment out of time. Defendant brought his Motion for Leave
to File Summary Judgment (Doc. 187) on April 14, 2022. The dispositive motion deadline was
September 20, 2021. (Doc. 149). Plaintiff has opposed the Motion. (Doc. 203).
In essence, Defendant requests a modification of the scheduling order. Under Federal Rule
of Civil Procedure 16, a scheduling order “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Kirby v. Diversified Fabrications, Inc., No.

1:08-CV-83, 2010 WL 11520004 (E.D. Tenn. Mar. 26, 2010). The Undersigned finds that good
cause supports the modification of the scheduling order here. After the other dispositive motions
in the case were resolved, Plaintiff and Defendant came before the Court for a status conference.
(Doc. 184). At that conference, Defendant represented that he had misunderstood his obligations
in responding to Plaintiff’s claims, and the Court subsequently afforded him time to secure
representation (Doc. 185), which he did (Doc. 186). Now that Defendant is aware of his
opportunity to move for summary judgment, and has counsel to assist him in doing so, good cause
supports allowing the late filing of his Motion. Namely, modification allows consideration of
Plaintiff’s claim on its merits, and because Plaintiff has responded to the Motion for Summary
Judgment, he will not be prejudiced by such modification.

Accordingly, Defendant’s Motion for Leave to File Summary Judgment (Doc. 187) is
GRANTED.
B. Motion for Summary Judgment
The only remaining claim against Defendant is for alleged retaliation in violation of
Plaintiff’s First Amendment rights. Defendant maintains that he “only recalls one interaction with
Plaintiff and otherwise had nothing to do with him and any discipline measures he may have
undergone.” (Doc. 188 at 2).1 This, he says, is supported not only by his affidavit, but also the

1 The Undersigned makes citation to Defendant’s first-filed Motion for Summary Judgment (Doc. 188). After the
Clerk of Court issued a notice asking Defendant to refile the Motion as a text-searchable document (Doc. 189), he
filed a second version of the Motion (Doc. 190). Rather than merely being a text-searchable copy of the first Motion,
other evidence already filed in this action. (Id.). The Undersigned disagrees. Rather, the evidence
submitted by other Defendants in this action suggests that Defendant Shahid was critically
involved in the chain of events that led to Plaintiff being placed in administrative segregation.
Investigator Sean Sabulsky attests that on or shortly before September 6, 2016, Defendant

Shahid approached him and informed him that he had concerns about Plaintiff because the two
had “clashed at a previous institution over religious matters and the manner in which the Imam
was providing services for Muslim inmates.” (Doc. 154-1, ¶ 6). He further says that Defendant
Shahid planned to complete a nexus form regarding Plaintiff, which “is a document completed by
prison staff or contractors to request the transfer of an inmate for, among other reasons, personal
conflicts between a staff member(s) and an inmate.” (Id., ¶ 7). According to Sabulsky, Plaintiff’s
placement in administrative segregation followed then as a matter of course: “It is standard
procedure for an inmate to remain in segregated housing when a nexus is completed due to a
staff/inmate conflict until either the conflict is resolved or the inmate is transferred to another
institution.” (Id., ¶ 12). The Warden of LoCI then purportedly submitted a request to transfer

Plaintiff to a different institution “to separate him from Imam Shahid[,]” and such transfer was
completed on October 25, 2015. (Id., ¶¶ 13–14). These facts were all affirmed by Investigator
Matthew Crisler. (Doc. 154-2, ¶¶ 6, 7, 12, 13–14).
The investigators’ representations simply do not square with Defendant’s account that he
“was not involved in any way with Plaintiff’s discipline[,]” and “not involved with the handling
or as a witness relating to any of the prison disciple [sic] or other matters relating to Plaintiff.”
(Doc. 188-1, ¶ 6). Nor does Defendant identify any evidence in the record (aside from his own
affidavit) that supports his account. At base, the evidence adduced by Defendant is insufficient

the content of that Motion is distinct. However, given that the second version refers to only a dismissed Defendant
and a dismissed claim (see Doc. 190), the Undersigned considers it a mistaken filing—and, in any instance, immaterial.
for the Court to find, for the purposes of summary judgment, that he was not involved in the act of
retaliation alleged by Plaintiff.
Defendant undertakes no consideration of the elements of the retaliation claim, and
therefore has not argued that there is insufficient evidence to support any element of Plaintiff’s

claim. (See Doc. 188). Briefly, the Undersigned considers the evidence supporting the elements
of Plaintiff’s claim. A First Amendment retaliation claim has 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)
(en banc).
First, Plaintiff clearly engaged in protected conduct. His use of the grievance process to
lodge complaints against Defendant is well documented. (Doc. 161 at 30–32; Doc. 161-1 at 1–3).
And “a prisoner has a First Amendment right to file grievances against prison officials,” so long

as he is not utilizing the grievance system to violate a legitimate prison regulation. Smith v.
Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
Second, the record sufficiently supports that adverse action was taken against Plaintiff.
Plaintiff alleges he was placed in administrative segregation following Defendant’s report. (Doc.
30, ¶¶ 89, 91, 94, 98–99). “In the prison context, an action comparable to transfer to administrative
segregation would certainly be adverse.” Thaddeus-X, 175 F.3d at 396; see also Hill v. Lapin, 630
F.3d 468, 474 (6th Cir. 2010) (“This court has held that restricting a prisoner’s housing by placing
him in administrative segregation constitutes an adverse action.”). The record suggests that
Plaintiff went into administrative segregation on September 6, 2016, in response to Defendant’s
reported conflicts. (Doc. 154-1, ¶ 12; Doc. 154-2, ¶ 12; Doc. 154-3 at 1). Plaintiff remained in
segregated housing until his transfer to PCI, on October 25, 2016. (Doc. 154-1, ¶ 14; Doc. 154-2,
¶ 16; Doc. 154-5 at 13–14).
Finally, Plaintiff must demonstrate that his segregation was motivated at least in part by

his use of the grievance system. In Plaintiff’s rendering of the events, it was. He purports that
Defendant filed the nexus form with the intention to retaliate against him for his earlier use of the
grievance system to complain about Defendant’s religious services, and that Defendant knew the
filing of the nexus form would lead to Plaintiff’s segregation and potential transfer. (See, e.g.,
Doc. 154-6 at 40) (Plaintiff describing that he was “placed in segregated housing under
investigation upon an allegation from Abdul Rahman Shahid[,]” and that the at-issue “[s]taff nexus
was an abuse of process that violated [his] [F]irst [A]mendment right to redress grievances . . . .”).
Though Defendant did not personally confine Plaintiff in administrative segregation (the
investigators did), “protected speech causes an adverse action if the speech motivates an individual
actor to take acts that then proximately cause an adverse action.” King v. Zamiara, 680 F.3d 686,

695 (6th Cir. 2012). In other words, Plaintiff “must show both (1) that the adverse action was
proximately caused by an individual defendant’s acts, but also (2) that the individual taking those
acts was motivated in substantial part by a desire to punish an individual for exercise of a
constitutional right[.]” Id. (citations and quotation marks omitted).
Defendant seemingly challenged the first of these prongs, proximate cause, with his blanket
assertion that he had nothing to do with Plaintiff’s discipline. (Doc. 188 at 2). Yet, as highlighted
above, the evidence submitted by the investigators suggests that Defendant’s report of conflicts
with Plaintiff and his stated intention to file a nexus form set in motion a chain of events in which
Plaintiff’s placement in administrative segregation was not only a foreseeable consequence, but
one required by ODRC policy. (See Docs. 154-1, 154-2). Defendant does not rebut the
investigators’ testimony. Thus, it is reasonable to conclude that Defendant “set[ ] in motion an
adverse action” which was “the reasonably foreseeable consequence[ ] of his actions.” King, 680
F.3d at 695.

Plaintiff further adduced evidence supporting the second retaliatory motive prong of
causation. First, he alleges Defendant made comments which evince retaliatory intent. (Doc. 161
at 31–32) (2014 grievances in which Plaintiff purports that Defendant said “All you snitches keep
my name out your mouth and off your paperwork[,]” and “My friend . . . suggested I start pushing
my own paper against those of you who put paper on me . . . .”); (Doc. 30, ¶¶ 78–79) (alleging
threatening comments made by Defendant in 2016 at LoCI, including, “For those of you who think
you know how to get rid of me, wait and see how I know how to get rid of you.”). Additionally,
Plaintiff submitted affidavits from several individuals who corroborate Defendant’s retaliatory
motivation. Particularly, Romel Williams says he experienced the same pattern of retaliation from
Defendant. (Doc. 161 at 29). Like Plaintiff, he says he filed grievances against Defendant while

incarcerated at MaCI and encountered Defendant later at LoCI. (Id.). Defendant then purportedly
made retaliatory false charges against Mr. Williams, which led to his segregation and eventual
transfer. (Id.). Two other witnesses, Joshua Woods and Michah Wright, who spent time
incarcerated with Plaintiff and Mr. Williams, say they can support these instances of retaliation.
(Doc. 161 at 27–28). Defendant has made no attempt to rebut the witness statements or Plaintiff’s
allegations about Defendant’s own remarks.
To be clear, the Undersigned makes no suggestion that Plaintiff has adduced evidence
sufficient to ultimately prevail on his claim of retaliation. But, viewing the evidence in a light
most favorable to Plaintiff, and given that Defendant has not meaningfully produced
countervailing evidence, the Undersigned must conclude that Defendant is not entitled to summary
judgment. Defendant has simply not made a showing that Plaintiff’s evidence is insufficient
regarding any element of the retaliation claim. Accordingly, it is RECOMMENDED that
Defendant’s Motion for Summary Judgment (Docs. 188, 190) be DENIED.

IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Leave to File Summary Judgment (Doc.
187) is GRANTED. It is RECOMMENDED that Defendant’s Motion for Summary Judgment
(Docs. 188, 190) be DENIED.
V. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: September 20, 2022 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380927. Public record. Not legal advice.