Young v. Mulvaine

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

AARON E. YOUNG, CASE NO. 3:18 CV 2807

Plaintiff,

v. JUDGE JAMES R. KNEPP II

DEAN MULVAINE, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Previously in this 42 U.S.C. § 1983 case brought by pro se Plaintiff Aaron E. Young, this

Court granted Defendants’ Motion for Summary Judgment (Doc. 72) and dismissed this case in its

entirety. (Doc. 89). On appeal, the Sixth Circuit affirmed this Court’s decision in part, vacated it

in part, and remanded it for further proceedings. (Doc. 100). Defendants filed a Second Motion for

Summary Judgment, which is fully briefed and ripe for decision. (Doc. 104). For the following

reasons, the Court grants in part and denies in part the Motion for Summary Judgment.

BACKGROUND

At all times relevant to this lawsuit, Plaintiff was an inmate at private prison North Central

Correctional Complex (“NCCC”), operated by Defendant Management & Training Corporation

(“MTC”) on behalf of the Ohio Department of Rehabilitation and Correction (“ODRC”). See Doc.

36. Plaintiff filed, from May 2016 to September 2017, nineteen internal complaints and grievances

against NCCC. (Doc. 72-1, Shuler Affidavit, at 7-8). Additionally, Plaintiff filed two unrelated

civil lawsuits against MTC in 2017. (Young Depo., at 14).1 Plaintiff claimed he was denied the

ability to speak to his attorney for those cases, and that when he was permitted to speak to his

attorney, the phone calls were monitored by NCCC staff. Id. at 17-18. Plaintiff also stated NCCC

staff instructed him to inform his attorney she would not be permitted phone calls or visits to the

facility in the future. Id. at 19. Plaintiff did not submit a complaint or grievance about the denial

of access to counsel, did not miss any court deadlines, was not prevented from making any filings

in those cases or others, and continued to correspond with counsel via mail. Id. at 23-25; see also

Doc. 72-1, at ¶ 6. These lawsuits were resolved by mediation or stipulation. (Young Depo., at 15-

16, 22).

Plaintiff was internally disciplined several times at NCCC. In February 2017, the Rules

Infraction Board (“RIB”) disciplined Plaintiff for “telling other inmates not to move during a use-

of-force incident.” (Doc. 72-2, Craig Affidavit, at ¶ 7). In June 2017, the RIB disciplined Plaintiff

for “failing to perform his porter job.” Id. In November 2017, the RIB disciplined Plaintiff twice

for “incidents relating to [Plaintiff] possessing other inmates’ legal material.” Id. In December

2017, the RIB disciplined Plaintiff for “using a JPay machine to view personal pictures.” Id.

In November 2017, NCCC staff received an anonymous threat to Smith. (Doc. 72-3,

Mulvaine Affidavit, at ¶ 4). Defendant Sergeant Dean Mulvaine considered Plaintiff a “possible

person of interest” and assigned him to restrictive housing. Id. at ¶ 6. Mulvaine stated that during

NCCC investigation of the threat letter, Plaintiff stated he “had nothing to do with” the threat,

despite not having been advised he was under investigation for the threat, and at least two inmates

stated they believed “Plaintiff was the driving force behind the threatening letter.” Id. at ¶¶ 7-8.

Mulvaine also stated the handwriting on the threat letter appeared similar to Plaintiff’s. Id.

1. The transcript of Plaintiff’s deposition can be found at ECF No. 71-1.

Mulvaine issued Plaintiff a conduct report charging him with threatening staff with bodily harm.

Id. at ¶ 9; see also id. at 5. The RIB, after a hearing, found Plaintiff guilty of writing the letter.

(Doc. 72-2, at 2). This hearing took place on November 30, 2017. (Doc. 81, at 4). As punishment,

Plaintiff was given 90 days restrictive housing and a recommendation for review of his security

level; his security level was ultimately raised. Id. The Ohio Department of Rehabilitation and

Correction’s Bureau of Classification affirmed the decision and recommendation. (Doc. 72-4, Neil

Turner Affidavit, at 2). Plaintiff was put in disciplinary segregation during the investigation,

beginning on November 17, 2017. (Young Depo., at 47); (Doc. 72-3, at 1). His 90 days restrictive

housing assigned by the RIB began on December 1, 2017. (Doc. 72-2, at 52). Defendant Doyle

Prichard served as the Rules Infraction Board Chairperson for Plaintiff’s hearing. (Doc. 72-5,

Prichard Affidavit, at 1).

After the disciplinary hearing related to the letter, Plaintiff was escorted back to his cell by

Mulvaine and Defendant Lieutenant Benjamin Blankenship. (Young Depo., at 47). Plaintiff

testified Mulvaine slammed him against the wall, made threatening remarks, used slurs against

Plaintiff, and punched Plaintiff in the face. Id. at 48-50. Plaintiff told Institutional Inspector Lorri

Shuler about the incident but did not file an informal complaint. Id. at 50-51. Mulvaine denies he

took these actions. (Doc. 72-3, at ¶ 11). Shuler denies Plaintiff told her of the incident. (Doc. 72-

1, at ¶ 10).

Plaintiff alleged in his Amended Complaint that Defendant Sergeant Steve Jones and

Defendant Sergeant A. Flores wrongly refused to allow him to eat with other inmates, participate

in recreation, wash his clothes or cell, or possess a blanket while he was in the restrictive housing

unit. (Doc. 36, at 9). Plaintiff cited in support of this contention interrogatory answers by Jones, in

which he states Plaintiff’s question “is too vague . . . to provide a meaningful response” and states

any restrictions imposed “would not have been [Jones’] call.” (Doc. 84-16, Jones Interrogatory

Responses, at 2).

Plaintiff alleged in his Amended Complaint that Mulvaine and Flores confiscated “his 29

U.S.C. 1746 Declarations.” (Doc. 36, at 12). No party provides further details or evidence about

this allegation. The parties had previously briefed and provided evidence related to an allegation

that Defendant Brandi Smith had confiscated legal materials from Plaintiff (see Doc. 72, at 3;

Young Depo., at 31-33), but there are currently no claims remaining against Smith. Mulvaine

testified in an affidavit he did not confiscate any legal material belonging to Plaintiff. (Doc. 72-3,

at 2).

The final incident relevant to the claims currently before the Court relates to Plaintiff’s

discipline for using the JPay machine to view personal pictures. While Plaintiff’s security level

was increased after the results of his RIB hearing, he was unable to use the JPay machine to file

informal complaints. (Young Depo., at 53-56). On December 7, 2017, Jones granted Plaintiff’s

request to use the machine. (Doc. 72-2, at 29). When Jones checked on Plaintiff a short time later,

Plaintiff was using the machine to look at “personal pictures.” Id. Plaintiff testified Jones told him

he could not view these pictures during his sentence to restrictive housing; Plaintiff told Jones

there was no such rule, and Jones called Plaintiff a child molester in front of other inmates. (Young

Depo., at 51-52). Plaintiff did not file a complaint about the incident. (Doc. 72-1, at 3).

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material fact”

and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

considering a motion for summary judgment, the Court must draw all inferences from the record

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine

the truth of any matter in dispute; rather, the Court determines only whether the case contains

sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

This burden “may be discharged by ‘showing’ – that is, pointing out to the district court –

that there is an absence of evidence to support the nonmoving party's case.” Id. The nonmoving

party must go beyond the pleadings and “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson, 477 U.S. at 257. Further, the nonmoving

party has an affirmative duty to direct the Court's attention to those specific portions of the record

upon which it seeks to rely to create a genuine issue of material fact. See Fed R. Civ. P. 56(c)(3)

(noting the court “need consider only the cited materials”).

DISCUSSION

This Court granted Defendants’ first Motion for Summary Judgment. (Doc. 89). The Sixth

Circuit vacated the grant of summary judgment based on the failure to exhaust as to Plaintiff’s §

1983 claims that:

(1) Defendant Mulvaine issued Plaintiff a false conduct report and placed him in

segregation;

(2) Defendants Mulvaine and Flores confiscated Plaintiff’s legal documents;

(3) Defendants Flores and Jones denied Plaintiff his “limited privilege housing”

privileges;

(4) Defendant Mulvaine used excessive force against Plaintiff; and

(5) Defendant Prichard found Plaintiff guilty of violating Rule 8 of the Ohio

Administrative Code (for writing threatening notes) and gave Plaintiff a

disproportionate sanction for the violation.

(Doc. 99, at 10). The Sixth Circuit held Plaintiff presented a genuine issue of material fact as to

whether the prison’s grievance process was available to him for these claims. Id. at 9-10. When

the grievance process is unavailable to an individual, the exhaustion requirement does not apply.

Id. at 7 (citing Ross v. Blake, 578 U.S. 632, 643-44 (2016)). The Sixth Circuit additionally vacated

the dismissal of Plaintiff’s state law claims, over which this Court declined to exercise

supplemental jurisdiction. Id. at 10.

Defendants have now filed a second Motion for Summary Judgment seeking dismissal of

these remanded claims. (Doc. 104). They argue that, grievance process availability aside, “Plaintiff

lacks evidence necessary to support his claims, while Plaintiff’s own testimony exonerates

Defendants from any possible liability.” Id. at 15.

Section 1983 Claims

Plaintiff brings most of his claims under 42 U.S.C. § 1983, which allows an individual to

sue for state violations of his constitutional rights. See, e.g., Graham v. Connor, 490 U.S. 386,

393-94. To bring a successful § 1983 claim, Plaintiff must show (1) the deprivation of a right

secured by the Constitution or laws of the United States which was (2) caused by a person acting

under the color of state law. Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006).

In the claims remanded to this Court, Plaintiff alleges violations of his First, Eighth, and Fourteenth

Amendment rights. (Doc. 36, at 12-13).

First Amendment Claims

Plaintiff claims (1) Defendant Mulvaine violated his First and Fourteenth Amendment

rights by issuing a false conduct report against Plaintiff and placing Plaintiff in segregation (Doc.

36, at 12); (2) Defendants Mulvaine and Flores violated his First and Fourteenth Amendment rights

by confiscating Plaintiff’s legal documents (id.); (3) Defendants Flores and Jones violated his First

and Fourteenth Amendment rights by denying Plaintiff “limited privilege housing” privileges (id.);

(4) Defendant Mulvaine violated his First Amendment rights by assaulting and insulting Plaintiff

after his disciplinary hearing (id. at 13); and (5) Defendant Prichard violated his First and

Fourteenth Amendment rights by finding Plaintiff guilty of violating Rule 8 for writing threatening

notes and imposing a disproportionate sanction for that violation (id.). Plaintiff alleges all these

actions were in retaliation for Plaintiff filing lawsuits and internal complaints against prison staff

and helping other inmates file their own lawsuits and complaints. Id. at 12-13.

Plaintiff brought these claims specifically as First Amendment retaliation claims. “Where

a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a

particular sort of government behavior, ‘that Amendment[,] not the more generalized notion of

substantive due process, must be the guide for analyzing these claims.’” Albright v. Oliver, 510

U.S. 266, 273 (1994) (quoting Graham, 490 U.S. at 395). To the extent Plaintiff brings the above

claims under the Fourteenth Amendment, they are therefore dismissed; the Court analyzes them

under the First Amendment as the “explicit textual source of constitutional protection.” Graham,

490 U.S. at 395.2

To state a First Amendment claim for retaliation, Plaintiff must show (1) he engaged in

protected conduct, (2) an adverse action was taken against him “that would deter a person of

ordinary firmness from continuing to engage in that conduct,” and (3) there is a causal connection

2. Plaintiff’s opposition to Defendants’ Motion for Summary Judgment frequently contradicts

itself regarding his Fourteenth Amendment claims; it both states Plaintiff “is not asserting a

Fourteenth Amendment Due Process claim” and makes arguments based on the Fourteenth

Amendment’s equal protection clause. See Doc. 106, at 16-18. To make such a claim, “a § 1983

plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of

membership in a protected class.” Henry v. Metro. Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990).

Plaintiff makes no such allegation in his Amended Complaint and points to no such evidence or

testimony that this is the case in his opposition brief. Therefore, the Court dismisses any Fourteenth

Amendment claims which may remain.

between them; “that is, the adverse action was motivated at least in part by the plaintiff’s protected

conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). If Plaintiff can show all three,

“the defendant then has the burden of showing that the same action would have been taken even

absent the plaintiff’s protected conduct.” Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).

Protected Conduct

For each of his First Amendment claims, Plaintiff states his protected conduct included (1)

his filing of lawsuits and internal complaints and (2) helping other inmates file their own lawsuits

and internal complaints. See Doc. 36, at 12-13. As to the latter, incarcerated plaintiffs in the Sixth

Circuit do not have an independent right to help other prisoners with legal claims; their right to

assist another prisoner “is wholly derivative of that prisoner’s right to access the courts[, and]

prison officials may prohibit or limit jailhouse lawyering unless doing so interferes with an

inmate’s ability to present his grievances to a court.” Thaddeus-X, 175 F.3d at 395 (citing Gibbs

v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993)). Plaintiff can properly state a claim of retaliation on

this conduct only if “[his] assistance is necessary to vindicate [another inmate]’s right of access to

the courts.” Id. Plaintiff makes no such allegations and no such argument in his Amended

Complaint or in any of his briefing. See Docs. 36, 106. Plaintiff therefore does not adequately state

any First Amendment retaliation claim related to his assistance with other inmates’ internal

complaints or lawsuits.

As to Plaintiff’s own lawsuits and internal complaints: “[a]n inmate has an undisputed First

Amendment right to file grievances against prison officials on his own behalf.” Herron v.

Harrison, 203 F.3d 410, 415 (6th Cir. 2000). An inmate cannot, however, “immunize himself from

adverse administrative action by prison officials merely by filing a grievance or a lawsuit and then

claiming that everything that happens to him is retaliatory.” Spies v. Voinovich, 48 F. App’x 520,

525 (6th Cir. 2002) (citing Ward v. Dyke, 58 F.3d 271, 274-75 (6th Cir. 1995)). “This right is

protected . . . only if the grievances are not frivolous.” Herron, 203 F.3d at 415. A complaint is

frivolous if it lacks an arguable basis in law or fact – frivolity “embraces not only the inarguable

legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S. 319, 325

(1989). Defendants make no argument Plaintiff’s complaints were themselves frivolous, and this

Court declines to find them so.

Additionally, “if a prisoner violates a legitimate prison regulation, he is not engaged in

‘protected conduct,’ and cannot proceed beyond step one.” Smith, 250 F.3d at 1037. In Smith, and

in Thaddeus-X, this legal tenet meant a prisoner “cannot exercise that right [to file grievances

against prison officials] in a manner that violates legitimate prison regulations or penological

objectives.” Id.; see also Thaddeus-X, 175 F.3d at 395. Defendants argue that because their

“alleged retaliatory acts stem from Plaintiff’s discipline for violating internal prison rules,” this

holding prevents Plaintiff from proceeding past the first step of the First Amendment retaliation

analysis. (Doc. 104, at 16). This argument addresses the second and third steps, not the first: it

concerns the adverse actions taken against Plaintiff and their relation to Plaintiff’s conduct, not the

conduct Plaintiff alleges was protected. Plaintiff’s claims survive the first step of the analysis.

Adverse Actions

Plaintiff states the adverse actions taken against him included false conduct reports and

false convictions of rules violations, confiscation of his legal documents, denial of certain housing

privileges, placement in segregation, assault and insult after a hearing, and generally

disproportionate sanctions for rules violations. See Doc. 36, at 12-13. In order to state a successful

claim, Plaintiff must show these actions “would deter a person of ordinary firmness from

continuing to engage in [the protected] conduct,” in this case, from filing lawsuits and internal

grievances. Thaddeus-X, 175 F.3d at 394. Actual deterrence from that conduct, however, need not

have occurred. Harbin-Bey v. Rutter, 420 F.3d 571, 579 (6th Cir. 2005).

Misconduct charges – even legitimate ones – and restriction of privileges can be considered

adverse actions which would deter a prisoner from exercising their First Amendment rights. See,

e.g., Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000); Thomas v. Eby, 481 F.3d 434 (6th

Cir. 2007); King v. Zamira, 150 F. App’x 485, 494 (6th Cir. 2005). Defendants argue Plaintiff does

not allege “what privileges he was deprived of, or how the lack of these privileges had an adverse

effect on him” (Doc. 104, at 18).

Plaintiff has not provided support for two alleged adverse actions. Plaintiff claims

Mulvaine and Flores confiscated his legal materials but offers no evidence it actually happened;

Mulvaine denies he confiscated any legal materials belonging to Plaintiff. (Doc. 72-3, at 2).

Plaintiff also claims Flores and Jones denied him certain limited-privilege housing privileges but

has cited only an interrogatory response in which Jones denies this was in his purview. (Doc. 84-

16, at 2). These two claims therefore do not survive the second step of analysis.

There is, however, evidence that Plaintiff was charged with and then found responsible for

misconduct in violation of prison rules (Doc. 72-2, at 1-2); that Plaintiff was placed in restrictive

housing (Doc. 72-3, at ¶ 6); and that Plaintiff’s security level was raised (Doc. 72-2, at 2).

Additionally, there remains a question of fact as to whether Plaintiff was, as he alleged, assaulted

by Mulvaine after his disciplinary hearing (Plaintiff testified it did happen and that he told Shuler

(Young Depo., at 48-50); Mulvaine denied it happened (Doc. 72-3, at ¶ 11); and Shuler denied

Plaintiff informed her of the incident (Doc. 72-1, at ¶ 10)). Whether Plaintiff’s retaliation claims

against Mulvaine and Prichard succeed, therefore, depend upon whether Plaintiff can show the

third step of the analysis.

Causal Connection

Plaintiff must be able to show the adverse actions against him were “motivated at least in

part by the plaintiff’s protected conduct.” Thaddeus-X, 175 F.3d at 394. Plaintiff does not do so in

this case. Temporal proximity alone is not typically sufficient to prove causation unless that

proximity is “extremely close”; courts must look to “the totality of the circumstances to determine

whether an inference of retaliatory motive could be drawn.” Holzemer v. City of Memphis, 621

F.3d 512, 526 (6th Cir. 2010) (citing two days as an “extremely close” proximity sufficient to show

causation). Purely conclusory assumptions of a defendant’s motivation are not sufficient to meet

the causation element; “[b]are allegations of malice do not suffice to establish a constitutional

claim.” McMillan v. Fielding, 136 F. App’x 818, 820-21 (6th Cir. 2005) (citing Crawford-El v.

Britton, 523 U.S. 574, 588 (1998)).

Plaintiff primarily argues that retaliatory conduct by Defendant Mulvaine occurred 21 days

after “his grievance was granted” and twelve days after prison officials had been served in one of

his lawsuits against them. See Doc. 106, at 8. Plaintiff argues this means “[a]n inference can be

drawn that Mulvaine had animus against Young for filing lawsuits and grievances.” Id. The Court

does not agree; the time period alone is not sufficient evidence to support Plaintiff’s claim.

Randolph v. Ohio Dept. of Youth Serv., 453 F.3d 724, 737 (6th Cir. 2006) (“temporal proximity

itself is insufficient to find a causal connection”). And as Defendants point out, Plaintiff had filed

19 internal complaints and grievances in his time at NCCC spanning more than a year. (Doc. 72-

1, at 7-8). Because Plaintiff initiated so many complaints over such a lengthy period, any

disciplinary action taken by Defendants would necessarily have been near in proximity to at least

one complaint.

Plaintiff offers as evidence of retaliatory motive affidavits from two other inmates, who

stated that on December 5, 2017, they saw Defendant Mulvaine slam Plaintiff against the wall,

yell at Plaintiff for filing lawsuits, and then hit Plaintiff in the face. (Doc. 106-4, Stanley Jackson

Affidavit, at 1; Doc. 106-5, Clarence Powell III Affidavit, at 1). This evidence is unavailing. Any

claim of Plaintiff’s that Defendant Mulvaine violated his rights on December 5, 2017, is not

currently before this Court; the only allegations that Mulvaine used physical violence against

Plaintiff are from immediately after Plaintiff’s hearing on November 30, 2017. This is the only

evidence Plaintiff puts forth for the causation element of his claims, and it does not concern any

of the claims of retaliation against Mulvaine and Prichard currently pending before this Court.

Finally, even if Plaintiff had shown evidence that would permit an inference of causation,

Defendants need only show “that the same action[s] would have been taken even absent the

plaintiff’s protected conduct.” Smith, 250 F.3d at 1037 (citing Mount Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). This is where Defendants’ earlier argument becomes

relevant: that the actions of which Plaintiff complains were the result of Plaintiff’s violations of

prison rules. (Doc. 104, at 16). “[A] policy of judicial restraint [exists] to accord prison

administrators wide-ranging deference in the adoption and execution of policies and practices that

in their judgment are needed to preserve internal order and discipline and to maintain institutional

security.” Meadows v. Hopkins, 713 F.2d 206, 209 (6th Cir. 1983). Though Plaintiff characterizes

the discipline against him as false and disproportionate, these allegations are conclusory and

without evidence, and the infractions are well-documented by Defendants, particularly that of the

threat letter, for which Mulvaine described several sources of evidence for finding Plaintiff

responsible. See Doc. 72-3, at ¶¶ 6-9.

The Court is concerned with Plaintiff’s allegation of Mulvaine’s violence against him on

November 30, 2017, after the RIB hearing. As described by Plaintiff, it would certainly serve no

disciplinary purpose, and there is a question of fact as to whether it occurred, thanks to the

conflicting testimony of the parties involved. But the Court is not convinced this was an act of

First Amendment retaliation, as it, just as is the case with Plaintiff’s other claims, did not take

place within extremely close temporal proximity of Plaintiff’s exercise of First Amendment rights

and Plaintiff sets forth no evidence of causation. The Court therefore finds Defendants are entitled

to summary judgment on all First Amendment claims set forth by Plaintiff, but discusses this

incident as related to Plaintiff’s Eighth Amendment claim below.

Eighth Amendment Claim

Plaintiff additionally asserts that by assaulting and insulting Plaintiff after his disciplinary

hearing, Mulvaine also violated Plaintiff’s Eighth Amendment rights. (Doc. 36, at 13). The Eighth

Amendment protects a convicted prisoner’s right to be free from excessive force by prison

officials. Whitley v. Albers, 475 U.S. 312, 327 (1986). The “core judicial inquiry” is “not whether

a certain quantum of injury was sustained, but rather whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v.

Gaddy, 559 U.S. 34, 37 (2010).

Plaintiff testified that while escorting Plaintiff back to his cell after the RIB hearing,

Mulvaine slammed him against the wall, made threatening remarks, used slurs against Plaintiff,

and punched Plaintiff in the face. (Young Depo., at 48-50). Plaintiff also stated he told Defendant

Shuler of the incident. Id. at 50-51. Mulvaine denied he did this (Doc. 72-3, at ¶ 11) and Shuler

denied Plaintiff told her of it. (Doc. 72-1, at ¶ 10). If Plaintiff’s testimony is true, this Court cannot

envision a scenario in which Mulvaine’s actions were “applied in a good-faith effort to maintain

or restore discipline,” as Defendants present no evidence that Plaintiff had behaved combatively

or in any other manner requiring discipline during the trip from the RIB hearing to Plaintiff’s cell.

Defendants argue that Plaintiff had no medical record of injury from the incident, that

Plaintiff’s allegations are “conclusory” and “self-serving”, and that “there is no evidence that the

alleged use-of-force occurred at all.” (Doc. 104, at 24). But deposition testimony, just as the

affidavits filed by Defendants, is evidence sufficient to support a factual position in a motion for

summary judgment. Fed. R. Civ. P. 56(a)(c)(1)(A). And this Court is not permitted to weigh the

evidence regarding a factual matter in dispute. Anderson, 477 U.S. at 248-49. Whether or not

Mulvaine slammed Plaintiff into a wall and punched him in the face appears to this Court to be a

genuine dispute of material fact, and Mulvaine is not entitled to summary judgment on Plaintiff’s

Eighth Amendment claim.

State Law Claims

This Court initially declined to exercise supplemental jurisdiction over Plaintiff’s state law

claims of negligent hiring, training, and supervision, and false light. (Doc. 89, at 12). Supplemental

jurisdiction is discretionary; a plaintiff does not have a right to it. Habich v. City of Dearborn, 331

F.3d 524, 535 (6th Cir. 2003). When a district court dismisses all federal claims in a case, it “should

decline to exercise pendent jurisdiction over state law claims.” Gaff v. FDIC, 814 F.2d 311, 319

(6th Cir. 1987). But as this Court has not dismissed Plaintiff’s Eighth Amendment claim, it chooses

to exercise supplemental jurisdiction in this case for considerations of judicial economy, as

Plaintiff’s state claims and federal claims are of a similar character. See United Mine Workers of

America v. Gibbs, 383 U.S. 715, 725-26 (1966).

Negligent Hiring, Training, and Supervision

In his Amended Complaint, Plaintiff alleges “MTC is negligent for failing to train,

supervise and discipline its employees.” (Doc. 36, at 14). Though he offers no specific allegations

in support of this claim, it appears it arises from the constitutional violations he alleges in his §

1983 claims. Such a claim arises under the doctrine of respondeat superior; under Ohio law, for

this doctrine to apply “an employee must be liable for a tort committed in the scope of his

employment.” Strock v. Pressnell, 38 Ohio St. 3d 207, 217 (1988).

This Court has granted Defendants summary judgment on all claims by Plaintiff except for

his Eighth Amendment claim against Defendant Mulvaine. See supra. For this reason, this is the

only claim of negligent hiring, training, and supervision which survives. Defendants argue that

because respondeat superior may not serve as a basis for liability under § 1983, all state law

respondeat superior claims brought by Plaintiff must fail. (Doc. 104, at 27). But Plaintiff does not

bring his respondeat superior claim under § 1983; he brings it under Ohio tort law. See Doc. 36,

at 14. Though it appears a negligence claim against a prison or prison official may be possible

(see, e.g., King v. Ross Corr. Inst., 2002 WL 31894913, at *5-6 (Ohio Ct. App.); Howard v. Mgmt.

& Training Corp., 2019 WL 5549541, at *3), neither party briefed the merits of the negligent

hiring, training, and supervision claim itself or any affirmative defenses against it. The Court

therefore denies summary judgment on the issue.

False Light

Plaintiff alleges that Defendant Jones’ false statement in front of other inmates that Plaintiff

was a child molester unlawfully invaded Plaintiff’s privacy and presented him in a false light.

(Doc. 36, at 14). At the outset, Plaintiff’s two claims contradict each other here. False light claims

allege the defendant made a false statement; in invasion of privacy claims, “it is the very truth of

the facts that creates the claimed invasion of privacy.” Stainbrook v. Ohio Sec’y of State, 88 N.E.3d

1257, 1264-65 (Ohio Ct. App. 2017). Because Plaintiff’s Amended Complaint alleges Defendant

Jones’ statement was false, interpreting the claim as a false light accusation is most accurate.

False light claims in Ohio have a one-year statute of limitations. See Stainbrook, 88 N.E.3d

at 1265. Plaintiff’s original Complaint did not include a false light claim. See Doc. 1. It was added

in Plaintiff’s Amended Complaint on October 9, 2020. (Doc. 36, at 14). Defendant Jones’ alleged

statement occurred in December 2017, more than two years prior. (Young Depo., at 51-52); ((Doc.

72-2, at 29). Plaintiff did timely plead a defamation claim, which he then removed in favor of the

false light claim (see Docs. 1, 36); to the extent this series of events could be construed as giving

Defendant Jones timely notice of Plaintiff’s claim, the Court addresses the issue on the merits as

well.

To succeed on a false light claim, Plaintiff must show he was placed in a false light to the

public which “would be highly offensive to a reasonable person, and [that] the actor had knowledge

of or acted in reckless disregard as to the falsity of the publicized matter and the false light in

which the other would be placed.” Welling v. Weinfeld, 113 Ohio St. 3d 464, 473 (2007). False

light claims require more than “‘any communication by the defendant to a third person’ . . . it

requires publicity. Publicity means ‘that the matter is made public, by communicating it to the

public at large, or to so many persons that the matter must be regarded as substantially certain to

become one of public knowledge.’” Croce v. New York Times Co., 345 F. Supp. 3d 961, 994 (S.D.

Ohio 2018), aff’d, 930 F.3d 787 (6th Cir. 2019) (quoting Welling, 113 Ohio St. 3d at 468-69).

Plaintiff stated in his deposition that Defendant Jones called him a child molester “in front

of other inmates.” (Young Depo., at 51-52). This is not sufficient to make the matter public. False

information shared with “several” employees does not make a matter public. Mitchell v. Fujitec

America, Inc., 518 F. Supp. 3d 1073, 1097 (S.D. Ohio 2021). A letter published to a person’s

employer (a large state institution) does not make the information in the letter public. Croce, 345

F. Supp. 3d at 994. “The information was not publicized in a newspaper, on the internet, in a speech

to a large crowd, or in any way that would make it substantially certain to become something of

public knowledge. Even though it might be more likely that a larger number of people [learned of

the information,] . . . it is still not plausible that the information became public knowledge.” Swartz

v. DiCarlo, 2014 WL 8097138, at *4 (N.D. Ohio 2014). That several other inmates might have

heard Defendant Jones’ statement does not make the matter public. Defendant is entitled to

summary judgment on Plaintiff’s false light claim.

Motion for Sur-Reply

The last matter before the Court at this juncture is Plaintiff’s Motion to Strike Defendants’

Reply on the basis that it raises a new argument (or, in the alternative, to be permitted to file a sur-

reply). (Doc. 108). Plaintiff argues that in their reply brief (Doc. 107), Defendants raised for the

first time “[c]onfidential statements of two inmates that advised Plaintiff was behind the threats to

C.O. Smith” and “[c]omparison of handwriting on the threat with that of Plaintiff’s.” (Doc. 108,

at 2). This is not correct. Defendants included both facts in their Motion for Summary Judgment.

(Doc. 104, at 4). Additionally, these facts have been in the record and included in arguments in

this case since Defendants’ first Motion for Summary Judgment in 2021. See Doc. 72. The Court

therefore denies Plaintiff’s motion.

The Court notes in conclusion that the only remaining claims in this case, after this order,

are Plaintiff’s Eighth Amendment claim against Defendant Mulvaine and Plaintiff’s negligent

hiring, training, and supervision claim against MTC based on the same actions underlying the

Eighth Amendment claim.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion for Summary Judgment (Doc. 104) be, and the same

hereby is, GRANTED in part and DENIED in part; and it is

FURTHER ORDERED that Plaintiff’s Motion to Strike (Doc. 108), be and the same

hereby is, DENIED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: June 27, 2024