Edge v. Erdos

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

:

LE’SEAN EDGE,

:

: Case No. 1:21-cv-532

Plaintiff,

:

: Judge Jeffery P. Hopkins

v.

:

: Magistrate Judge Stephanie K.

RON ERDOS, et al.,

: Bowman

:

Defendants.

:

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court on the Report and Recommendation (“R&R”) issued

by Magistrate Judge Stephanie K. Bowman on September 22, 2023 (Doc. 57), which

recommends that this Court deny cross summary judgment motions filed by Defendants1

(Doc. 48) and Plaintiff, Le’Sean Edge (hereinafter referred to as “Plaintiff”) (Doc. 53).

Plaintiff filed the Complaint in this case alleging that Defendants violated his civil rights by

infringing upon his First and Eighth Amendment rights, in addition to violating other state

law protections. Only Plaintiff’s First Amendment retaliation claims against Defendants

Erdos, Barney, and Kinner remain. He now asks this Court to grant his motion awarding

monetary damages based on the uncontroverted facts alleged in the Complaint. To the

contrary, Defendants contend that, even if the facts alleged in the Complaint are viewed as

true, Plaintiff’s claims are without merit and that they are entitled to summary judgment.

Following the issuance of the R&R, Defendants filed an Objection to it (Doc. 59), however,

1 At this stage in the proceedings, only three Defendants remain. The term “Defendants” refers collectively to

those parties—Defendants Ronald Erdos, Brian Barney, and Josh Kinner.

Plaintiff did not file a response. As discussed below, after conducting a de novo review

pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), this Court

OVERRULES the Objection (Doc. 59), ADOPTS the R&R (Doc. 57), and DENIES

Defendants’ Motion for Summary Judgment (Doc. 48) and Plaintiff’s Motion for Summary

Judgment (Doc. 53).

I. BACKGROUND

Plaintiff, a former inmate at the Southern Ohio Correctional Institution (“SOCI”),

seeks to recover monetary damages against Defendants for allegedly violating his First

Amendment rights. Plaintiff asserts that, on February 13, 2021, he witnessed an incident

involving excessive use-of-force by several correctional officers against another inmate—

Inmate Kitchen—at SOCI. Plaintiff’s verified Complaint2 asserts that he witnessed

correctional officers at SOCI brutally beat inmate Kitchen, purportedly without provocation,

because the officers believed Kitchen was a child molester, and that Plaintiff later threatened

to report the officers. Doc. 50, PageID 327 (citing Doc. 13, PageID 74–75); see also Doc. 53,

PageID 403. Stemming from the February 13 incident, Kitchen suffered serious physical

injuries and had to be transported to an offsite hospital for medical care. Doc. 51, PageID

364.

Defendant Kinner was one of the officers at the scene. Doc. 51, PageID 372. He

purportedly was standing near bleachers in the gymnasium where Plaintiff and other inmates

were seated. Doc. 48-5, PageID 316. Plaintiff claims to have had a view into the recreation

equipment room where the incident was occurring. Id. at PageID 319. Plaintiff further states

2 A verified complaint equals a declaration made under penalty of perjury as to any facts asserted based on

personal knowledge that would be admissible in evidence, but not as to legal conclusions to be drawn from

those facts. Healthy Advice Networks, LLC v. Contextmedia, Inc., No 1:12-cv-610-SJD, 2014 WL 5588444, at *4

(S.D. Ohio Nov. 3, 2014).

that during the fracas he witnessed one officer punch another officer to try to make it look as

though Kitchen had assaulted the officer, thereby justifying the beating. Doc. 13, PageID 74–

75; Doc. 48-5, PageID 319. According to Plaintiff, after witnessing this incident he and other

inmates at the scene were directed to return to their cells. Doc. 13, PageID 75. On his way

back to his cell, Plaintiff orally announced to prison officials his intentions to write a grievance

about the alleged unlawful use of force that he had just witnessed. Doc. 53, PageID 404; Doc.

51, PageID 379.

According to Plaintiff, hours later, between 3:00 and 5:00, a.m., on February 14, 2021,

correction officers woke him and escorted him into the restrictive housing unit. Doc. 53,

PageID 404; Doc. 51, PageID 379. When Plaintiff asked why he was being moved and

whether it had anything to do with the use-of-force incident, he was told only “because the

captain said so.” Doc. 13, PageID 75. Three days later, on February 17, Plaintiff was

presented with a copy of a Conduct Report written by Kinner that charged Plaintiff with

violations of Rule 08 (threatening bodily harm to another), Rule 18 (encouraging or creating

a disturbance) and Rule 21 (disobedience of a direct order) for his alleged conduct on February

13, 2021. Doc. 50-4, Greene Declaration ¶ 7, PageID 347. The Conduct Report states as

follows:

I C/O Kinner responded to a man down alarm/staff assault in

the M1 Gym. Quickly after my arrival I became concerned for

the safety of responding officers due to multiple inmates standing

in the bleachers near the equipment room where staff was

assaulted. These inmates were shouting obscenities towards

responding officers and ignored my direct orders for them to be

seated. They were encouraging the inmate who had assaulted

staff to continue to harm officers “because that’s what they

deserve”. They were also talking amongst each other about

joining in on the assault, I overheard and identified inmate Edge

671-334 saying “yall step off the ledge I’m with you, show these

bitches what these hands can do”. Inmate Edge was referring to

the concrete ledge of the bleachers and assaulting staff. His

comments were echoed by multiple other inmates near him,

eventually he stopped creating a disturbance when Zone

Lieutenants arrived.

Doc. 50-5, PageID 348. Plaintiff contends that another witness, Inmate Storey, was also

charged with the same conduct report. Doc. 53, PageID 404.

In response to the adverse Conduct Report, Plaintiff wrote to the Director of the Ohio

Department of Rehabilitation and Corrections (“ODRC”), Annette Chambers-Smith, to

describe what he had witnessed on February 13 and to proclaim his innocence related to the

alleged false charges. Doc. 51, PageID 366. He submitted Informal Complaint Resolutions

(“ICRs”) to the Institutional Director, an institutional investigator, and the Deputy Warden

of Operations. Doc. 13, PageID 76; Doc. 51, PageID 379.

On March 1, 2021, Plaintiff appeared before the Rules Infraction Board (“RIB”),

which included Defendant Barney. At that proceeding, Plaintiff stated in his defense:

THIS IS A PLOY TO TAKE THE LIGHT OFF OF WHAT

THEY DID. WE CAME DOWN TO REC AND I WAS IN

THE BLEACHERS. I SAW INMATE KITCHEN AND THEY

PUSHED HIM INTO THE EQUIPMENT ROOM AND WE

HEARD A WHOLE BUNCH OF RUMBLING, THE DUDE

WAS SCREAMING THAT HE DIDN’T DO NOTHING.

ONE C/O PUNCHED ANOTHER ONE IN THE FACE.

PEOPLE WERE SAYING LITTLE SHIT BUT I DIDN’T

SAY NOTHING. I WENT BACK TO THE BLOCK AND

ABOUT 3:00 IN THE MORNING THEY CAME AND GOT

ME.

Doc. 50-5, PageID 349. During the RIB hearing, Plaintiff called Inmate Storey as a witness

to corroborate his account of what he had observed. Id. at PageID 352. Plaintiff also

questioned Defendant Kinner and requested a review by the RIB of the security footage of

the incident. However, Defendant Barney refused to play the footage for Plaintiff, stating that

he had already viewed it and that the video was too blurry to identify any of the individuals.

Doc. 13, PageID 76–77; Doc. 53, PageID 398. When it was Kinner’s turn, he testified that he

could identify Plaintiff in the video because he recognized Plaintiff’s voice over the other

inmates shouting. Doc. 50-5, PageID 353. After hearing from all three witnesses, the RIB

determined that Plaintiff’s denial of the charges was “[n]ot convincing.” Id. at PageID 354.

The RIB’s findings reiterate those contained in Kinner’s Conduct Report. Id.

As punishment for his involvement, Plaintiff contends that he spent 25 days in

restrictive housing and was later recommended for a review of his security level. See Doc. 50-

5, PageID 354. Plaintiff’s disciplinary conviction was affirmed, and on March 2, 2021, his

security level was increased from 4AT to a 4B classification. Doc. 50-5, PageID 355. Plaintiff

remained in restrictive housing through July 7, 2021. Doc. 13, PageID 77, 79.

Thereafter, Plaintiff was interviewed several times both by institutional employees and

by state police concerning the February 13 use-of-force incident. On April 14, 2021, Plaintiff

submitted to a lie detector test. Doc. 51, PageID 367. Plaintiff was asked questions about the

incident, including whether he witnessed Kitchen being attacked and whether he made the

comments alleged in the Conduct Report. Id. According to Plaintiff, he passed the lie detector

test and the inspector running the test reportedly told him he had seen RIB convictions

overturned on that basis but he “can’t make any promises.” Doc. 13, PageID 78; Doc. 51,

PageID 367. On May 3, 2021, Plaintiff was interviewed by the Assistant of the Chief

Inspector, Kelly Riehle. Plaintiff again reported his observations and Riehle acknowledged

that Plaintiff had passed the lie detector test. Id. at PageID 78–79. However, she did not

answer whether his 4AT security status would be restored. Id. at PageID 79.

This matter is now before the Court on cross-motions for summary judgment on

Plaintiff’s First Amendment retaliation claims against Defendants Erdos, Barney, and

Kinner—the only claims that remain. The Magistrate Judge recommended both motions be

denied. Doc. 57. On October 13, 2023, Defendants filed their Objection to the Magistrate

Judge’s R&R. Doc. 59. Plaintiff did not respond or file any of his own objections.

II. LAW AND ANALYSIS

Objections to a report and recommendation are reviewed de novo. “A judge of the

court shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.

R. Civ. P. 72(b). “A judge of the court may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Only

those objections that are specific are entitled to a de novo review under the statute. Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those

portions of the magistrate [judge]’s report that the district court must specially consider.” Id.

(quotation marks and citation omitted). “[A] general objection to the entirety of a magistrate’s

report, without specifying a single issue of contention, fails to satisfy” this specificity

requirement. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

In the R&R, the Magistrate Judge found, inter alia, that a reasonable jury could include

that Plaintiff’s oral complaint made immediately after the February 13 incident, and written

statements made before and after that incident, may constitute protected conduct under the

First Amendment.3 Doc. 57, PageID 438. Defendants concede that both oral threats to file

3 The Sixth Circuit has held that to succeed on a First Amendment retaliation claim, a plaintiff must prove 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.

grievances and written complaints are protected conduct. Doc. 59, PageID 460. However,

Defendants argue that prior to filing their Motion for Summary Judgment they were not on

notice that Plaintiff’s claims were, in part, based on his oral complaint to file a grievance. Id.

Defendants state that they are entitled to summary judgment as a matter of law because of

this misunderstanding. Id. at PageID 462. The Court disagrees with Defendants.

A. Defendants’ Objection.

Defendants’ Objection to the R&R states that the Magistrate Judge incorrectly

concluded that “Defendant Kinner was motivated to falsely charge Plaintiff with disciplinary

infractions in retaliation for the witness/account that Plaintiff stated he would submit.” Id. at

PageID 458 (citing Doc. 57 PageID 442). Defendants assert that because Plaintiff’s oral

complaint, which occurred just after the attack on Kitchen, was not included in the Amended

Complaint, it is a “new theory” proffered at the summary judgment stage that Defendants did

not have an opportunity to conduct discovery on. Id. at PageID 460. In short, Defendants

argue strenuously that they are entitled to summary judgment because they did not receive

notice that Plaintiff’s oral statement constituted protected conduct. Defendants’ argument is

misplaced for two reasons.

First, Defendants misconstrue the basis underlying the Magistrate Judge’s finding of a

dispute of material fact concerning whether the Defendants retaliated against Plaintiff for

engaging in protected conduct under the First Amendment. Despite Defendants’ assertions

otherwise, the Magistrate Judge relied upon more than Plaintiff’s oral statements in finding

that a factual dispute exists. Indeed, the Magistrate Judge stated that:

[A] reasonable jury could conclude that Plaintiff engaged in

protected conduct through his verbal complaints immediately

Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999)).

after the February 13 use-of-force incident (stating his intent to

follow up with a written grievance) and through written

statements made both before and after the issuance of the Conduct

Report and conviction on those charges.

Doc. 57, PageID 438 (emphasis added). Defendants’ Objection ignores the written statements

issued by Plaintiff before and after the alleged retaliation that support the Magistrate Judge’s

finding. A reasonable jury could find that Defendants retaliated against Plaintiff because of

the complaints—both written and verbal—that he made following his observations of the

February 13 altercation between Kitchen and Defendants.

Second, Defendants’ argument that Plaintiff is proceeding on a “new theory” is

misguided. While not expressly referenced therein, Plaintiff’s Amended Complaint does

reference institutional records that describe his oral complaint. One such piece of evidence

consists of an ICR which Plaintiff addressed to “Investigator” and submitted on February 14,

2021. In the ICR, Plaintiff describes his oral complaint, which occurred just after Kitchen was

allegedly attacked by certain prison personnel, stating that “I told the [COs] that I was writing

this [(i.e., an ICR concerning the attack of Kitchen)] up as soon as I got back to the block.”

Doc. 51, PageID 379. That same ICR is expressly referenced in Plaintiff’s Amended

Complaint:

I also wrote a [sic] informal complaint to Ms. Mahlman

(institutional director), Mr. Miller (Investigator)[,] and Ms.

Davis (Deputy Warden of Operations) explaining to them what

I explained to Annette Chambers-Smith. Besides Annette

Chambers-Smith[,] they all responded back to me and said this

matter is under investigation.”

Doc. 13, PageID 76 (emphasis added). “In short, the ICR dated February 14 provides

evidence of ‘protected conduct’ in the form of an oral complaint made to officers immediately

after the attack on February 13, before Plaintiff was issued a Conduct Report.” Doc. 57,

PageID 437. See also Maben, 887 F.3d at 265 (holding that the plaintiff’s oral grievance

constitutes protected activity under the First Amendment).

The Magistrate Judge also detailed and quoted what previously issued report and

recommendations make clear: “this case is about Plaintiff’s claim that all three Defendants

‘retaliated against him for witnessing and writing grievances concerning the February 13,

2021 attack.’” Doc. 57, PageID 436 (quoting Doc. 16, PageID 102). Plaintiff’s oral complaint

occurred between when he “witness[ed]” the attack, and “wr[ote] grievances” concerning the

same. In other words, the oral complaint occurred during the course of conduct that gives rise

to Plaintiff’s retaliation claims. Defendants’ assertion that the oral complaint amounts to a

“new theory” of protected conduct is therefore without merit. Defendants were clearly on

notice of Plaintiff’s oral complaint immediately after the February 13 incident occurred and,

heretofore, they had ample opportunity to conduct discovery on that subject.

After conducting a de novo review of the entire record, the Court finds that the

Magistrate Judge correctly analyzed Plaintiff’s protected conduct under the First Amendment

and her analysis is well reasoned and supported by the law and facts. The Court, therefore,

OVERRULES Defendants’ Objection and ADOPTS the R&R. Accordingly, both parties’

Motions for Summary Judgment are DENIED.

B. Appointment of Counsel for Pro Se Plaintiff.

Pursuant to 28 U.S.C. § 1915(e)(1), the “court may request an attorney to represent

any person unable to employ counsel.” However, “[a]ppointment of counsel in a civil case is

not a constitutional right” but “a privilege that is justified only by exceptional circumstances.”

Lavado v. Keohane, 992 F.2d 601, 605–06 (6th Cir. 1993). Although “no comprehensive

definition of exceptional circumstances is practical,” Branch v. Cole, 686 F.2d 264, 266 (5th

Cir. 1982), courts resolve this issue through a fact-specific inquiry. Wilborn v. Escalderon, 789

F.2d 1328, 1331 (9th Cir. 1986). Examining the pleadings and documents in the file, the Court

analyzes the merits of the claims, the complexity of the case, the pro se litigant’s prior efforts

to retain counsel, and his ability to present the claims. Henry v. City of Detroit Manpower Dep’t,

763 F.2d 757, 760 (6th Cir. 1985); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985). As a

general rule, counsel should be appointed in civil cases only if a litigant has made “a threshold

showing of some likelihood of merit.” Montgomery v. Miller, No. 08-2710-STA-dkv, 2008 U.S.

Dist. LEXIS 90558, 2008 WL 4853336, at *2 (W.D. Tenn. Nov. 6, 2008) (citing Cooper v. A.

Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)).

Here, the Court has found that Plaintiff has made a threshold showing of merit that is

sufficient to survive summary judgment and proceed to trial. See supra, Section II.A. While

Plaintiff has been able to conduct these proceedings on his own behalf until this point, the

complexity going forward, including the need to capably present and cross-examine witnesses

at trial and handle the documentary evidence, suggests that appointment of counsel might

now be appropriate. Moreover, the Court acknowledges that Plaintiff has made two previous

motions for the appointment of counsel (Docs. 21, 39), which the Court has denied. See Docs.

31, 42. When denying the second of those two motions, the Magistrate Judge forewarned that

“[u]nless and until this case proceeds beyond dispositive motions and a trial date is scheduled

by the presiding district judge, there is no basis for the appointment of counsel.” Doc. 42,

PageID 275. Since this case is now set to proceed beyond dispositive motions, the Court finds

that appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) is warranted.

The Court notes, however, that “[w]hile Congress has authorized courts to appoint

counsel in cases where in forma pauperis status has been granted, see 28 U.S.C. § 1915(e)(1), it

has never authorized any funding for such counsel, and the Court cannot compel counsel to

serve without compensation.” United States v. Hunter, No. 3:19-cr-182, 2021 U.S. Dist. LEXIS

25965, at *5 (S.D. Ohio Feb. 11, 2021) (citing Mallard v. United States Dist. Court for Southern

Dist., 490 U.S. 296, 308-09 (1989)); Lavado, 992 F.2d at 605-06. Thus, if pro bono counsel

cannot be retained, Plaintiff may have to proceed pro se. See e.g., Brown v. Gray, No. 2:19-cv-

2425, 2020 U.S. Dist. LEXIS 214063, at *2 (S.D. Ohio Nov. 16, 2020) (Ҥ 1915(e)(1) does

not provide authority for appointment of counsel, but merely codifies the authority of a

District Court to ask an attorney to represent a plaintiff.”).

Based on the foregoing, the Court will, by separate order, set a status conference in

this case. At that conference, the Court will address the appointment of counsel to represent

Plaintiff in all remaining pre-trial and, if necessary, trial proceedings.

Il. CONCLUSION

This Court OVERRULES Defendants’ Objection (Doc. 59), ADOPTS the R&R

(Doc. 57), and DENIES the motions for summary judgment filed respectively by Defendants

and Plaintiff (Docs. 48, 53). The parties will be directed by separate order of this Court to

appear at a telephonic status conference to address the appointment of counsel to represent

Plaintiff in all further proceedings.

The Court DIRECTS the Clerk to enter judgment accordingly.

IT IS SO ORDERED.

Dated: March 18, 2024 C ON 2 Ligh

Hon. Jeffery P. Hopkins

United States District Judge

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