Price v. Ohio Department of Rehabilitation and Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TERRELL PRICE,

Plaintiff,

Case No. 1:19-cv-740

v. JUDGE DOUGLAS R. COLE

Magistrate Judge Bowman

OHIO DEPARTMENT OF

REHABILITATION AND

CORRECTIONS, et al.,

Defendants.

OPINION AND ORDER

This cause comes before the Court on the Magistrate Judge’s December 28,

2020, Report and Recommendation (“December 28 R&R,” Doc. 28), Plaintiff Terrell

Price’s Objections to the R&R (Docs. 29 & 36), and Defendants Bruce Snively, Monica

Ford, Eric Dupuis, and Steve Cooper’s (collectively the “Defendants”) Response to

Plaintiff’s Objections to the R&R. (Doc. 31). That R&R recommends that the Court

grant Defendants’ Motion for Summary Judgment (“MSJ,” Doc. 17). For the reasons

below, the Court OVERRULES Price’s Objections (Docs. 29 & 36) and ADOPTS the

December 28 R&R (Doc. 28) in total. The Court thus GRANTS the Defendants’

Motion for Summary Judgment (Doc. 17) and DISMISSES Price’s Eighth

Amendment claim, the sole remaining claim here, WITH PREJUDICE.

BACKGROUND

A. Factual Background

As the December 28 R&R notes, the relevant facts “are largely undisputed.”

(Doc. 28, #454). To start, Terrell Price is currently an inmate at the Richland

Correctional Institution.1 The events at hand, however, happened during Price’s

incarceration at the Lebanon Correctional Institution. Price ended up in Lebanon on

a fourteen-year sentence after a 2014 conviction for drug trafficking and related

offenses. (Protective Control Packet, Doc. 17-5, #183). In June 2018, the prison

reassigned him to a new cell co-occupied by Joshua Morrissette. (Compl., Doc. 3, #45).

That reassignment proved to be a problem. On June 8, non-party corrections officers

Bratcher and Flowers randomly searched Price and Morrissette’s cell. (Conduct

Report 1, Doc. 17-1, #130). That search revealed marijuana and suboxone strips under

Price’s mattress. (Id.). Price stated that the drugs belonged to him. (Id.).

Given that statement, the officers issued a Conduct Report charging Price with

violating prison rules. (See id.). Price, for his part, asserts that he later informed

Bratcher that Morrissette “forced” him to claim the contraband. (Doc. 3, #46). Yet

Bratcher’s report does not reflect this. (See Conduct Report 1, Doc. 17-1). Nor does

Price allege that he told any of the Defendants of his explanation.

1 Previous filings (and R&Rs) in this case noted Price’s then-current incarceration at the

Warren Correctional Institution. However, the Court’s review of his incarceration at the time

of this Opinion’s filing suggests that Price is currently incarcerated at the Richland

Correctional Institution. See Offender Search Detail – Terrell A. Price, OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION, https://appgateway.drc.ohio.gov/OffenderSearch/Search/

Details/A652493 (last visited November 16, 2022).

On June 12, Officer Eric Dupuis met with Price and gave him the Conduct

Report. (Dupuis Aff., Doc. 17-12, #315). Dupuis also informed Price of his right to

make a statement about the charges. (Id.). Price pled not guilty to the allegations in

the Conduct Report, stating for the first time that he “took out for it” and that

Morrissette is “affiliated,” presumably with a gang. (Id.). In other words, Price

changed his tune. Now he says he only took responsibility for the drugs out of fear of

Morrissette.

Before Price began sharing a cell with Morrissette, the prison had approved

Price’s request to transfer to a different institution to be closer to his family. (Snively

Aff., Doc. 17-13, #319). But Bruce Snively, the Unit Manager then, put a hold on that

transfer pending the incident’s resolution. (Id.).

Dupuis referred Price’s case to the Rules Infraction Board (“RIB”), an internal

committee in charge of resolving conduct disputes and meting out punishments for

violating prison policy. (Doc. 17-12, #315). The RIB considered the Conduct Report,

Price’s statement, and the evidence and found Price guilty of the possession offense.

(Doc. 17-1, #134–36). On the RIB’s reporting form is a box asking whether the RIB

believed the inmate’s version of the story. (Id. at #136). For unknown reasons, the

RIB selected “yes.” (Id.). But it noted that it “believes the [Conduct Report] to be

factual and substantiates” the charges. (Id.). The RIB removed Price to limited

privilege housing until June 22. (Id.). He appealed to the Warden, who affirmed the

RIB determination. (Id. at #140).

While in limited privilege housing, Price says that he told Officer Steve Cooper

that he did not want to continue sharing a cell with Morrissette. (Doc. 3, #46). Cooper,

for his part, stated in an affidavit that “[a]t no point whatsoever did Price ever voice

to me any problems, issues, or concerns” about Morrissette. (Cooper Aff., Doc. 17-15,

#327). Had Price done so, Cooper says, he would not have been returned to the cell

with Morrissette. (Id.).

Whether or not he made a complaint to Cooper, it is undisputed that Price

returned to bunk with Morrissette on June 22. (Doc. 3, #46). He alleges that

Morrissette attacked him shortly after his return, leaving him with two black eyes

and lacerations all over his body. (Id. at #47). Price says that he “was left on the floor

to die” in his cell. (Id.). The Conduct Report from the incident, on the other hand,

merely reflects that he reported “a fight” with Morrissette to an on-duty officer.

(Conduct Report 2, Doc. 17-2, #151).

After Price reported the “fight,” an officer escorted him to the medical center.

(Id.). Medical staff that examined Price noted his desire for transfer to a new cell but

did not note any reference to a “stabbing” or “assault.” (See generally Doc. 17-9). On

the contrary, the medical report describes Price as having abrasions and contusions.

(Id. at #270). And throughout the subsequent disciplinary processes, Price referred

to the confrontation as a “fight.” (See, e.g., id. at #273; see also Doc. 17-2, #151).

Perhaps based on Price’s description of the events, officers charged him with

fighting. (Doc. 17-2, #151). Price pled not guilty and alleged for the first time that he

was “assaulted” and “stabbed” and that Morrissette was “extorting” him. (Id. at #158).

Consistent with the medical staff’s findings, officers never recovered any weapon

Morrissette might have used to “stab” Price. Instead, they found both inmates’

injuries “consistent with fighting marks and scratches.” (Ford Aff., Doc. 18, #354).

Officers completed a new Conduct Report, which the RIB once again

adjudicated. (Doc. 17-2). Based on this Conduct Report, Price’s testimony, and the

relevant medical records, the RIB found Price guilty of fighting. (Id. at #161). And

this time, the RIB checked the box indicating they did not believe Price’s defense.

(Id.). The Warden again denied Price’s appeal. (Id. at #168).

After another stint in limited privilege housing, Price refused to return to J-

Block to be with Morrissette. (Doc. 3, #48). Instead, the prison assigned Price to C-

Block. (Doc. 17-15, #327). Prison investigators denied multiple requests for protective

housing, believing that Price’s complaints centered on “the hopes of reinstating his

prison transfer.” (Schweitzer Aff., Doc. 17-11, #312). The committee in charge of

reviewing Price’s requests also noted that “in an effort to reinstate his transfer, Price

attempted to have Morrissette claim ownership of the drugs, and when Morrissette

refused, a fight broke out between the inmates.” (Doc. 17-12, #317).

Eventually, Price received a transfer. But from June 28, 2018, until his

transfer to Warren Correctional Institution, he filed more than forty grievances

relating to these events. (See Grievance History, Doc. 17-7).

B. Procedural Background

On August 1, 2019, Price moved pro se in this Court’s Eastern Division seeking

leave to proceed in forma pauperis with his proposed Complaint against the Ohio

Department of Rehabilitation and Corrections (“ODRC”) and certain of its officers.

(Doc. 1). On August 9, Magistrate Judge Deavers granted Price’s request and ordered

Price’s Complaint filed. (Doc. 2). His Complaint was docketed that same day. (Doc. 3).

A week later, on August 16, Magistrate Judge Deavers issued a Report &

Recommendation (Doc. 4). That R&R recommended two things. First, it

recommended that the Court dismiss Price’s claims against ODRC for failure to state

a claim upon which relief can be granted. (Id. at #51). And second, it recommended

that Price’s remaining claims be transferred to the Western Division and thus this

Court. (Id.). Judge Graham adopted that R&R on September 6 and ordered the case

transferred. (Doc. 5). This Court then received the case and referred it to Magistrate

Judge Bowman (from now on, the “Magistrate Judge”).

On September 23, the Magistrate Judge issued another Report &

Recommendation (Doc. 7). That R&R recommended that the Court dismiss Price’s

remaining claims, with one exception. It recommended that Price’s Eighth

Amendment failure-to-protect claims against Defendants Snively, Ford, Dupuis, and

Cooper in their individual capacities should survive. (Id. at #67). Price did not object,

so the Court adopted that R&R also. (Doc. 11).

Several months later, on August 28, 2020, Defendants moved for summary

judgment on the remaining issue, attaching several exhibits to support their

argument. (Doc. 17). After some confusion, delay, and a show-cause order (Doc. 19),

Price responded on October 15. (Doc. 23). The Defendants replied on October 30 (Doc.

25).

Finally, the Magistrate Judge issued the December 28 R&R recommending

that the Court grant the Defendants’ Motion for Summary Judgment and dismiss the

case. (Doc. 28). More specifically, the R&R concludes that Price has not shown either

the objective or subjective components of an Eighth Amendment claim, either as to

the facts that occurred before his altercation with Morrissette, or those that occurred

after it. (Id. at #461). The R&R further noted that any objections must be submitted

within fourteen days. (Id. at #469). Price objected on January 15, 2021. (Doc. 29). The

Defendants responded on January 28. (Doc. 31). And Price objected again on

September 12, 2022. (Doc. 36).

LAW AND ANALYSIS

The Court reviews an R&R de novo after a party timely objects. Fed. R. Civ. P.

72(b)(3). Such a review applies only to “any portion to which a proper objection was

made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL 5487045, at *1 (S.D. Ohio Sept.

30, 2013).

Faced with a proper objection, “[t]he district court ‘may accept, reject, or modify

the recommended disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.’” Id. (quoting Fed. R. Civ. P. 72(b)(3)). But a

purely general objection “has the same effect[] as would a failure to object.” Howard

v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Thus, a party

must identify each issue in the R&R to which they object with sufficient clarity, or

else that issue is forfeited. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).

As to any unobjected portions of an R&R, the advisory committee notes to

Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself

that there is no clear error … in order to accept the recommendation.” See Redmon v.

Noel, No. 1:21-CV-445, 2021 WL 4771259, at *1 (S.D. Ohio Oct. 13, 2021) (citing

cases).

So the first issue the Court must consider is whether Price has properly

objected. On that front, the Court begins by observing that neither of Price’s

Objections was timely. See Muhammad v. Close, 798 F. Supp. 2d 869, 875 (E.D. Mich.

2011) (noting that district courts have discretion as to whether “to consider evidence

first presented after a magistrate judge files a report, provided the evidence is

furnished by the time objections to the report and recommendation are due”). The

Magistrate Judge ordered any objections to be filed by January 11, 2021, fourteen

days after the December 28 R&R. Price did not first object until January 15. And he

objected again on September 12, 2022, almost two years later.

Price’s potentially-late objections place the Court under the umbrella of

Federal Rule of Civil Procedure 72(b)(3), which directs:

The district judge must determine de novo any part of the magistrate

judge’s disposition that has been properly objected to. The district judge

may accept, reject, or modify the recommended disposition; receive

further evidence; or return the matter to the magistrate judge with

instructions.

Fed. R. Civ. P. 72(b)(3). Given the amount of prisoner mail that the Court receives,

the Court is not surprised when an inmate’s filing arrives a couple of days late.

Indeed, that happens enough that the Court surmises such a delay could occur at no

fault of the inmate. Because of this, the Court is willing to consider Price’s first

Objections as if they were timely.

Price’s second set of Objections, however, is a different story. The Court

recently highlighted that the Sixth Circuit has yet to establish formal constraints on

Rule 72(b)(3). Johnston v. Hamilton Cnty. Just. Ctr., No. 1:18-cv-864, 2022 WL

4554117, at *4 (S.D. Ohio Sept. 28, 2022). But “those constraints must exist in some

form.” Id. After all, allowing routine consideration of late-filed evidence or arguments

would encourage a party to “save its knockout punch for the second round,” Paterson-

Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir.

1988). That result would frustrate judicial efficiency. So the Court declines to

consider Price’s second Objections. Twenty months late is on the wrong side of

whatever the line might be.

The December 28 R&R recommends that the Court grant the Defendants’

Motion for Summary Judgment and dismiss the rest of Price’s complaint. (Doc. 28,

#468). In doing so, that R&R views Price’s remaining failure-to-protect claim through

two separate lenses: pre-June 22, 2018, and post. (Id. at #460).

Price’s first Objections do not distinguish between those timeframes, but Price

lodges only one objection involving post-June 22 conduct: his belief that the

Defendants sent him to “the same dorm around Morrissette and members of their

gang” after the attack. (Doc. 29, #472). This likely constitutes a general objection. See

Howard, 932 F.2d at 509. But since the Court construes pro se filings liberally, see

Haines v. Kerner, 404 U.S. 519, 520–21 (1972), the Court will assume for purposes of

comprehensive analysis that Price’s objection relating to post-June 22 conduct meets

the threshold for fresh review.

Start with the procedural standard. Summary judgment is proper “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). Once the moving

party presents evidence to meet its burden, the nonmoving party must come forward

with significant evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986). If the nonmoving party cannot make the necessary showing for an

element on which it bears the burden of proof, then the moving party is entitled to

summary judgment. Id. at 323. The Court views all evidence in the light most

favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

Turning to substance, the Eighth Amendment protects inmates from cruel and

unusual punishment. U.S. Const. amend. VIII. Such a guarantee requires prison

officials “to protect prisoners from violence at the hands of other prisoners.” Farmer

v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted). A prison official, however,

only violates an inmate’s rights if they act with “deliberate indifference to inmate

health or safety.” Id. at 834 (cleaned up).

Eighth Amendment failure-to-protect claims have both an objective and

subjective component. Richmond v. Huq, 885 F.3d 928, 937–38 (6th Cir. 2018). The

objective part requires the inmate to show incarceration “under conditions posing a

substantial risk of serious harm.” Farmer, 511 U.S. at 834. The subjective part

requires the inmate to show “that the individual defendants (1) were aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists; (2) actually drew the inference; and (3) consciously disregarded the risk.”

Westmoreland v. Butler County, 29 F.4th 721, 726 (6th Cir. 2022) (cleaned up).

Putting the procedural and the substantive together, the Court reviews de novo

the Magistrate Judge’s recommendation that the Court grant Defendants’ Motion for

Summary Judgment. And that review will consider whether, viewing the evidence in

the light most favorable to Price, a genuine issue of material fact exists as to whether

Price has met both the objective and subjective elements of a failure-to-protect claim

based on the events (1) before or (2) after June 22, 2018. The Court considers each in

turn.

A. Pre-June 22

Price’s first failure-to-protect claim grounds in his belief that the Defendants

failed to protect him from being attacked on June 22. The December 28 R&R

recommends granting summary judgment to the Defendants because of Price’s

“failure to prove that any of [Defendants] were subjectively aware of but disregarded

a substantial risk to [Price’s] safety prior to June 22, 2018.” (Doc. 28, #464). Price

disagrees, objecting that the “Defendants all were aware that [Price] informed them

on and off record of his fear of Morrissette,” yet forced him to bunk with Morrissette

again. (Doc. 29, #471). This claim fails. Price cannot satisfy either the objective

element or the subjective one.

1. Objective Element

First, Price has not shown that he suffered from “a substantial risk of serious

harm.” See Farmer, 511 U.S. at 834. Recall that Price claimed ownership of the drugs

found in his cell on June 8. And recall that the incident with Morrissette occurred

right after Price returned to that cell on June 22. Price admits he had no contact with

Morrissette or his affiliates between those dates. And he does not allege that anyone

threatened him during that time. The substantial risk of serious harm required by

Farmer, then, must come from June 8, as Price has alleged no threat to his safety

from his time in limited privilege housing.

The conduct report from June 8 mentions nothing about Morrissette or anyone

else being a threat to Price’s safety. And in the Court’s view, this makes sense. Price

did what he claims Morrissette asked of him, with no challenge or complaint. The

Court shares the government’s skepticism that Morrissette would be “hostile toward

him if [Price] truly took ownership of drugs that were not his.” (MSJ, Doc. 17, #124).

It beggars belief that Morrissette sat in his cell for two weeks lying in wait to attack

Price—for doing what Price now alleges Morrissette forced him to do.

The R&R notes that Price “fail[ed] to convey any specific threat beyond the

June 8 ‘if-you-don’t confess’ conditional threat.” (Doc. 28, #463). The Court agrees.

Price has not shown any factual dispute as to whether he suffered from a threat

sufficient to create a substantial risk of serious harm. And he admits in his affidavit

that he has “no documents in his possession to support [his] claims.” (Doc. 23, #432).

Nothing in the record from June 8 shows that Price faced a substantial risk of harm

before or after the incident with Morrisette. Put together, Price cannot satisfy the

objective component of a pre-June 22 claim.

2. Subjective Element

Second, Price has not shown that prison officers disregarded any risk of serious

harm to him. Indeed, Price has shown no facts that would allow officers to infer such

a risk either. Cf. Westmoreland, 29 F.4th at 726.

Price’s complaint generally asserts that he told Cooper his concerns about

being sent back to his original cell block. (Doc. 3, #46). But Cooper’s affidavit refutes

this: “At no point whatsoever did Price ever voice to me any problems, issues, or

concerns” about Morrissette. (Doc. 17-15, #327). And when pressed on this point, Price

seems to concede. Rather than substantiate his claim, he explains his silence: he “had

not voiced” his concerns because of a fear he would get “beat up” by jail staff if he

refused an order. (MSJ Resp., Doc. 23, #429).

Price has not shown that officers “were aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists.” Cf. Westmoreland, 29

F.4th at 726. Without Price demonstrating the alleged risk to his safety, the Court

cannot say that prison staff should have known or inferred it, let alone disregarded

it. At that time, on the facts provided by Price to the officers, Morrissette told Price

to claim the drugs, and he did. It is true that Price’s story has changed many times

between the incident and now, including in his filings before this Court. But at

bottom, Price has “not adduced any competent summary judgment evidence

containing some further factual enhancement” of the alleged threats. Reedy v. West,

988 F.3d 907, 913 (6th Cir. 2021). So Price cannot make the requisite showing for a

pre-June 22 claim.

B. Post-June 22

Price’s second failure-to-protect claim grounds in his belief that Defendants

failed to protect him after June 22. Price complains that other inmates, whom he

believed to be gang-related associates of Morrissette, threatened him. The December

28 R&R recommends rejecting this claim as well. (Doc. 28, #467). In the Magistrate

Judge’s view, Price has offered little-to-no evidence to support this claim either. (Id.).

Price again disagrees, stating that his fears were repeatedly ignored and that “[t]he

Defendants did nothing to protect” him. (Doc. 29, #473).

1. Objective Element

For Price’s post-June 22 claim to survive, he would again need to show “a

substantial risk of serious harm.” Farmer, 511 U.S. at 834. He has not. Instead, he

alleges only vague, unspecific verbal threats from Morrisette’s unidentified affiliates.

See Gant v. Campbell, 4 F. App’x 254, 256 (6th Cir. 2001) (finding “a general concern”

that did not identify “any particular gang members whom [the inmate] feared”

insufficient to support an Eighth Amendment claim even when the inmate was

eventually attacked). Price never shared a cell with Morrissette after June 22. And

he did not raise the concerns of these new threats until during the disciplinary

proceedings and grievance processes following the June 8 incident. As the December

28 R&R notes, the Protective Control Committee reviewed Price’s complaints more

than once and found “no facts to support a credible threat to justify placement”

elsewhere. (Doc. 28, #467). Without any facts to support Price’s claim that he faced

substantial harm, that claim must fail.

2. Subjective Element

To satisfy his burden as to the subjective element, Price must have shown that

each of the Defendants knew of a substantial risk of harm to him and disregarded it.

Farmer, 511 U.S. at 844. On the record, the Defendants did precisely the opposite of

disregarding any risk to Price. Recall that the Protective Control Committee

conducted two separate investigations. And that neither of those investigations found

any credible threat to Price’s safety. This makes sense—Price has alleged no harm

because of the threats mentioned above.

Coupling these events with Price’s transfer to another institution, the Court

cannot say that Defendants disregarded any substantial risk of harm to Price. See

Farmer, 511 U.S. at 844 (noting that reasonably responding officers “may be found

free from liability”). In fact, the prison acted appropriately in response to Price’s

concerns. So his post-June 22 claim fails as well.

CONCLUSION

For these reasons, the Court OVERRULES Price’s Objections (Docs. 29 & 36)

and ADOPTS the December 28 R&R (Doc. 28). The Court accordingly GRANTS

Defendants’ Motion for Summary Judgment (Doc. 17) and DISMISSES Price’s

Complaint (Doc. 3) WITH PREJUDICE. The Court DIRECTS the Clerk to enter

judgment and TERMINATE this case on its docket.

SO ORDERED.

January 3, 2023

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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