Krzywkowski v. Mohr

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GRADY KRZYWKOWSKI,

Plaintiff,

v. Civil Action 2:24-cv-3902

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

MIKE DAVIS, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, an Ohio inmate proceeding without the assistance of counsel, sues a number of

employees of the Ohio Department of Rehabilitation and Correction for breach of a settlement

agreement protecting Plaintiff’s religious accommodations and for retaliation in violation of the

First Amendment. This matter is before the Court on Defendants’ Motion for Judgment on the

Pleadings (ECF No. 51), Plaintiff’s Motion to Strike Defendants’ Motion for Judgment on the

Pleadings (ECF No. 58), Plaintiff’s Motion to Compel Discovery and Appoint Counsel (ECF No.

63), and Plaintiff’s Motion for Partial Summary Judgment on the Pleadings (ECF No. 68). For

the reasons below, Plaintiff’s Motion to Strike (ECF No. 58) is DENIED, Plaintiff’s Motion to

Appoint Counsel (ECF No. 63) is DENIED, and it is RECOMMENDED that both Defendants’

Motion for Judgment on the Pleadings and Plaintiff’s Motion for Partial Summary Judgment on

the Pleadings be DENIED.

I. BACKGROUND

Plaintiff alleges that Defendants breached a settlement agreement concerning Plaintiff’s

religious accommodations and transferred him to a different facility, both to avoid their

contractual obligations and to retaliate against Plaintiff for exercising his First Amendment

rights.1 (Am. Compl., ECF No. 5.) On October 22, 2024, the undersigned issued an Order and

Report and Recommendation (“R&R,” ECF No. 33), which was adopted by the District Judge on

December, 2, 2024, after the parties declined to file any objections (ECF No. 41). That R&R

both screened Plaintiff’s Amended Complaint under 28 U.S.C. §§ 1915, 1915A and resolved

Defendants’ Motion to Dismiss (ECF No. 4). After analyzing the sufficiency of the Amended

Complaint under §§ 1915 and 1915A and Federal Rule of Civil Procedure 12(b)(6) (all of which

require the application of the same standard under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)),

the Court granted Defendants’ Motion to Dismiss in part, but allowed Plaintiff to proceed on his

claims for breach of contract and for First Amendment retaliation. (ECF Nos. 33, 41.)

Defendants filed the subject Motion for Judgment on the Pleadings under Federal Rule of

Civil Procedure 12(c) (“MJOP,” ECF No. 51) on December 23, 2024. Plaintiff moved to strike

Defendant’s MJOP on January 7, 2025 (ECF No. 58.) Plaintiff also for the appointment of

counsel on January 22, 2025. (ECF No. 63). Finally, Plaintiff also moved for “partial summary

judgment on the pleadings,” which the Court construes as a motion for summary judgment under

Rule 56, on February 20, 2025. (ECF No. 68.)

II. PLAINTIFF’S ANCILLARY MOTIONS

Plaintiff moves to strike Defendants’ MJOP as duplicative of Defendants’ Motion to

Dismiss and procedurally improper under Federal Rule of Civil Procedure 12. (ECF No. 58.)

1 The undersigned incorporates by reference the more detailed recitation of the facts underlying

Plaintiff’s claims contained in the October 22, 2024 Report and Recommendation (ECF No. 33).

Although the MJOP largely repeats Defendants’ arguments as to the merits of Plaintiff breach-

of-contract and retaliation claims, it also raises new arguments about subject-matter jurisdiction

and qualified immunity. Further, “a party may file a Rule 12(c) motion for judgment on the

pleadings at a later stage in the litigation, even if the party has filed a previous motion under

Rule 12.” Boulger v. Woods, 306 F. Supp. 3d 985, 995 (S.D. Ohio 2018), aff’d, 917 F.3d 471

(6th Cir. 2019). There are therefore no grounds to strike Defendant’s MJOP and Plaintiff’s

Motion to Strike is DENIED.

Additionally, Plaintiff seeks to compel Defendants to provide contact information for

Defendants Foley, May, and Smith so that service of process may be effected over them. (ECF

No. 63.) However, Defendants have since provided all necessary information and all Defendants

have been served. (See ECF Nos. 72, 75.) Plaintiff’s Motion to Compel Discovery (ECF No. 63)

is therefore DENIED AS MOOT.

Plaintiff also moves, for the third time, for the appointment of counsel. (ECF No. 63.) For

the same reasons contained in the Court’s previous orders denying similar motions (ECF Nos.

38, 43), Plaintiff’s Motion to Appoint Counsel is DENIED.

III. DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

A. Standard of Review

Rule 12(c) of the Federal Rules of Civil Procedure allows a party to “move for judgment

on the pleadings.” Fed. R. Civ. P. 12(c). In deciding a Rule 12(c) motion, the Court must take

“all well-pleaded material allegations of the pleadings of the opposing party as true, and the

motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”

Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 526 (6th Cir. 2006) (quoting Southern Ohio

Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). “A

Rule 12(c) motion is granted when no material issue of fact exists and the party making the

motion is entitled to judgment as a matter of law.” Rawe, 462 F.3d at 526 (cleaned up).

“Courts apply the same analysis to motions for judgment on the pleadings under Rule

12(c) as they apply to motions to dismiss under Fed. R. Civ. P. 12(b)(6).” McGath v. Hamilton

Local Sch. Dist., 848 F. Supp. 2d 831, 836 (S.D. Ohio 2012) (citing Warrior Sports, Inc. v.

National Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010)). Under Rule 12(b)(6), “[a]

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). However, a court “need not

accept as true legal conclusions or unwarranted factual inferences.” JPMorgan Chase Bank, N.A.

v. Winget, 510 F.3d 577, 581–82 (6th Cir. 2007) (quoting Paskvan v. City of Cleveland Civil

Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir.1991)).

B. The Court has supplemental jurisdiction over Plaintiff’s breach-of-contract claim.

Defendants first contend that the Court lacks subject-matter jurisdiction over Plaintiff’s

breach-of-contract claim. The undersigned disagrees. “[I]n any civil action of which the district

courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article III of the United States Constitution.” 28

U.S.C. § 1367(a). “Claims form part of the same case or controversy when they derive from a

common nucleus of operative facts.” Blakely v. United States, 276 F.3d 853, 861 (6th Cir. 2002)

(cleaned up). “The claims must also be such that a plaintiff would be expected to try them in one

judicial proceeding.” Michigan Bell Tel. Co. v. MCIMetro Access Transmission Servs., Inc., 323

F.3d 348, 355 (6th Cir. 2003).

Defendants acknowledge that the Court has original jurisdiction over Plaintiff’s First

Amendment retaliation claim, and the undersigned has no trouble concluding that both claims

form part of the same case or controversy. Both claims center on Defendants’ alleged efforts to

avoid their contractual obligations under the settlement agreement. (See R&R 9–12, ECF No.

33.) Indeed, the protected activity that allegedly spurred Defendants’ retaliation is Plaintiff’s

filing of grievances and lawsuits due to Defendants’ alleged breach of the settlement agreement,

and the adverse action of transferring Plaintiff to another facility was allegedly taken to avoid

Defendants’ obligations under the settlement agreement. (Id.) The two claims therefore derive

from a common nucleus of operative fact and Plaintiff would be expected to try them in one

judicial proceeding. Thus, the Court has supplemental jurisdiction over Plaintiff’s breach-of-

contract claim under 28 U.S.C. § 1367(a). Moreover, the undersigned disagrees that Plaintiff’s

state-law breach-of-contract claim substantially predominates over the retaliation claim, such

that the Court should decline to exercise supplemental jurisdiction under § 1367(c)(2). Nor are

there any other compelling reasons to decline jurisdiction under § 1367(c)(4). The undersigned

therefore recommends that the Court continue to exercise supplemental jurisdiction over

Plaintiff’s breach-of-contract claim.

C. Defendants are not entitled to judgment on Plaintiff’s claim for breach of the

settlement agreement.

“To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a

contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damages or loss

resulting from the breach.” In re Fifth Third Early Access Cash Advance Litig., 925 F.3d 265,

276 (6th Cir. 2019) (quoting Claris, Ltd. v. Hotel Dev. Servs., LLC, 104 N.E.3d 1076, 1083

(Ohio Ct. App. 2018)). As noted in the R&R, the undersigned finds that Plaintiff has sufficiently

alleged that the settlement agreement is a valid contract, that Plaintiff has performed his

obligations under the settlement agreement, that Defendants have breached their obligations by

failing to exercise best efforts to make the accommodations related to chapel access, video

viewing, and Natsarim volunteers enumerated in the settlement agreement, and that Plaintiff has

been injured as a result by the limitations on his ability to practice his religion. (R&R 9–10, ECF

No. 33.) The undersigned noted that “Plaintiff’s allegations that other religious groups at MCI

are accommodated in the manner he is seeking plausibly suggests that Plaintiff’s requested

accommodations are in line with ODRC policy and that Defendants are not using their best

efforts to accommodate him.” (Id. at 10.)

Similar to their Motion to Dismiss, Defendants argue that the settlement agreement

requires much less of Defendants than Plaintiff contends and that any alleged failure to provide

Plaintiff’s requested accommodations was contractually permissible. But, again similar to their

Motion to Dismiss, Defendants’ arguments largely rely on facts not included in, or that

contradict facts included in, the Amended Complaint or its exhibits. (See, e.g., Defs.’ Mot. for J.

on the Pleadings 5, ECF No. 51 (relying on facts that Plaintiff “conveniently fails to mention”);

id. at 6 (citing exhibits filed in Plaintiff’s prior action referencing events that pre-date the facts

underlying Plaintiff’s Amended Complaint); id. at 8 (implying that other inmates’ needs were of

higher priority than Plaintiff’s under ODRC policy and asserting that “the evidence will show”

that Plaintiff took actions preventing Defendants from providing required accommodations); id.

at 9 (relying on the transferee facility’s in-house TV station); id. at 10 (asserting that Plaintiff

failed to provide notice of the timing of holy days as contractually required)). Because these

assertions create issues of material fact as to Plaintiff’s allegations, the undersigned cannot

conclude that “no material issue of fact exists and the party making the motion is entitled to

judgment as a matter of law.” See Rawe, 462 F.3d at 526 (cleaned up).

Defendants further argue that Plaintiff violated a provision of the settlement agreement

requiring Plaintiff, when commencing a new action to enforce the settlement agreement, to

“identify the paragraph(s) of the Agreement which he believes Defendants violated.” (Settlement

Agreement § IV, ECF No. 4-3.) Plaintiff’s Amended Complaint identifies §§ 3, 4, 5, and 10 as

the sections of the settlement agreement that Defendants allegedly breached. (Am. Compl. 18,

n.63, ECF No. 5.) Defendants contend that the settlement agreement requires Plaintiff “to

specifically identify which paragraph(s), if any, each individual Defendant allegedly breached.”

(Defs.’ MJOP 13, ECF No. 51) (emphasis added.) But the settlement agreement contains no such

requirement. Plaintiff’s identification of §§ 3, 4, 5, and 10 (governing Defendants’ obligation to

continue providing religious accommodations in accordance with ODRC policy, and to provide

access to the prison chapel and Netzarim volunteers as various circumstances permit) as “the

paragraph(s) of the Agreement which he believes Defendants violated” satisfies § IV’s

requirements in full. Section IV therefore provides no grounds for dismissing Plaintiff’s breach-

of-contract claim.

D. Defendants are not entitled to judgment on Plaintiff’s claim for retaliation.

A First Amendment retaliation claim involves 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.

Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). As noted in the R&R, Plaintiff

engaged in protected conduct by seeking religious accommodation and by filing, maintaining,

and dismissing his suit against Defendants in Lorain County. See Hayes v. Tenn., 424 F. App’x

546, 549 (6th Cir. 2011) (“Prisoners retain the First Amendment right to the free exercise of their

religion.”) (citing Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985)); Thaddeus-X, 175 F.3d

at 391 (inmates have a First Amendment right to file lawsuits challenging their prison

conditions).

Plaintiff also identified an adverse action in the form of a facility transfer that allegedly

had the effect of depriving him of the settlement agreement’s benefits. See LaFountain v. Harry,

716 F.3d 944, 948 (6th Cir. 2013). The undersigned also concluded that a number of other

alleged adverse actions (transferring Plaintiff out of the Faith Based Housing Unit; failing to

provide Plaintiff with a functional tablet to access the grievance procedure; canceling Messianic

religious services and preventing a Messianic volunteer from entering GCI to facilitate Sabbath

services; and using chapel porters to harass Plaintiff and fellow congregates) could plausibly

deter a person of ordinary firmness from the exercise of his First Amendment rights. See

Thaddeus-X, 175 F.3d at 396 (quoting with approval Bart v. Telford, 677 F.2d 622, 625 (7th Cir.

1982) (“‘[A]n entire campaign of harassment’ was actionable because although it was ‘trivial in

detail,’ it ‘may have been substantial in gross.’”).

Finally, Defendant Mike Davis’s email to several other Defendants suggesting that the

settlement agreement was effective only while Plaintiff was housed at GCI, combined with Mr.

Mustard’s statements implying that Plaintiff’s transfer to MCI was for Plaintiff’s own benefit in

the face of Plaintiff’s allegations to the contrary, raises the plausible inference that Plaintiff was

transferred to MCI for the purpose of avoiding ODRC’s obligations under the settlement

agreement. And Plaintiff alleges that the remaining adverse actions occurred in temporal

proximity with his maintaining and dismissing (over Defendants’ opposition) his Lorain County

action. This temporal proximity, in combination with Mr. Davis’s and Mr. Mustard’s

correspondence, sufficiently establishes the required causal connection. See Maben v. Thelen,

887 F.3d 252, 268 (6th Cir. 2018). The R&R therefore concluded that Plaintiff stated a claim for

First Amendment Retaliation. (R&R 11–13, ECF No. 33.)

Once again, Defendants repeat arguments from their Motion to Dismiss that do not

respond to the authority cited in the R&R. It may be true, e.g., that the alleged added burden on

Plaintiff’s father when visiting Plaintiff in his new facility or allegedly unsanitary conditions do

not transform Plaintiff’s facility transfer into an adverse action. (See Defs.’ MJOP 15–17.) But

Defendants do not address the binding Sixth Circuit precedent holding that other circumstances

surrounding Plaintiff’s transfer—i.e., the alleged effect of denying Plaintiff the benefits of the

settlement agreement—are, on their own, sufficient to allege an adverse action at the pleadings

stage. See LaFountain, 716 F.3d at 948. Nor do Defendants address Mr. Davis’s email

suggesting that Defendants need not adhere to their contractual obligations under the settlement

agreement following Plaintiff’s transfer to MCI, which raises the plausible inference of a

retaliatory motive.

And, once again, Defendants rely on facts not included in, or that contradict facts

included in, the Amended Complaint or its exhibits. (See Defs.’ MJOP 17–18, ECF No. 51)

(implying that Plaintiff was transferred to MCI because of his “failure to adjust” while housed at

GCI and so that prison officials could “maintain GCI’s peaceful management without

discouraging him from seeking redress of his grievances”). Because these assertions create issues

of fact as to Plaintiff’s allegations, the undersigned cannot conclude that “no material issue of

fact exists and the party making the motion is entitled to judgment as a matter of law.” See Rawe,

462 F.3d at 526 (cleaned up).

E. The undersigned cannot conclude that Defendants are entitled to qualified

immunity at this time.

“Under the doctrine of qualified immunity, ‘government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir.

2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The determination of whether a

government official is entitled to qualified immunity involves two inquiries. Miller v. Sanilac

County, 606 F.3d 240, 247 (6th Cir. 2010). “First, viewing the facts in the light most favorable to

the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the

right clearly established at the time of the violation?” Id. (cleaned up). The Court need not

consider these inquiries sequentially. Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir. 2009) (citing

Pearson, 555 U.S. at 236).

As noted above, Plaintiff has sufficiently alleged that Defendants retaliated against him in

violation of the First Amendment. Thus, Plaintiff has made the necessary showing at this stage

that a constitutional violation occurred. As to the “clearly established” inquiry, the undersigned

finds that the multitude of factual disputes about Plaintiff’s and Defendants’ actions and

motivations make it impractical to decide at this stage whether the alleged violation in this case

was clearly established. See Myers v. City of Centerville, Ohio, 41 F.4th 746, 758–59 (6th Cir.

2022) (noting the “general preference” that analysis of the “clearly established” prong be

deferred until after discovery); Crawford v. Tilley, 15 F.4th 752, 765 (6th Cir. 2021)

(“Dismissing for qualified immunity on this ground is sometimes difficult because the clearly

established inquiry may turn on case-specific details that must be fleshed out in discovery.”).

Accordingly, the undersigned declines to analyze whether Plaintiff’s alleged constitutional

violation was clearly established at the pleadings stage, and Defendants are therefore not entitled

to judgment on the pleadings on grounds of qualified immunity.

IV. PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Standard of Review

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

assertion of fact” then the court may “consider the fact undisputed for purposes of the motion”).

The burden then shifts to the nonmoving party to “set forth specific facts showing that

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

in his favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply

show that there is some metaphysical doubt as to the material facts, . . . there must be evidence

upon which a reasonable jury could return a verdict in favor of the non-moving party to create a

genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th

Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)

(requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of

materials in the record”). “When a motion for summary judgment is properly made and

supported and the nonmoving party fails to respond with a showing sufficient to establish an

essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

B. Analysis

As explained above in reference to Defendants’ Motion for Judgment on the Pleadings,

there are myriad genuine issues of material fact relevant to Plaintiff’s retaliation and breach of

contract claims that prevent the Court from granting summary judgment or judgment on the

pleadings to either party at this stage. Because Plaintiff cannot carry his “initial burden of

proving that no genuine issue of material fact exists,” he is not entitled to summary judgment.

V. DISPOSITION

For the reasons above, Plaintiff’s Motion to Strike (ECF No. 58) and Plaintiff’s Motion

for Appointment of Counsel (ECF No. 63) are DENIED. Plaintiff’s Motion to Compel

Discovery (ECF No. 63) is DENIED AS MOOT. It is RECOMMENDED that both

Defendants’ Motion for Judgment on the Pleadings (ECF No. 51) and Plaintiff’s Motion for

Partial Summary Judgment (ECF No. 68) be DENIED.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A District Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a District Judge of this Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made herein, may receive

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28

U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE