# Terry v. Ms. Lt. Crawford

> District Court, S.D. Ohio · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10384254

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10384254

## How later opinions describe it (automated extraction)

- concluding that a cellmate’s threat to use knives on a plaintiff was a foreseeable consequence of the defendants’ refusal to move the plaintiff to a different cell and would be an adverse action

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

CAMILIA T. TERRY,
Case No. 3:21-cv-35
Plaintiff,

vs.

MS. LT. CRAWFORD, et al., District Judge Michael J. Newman

Defendants.
______________________________________________________________________________

ORDER: (1) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON
PLAINTIFF’S FEDERAL CLAIMS (Doc. No. 91); DISMISSING WITHOUT
PREJUDICE PLAINTIFF’S REMAINING STATE LAW CLAIM; (3) TERMINATING
THIS CASE ON THE DOCKET; AND (4) DENYING PLAINTIFF A CERTIFICATE OF
APPEALABILITY AND IN FORMA PAUPERIS STATUS ON APPEAL
______________________________________________________________________________

This 42 U.S.C. § 1983 case is back before the Court on a motion for summary judgment
filed jointly by Defendant prison employees Karen Bleise, Mark Foreman, Hewe McNelly, John
Mobley, Mark Crawford, Elizabeth Nichols,1 Gent Jones, Roosevelt Pope, Shelbie Smith, Annette
Chambers-Smith, and David Gedeon.2 Doc. No. 91. Plaintiff Camilia Terry, proceeding with the
assistance of counsel, responded in opposition. Doc. No. 98. Defendants replied. Doc. No. 99.
With leave of Court, both parties filed supplemental memoranda regarding the motion for
summary judgment. Doc. Nos. 100, 101. For the reasons that follow, the Court grants Defendants’
motion.

1 Plaintiff named Defendant Elizabeth Nicholas in the amended complaint (Doc. No. 52 at PageID 606),
but Defendant clarified that her last name is Nichols in the answer (Doc. No. 54 at PageID 632).
2 The Court previously ruled on a motion to dismiss and dismissed multiple Defendants from this case.
Doc. No. 77.
I. BACKGROUND
Plaintiff is an inmate at Dayton Correctional Institution (“DCI”), which is operated by the
Ohio Department of Rehabilitation and Correction (“ODRC”). Doc. No. 98 at PageID 2310. She
has been incarcerated there since 2013 and is serving 30 years to life for aggravated murder. Id.
During her incarceration period, Plaintiff has unsuccessfully attempted to appeal her conviction or
reopen her case.3 See Doc. No. 52 at PageID 611; Doc. No. 91 at PageID 1625. Plaintiff now

brings claims against Defendants—all employees of DCI at the times relevant to the claims
brought against them—for alleged violations of her constitutional rights. Doc. No. 52 at PageID
608-09.
A. Access to Legal Materials
Plaintiff’s legal materials and property are stored in a locked box outside of her cell, and
she can only access these materials when a DCI employee unlocks the box for her. Doc. No. 89
at PageID 812. Plaintiff was allegedly denied access to her legal materials by Bleise, a DCI prison
guard, on December 23, 2020. Doc. No. 89 at PageID 812. That same day, Plaintiff filed an
informal complaint against Bleise using the DCI grievance system. Doc. No. 95-7 at PageID 2097.

After investigating Plaintiff’s complaint, Inspector Oscar Young (a non-party) granted her
grievance and stated that Plaintiff should have access to her legal materials during her recreation
time. Id. Plaintiff was able to access her legal materials at approximately 8:00 A.M. on December
25, 2020, i.e., two days after the incident in question. Doc. No. 89 at PageID 830.
On December 28, 2020, Bleise wrote a conduct report against Plaintiff. Doc. No. 93-8 at
PageID 1856. Bleise stated that Plaintiff violated a rule because she was unaccounted for between

3 State v. Terry, No. 100813, 2020 WL 3467720 (Ohio App. June 19, 2020) (denying Plaintiff’s application
for reopening of her criminal conviction); Terry v. Jackson, 583 U.S. 1042 (2017) (denying Plaintiff’s
petition for writ of certiorari regarding the dismissal of her petition for habeas corpus).
12:59 P.M.—the end of the lunch period—and 1:35 P.M. Id. Plaintiff was placed on Limited
Privilege Housing (“LPH”) for two days following this conduct report, but before her conduct
hearing. Doc. No. 93 at PageID 1678. Plaintiff was found not guilty of this violation at her conduct
hearing and was released from LPH status. Id. at PageID 1857.

B. Receipt of Legal Mail
Plaintiff also had issues related to her legal mail and the DCI mailroom. Defendant Jones
worked in the mailroom of DCI. Doc. No. 90 at PageID 1311. Jones learned the difference
between regular mail and legal mail when working in the mailroom. Id. at PageID 1405. He
testified in his deposition that there were times when legal mail was opened and processed as
regular mail accidentally in violation of ORDC policy. Id. at PageID 1407. During some shifts,
Jones was the only employee working in the mailroom. Id. at PageID 1391-92. However, Jones
testified that typically “there are several people that process mail” and that the sorting process
would sometimes allow for a piece of legal mail to be opened as if it were regular mail. Id. at
PageID 1408-09.

Plaintiff asserts her legal mail was unlawfully opened on five occasions. First, Plaintiff
filed an informal complaint on April 17, 2020 alleging that her legal mail had been opened and
slid underneath her cell door on April 16, 2020. Doc. No. 90-9 at PageID 1610. Jones
acknowledged that he was familiar with the complaint and that “possibly […] somebody
accidentally opened” Plaintiff’s legal mail on that one occasion. Doc. No. 90 at PageID 1439.
While Jones admitted that he discussed the incident with Plaintiff and the mail should not have
then been opened, he never stated that he was the one who improperly opened the mail. Id. at
1450. In a separate informal complaint about being overcharged for mail, Plaintiff stated that
Jones did not know who opened her mail on April 16, 2020. Doc. No. 90-10 at PageID 1612.
Plaintiff filed a second informal complaint on September 19, 2020 contending she received
legal mail from a court—dated September 9, 2020—that had been opened and slid underneath her
cell door. Doc. No. 90-12 at PageID 1616. In the complaint, Plaintiff alleges this was “the [fifth]
time that this has occurred[.]” Id. After investigating Plaintiff’s complaint, Inspector Young

granted her grievance because mailroom staff admitted to delivering legal mail to the inmates
without allowing them to sign for their legal mail. Id. at PageID 1616-17. Jones was not
mentioned in this informal complaint.
On February 10, 2021, Plaintiff filed a third informal complaint stating that her legal mail
from the Supreme Court of Ohio had been opened outside her presence before she picked it up in
the mailroom. Doc. No. 90-13 at PageID 1618. In this complaint, Plaintiff said that she asked
Jones why her legal mail was already opened. Id. Jones replied that an inexperienced staff member
helping in the mailroom opened the piece of legal mail and was about to put it with the regular
mail when Jones caught the error and resealed the mail. Id. The Inspector granted this grievance
as well. Id.

Finally, Plaintiff filed two more informal complaints on February 12, 2021 and March 3,
2021 alleging she received legal mail that had already been opened. Doc. No. 90-14 at PageID
1620; Doc. No. 90-15 at PageID 1622. Both grievances were denied. Doc. No. 90-14 at PageID
1614; Doc. No. 90-15 at PageID 1623.
Jones conceded that Plaintiff had complained of having her legal mail opened multiple
times and that “a couple of times it was true.” Doc. No. 90 at PageID 1475. However, Jones did
not state that he was the one who had improperly opened her legal mail. Id. Plaintiff testified that
on one occasion—which she does not connect to a specific date, incident, or informal complaint—
Jones told her that he had accidentally opened a piece of her legal mail and taped it closed. Doc.
No. 89 at PageID 909. Other than that one incident, Plaintiff admitted that she did not know who
had been opening her mail, and stated only that Jones was violating her constitutional rights
because he was working in the mailroom at the times that these incidents occurred. Id. at PageID
908.

C. Issues with Cellmate
On July 15 and 19, 2021, Plaintiff filed informal complaints describing her requests to be
moved to a different cell due to threats of violence from her cellmate. Doc. No. 95-7 at PageID
2060-62. These grievances state that Defendant Foreman and Allen (a non-party) were involved
in rejecting Plaintiff’s requests to be moved. Id. Both grievances were denied, and Plaintiff was
not moved. Id. On August 8, 2021, Plaintiff was involved in a physical altercation with her
cellmate and asserted that the cellmate attacked her. Doc. No. 95-10 at PageID 2124-26. Both
inmates were injured in the incident. Id. at PageID 2125.
D. Procedural History
Plaintiff initially filed this lawsuit pro se on July 1, 2021.4 Doc. No. 16. On November

24, 2021, the Court issued a sua sponte order appointing counsel for Plaintiff. Doc. No. 36. With
the assistance of appointed counsel, Plaintiff filed a final amended complaint on February 18,
2022, in which she asserts several claims for relief against Defendants under § 1983 and Ohio law.
Doc. No. 52.
II. STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue of material fact and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.

4 Accordingly, Plaintiff’s pro se documents were liberally construed in her favor. See Owens v. Keeling,
461 F.3d 763, 776 (6th Cir. 2006) (citing Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005)).
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The burden is on
the moving party to conclusively show no genuine issue of material fact exists. Celotex, 477 U.S.
at 323; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” See Fed. R. Civ. P. 56(c)(1)(A) and (B). A court considering a
motion for summary judgment must view the facts and all inferences in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). However, “[t]he non-moving party . . . may not rest upon [his or her] mere allegations or
denials of the adverse party’s pleadings, but rather must set forth specific facts showing that there
is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009)
(citations omitted). Additionally, the failure “to properly address another party’s assertion of fact

as required by Rule 56(c)” could result in the Court “consider[ing] the fact undisputed for purposes
of the motion.” Fed. R. Civ. P. 56(e)(2).
Finally, “there is no duty imposed upon the trial court to ‘search the entire record to
establish that it is bereft of a genuine issue of material fact.’” Guarino v. Brookfield Twp. Trs.,
980 F.2d 399, 404 (6th Cir. 1992) (citations omitted). Instead, “the free-ranging search for
supporting facts is a task for which attorneys in the case are equipped and for which courts
generally are not.” Id. at 406.
III. LAW AND ANALYSIS
Plaintiff now raises five claims against Defendants.5 Doc. No. 52. Count I6 seeks relief
under 42 U.S.C. § 1983 for the alleged denial of access to the courts in violation of the First
Amendment. Id. at PageID 620. Counts II and III7 allege that Defendants unlawfully opened
Plaintiff’s legal mail in violation of the First Amendment and Ohio Administrative Code § 5120-
9-17, respectively. Id. at PageID 620-21. Finally, Counts VI and VII8 seek relief under 42 U.S.C.

§ 1983, alleging retaliation after Plaintiff filed complaints in the ODRC grievance system. Id. at
PageID 624-25. All remaining Defendants seek summary judgment on all claims. Doc. No. 91.
A. Eleventh Amendment Immunity
Plaintiff brings claims against Defendants in their official and individual capacities. Doc.
No. 52 at PageID 608-09. Defendants first argue that Plaintiff’s official capacity claims are barred
by the Eleventh Amendment. Doc. No. 91 at PageID 1628.
The Eleventh Amendment expressly provides that federal courts have no jurisdiction over
“any suit in law or equity” filed “against one of the United States.” U.S. Const. amend. XI. This
sovereign immunity also extends to state officials sued in their official capacities. Maben v.

Thelen, 887 F.3d 252, 270 (6th Cir. 2018). The United States Supreme Court has recognized a
narrow exception to Eleventh Amendment immunity for lawsuits against government officials in
their official capacities if a plaintiff seeks only non-monetary relief. Ex Parte Young, 209 U.S.

5 In an Order following a motion to dismiss by Defendants (Doc. No. 65), the Court dismissed with
prejudice Counts IV and V of Plaintiff’s amended complaint. Doc. No. 77. These two claims were the
only allegations against ODRC, Smith, and Chambers-Smith. Doc. No. 52. Thus, Plaintiff admits that
there are no remaining claims against ODRC, Smith, or Chambers-Smith. Doc. No. 98 at PageID 2314.
6 Count I is alleged only against Defendants Crawford, Bleise, Foreman, McNelly, Mobley, Nichols, Jones,
and Pope. Doc. No. 52 at PageID 620.
7 Counts II and III are alleged only against Defendant Jones. Doc. No. 52 at PageID 620-21.
8 Counts VI and VII are alleged only against Defendants Bleise, Nichols, McNelly, Foreman, Gedeon, Pope,
and Crawford. Doc. No. 52 at PageID 624-25.
123, 155-56 (1908). The Ex Parte Young exception permits a plaintiff suing a defendant in his or
her official capacity to “seek prospective relief to end a continuing violation of federal law.” Doe
v. Wright State Univ., No. 3:16-cv-469, 2017 WL 3671240, at *4 (S.D. Ohio Aug. 24, 2017) (citing
Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2014)).

In this case, the Ex Parte Young exception does not apply. Plaintiff’s amended complaint
sought both monetary relief and non-monetary, prospective relief. Doc. No. 52 at PageID 625-26.
However, Plaintiff only mentions three types of prospective relief: (1) a declaration that ODRC’s
new legal mail policy is unconstitutional; (2) an injunction prohibiting Defendants from enforcing
ODRC’s new legal mail policy; and (3) an injunction requiring Defendants to adhere to the
previous legal mail policy. Id. All three of these requests for prospective relief are related to
Plaintiff’s claims that the ODRC’s new legal mail policy violates the First Amendment, which
were dismissed in a previous Order. Doc. No. 77 at PageID 719-20. Plaintiff’s claims against
Defendants in their official capacities are therefore barred by the Eleventh Amendment. Thus, the
only remaining claims are claims for monetary damages against Defendants in their individual

capacities.
B. Access to the Courts Claim
Prison inmates have a constitutional right to access the courts under the First Amendment.
Whiteside v. Parrish, 387 Fed. App’x 608, 613 (6th Cir. 2010). This right, however, is limited to
“direct appeals, habeas corpus applications, and civil rights claims[.]” Id. (internal quotation
marks omitted). Additionally, an inmate can only seek relief when prison officials impede access
to the courts in a way that causes an actual injury and prejudices the inmate’s litigation. Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Lewis v. Casey, 518 U.S. 343, 349 (1996).
Plaintiff claims two actions interfered with her right to access the courts: (1) Bleise
allegedly prevented Plaintiff from accessing a lock box with her legal materials for two days; and
(2) Jones allegedly failed to timely deliver legal mail within 48 hours pursuant to ODRC policy.
Doc. No. 98 at PageID 2339-40. Plaintiff argues that a genuine issue of material fact exists as to

whether either of these actions impacted the appeal of her criminal conviction in Ohio’s Eighth
District Court of Appeals or her habeas corpus petition. Id. at 2340. However, Plaintiff fails to
point to anything in the record showing that she missed a deadline or was otherwise prejudiced
due to Defendants’ actions. See id. at 2339-41. Thus, Plaintiff has not shown an actual injury, and
Defendants are entitled to summary judgment on this claim.
C. Opening of Legal Mail Claims
i. Constitutional Claim
Inmates also have a First Amendment right to receive mail, subject to restrictions
reasonably related to security. Sallier v. Brooks, 343 F.3d 868, 873 (6th Cir. 2003). Prison officials
may generally open inmates’ incoming mail pursuant to prison policy, but violate the First

Amendment when they “open and read incoming mail in an arbitrary and capricious fashion[.]”
Id. at 873-74. To that end, the Sixth Circuit has expressed a “heightened concern with allowing
prison officials unfettered discretion to open and read an inmate’s [legal] mail because a prison’s
security needs to not automatically trump a prisoner’s First Amendment right to receive [legal]
mail[.]” Id. at 874. When opening mail from a legal source that implicates an inmate’s “legal
rights, the attorney-client privilege, or the right of access to the courts[,]” the Court “must balance
the interest of prison security against the possibility of tampering that could unjustifiably chill the
prisoner’s right of access to the courts or impair the right to be represented by counsel.” Id. While
“constitutionally protected mail can be opened (although not read) and inspected for contraband[,]”
prison officials must do this “in the presence of the recipient, if such a request has been made by
the prisoner.” Id. Under a prior—but no longer current—version of Ohio Administrative Code
(OAC) § 5120-9-17(B)(2), “legal mail” was defined as “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.” Ohio Admin. Code §
5120-9-17 (effective to April 7, 2022). If a piece of mail met this description, the ORDC was
required to open it in the presence of the inmate recipient. Id. This version of the OAC section
was still in effect during all the alleged legal mail interference in this case.9 Doc. Nos. 1-1, 52, 98.
However, “[a] mailroom employee, by virtue of her position alone, does not become the
insurer of an inmate’s constitutional rights.” Salem v. Warren, 609 Fed. App’x 281, 284 (6th Cir.
2015), aff’g No. 10-cv-11943, 2014 WL 11309768 (E.D. Mich. July 2, 2024). To survive summary
judgment in a § 1983 suit for damages, a plaintiff must show “what each defendant did to violate
the asserted right” and may not rely upon “conclusory, vague or general allegations[.]” Terrance
v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002). Although the opening

of “[t]wo or three pieces of mail […] in an arbitrary or capricious way suffice[s] to state a claim[,]”
Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009), “a single instance of interference with
a prisoner’s [legal] mail does not give rise to a constitutional claim.” Glass v. Ramos, No. 3:19-

9 Defendants rely extensively on ORDC’s new legal mail policy and the amended, current version of OAC
§ 5120-9-17(B)(2). Doc. No. 91 at PageID 1635-38. In fact, both parties filed supplemental briefing
regarding the recent legal developments surrounding this new policy and amended Administrative Code
provision, which require control numbers to be placed on legal mail. Doc. Nos. 100, 101. However, after
reviewing the record and Plaintiff’s remaining claims, the Court determined, without holding, that the new
policy—which requires control numbers to be placed on all legal mail—was implemented by ODRC no
earlier than September 29, 2021. See Doc. No. 90-7 at PageID 1581. Each alleged incident of interference
with Plaintiff’s legal mail occurred prior to September 29, 2021. Doc. Nos. 90-9, 90-12, 90-13, 90-14, 90-
15. Additionally, the Court dismissed in an earlier Order the only claims in Plaintiff’s amended complaint
related to the new legal mail policy and amended Administrative Code provision. Doc. No. 77. Thus, the
Court will not discuss ORDC’s new control number requirement.
cv-P714-DJH, 2021 WL 3008602, at *4 (W.D. Ky. July 15, 2021).
All five of Plaintiff’s informal complaints allege that someone in the mailroom opened her
legal mail outside her presence, but do not assert or show that Jones opened her mail. Doc. Nos.
90-9, 90-12, 90-13, 90-14, 90-15. Plaintiff testified that Jones accidentally opened her legal mail

and taped it shut on one occasion. Doc. No 89 at PageID 909. Plaintiff does not connect this
incident to a specific date or informal complaint she filed and does not state who sent the mail. Id.
Plaintiff admitted that—aside from that one incident—she did not know who opened her legal
mail. Id. at PageID 908. Additionally, while Jones acknowledged that some of Plaintiff’s legal
mail was improperly opened, he stated he was not the person who opened it. Doc. No. 90 at
PageID 1475.
Viewing the record in the light most favorable to Plaintiff, “there is evidence that her mail
was repeatedly opened in a manner that might be deemed arbitrary or capricious.” See Salem, 609
Fed. App’x at 284. However, the record also shows that Jones—the only named Defendant for
this claim—was not the only employee working in the mailroom. Doc. No. 90 at PageID 1408-

09. At most, Plaintiff has shown that there is a dispute of fact as to whether Jones accidentally
opened one piece of alleged legal mail on one unspecified occasion. Doc. No 89 at PageID 909.
Thus, because a single incident of opening legal mail does not give rise to a constitutional claim,
a reasonable jury could not conclude that Jones violated Plaintiff’s rights by opening her legal mail
in an arbitrary and capricious manner. See Glass, 2021 WL 3008602, at *4. Jones is therefore
entitled to summary judgment on this claim.
ii. State Law Claim
Plaintiff’s remaining legal mail claim, as noted, arises out of state law. “Once [a] district
court dismisse[s] all of the claims over which it ha[s] original jurisdiction, it act[s] squarely within
its discretion by declining supplemental jurisdiction over the remaining [state law] claim[s] and
dismissing [them] without prejudice.” Booker v. City of Beachwood, 451 F. App’x 521, 522–23
(6th Cir. 2011) (citing 28 U.S.C. § 1367(c)(3)). To that end, the Sixth Circuit has held that
“[g]enerally, once a federal court has dismissed a plaintiff's federal law claim[s], it should not

reach state law claims.” Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 521 (6th Cir. 2007)
(citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)); see Smyer v. Kroger Ltd.
P’ship, 2024 WL 1007116 (6th Cir. 2024).
The Court finds that comity concerns weigh in favor of declining to exercise supplemental
jurisdiction to avoid needlessly deciding state-law issues. Accordingly, Plaintiff’s state-law claim
is dismissed without prejudice.
D. Retaliation Claims
Last, Plaintiff brings two retaliation claims: one under the First Amendment and one under
the Fourteenth Amendment. Doc. No. 52 at PageID 624-25. The standards for analyzing these
two types of claims are not the same. Thaddeus-X v. Blatter, 175 F.3d 378, 387 (6th Cir. 1999).

However, the Sixth Circuit has stated that when an Amendment provides an explicit constitutional
protection, that Amendment must be used to analyze the claims instead of the more generalized
right to substantive due process under the Fourteenth Amendment. Id. Here, the First Amendment
properly covers Plaintiff’s retaliation claims because she asserts that the alleged adverse actions
were taken because she used the DCI grievance system. See id.; Doc. No. 52 at PageID 625.
“It is well established that government actions, which standing alone do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to
punish an individual for exercise of a constitutional right.” Thaddeus-X, 175 F.3d at 386. In order
to establish a retaliation claim, Plaintiff must show: (1) she “engaged in conduct protected by the
Constitution[;]” (2) “the defendant[s] took an adverse action against [her;]” and (3) the “adverse
action was taken (at least in part) because of the protected conduct.” Id. at 386-87.
In her amended complaint, Plaintiff alleged four instances of retaliation in response to her
use of the DCI grievance system: (1) Bleise verbally abused her during the COVID-19 pandemic

while not wearing a mask; (2) Pope and Crawford physically destroyed her belongings and legal
property; (3) Bleise and McNelly placed her into a heightened level of detention based on
fabricated claims of wrongdoing; and (4) Foreman forced her to cohabitate with a threatening
cellmate. Doc. No. 52 at PageID 619, 624. However, Plaintiff fails to point to any evidence in
the record that substantiates the verbal abuse incident or the destruction of property incident. See
Doc. No. 98 at PageID 2315-27. Additionally, Plaintiff’s amended complaint brings retaliation
claims against Defendants Nichols, Gedeon, Pope, and Crawford (Doc. No. 52 at PageID 624),
but she fails to explain how these four Defendants were involved in the alleged retaliation. See
Doc. No. 98 at PageID 2315-27. Because the non-moving party cannot rest on the pleadings and
cannot expect the Court to search the entire record for material facts, summary judgment related

to these two alleged instances of retaliation and these four Defendants is appropriate. See Viergutz,
375 Fed. App’x at 485; Guarino, 980 F.2d at 404.
i. Protected Conduct
Plaintiff addresses the third and fourth instances of retaliation—the heightened level of
detention and the forced cohabitation with a threatening cellmate—in more detail. Filing non-
frivolous grievances against prison officials is conduct protected by the First Amendment. Hill v.
Lappin, 630 F.3d 468, 472 (6th Cir. 2010). Plaintiff claims that Defendants Bleise and McNelly
retaliated against her once she filed an informal complaint concerning access to her legal materials.
Doc. No. 98 at PageID 2318-19. The record shows that Plaintiff filed this informal complaint
through the DCI grievance system on December 23, 2023. Doc. No. 95-7. After investigation,
this grievance was granted. Id. Plaintiff also claims that Defendant Foreman retaliated against her
due to the filing of two informal complaints concerning her requests to be moved to a different cell
to avoid a threatening cellmate. Doc. No. 98 at PageID 2325. The record shows that Plaintiff filed

these informal complaints on July 15, 2021 and July 19, 2021. Doc. No. 95-7 at PageID 2060-62.
While these grievances were denied, the record shows that Plaintiff was later involved in a physical
altercation with that cellmate and indicated that the cellmate attacked her. Doc. No. 95-10 at
PageID 2124-26. Viewed in the light most favorable to Plaintiff, a reasonable trial of fact could
find that these grievances were not frivolous. Thus, Plaintiff has sufficiently established the first
element of a retaliation claim for both alleged incidents.
ii. Adverse Actions
To satisfy the second element of a retaliation claim, Plaintiff must point to evidence
showing that an adverse action was taken against her. Thaddeus-X, 175 F.3d at 396. An action is
adverse when it “would ‘deter a person of ordinary firmness’ from the exercise of the right at

stake.” Id. (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Plaintiff describes two
adverse actions.
First, Plaintiff claims that Bleise and McNelly placed her on LPH as retaliation for filing
an informal complaint concerning access to her legal materials. Doc. No. 98 at PageID 2319. The
Sixth Circuit has concluded that “actions that result in more restrictions and fewer privileges for
prisoners are considered adverse.” Hill, 630 F.3d at 474. An inmate on LPH “is considered general
population and shall have access to prison services, although that access can be reasonably limited
as part privilege reduction” by controlling the inmate’s movement and reducing her access to other
inmates. Doc. No. 97-3 at PageID 2221. The record shows that Plaintiff was placed on LPH for
two days. Doc. No. 93 at PageID 1678. Viewed in the light most favorable to Plaintiff, a
reasonable jury could find that her placement on LPH was an adverse action.
Second, Plaintiff asserts that Foreman refused to move her to a different cell after she filed
informal complaints regarding threats of physical harm by her cellmate. Doc. No. 98 at PageID

2325. Assignments to a specific cell or cellmate “are a normal part of prison life” that “typically
do not amount to an adverse action.” LaFountain v. Harry, 716 F.3d 944, 949 (6th Cir. 2013).
However, in some circumstances, specific threats of violence by a cellmate may be considered an
adverse action. Id. (concluding that a cellmate’s threat to use knives on a plaintiff was a
foreseeable consequence of the defendants’ refusal to move the plaintiff to a different cell and
would be an adverse action). Thus, viewed in the light most favorable to Plaintiff, there is a
genuine issue of material fact as to whether refusing to move her to a different cell constitutes an
adverse action.
iii. Causal Connection
Finally, Plaintiff must establish “a causal connection between the protected conduct and

the adverse action[.]” Thaddeus-X, 175 F.3d at 399. To survive summary judgment, Plaintiff must
put forth more than conclusory allegations of malice. Id.; see Murray v. Unknown Evert, 84 Fed.
App’x 553, 556 (6th Cir. 2003) (explaining that “the plaintiff must be able to prove that the
exercise of the protected right was a substantial or motivating factor in the defendant’s alleged
retaliatory conduct” and that “[c]onclusory allegations of retaliatory motive” are insufficient to
create a genuine issue of fact for trial). After Plaintiff has established that her “protected conduct
was a motivating factor behind any harm, the burden of production shifts to the defendant.”
Thaddeus-X, 175 F.3d at 399. Defendants can satisfy this burden and are entitled to summary
judgment if they “can show that [they] would have taken the same action in the absence of the
protected activity.” Id.
First, Plaintiff does not show a causal connection between her informal complaint about
Bleise and her placement on LPH. The record shows that McNelly placed Plaintiff on LPH after

Bleise wrote a conduct report alleging that she was unaccounted for on December 28, 2020. Doc.
No. 93 at PageID 1677; Doc. No. 97 at PageID 2154. Bleise wrote the conduct report because
Plaintiff did not sign in and out of the block as required. Doc. No. 93 at PageID 1678. Plaintiff
was placed on LPH after the conduct report was written but before she was found not guilty of the
alleged violation at a conduct hearing. Doc. No. 97 at PageID 2154. However, Plaintiff does not
point to any evidence in the record supporting the assertion that Bleise and McNelly placed her on
LPH because she reported Bleise’s conduct concerning access to legal materials. See Doc. No. 98
at PageID 2319, 2324. In fact, while Plaintiff’s own testimony is somewhat contradictory, she at
least recognized that Bleise wrote the conduct report because she went to another place in the
prison without properly signing out or obtaining a pass. Doc. No. 89 at PageID 1016.

In addition to Plaintiff not satisfying the burden of production, Defendants offer an
explanation for placing Plaintiff on LPH and restricting her privileges during this time. Doc. No.
91 at PageID 1642. McNelly stated that inmates were regularly put on LPH after a conduct report
while they awaited a conduct hearing. Doc. No. 97 at PageID 2154. Additionally, this was not
Plaintiff’s first alleged offense; she was found guilty on December 28, 2020 of being out-of-place
on both December 23 and 24, 2020 and was given restrictions due to these offenses. Doc. No. 93
at PageID 1676-77; Doc. No. 89 at PageID 1013. Thus, Defendants Bleise and McNelly are
entitled to summary judgment on the retaliation claim related to Plaintiff’s heightened level of
detention. See Murray, 84 Fed. App’x at 556.
Second, Plaintiff does not show a causal connection between her informal complaints about
cohabitation with a threatening cellmate and Foreman’s refusal to move her to a different cell.
Again, Plaintiff fails to point to any evidence in the record supporting the claim that Foreman’s
refusal to move her was motivated by her grievances. See Doc. No. 98 at PageID 2327.

Additionally, Plaintiff admitted that Allen—a nonparty—might have been the one that refused to
move Plaintiff to a different cell instead of Foreman. Doc. No. 89 at PageID 1034. Moreover, the
record shows that there were other reasons why Plaintiff may have been refused a cell change: she
had a ticket when DCI policy required her to be ticket-free for six months before she could request
a move. Doc. No. 95-7 at PageID 2060. At another point, it appears that Allen placed cell moves
on hold for all inmates. Id. Thus, Defendant Foreman is entitled to summary judgment on the
retaliation claim related to Plaintiff’s cohabitation with a threatening cellmate. See Murray, 84
Fed. App’x at 556.
E. Qualified Immunity
Individual state actors performing discretionary functions are entitled to qualified

immunity with regard to § 1983 claims unless the allegations, “when viewed in the light most
favorable to the plaintiff, would permit a reasonable juror to find that (1) the defendant violated a
constitutional right; and (2) the right was clearly established.” Aldini v. Johnson, 609 F.3d 858,
863 (6th Cir. 2010); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is “clearly
established” when “existing precedent ... placed the statutory or constitutional question beyond
debate.” City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600, 611 (2015) (citing al-
Kidd, 563 U.S. at 741, 131 S.Ct. 2074). Here, because Plaintiff’s § 1983 claims fail on the merits,
Defendants are also entitled to qualified immunity regarding those claims.
IV. CONCLUSION
For the reasons stated, the Court (1) GRANTS Defendants’ motion for summary judgment
(Doc. No. 91) regarding Plaintiff’s federal claims; (2) DISMISSES WITHOUT PREJUDICE
Plaintiffs’ remaining state law claim; and (3) TERMINATES this case on the docket. Pursuant
to 28 U.S.C. § 1915(a)(3), the Court hereby CERTIFIES to the United States Court of Appeals

for the Sixth Circuit that an appeal by Plaintiff would be frivolous and not taken in good faith.
Consequently, Plaintiff should not be permitted to proceed in forma pauperis on appeal, and the
Court DENIES Plaintiff a certificate of appealability.
The Court takes this opportunity to thank pro bono counsel who zealously litigated this
case and very ably assisted Plaintiff.
IT IS SO ORDERED.
March 18, 2024 s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384254. Public record. Not legal advice.