# Straughter v. Eddy

> District Court, S.D. Ohio · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10383353

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

VALDEZ J. STRAUGHTER,
Case No. 2:23-cv-1268
Plaintiff,

v. Morrison, J.
Bowman, M.J.
ANDREW EDDY, et al.,

Defendants.

ORDER
Under local practice, this prisoner civil rights case has been referred to the
undersigned magistrate judge. The undersigned has filed a Report and Recommendation
(“R&R”) to address two motions to dismiss. This Order addresses non-dispositive matters,
including: (1) Service on the Defendants; (2) a Motion to Stay Discovery pending
resolution of the Defendants’ Motion to Dismiss, (Doc. 22); and (3) Plaintiff’s “Motion to
Correct Mailing Procedure to Protect First Amendment Rights.” (Doc. 25).
I. Service and Responsibility to Answer the Complaint
The R&R filed this day recommends the denial of the motion to dismiss filed by the
State of Ohio on behalf of all Defendants. The same R&R recommends granting Plaintiff’s
unopposed motion to dismiss four Defendants. The record reflects that three of the four
remaining Defendants (Eddy, Murphy, and Stanforth) were served on July 10, 2023, with
their answers due on July 31, 2023. (Doc. 27). The fourth remaining Defendant, Kenneth
Saul, has not yet been properly served. (Doc. 28). The summons forms were not returned
and filed in the record until after the deadline for filing an answer or other response had
elapsed.
Apart from the motion to dismiss filed by the State on behalf of all Defendants
before service, none of the Defendants filed a timely answer. Instead, on August 25, 2023,
counsel filed a new (untimely) motion to dismiss on behalf of the five Defendants as to
whom summons was returned executed. Defendants’ motion is not accompanied by a
motion to file their otherwise untimely response to the complaint instantur, and mostly

repeats arguments contained in the Rule 12(b)(6) motion previously filed by the State of
Ohio. But in addition to the duplicative arguments, the Defendants’ motion contains newly
presented arguments on issue and claim preclusion and the application of the Leaman
doctrine.1 See Leaman v. Ohio Dept. of Mental Retardation & Dev. Disabilities, 825 F.2d
946, 951 (6th Cir. 1987) (en banc), cert. denied, 487 U.S. 1204 (1998)
The record reflects that summons was returned unexecuted as to Defendant Saul.
(Doc. 28). Because Plaintiff proceeds in forma pauperis, the Court is tasked with
perfecting service. In another case in which service was returned unexecuted, this Court
observed:

Although prisoner-litigants are required to provide sufficient identifying
information to permit the United States Marshal to serve each Defendant,
they are not required to do the impossible. For security reasons, prisoners
are prohibited from obtaining the home addresses of current or former
prison personnel. In this case, it is unclear whether the two Defendants
presently work at a different prison location or whether they will be
represented by the Attorney General, assuming service can be perfected.

Dearing v. Mahalma, No. 1:11–cv–204, 2011 WL 6752629, at *2 (S.D. Ohio Dec. 2, 2011).
In Dearing, the Court directed the Attorney General to submit in camera the home address
of two defendants who no longer worked at the prison, so that the U.S. Marshal Service

1By separate R&R, the undersigned has recommended the denial of the State’s motion to dismiss based
solely on the duplicative arguments. The R&R does not address any of the newly presented arguments.
could attempt to service without disclosing the home address to Plaintiff. In the above-
captioned case, the receipt for service indicates a notation of “return to sender” but does
not otherwise reflect any basis for the failure of service. Before re-issuing summons and
directing service at the same address, the Court will direct defense counsel to confirm
whether she is now authorized to waive service on behalf of Defendant Saul. If she cannot

or will not accept service, counsel will be directed to state whether Defendant still works
at the address to which the previous summons was mailed.
In the interests of justice, the Court also will extend the time in which Defendants’
answer was due and accept the tardy motion to dismiss that was recently filed on behalf
of the five Defendants on whom service was perfected.
II. Motion to Stay Discovery
Plaintiff filed multiple written discovery requests with the Court. Although the Court
struck the requests as procedurally improper on July 12, 2023, the Court’s Order deemed
the requests to have been served on Defendants on the date that they were filed with the

Court. (Doc. 19). Defendants seek to stay discovery pending resolution of the motion to
dismiss, while Plaintiff opposes any stay. (Docs. 22, 24). Because the Defendants’ new
motion to dismiss presents significant new arguments regarding collateral estoppel, res
judicata, and the Leaman doctrine, the undersigned will grant a short stay of discovery
pending resolution of that new motion.
III. Motion to Correct Mailing Procedure to Protect
First Amendment Rights

Plaintiff’s motion requests an order directing the Clerk of this Court to obtain a
“valid control number” from the Ohio Department of Rehabilitation and Corrections
(“ODRC”), to prevent Plaintiff’s legal mail in this case from being opened, read, and copied
before its delivery to him with regular institutional mail. Plaintiff’s motion is unopposed. In
order to understand what Plaintiff is asking, some context is required.
A. Ohio’s New Procedures for Classifying “Legal Mail”
Until last year, no such procedure would have been necessary, because the Ohio
Administrative Code protected “legal mail” from “a court of law” from being opened and

inspected for contraband outside the presence of the inmate-addressee, and prohibited
the copying of legal mail. Specifically, Ohio institutions complied with the following
Administrative Code provision:
(2) “Legal mail” is mail addressed to an inmate clearly bearing the return
address of an attorney-at-law, a public service law office, a law school legal
clinic, court of law, or the correctional institution inspection committee. It
may be opened and inspected for contraband only in the presence of the
inmate-addressee. “Legal mail” does not include postcards from a court of
law that indicates fees and/or fines owed by the inmate-addressee.

O.A.C. 5120-9-17(B)(2) (valid through April 7, 2022).

But on or about February 1, 2022,2 the ODRC adopted a significant new policy
specific to the receipt of what had been classified as “legal mail.” See 75-MAL-03. The
new policy states that mail from a court of law (as well as all other formerly classified
“legal mail”) may be treated as “regular, non-legal mail” unless the sender first applies for
and obtains a “valid control number” from the ODRC, and affixes that control number to
the envelope of every piece of mail addressed to an inmate. To be clear, a single control
number obtained by the sender will not do. Instead, the sender must obtain a unique

2February 1, 2022 is the date of the published policy. But see Brown v. Chambers-Smith, 2:22-cv-2469-
MHW-MRM, 2023 WL 2534816, at *1 (S.D. Ohio, March 16, 2023) (alleging in lawsuit challenging new
policy that an October 4, 2021 email notified inmates of new requirement for a “control number” to be
attached to “Intended Legal Mail” despite existing policies, and that “ODRC had already been enforcing
these changes months prior to the October 2021 email.”).

control number for each piece of mail sent to an inmate. And control numbers expire
within 21 days.
As the ODRC explains on its website:
If a court, clerk, or other court personnel wants a parcel of mail to be
processed by ODRC as confidential legal mail, then a control number needs
to be obtained and used. Otherwise, all mail received from courts, clerks,
and court personnel will be processed as regular mail, i.e., opened,
copied and delivered to the addressee.

SUBJECT: PAGE OF , (ohio.gov) https://drc.ohio.gov/static/Forms/Visit_75-MAL-
03%20(Feb%202022).pdf (emphasis added, accessed on Aug. 28, 2023).
On April 8, 2022, the Ohio Administrative Code was amended in a manner that is
consistent with the new policy:
(2) “Legal mail” is mail addressed to an inmate clearly bearing the return
address of an attorney-at-law, a public service law office, a law school legal
clinic, court of law, or the correctional institution inspection committee that
is marked with a valid control number provided by the department. It may
be opened and inspected for contraband only in the presence of the inmate-
addressee. “Legal mail” does not include postcards from a court of law that
indicates fees and/or fines owed by the inmate-addressee. If mail is
received from any of the groups listed without a valid control number, then
it may be treated as a regular, non-legal mail, as set forth in paragraph
(B)(1) of this rule.

O.A.C. § 5120-9-17(B)(2).

Thus, for mail to be classified as “legal mail” by the ODRC, a qualified sender must:
(1) register and be verified by the ODRC; (2) take additional steps to generate a unique
control number through the ODRC website for each and every piece of “legal mail”; and
(3) transcribe or affix that number to each envelope. An ODRC Attorney Information
Packet available at drc.ohio.gov/visitation/legal-mail/legal-mail explains:
[C]ontrol numbers will be available through a website that will generate a
unique control number for each piece of Legal Mail. To access the website
and receive a control number, each individual or legal services entity must
have completed the registration and verification process. Once generated,
the control number should be printed or written on the outside of the
envelope by the sender. At the institution, a member of the mailroom staff
will verify the legitimacy of the control number. If verified, staff will take the
Legal Mail to the recipient, where it will be opened and inspected for
contraband in front of them. The contents of the Legal Mail will be provided
to the recipient and the envelope (with control number) will be destroyed to
prevent misuse, such as duplicating or forging control numbers.

Id.
To implement the new policy, ODRC staff must screen legal mail in order to
determine whether a “valid control number” exists. The new process takes time.3 If the
legal mail contains a “valid control number” then it must be logged into a computer system
within 72 hours of receipt by the facility, “excluding weekends, holidays, or emergency
situations,” which periods would necessarily extend that processing time. 75-MAL-03
(VI)(A)(1). Only after being logged will “legal mail” be delivered and opened in the
presence of the inmate-addressee; there is no time period listed for delivery. While legal
mail with a valid control number “should never be copied,” the envelope “may be copied
for legitimate security concerns.” 75-MAL-03 (VI)(A)(4) and (5).
If there is no control number, and whether or not the sender is a court or attorney,
the mail is considered to be “regular non-legal mail,” subject to being opened, inspected,

3Many court communications are time-sensitive. For example, a prisoner has only fourteen days in which
to file objections to a Report and Recommendation that may be dispositive of his or her case. See Brown
v. Chambers-Smith, Case No. 2:22-cv-2469-MHW-MRM, 2023 WL 2534816, at *2 (S.D. Ohio, March 16,
2023) (noting that plaintiff previously missed the deadline for filing objections due to delayed delivery of
“regular” mail); see also, id. at Doc. 22 (defendant’s report that R&R sent in that case was processed as
regular or non-legal mail and not tracked or logged in the same manner as legal mail, because it did not
contain a control number).
read and copied outside the inmate’s presence. If a control number is “present but has
expired,” or is illegible or incomplete, staff “should contact the sender” to generate a new
control number. The mail will be withheld indefinitely in the interim, see 75-MAL-03
(V)(B)(6) & (7), though the policy does encourage eventual delivery. ”Staff are
encouraged to contact senders to resolve issues associated with legal mail with the goal

of delivering the mail and not to withhold the mail.” 75-MAL-03(V)(B)(8). Still, if staff are
unable to “verify” the item is legal mail, staff will withhold it. 75-MAL-03(V)(C). And of
course, staff are entitled to withhold any mail, including legal mail with a valid control
number, if they suspect that it may contain contraband. Id.
In Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003), the Sixth Circuit held that
whether mail constitutes “legal mail” is question of law rather than one of fact. The Sallier
court further held that mail from a court of law is “legal mail.”4 “In order to guard against
the possibility of a chilling effect on a prisoner's exercise of his or her First Amendment
rights and to protect the right of access to the courts, we hold that mail from a court

constitutes ‘legal mail’ and cannot be opened outside the presence of a prisoner who has
specifically requested otherwise. Id. at 877 (emphasis added). The Sallier court went on
to proclaim: “There is no penological interest or security concern that justifies opening
such mail outside of the prisoner's presence when the prisoner has specifically requested
otherwise.” Id. at 877-878. Despite recognition of a constitutional right not to have legal

4In so doing, Sallier rejected the reasoning of some courts, including cases from the Seventh and Ninth
Circuits, that exclude such mail from the definition of legal mail. See, e.g., Keenan v. Hall, 83 F.3d 1083,
1094 (9th Cir., 1996). The circuits also appear to disagree about whether interference with legal mail
infringes on the right of free speech as well as the right of access to the courts. See, e.g., Guajardo-Palma
v. Martinson, 622 F.2d 801, 802 (7th Cir. 2010). The distinction can be significant in part because a pattern
and practice of infringement of free speech rights can state a claim without additional injury, but a claim of
denial of access to the courts may require a showing of actual injury. See generally, Jones v. Brown, F.3d
353-358-60 (3rd Cir. 2006); Davis v. Goard, 320 F.3d 346, 351-52 (2d Cir. 2003).
mail opened outside of a prisoner’s presence upon request, Sallier also reaffirmed that
prison officials “may impose restrictions that are reasonably related to security or other
legitimate penological objectives.” Id. at 873.5
In light of Sallier and similar controlling case law that holds that legal mail is entitled
to special protections under the First Amendment, it is no surprise that ODRC’s new policy

has generated constitutional challenges. To date, those challenges have led to decidedly
mixed results, at least at the pleading stage.6 For example, in Quinn v. Doe, Case No.
3:22-cv-661, 2023 WL 4744280, at *3-4 (N.D. Ohio, July 23, 2023), U.S. District Judge
Jeffrey Helmick denied the defendants’ motion to dismiss, holding that the plaintiff had
plausibly alleged the violation of a clearly established principle of law. The court also
denied qualified immunity on grounds that Sallier clearly established that legal mail from
a court cannot be opened outside the presence of a prisoner who has specifically
requested otherwise. Accord Allah v. Chambers-Smith, 2:22-cv-21-EAS-KAJ, 2023 WL
4030632, at *2 (S.D. Ohio, June 15, 2023), R&R adopted, 2023 WL 5215408 (S.D. Ohio

Aug. 15, 2023) (denying motion to dismiss complaint challenging policy on constitutional
grounds as “premature,” noting that policy is relatively new and the proposition that it is

5For example, in a prior case, the Sixth Circuit upheld as constitutional an “opt-in” policy that requires an
inmate to submit a written request that legal mail not be opened outside his or her presence. Id. at 874,
citing Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992). Because that constitutional policy applied in
Sallier, prison officials who had opened legal mail before receiving the inmate’s written request could not
be held constitutionally liable for that action. Id. at 875.
6In Fontroy v. Beard, 559 F.3d 173 (3d Cir. 2009), the Third Circuit upheld as constitutional a Pennsylvania
policy requiring the use of control numbers to identify legal or privileged mail. But Fontroy was decided on
summary judgment based on a fully developed record in which the Pennsylvania authorities carried their
evidentiary burden to show that the policy was reasonably related to safety and security concerns. The
Pennsylvania policy at issue assigned a single control number to each sender, and authorized hand-
delivery of legal mail without a control number. The policy has since been revised, including revisions made
pursuant to settlement of other legal challenges. See Walker v. Little, 20-CV-4460, 2022 WL 580641, at *3
(E.D. Pa., Feb. 24, 2022) \. The current Pennsylvania policy provides a separate process for a “court control
number.” Control Number (pa.gov) https//privilegedmails.cor.pa.gov/#/ (accessed on Aug. 28, 2023)
constitutionally valid “is far from well-settled.”); Brown v. Chambers-Smith, No. 2:22-cv-
2469-MHW-MRM, 2023 WL 1967514, at *2 (S.D. Ohio Feb. 13, 2023) (declining to find
policy constitutional at motion-to-dismiss stage), R&R adopted, 2023 WL 2534816 (S.D.
Ohio Mar. 16, 2023). But in two earlier cases, the courts rejected constitutional
challenges. See Whitman v. Gray, No. 5:19-cv-1818, 2022 WL 621553 *2 (N.D. Ohio,

Mar. 3, 2022) (Gwin, J., denying motion for protective order because it was “not the proper
vehicle through which to raise a First Amendment challenge to the new ODRC legal mail
policy,” and stating that policy does not violate the First Amendment); Allah v. Chambers-
Smith, Case No. 2:22-cv-21-EAS-KAJ, 2022 WL 16832626 (S.D. Ohio Nov. 9, 2022)
(denying a motion for reconsideration of denial of preliminary injunctive relief relating to
the legal mail policy). In fact, before a more complete review of the case law in connection
with this case, the undersigned relied on Whitman as grounds for granting a motion to
dismiss. See McGowan v. Erdos, Case No. 1:22-cv-35-SKB, 2023 WL 2743765, at *6
(S.D. Ohio, March 31, 2023) (R&R pending).

B. Plaintiff’s Limited Request in this Case

Having set the stage, the undersigned returns to Plaintiff’s request which -
importantly - does not present a direct constitutional challenge to the new legal mail policy.
Instead, Plaintiff limits his request to seek this Court’s compliance with the ODRC policy
in this case, to preserve his Constitutional right to have his legal mail only opened and
inspected in his presence, rather than treated as non-legal mail that is not logged or
tracked, and that may be freely read and copied by prison staff.
The undersigned is mindful that another magistrate judge in this district denied a
similar request for control numbers after citing the holding of Whitman v. Gray that the
new policy is constitutional. See Glenn v. Basham, Case No. 1:22-cv-202-KLL, 2022 WL
17351406, at *3 (S.D. Ohio, Dec. 1, 2022). But Glenn v. Basham was decided without
the benefit of the more extensive and contrary analysis provided in the more recent cases
of Quinn v. Doe, Allah v. Chambers-Smith, and Brown v. Chambers-Smith.
In considering the request at hand, the undersigned has concerns about the

extraordinary administrative burden that the new ODRC policy appears to impose on this
Court and on all courts of law that send legal mail to inmates. But the undersigned is also
troubled by the fact that unless the Clerk obtains a control number for every piece of mail
sent to Plaintiff, Plaintiff’s explicit request for mail from this Court to be treated as “legal
mail” will continue to be denied. The Court needs additional time to consider this issue
and to consider the burden on the Clerk of Court. Thus, the motion is denied at this time,
subject to refiling after 60 days from the date of this order.
C. Conclusion and Order
For the reasons stated above, IT IS ORDERED:

1. The motion to dismiss filed by Defendants Eddy, Justus, Murphy, Olibode, and
Stanforth (Doc. 29) is accepted as timely filed on August 25, 2023, with Plaintiff
to file any response in opposition to that motion on or before October 19, 2023;
2. On or before October 9, 2023, defense counsel must file a Notice with this
Court either (a) authorizing a waiver of service on behalf of Defendant Saul; or
(b) advising the Court if Defendant Saul continues to work at the address where
summons was previously addressed;
3. Defendants’ motion to stay discovery (Doc. 22) is GRANTED IN PART. Despite
the resolution of the State’s first motion to dismiss recommended in a separate
Report and Recommendation filed herewith, discovery should be stayed until
21 days after resolution of Defendants’ August 25, 2023 motion to dismiss;
4. Plaintiff’s motion to correct mailing procedure (Doc. 25) shall be DENIED,
subject to refiling 60 days from the date of this order.
s/Stephanie K. Bowman ____
Stephanie K. Bowman
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383353. Public record. Not legal advice.