Kendrick v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Mark Kendrick,

Plaintiff,

v. Case No. 1:21-cv-00266

Warden Ronald T. Erdos, et al., Judge Michael R. Barrett

Defendants.

OPINION & ORDER

This matter is before the Court on the Magistrate Judge's September 7, 2021

Report and Recommendation ("First R&R") (Doc. 15) and June 14, 2022 R&R ("Second

R&R") (Doc. 42).

I. STANDARD OF REVIEW

With respect to non-dispositive matters, "[w]hen a pretrial matter not dispositive of

a party's claim or defense is referred to a magistrate judge to hear and decide," and when

the Court receives timely objections to an R&R, "the district judge in the case must

consider timely objections and modify or set aside any part of the order that is clearly

erroneous or is contrary to law." FED. R. CIV. P. 72(a). The "clearly erroneous" standard

applies to the magistrate judge's factual findings and the "contrary to law" standard

applies to the legal conclusions. Sheppard v. Warden, Chillicothe Corr., Inst., 1:12-CV-

198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013). A factual finding is clearly erroneous

when, "although there is evidence to support it, the reviewing court on the entire evidence

is left with a definite and firm conviction that a mistake has been committed." Id. (quoting

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Legal conclusions should

be modified or set aside if they "contradict or ignore applicable precepts of law, as found

in the Constitution, statutes, or case precedent." Id. (quoting Gandee v. Glaser,

785 F. Supp. 684, 686 (S.D. Ohio 1992)).

With respect to dispositive matters, and when the Court receives timely objections

to an R&R, the assigned district judge "must determine de novo any part of the magistrate

judge's disposition that has been properly objected to." FED. R. CIV. P. 72(b)(3). "The

district judge may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions." Id.

II. ANALYSIS

Plaintiff filed this civil rights action as a self-represented, currently incarcerated

prisoner against Defendants Erdos, Chambers-Smith, Mahlman, Green, Goodwin,

Conley, Ross, Joseph, and Reuter—regarding events at the Southern Ohio Correctional

Facility1 ("SOCF")—pursuant to 42 U.S.C. § 1983. (Doc. 13). Section 1983 creates no

substantive rights, but merely provides remedies for deprivations of rights established

elsewhere. Tuttle v. Oklahoma City, 471 U.S. 808 (1985). Section 1983 has two basic

requirements: (1) state action that (2) deprived an individual of federal statutory or

constitutional rights. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340, 351 (6th Cir.

2001) (first citing Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998); and then citing United

of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992)).

a. First R&R

The Magistrate Judge provided a complete review of Plaintiff's allegations in the

Amended Complaint and the same will not be repeated herein. The Magistrate Judge

1 Plaintiff was subsequently transferred to Ross Correctional Institution, where he now resides. (Doc. 32).

recommends permitting Plaintiff's Second Count2 and Third Court,3 regarding Defendants'

alleged deliberate indifference regarding Plaintiff's medical care, to move forward and

dismissing Plaintiff's First Count4 and Fourth Count,5 regarding Defendants' actions

regarding SOCF's grievance procedures.

i. First Set of Objections (Doc. 30)

Plaintiff first objects to the recommendation that his claims against any Defendant

in his or her official capacity must be dismissed to the extent that Plaintiff seeks monetary

damages. Compare (Doc. 15 PageID 276-77), with (Doc. 30 PageID 342, 347-49).

Contrary to Plaintiff's objection otherwise, "[t]he Eleventh Amendment to the United

States Constitution bars claims for damages against a state, its agencies, and its

employees in their official capacities unless a state has a waived its immunity." Vick v.

Core Civic, 329 F. Supp. 3d 426, 447 (M.D. Tenn. 2018) (citing Quern v. Jordan, 440 U.S.

332, 337 (1979)). Each Defendant in this matter is an employee of Ohio and any

Defendant in this matter who is sued in his or her official capacity is entitled to Eleventh

Amendment immunity unless Ohio has waived that immunity. See id. at 450.

2 That Defendants Erdos and Chambers-Smith, in their official capacities only, Chambers-Smith, and

Goodwin, in her individual capacity only, were deliberately indifferent by promulgating a policy or custom

not to provide adequate medical care to inmates with documented medical conditions and to use

psychotropic or other experimental drugs for the treatment of pain.

3 That Defendants Conley and Ross, in their individual capacities only, were deliberately indifferent and

negligent, under state law, by: prescribing medications for ailments that Plaintiff did not have, which caused

injuries to Plaintiff; taking away his daily inhaler and continuing to deny that inhaler; denying Plaintiff an

emergency inhaler; failing to properly investigate Plaintiff's alleged injuries through an MRI; and, as to

Defendant Conley, by discontinuing the drug Imitrex for Plaintiff's migraines upon Plaintiff's arrival to SOCF.

4 That Defendants Erdos, Chambers-Smith, and Mahlman were deliberately indifferent by promulgating

policies or customs to obstruct Plaintiff's and other prisoners' access to the prison's grievance procedure.

5 That Defendants Erdos, Greene, Mahlman, Joseph, Goodwin, and Reuter were deliberately indifferent,

failed to protect Plaintiff, violated Plaintiff's due process rights, and denied him access to the courts by

obstructing and failing to respond to Plaintiff's grievances.

Ohio has not waived that immunity, see Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir.

1999), and Plaintiff may not claim damages against any individual Defendant in his or her

official capacity. Plaintiff is correct that Eleventh Amendment immunity does not protect

Defendants against damages claims in their individual capacities, but the Magistrate

Judge did so find, hold, or recommend such protection. Compare (Doc. 15 PageID 276-

77), with (Doc. 30 PageID 342, 347-49).

Plaintiff next objects to the Magistrate Judge's recommendations that Plaintiff's

First Count and Fourth Count should each be dismissed. Compare (Doc. 15 PageID 277-

79), with (Doc. 30 PageID 343, 349-66). As Plaintiff addresses his objections regarding

his First and Fourth Counts in tandem, the Court will too. See (Doc. 30 PageID 343, 349-

66).

A review of Plaintiff's First Count reveals Plaintiff's allegations against Defendants

Erdos, Chambers-Smith, and Goodwin regarding their alleged development and

maintenance of customs or policies that exhibit "deliberate indifference to the

Constitutional rights of individuals held at SOCF." (Doc. 13 ¶¶ 56-58). Plaintiff then alleges

both that "[i]t was the custom or policy to obstruct access to administrative remedies and

deny meaningful assistance upon request in proper exhaustion of the grievance process

to delay or stop prisoners from accessing the Court and to create opportunity for

Defendants to have affirmative defense" and "[i]t was the custom or policy to fail to

properly create and execute specific plans to deal with staff whom abuse and obstruct the

grievance process." (Id. ¶¶ 59-60).

A review of Plaintiff's Fourth Count reveals Plaintiff's allegations against

Defendants Erdos, Greene, Mahlman, Joseph, Goodwin, and Reuter regarding their

alleged "deliberate indifference, cruel and unusual punishment, failure to protect,

obstruction of grievance procedure, abuse of process, denied due process, obstruction

access to the Court" and violation of Plaintiff's "constitutional right." (Doc. 13 ¶¶ 78-80).

Plaintiff then alleges different ways that these Defendants allegedly obstructed and

abused the prison's grievance procedure "to stop Plaintiff from properly exhausting [his

administrative remedies] thereby delaying Plaintiff from accessing the Court for

5 months." (Id. ¶ 85).

The Magistrate Judge recommends dismissal of Count One and Count Four, as

inmates do not have a federal constitutional right to an effective grievance process.

(Doc. 15 PageID 277-79).

In his objections, Plaintiff states that he is not arguing about "what rights an

ineffective prison grievance systems allows [him] to have," and "is attempting to use" his

rights under the Eighth and Fourteenth Amendments. (Doc. 30 PageID 352). However,

Plaintiff fails to establish that he has an Eighth, Fourteenth, or any constitutional right

relating to grievance procedures at SOCF. And, it is well-settled that a prisoner has

neither a federal constitutional right to an effective grievance procedure nor a due process

interest in having his grievances resolved or investigated to his satisfaction. See, e.g.,

Clement v. Macomb Corr. Facility, No. 2:22-CV-10853, 2022 WL 2292720, at *2 (E.D.

Mich. June 24, 2022) (collecting cases). Without a constitutional right to point to, Plaintiff

cannot allege the denial of a constitutional right, a requirement for his claims under

Section 1983. See Monaco v. John Doe, No. 2:22-CV-2888, 2022 WL 4291781, at *8

(S.D. Ohio Sept. 16, 2022).

Plaintiff also disagrees with the Magistrate Judge's holding that Count Four fails to

the extent that Plaintiff alleges that, because of Defendants' alleged obstruction and

abuse of the prison's grievance procedures, he is unable to exhaust his administrative

remedies and unable to file claims in federal courts. Compare (Doc. 15 PageID 278-79),

with (Doc. 30 PageID 352-54). The Magistrate Judge is correct. If an SOFC employee

dismisses a non-frivolous grievance by a plaintiff, then that plaintiff can appeal that

decision. See Paolone v. Altiere, No. 4:12-CV-1344, 2012 WL 5463871, at *3 (N.D. Ohio

Nov. 8, 2012). When that plaintiff has no other remedies available to him to exhaust his

grievance, a district court would then be able to hear a related federal claim, because all

possible administrative remedies would have been attempted. See id. "A corrections

officer therefore cannot prevent an inmate from proceeding to court by refusing to accept

a grievance or an appeal." Id. (emphasis added).6

Finally, Plaintiff attaches 67 pages of exhibits to his first set of objections and asks

the Court to review these exhibits as "evidence to support policies and/or customs that

cause constitutional violations and documentation that Defendants were informed and

failed to act." (Doc. 30 PageID 354-66); (Doc. 30-1). The Court will not do so. This is new

evidence that was not presented to the Magistrate Judge at the time of the issuance of

the First R&R. Plaintiff can refer to such evidence for the Court's consideration later.

6 The merits of the question of whether Plaintiff properly exhausted Counts Two and Three against the

remaining Defendants is not yet before the Magistrate Judge or the undersigned. Cf. Wiley v. Kentucky

Dep't of Corr., No. 19-5368, 2020 WL 12933851, at *3 (6th Cir. Aug. 25, 2020); Ratliff v. Graves, 761 F.

App'x 565, 567 (6th Cir. 2019); Freeman v. Headley, No. 2:18-CV-00068, 2020 WL 1000338, at *4 (W.D.

Mich. Feb. 6, 2020) (explaining that, in rare circumstances, prisoners will be excused from the Prison

Litigation Reform Act's exhaustion requirement when the prisoner can show that (1) prison officials are

unable or consistently unwilling to provide relief and the exhaustion procedures may have provided relief,

or (2) "where prison administrators thwart inmates from taking advantage of a grievance [or other

administrative] process through machination, misrepresentation, or intimidation." (citing Ross v. Blake,

578 U.S. 632, 643-44 (2016))).

ii. Second Set of Objections (Doc. 33)

Although Plaintiff's second set of objections to the First R&R are untimely, the

Court will review the arguments therein out of an abundance of caution. In short, though,

Plaintiff's filing comprises his general disagreement with the Sixth Circuit's precedent

regarding the dismissal of claims concerning prison grievance procedures at the

screening stage and his allegations that this precedent improperly "protects" Defendant

Mahlman from her alleged role in the alleged pattern of corruption regarding SOCF's

grievance procedures. See, e.g., (Doc. 33 PageID 451) ("Plaintiff has legitimate concerns

about the precedent being used to dismiss sections of his claim that also protect Inspector

Mahlman from litigation."). Plaintiff’s general policy arguments provide no ground for this

court to ignore binding Sixth Circuit precedent. To extent that he disagrees with the legal

determinations made by the Court in this case regarding the dismissal of his claims

regarding prison grievance procedures at the screening stage under current precedent,

he is free to raise such disagreements in whatever avenues for appeal that he may have.

Cf. Breckenridge v. Turner, No. CIV.A. 2:07-CV-988, 2008 WL 3200667, at *1 (S.D. Ohio

Aug. 6, 2008), report and recommendation adopted, No. 2:07-CV-988, 2008 WL 4114543

(S.D. Ohio Aug. 28, 2008) ("Plaintiff argues that the exhaustion requirement of the PLRA

is unconstitutional. However, the United States Supreme Court has upheld the exhaustion

requirement of the PLRA on more than one occasion." (first citing Jones v. Bock, 549 U.S.

199 (2007); then citing Woodford v. Ngo, 548 U.S. 81 (2006); and then citing Porter v.

Nussle, 534 U.S. 516 (2002))).

Plaintiff also states that, "[i]n this case there is a bit more than just a break down

in [Defendant Mahlman]'s office services, and "[i]n light of [Defendant Mahlman]'s recent

retaliation against Plaintiff and new evidence," "Plaintiff believes there to be union

interference and an element of retaliation within portions of dismissed claims," and

requests "an opportunity to amend and add retaliation to his [Amended] Complaint." (Id.

PageID 455-56). However, "[a] prisoner cannot materially alter his complaint in his

objections to a magistrate judge's screening report; he must seek leave to amend the

complaint." Frazier v. Kisor, No. 19-12419, 2021 WL 3417920, at *4 (E.D. Mich. Aug. 5,

2021); cf. Bates v. Green Farms Condo. Ass'n, 958 F.3d 470, 483-84 (6th Cir. 2020) ("If

plaintiffs believe that they need to supplement their complaint . . ., they have a readily

available tool: a motion to amend the complaint under Rule 15 . . . Plaintiffs cannot . . .

ask the court to consider new allegations (or evidence) not contained in the complaint.");

see FED. R. CIV. P. 15(a).

b. Second R&R

In the Second R&R, the Magistrate Judge recommends that the Court deny the

following motions, each filed by Plaintiff: Motion for Default Judgment (Doc. 28); Brief and

Requests Due to Retaliation and Interference and Invasion of Privacy of Privileged Legal

Mail (Doc. 34); Motion Inquiry to Judge Barrett, and Brief and Requests (Doc. 35); and

Motion Inquiry and Request for Court Documents (Doc. 37).

Plaintiff first objects to the recommended denial of his Motion for Default Judgment.

Compare (Doc. 42 PageID 531-32), with (Doc. 57 PageID 632-65); see (Doc. 28). The

Court agrees with the Magistrate Judge that Plaintiff's Motion for Default Judgment is

without merit and should be denied in light of the December 8, 2021 Notation Order

granting the Motion for an Extension of Time to Answer or Otherwise Plead, until after a

ruling on Plaintiff's objections to the First R&R, filed by Defendants Erdos, Chambers-

Smith, Goodwin, Ross, and Conley.

Even if the Court had not granted Defendants' Motion for an Extension of Time,

the Court notes that Section 1997e(g)(2) of the Prison Litigation Reform Act "has been

interpreted to mean that an incarcerated plaintiff is not entitled to default judgment against

defendants that have been properly served or waived service and have not filed an

answer or other response." Vontz v. Monroe, No. 2:19-CV-12735, 2021 WL 5629046, at

*1 (E.D. Mich. June 22, 2021), report and recommendation adopted, No. 2:19-CV-12735-

TGB-KGA, 2021 WL 5587339 (E.D. Mich. Nov. 30, 2021) (citing Macomb Cty. Jail,

No. 2:10-CV-11242-DT, 2011 WL 7665794, at *1 (E.D. Mich. Sept. 21, 2011) (collecting

cases), report and recommendation adopted, 2012 WL 1230271 (E.D. Mich. Apr. 12,

2012)); accord Butler v. Pickell, No. 1:21-CV-10817, 2022 WL 2835833, at *2 (E.D. Mich.

July 20, 2022) (explaining that prisoners are essentially foreclosed from obtaining a

default judgment under 42 U.S.C. § 1997e(g)(1)).

Plaintiff next objects to the recommended denial of the Notice of Constitutional

Challenge under Rule 5.1(a) of the Federal Rules of Civil Procedure. Compare (Doc. 42

PageID 534-35), with (Doc. 57 PageID 632-65); see (Doc. 29). "[T]he purpose of Rule 5.1

is to ensure that the United States has the opportunity to intervene in any case in which

a party files a pleading or other motion that calls into question the constitutionality of a

federal statute." Young v. Fox, No. CV-20-65-H-CCL, 2020 WL 6162201, at *3 (D. Mont.

Oct. 21, 2020). Plaintiff contends that the document that calls into question the

constitutionality of the Prison Litigation Reform Act's exhaustion requirement is his

objections to the First R&R. (Doc. 29 PageID 337). However, for the reasons stated

above, the Court will overrule that document and Plaintiff's arguments therein. And, under

Rule 5.1(b), certification is only required "if the Court determines that it should consider

Plaintiff's constitutional challenge." Young, 2020 WL 6162201, at *3. As the Court will not

consider Plaintiff's constitutional challenge found in his first set of objections to the First

R&R, certification is not required.

Plaintiff then objections to the recommended denial of the Brief and Requests Due

to Retaliation and Interference and Invasion of Privacy of Privileged Legal Mail. Compare

(Doc. 42 PageID 532), with (Doc. 57 PageID 636); see (Doc. 34). However, Plaintiff's

objections ignore the Magistrate Judge's reasoning found in the Second R&R and,

instead, simply disagree with the fact that he had to file two lawsuits. The Court is not

persuaded.

III. CONCLUSION

For the foregoing reasons, and after the respective proper review under Rule 72,

it is hereby ORDERED that the Court OVERRULES Plaintiff's Objections (Docs. 30, 33,

57) and ADOPTS IN FULL both the September 7, 2021 R&R (Doc. 15) and June 14,

2022 R&R (Doc. 42). Consistent with the recommendations in each R&R, it is further

ORDERED that:

• the Amended Complaint (Doc. 13) is DISMISSED with prejudice, pursuant to

28 U.S.C. § 1915A(b)(1), with the exception of Plaintiff's Count Two against

Defendants Chambers-Smith, in her official capacity, Erdos, in his official capacity,

and Goodwin, in her individual capacity, and Plaintiff's Count Three against

Defendants Conley and Ross, in their individual capacities;

• the Clerk of Court SHALL update this matter's docket sheet to reflect that

Defendant Erdos is sued in his official capacity only;

• Defendants Erdos, Chambers-Smith, Goodwin, Conley, and Ross SHALL file their

Answers within twenty-one (21) days of the date of the issuance of this Order;

• Plaintiff's Motion for Default Judgment (Doc. 28); Brief and Requests Due to

Retaliation and Interference and Invasion of Privacy of Privileged Legal Mail

(Doc. 34); Motion Inquiry to Judge Barrett, and Brief and Requests (Doc. 35); and

Motion Inquiry and Request for Court Documents (Doc. 37) are each DENIED; and

• the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a), that an appeal of this

Order would not be taken in good faith and thus DENIES Plaintiff leave to appeal

in forma pauperis.

IT IS SO ORDERED.

_/s Michael R. Barrett________

Michael R. Barrett, Judge

United States District Court