Tolliver v. Ohio Department of Rehabilitation and Corrections

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEVIN A. TOLLIVER,

Plaintiff,

Civil Action 2:22-cv-4567

v.

Judge Edmund A. Sargus, Jr.

Magistrate Judge Kimberly A. Jolson

OHIO DEPARTMENT OF REHABILITATION

AND CORRECTIONS, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Before the Court are Defendants’ Motion for Summary Judgment (Doc. 43); Plaintiff’s

Motion Pursuant to Rule 56(d) (Doc. 44); Plaintiff’s Motion to File Interrogatories Instanter (Doc.

46); and Plaintiff’s Request for Additional Time to Respond to Defendants’ Motion for Summary

Judgment (Doc. 44).

Because Plaintiff failed to diligently pursue discovery, the Court DENIES Plaintiff’s Rule

56(d) Motion (Doc. 44), and DENIES his Motion to File Interrogatories Instanter as moot (Doc

46). For similar reasons, the Court also DENIES his Motion for additional time to file a response.

(Doc. 44). The Undersigned further RECOMMENDS GRANTING Defendants’ Motion for

Summary Judgment (Doc. 43). Finally, the Court ORDERS Plaintiff to provide the notice detailed

herein regarding his remanded 2016 claims within twenty-one (21) days and SETS a related

briefing schedule.

I. BACKGROUND

Plaintiff, an Ohio prisoner at Grafton Correctional Institution proceeding pro se, is a

frequent litigator in this District. (Doc. 30 at 1 (listing Plaintiff’s cases)). Because two of

Plaintiff’s cases were consolidated into this action (see Doc. 54), the Court briefly describes the

allegations and procedural history of both.

A. The 2016 Action

In 2016, Plaintiff filed a case in this Court against Ohio Department of Rehabilitation and

Correction (“ODRC”) employees and contractors, including some of the Defendants in this action.

Tolliver v. Noble, et al. (the “2016 Action”), No. 2:16-cv-1020 (S.D. Ohio Oct. 25, 2016), Doc. 1.

In that case, Plaintiff eventually raised claims under 42 U.S.C. § 1983; the Religious Land Use

and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq.; and state law based

upon alleged issues with Islamic service providers and incidents of retaliation at various Ohio

prisons. Id. at Doc. 30.

Most relevant here, Plaintiff raised a third-party breach of contract claim based upon

Islamic service providers’ alleged failure to provide “Jumah service” every Friday “in accordance

with [Plaintiff’s] faith requirements” and religious study sessions (“Taleem”). Id. at ¶¶ 18–19

(citation modified); see also id. at ¶¶ 18–32. According to Plaintiff, these failures are “major[ly]”

caused by “various defendants award[ing] multiple contracts to one contractor without sufficient

screening or supervision to [ensure] providers are qualified to perform the rites and rituals, or that

they possess resources and desire to timely serve mainstream and/or normative adherents of the

Islamic faith.” Id. at ¶ 23 (citation modified). Plaintiff also attributes the failures to the Islamic

service providers’ membership in “minority sects” or “denominations with vastly different

understandings and views from the larger mainstream.” Id. at ¶ 24.

As for his RLUIPA claim, Plaintiff alleges that “ODRC Defendants (Administrators and

Staff)” employ improper contractors to “keep the numbers of Muslims who use chapel services

down” and “create more opportunities to conserve resources for Christian services.” Id. at ¶ 50

(citation modified). He further states that Muslim prisoners were forced to choose between

evening meals and prayers, lacked access to religious texts, and could not participate in certain

services and traditions. Id. at ¶ 53. At base, he alleges that “ODRC Policies 72 Reg 01 through

12 are ineffective as they apply to Islam”; “create[] conditions favorable to abuse by contractors,

administrators, and staff”; and thus violate RLUIPA. Id. at ¶¶ 54–55.

B. The 2022 Action

During the 2016 Action, Plaintiff amended his pleading once, though he tried to do so again

on many occasions. 2016 Action, No. 2:16-cv-1020 (S.D. Ohio), Doc. 30 (Amended Complaint);

see also Docs. 93, 100, 153, 164, 165, 166, 167 (Plaintiff’s various amendment attempts). When

those efforts failed, Plaintiff filed the instant case on December 29, 2022 (the “2022 Action”). Id.

at Doc. 208; (see also Doc. 1; Doc. 54 at 6 (“Because the court rejected these [amendment]

attempts Plaintiff filed an Original Action in Declaratory Judgment before the same judge and

magistrate. It is the causal religious issue proceeding as Tolliver v. Annette Chambers Smith (S.D.

Ohio Case No. 2[2]-cv-4567)[.]”))).

Here, Plaintiff sues Defendants ODRC; ODRC Director Annette Chambers-Smith; Chief

of Religious Services Mike Davis; Chief of Holistic Services Jennifer Urrah; and unidentified Jane

and John Doe Administrators and Islamic Services Contractors. (Doc. 4 at 30; Doc. 9 at 10–11;

Doc. 14 (adopting Docs. 4, 9)). He describes this action “as a direct challenge to practices and

policies of the [ODRC].” (Doc. 4 at 4). The Court allowed him to proceed against ODRC under

RLUIPA and against Chambers-Smith, Davis, Urrah, and the unidentified Doe Defendants under

RLUIPA, Section 1983, and state contract law. (Doc. 9 at 11). Construed generously, Plaintiff

alleges the following claims for declaratory and injunctive relief (Doc. 8 at ¶ 1), as previously

summarized by the Court’s orders (Docs. 4, 9, 14):

1. Defendants improperly classify “all denominations (groups or sects) of the Islamic

faith under one policy without recognition of major differences in the rites and

rituals thereof,” which “results in an ineffective policy that denies religious services

to Muslim Inmates,” in violation of RLUIPA and the First Amendment’s Free

Exercise and Establishment Clauses. (Doc. 4 at 7; Doc. 9 at 11; see also Doc. 8 at

¶¶ 28–30, 44, 46).

2. “The terms ‘largest religious catchment’ and ‘broadest range of adherents’ in 72-

REG-12 must mean mainstream Sunni practice or is too vague to accommodative

normative Sunni Muslims” in violation of RLUIPA and the First Amendment’s

Free Exercise and Establishment Clauses. (Doc. 4 at 7; Doc. 9 at 11 see also Doc.

8 at ¶¶ 29–31, 44–45).

3. “As its written 72-REG-01, 02 and 12 lack sufficient detail for establishment of

what ‘Jummuah Services’ are and what rites and rituals must be observed to make

it valid for mainstream Muslims,” in violation of RLUIPA and the First

Amendment’s Free Exercise and Establishment Clauses. (Doc. 4 at 8; Doc. 9 at 11;

see also Doc. 8 at ¶¶ 29–31, 44).

4. “Failure to contract Islamic Services Providers from mainstream communities,

and/or to have criteria in place to ensure contractors are able, willing, and qualified

to perform rites and rituals necessary to perform their duties results in a denial of

services to Muslim Inmates from conventional communities,” in violation of

RLUIPA and the First Amendment’s Free Exercise and Establishment Clauses.

(Doc. 4 at 8; Doc. 9 at 11; see also e.g. Doc. 8 at ¶ 44).

5. “Issuing multiple contracts to one Islamic Services Provider at several different

ODRC facilities denies services to Muslim Inmates around Ohio,” in violation of

RLUIPA and the First Amendment’s Free Exercise and Establishment Clauses.

(Doc. 4 at 8; Doc. 9 at 11; see also Doc. 8 at ¶¶ 37, 44).

6. “Failure to employ any properly educated/credentialed Imams as staff members

anywhere within the Religious Services Department of ODRC (i.e.: Central Office,

Regional Catchment Areas, nor any of the 36 Ohio prisons) . . . [p]revents

contracting quality Islamic Services Providers from mainstream communities at the

individual prisons,” “[p]recludes a criteria ensuring services contracted for conform

to rites and rituals of normative practice throughout the State,” and “[r]esults in a

denial of services to Muslim Inmates from conventional communities,” in violation

of RLUIPA and the First Amendment’s Free Exercise and Establishment Clauses.

(Doc. 4 at 8; Doc. 9 at 11; see also e.g., Doc. 8 at ¶¶ 16, 19, 22, 26, 76).

7. Defendants use criteria for who qualifies for “kosher/halal religious meals,” which

“results in all Muslims being denied kosher/halal while Christians receive an

individualized evaluations resulting in many approvals [of] kosher diet,” in

violation of the Fourteenth Amendment’s Equal Protection Clause. (Doc. 8 at

¶ 28b; see also Doc. 9 at 7–8, 11).

8. Defendants’ handling of Islamic Service Contractors and their contracts “constitute

deliberate indifference” and/or cruel and unusual punishment under the Eighth

Amendment. (Doc. 8 at ¶¶ 33–34; see also Doc. 9 at 10).

9. Plaintiff “[has] suffered from a breach of third-party contract” because Defendants

assign/accept “multiple contracts without sufficient qualifications, ability, or

willingness to perform on contracts they accept.” (Doc. 8 at ¶¶ 6, 12; see also Doc.

9 at 10 (allowing a contract claim to proceed and citing Doc. 8 at ¶¶ 3, 6, 12–13)).

For ease of reference, the Undersigned refers to claims one through six as Plaintiff’s

“RLUIPA and First Amendment” claims; to claim seven as Plaintiff’s “Equal Protection” claim;

to claim eight as Plaintiff’s “Eighth Amendment” claim; and to claim nine as Plaintiff’s “Breach

of Contract” claim.

C. Procedural History of Both Cases

For nearly three years, the 2016 and 2022 Actions proceeded simultaneously. In the 2016

Action, the Court dismissed all Defendants besides Christler, Sibalski, Shahid, and Islam on the

pleadings and eventually granted summary judgment in favor of Defendants Christler, Sibalski,

and Islam. See 2016 Action, No. 2:16-cv-1020 (S.D. Ohio), Doc. 117 at 6; Docs. 172, 183.

Plaintiff received a judgment at trial against Defendant Shahid. Id. at Doc. 258. On December

18, 2023, Plaintiff appealed these decisions to the Sixth Circuit. Id. at Doc. 261.

Meanwhile, in this action, the pleading stage lasted almost two years. (Compare Doc. 1

(original complaint filed December 29, 2022); Doc. 8 (amended complaint filed June 1, 2023) with

Docs. 30, 31 (denying Defendants’ motion to dismiss); Doc. 32 (Defendants’ answer, filed on

October 23, 2024)). On October 25, 2024, the Court issued a case schedule and set the discovery

deadline for April 24, 2025, and the dispositive motion deadline to May 27, 2025. (Doc. 33). The

Court also set a trial date of February 2, 2026. (Doc. 34).

Then, on November 11, 2024, the Sixth Circuit ruled on Plaintiff’s appeal of the 2016

Action. 2016 Action, No. 2:16-cv-1020 (S.D. Ohio Nov. 15, 2024), Doc. 272. While the panel

mostly affirmed the Court’s judgment, it concluded that the Court “did not decide his RLUIPA

claim and related breach-of-contract claim” and remanded for the Court to consider Plaintiff’s

request “to have these claims consolidated with his separate, similar lawsuit.” Id. Ultimately, the

Court consolidated the RLUIPA and breach-of-contract claims into this action and noted that

Plaintiff asserted that these claims were proceeding in the 2022 action all along. (Doc. 54 at 6

(discussing Plaintiff’s representation to the Sixth Circuit “that he filed the 2022 Action to ensure

those claims would be adjudicated”)).

After the Court issued the case schedule in the 2022 Action, neither party filed any motions

during the discovery period. (Cf. Doc 35 (settlement offer filed by Plaintiff)). On May 27, 2025,

Defendants moved for a one-week extension of the dispositive motion deadline. (Doc. 36).

Plaintiff opposed the extension and seemed to assert that some discovery was outstanding. (Doc.

38). Yet, after the parties conferred, the parties represented no discovery requests remained. (Doc.

41). So, the Court granted the extension, and Defendants filed a timely Motion for Summary

Judgment on July 1. (Doc. 43).

Between July 25 and August 11, Plaintiff submitted a flurry of filings. First, he filed a

motion to conduct additional discovery under Federal Rule of Civil Procedure 56(d). (Doc. 44).

He also filed a request for an extension of time to respond to Defendants’ summary judgment

motion. (Id.). Then, days later, Plaintiff filed seven documents, which contained his proposed

interrogatories and a motion to file them on the docket instanter. (Docs. 46, 47, 48, 49, 50, 51,

52). Defendants opposed Plaintiff’s requests, and Plaintiff replied. (Docs. 45, 53).

Defendants’ Motion for Summary Judgment, Plaintiff’s Motion for Rule 56(d) relief and

an extension of time to respond, and Plaintiff’s Motion to file his proposed Rule 56(d) discovery

requests are ripe for review. (Docs. 43, 44–53).

II. STANDARD

A court grants summary judgment when “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). Summary

judgment is appropriately entered “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When a defendant

shows there is insufficient evidence to support any element of the plaintiff’s claim and moves for

summary judgment, the burden shifts to the plaintiff to demonstrate a genuine issue for trial on

which a reasonable jury could return a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586–87 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). Ultimately, the Court asks “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Liberty Lobby, 477 U.S. at 251–52.

III. DISCUSSION

Culminating years of litigation, on July 1, Defendants filed a timely Motion for Summary

Judgment totaling over 200 pages of briefing, witness statements, and administrative records.

(Doc. 43). Instead of meaningfully responding, Plaintiff moves for additional discovery under

Federal Rule of Civil Procedure 56(d) and for more time to file his opposition. (Doc. 44). These

requests are just the latest chapter in Plaintiff’s history of dilatory conduct in this Court. Plaintiff’s

requests are denied, and Defendants’ Motion should be granted.

A. Plaintiff’s Rule 56(d) Request

Plaintiff’s Rule 56(d) Motion is easily denied. (Doc. 44). While the Motion is

substantively lacking, there is a larger problem. At bottom, Plaintiff failed to pursue discovery

and prepare his case diligently. Although he wants to do so now, Rule 56(d) is not a mechanism

to fix such mistakes.

1. Legal Standard

Rule 56(d) of the Federal Rules of Civil Procedure establishes the procedure for a party to

obtain additional discovery necessary to respond to a summary judgment motion:

When Facts are Unavailable to the Nonmovant. If a nonmovant shows by affidavit

or declaration that, for specified reasons, it cannot present facts essential to justify

its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).

The purpose behind the rule is to make sure “that plaintiffs receive a full opportunity to

conduct discovery to be able to successfully defeat a motion for summary judgment.” Doe v. City

of Memphis, 928 F.3d 481, 490 (6th Cir. 2019). But a plaintiff does not obtain Rule 56(d)’s

benefits automatically. Id. (noting that plaintiffs have “no absolute right to additional time for

discovery under Rule 56”). Rather, whether to allow additional discovery is soundly within the

trial court’s discretion. Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).

To obtain relief under Rule 56(d), the moving party must submit an affidavit “indicat[ing]

the need for discovery, what material facts may be uncovered, and why the information has not

been previously discovered.” Id. at 426 (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 488

(6th Cir. 2000)). This affidavit must be specific, and a Rule 56(d) motion is properly denied

“where the requesting party makes only general and conclusory statements . . . regarding the need

for more discovery.” Enyart v. Franklin Cnty., No. 2:09-cv-687, 2013 WL 1915099, at *4 (S.D.

Ohio May 7, 2013) (citation modified).

Additionally, courts consider five factors (the “Plott” factors):

(1) when the party seeking discovery learned of the issue that is the subject of the

desired discovery; (2) whether the desired discovery would change the ruling; (3)

how long the discovery period had lasted; (4) whether the party seeking discovery

was dilatory in its discovery efforts; and (5) whether the party moving for summary

judgment was responsive to discovery requests.

Cressend v. Waugh, No. 2:09-cv-1060, 2011 WL 883059, at *2 (S.D. Ohio Mar. 11, 2011) (citing

CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008)) (citation modified); see also Plott v.

Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196 (6th Cir. 1995).

The fourth factor is especially important. Generally, motions brought under Rule 56(d)

“should be granted almost as a matter of course unless the non-moving party has not diligently

pursued discovery of the evidence.” Doe, 928 F.3d at 491. “Stated differently, the non-moving

party must show that he exercised ‘due diligence both in purposing discovery before the summary

judgment initiative surfaces and in pursuing an extension of time thereafter.’” Dallas v. Koskela,

No. 2:17-cv-198, 2020 WL 6598309, at *5 (W.D. Mich. Mar. 4, 2020) (quoting Resolution Tr.

Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).

2. Plaintiff’s Motion

Plaintiff seeks several forms of relief through his Rule 56(d) Motion. First, he wants new

copies of several pages of exhibits attached to Defendants’ Motion for Summary Judgment and

“21 days from the receipt of these corrected copies” to obtain an affidavit from an expert to counter

Defendant Davis’s declaration. (Doc. 44 at 1 (referencing Doc. 43-3 at 119, 125–58)). Plaintiff

then wants to propound ten interrogatories on Defendants Davis and Urrah and five interrogatories

on three contractors briefly referenced in Defendants’ Motion. (Id. at 1–2). Plaintiff asserts that

these requests “relate directly to issues raised by the Defendants’ motion and in no way relate to

[Plaintiff’s] earlier failed discovery request.” (Id. at 1–2). But these assertions are false. The

Court begins with the factors related to Plaintiff’s discovery efforts before turning to the substance

of his requests.

a. Length of Discovery, Plaintiff’s Diligence, and Defendants’

Responsiveness to Discovery Requests

The Court begins with the third, fourth, and fifth Plott factors, which concern the length of

the discovery period, Plaintiff’s diligence in pursuing discovery, and Defendants’ responsiveness

to discovery requests. CenTra, Inc., 538 F.3d at 420. None of these factors weigh in Plaintiff’s

favor.

As discussed, Plaintiff filed this action on December 29, 2022 (Doc. 1), though the issues

involved are strongly tied to those raised in the 2016 Action. (See, e.g., Doc. 1-1 at 2 (Plaintiff’s

first pleading, which says that this action “relates to Declaratory Judgments raised but not

addressed by this court within collateral complaint Tolliver v. Noble (Case No. 2:16-cv-1020)”);

Doc. 8 at 7 (noting, in Plaintiff’s Amended Complaint, that this case addresses issues raised but

not ruled upon in the 2016 Action); Doc. 54 (consolidating the cases, noting their similarities, and

discussing that Plaintiff filed this action because of rulings in the 2016 Action)). After nearly two

years in the pleading stage, the Court issued a case schedule on October 25, 2024, and gave the

parties six months for formal discovery. (Doc. 33 (setting the deadlines for discovery and

dispositive motions to April 24, 2025, and May 27, 2025)). Plaintiff filed nothing related to

discovery during that time. (Cf. Doc. 35 (filing related to a settlement offer)).

Then, on May 27, 2025, Defendants moved for a seven-day extension of time to file

dispositive motions. (Doc. 36). In response, Plaintiff asserted, for the first time, that Defendants

“fail[ed] to participate in discovery.” (Doc. 38 at 1). Although Plaintiff expressly did not ask to

extend the discovery period (id. at 1–2), the Court ordered the parties to confer on any outstanding

discovery requests. (Doc. 39). Two weeks later, they filed a joint status report. (Doc. 41). In it,

Plaintiff said he propounded discovery requests on November 22, 2024, but he sent the request to

Ohio Attorney General Dave Yost, not Defendants’ counsel. (Id. at 1). For five months after that,

he did nothing. He did not follow-up on his discovery requests when Defendants did not respond,

nor did he notify the Court of any outstanding discovery. (Id. at 1–2). And he admitted that he

did not begin preparing “a notice of unfulfilled discovery” until June 3, 2025—a week after

Defendants filed their extension request. (Id. at 2). As justification for his failure to conduct

discovery, Plaintiff explained that he had been focused on other litigation. (Id. at 2).

After this status report, the Court found that Plaintiff failed to diligently pursue discovery

and granted Defendants’ extension. (Doc. 42 at 3–4). Defendants filed their Motion for Summary

Judgment on July 1. (Doc. 43). Three weeks later, instead of responding to that filing, Plaintiff

submitted the instant Rule 56(d) request. (Doc. 44). And Plaintiff represented he would send his

proposed discovery requests to the Court by July 25. (Id.). But again, Plaintiff did not keep his

word. He did not mail the interrogatories to the Court and Defendants until July 31, and the Court

did not receive them until August 5. (Doc. 46 (blaming issues with the law library)). And only

recently, Plaintiff provided notice that he served discovery requests “relating to [Defendants’]

Summary Judgment Motion.” (Doc. 55). But this does not help him much either. By Plaintiff’s

own admission, he waited more than two months after Defendants filed the motion at bar to send

these requests. (Id.).

Undoubtedly, this record shows Plaintiff did not diligently pursue discovery. See, e.g.,

Bloodworth v. Timmerman-Cooper, No. 2:10-cv-4567, 2013 WL 950931, at *2 (S.D. Ohio Mar.

12, 2013) (denying Rule 56(d) relief where the plaintiff did not conduct discovery and made a

belated request to do so after the defendants moved for summary judgment); Precision, Inc. v.

Kenco/Williams, Inc., 66 F. App’x 1, 8 (6th Cir. 2003) (affirming a court’s decision to deny

additional discovery and grant summary judgment where the plaintiff had a year to conduct

discovery but did not file a motion to compel until after the discovery deadline); FTC v. EMA

Nationwide, Inc., 767 F.3d 611, 624–25 (6th Cir. 2014) (affirming denial of Rule 56(d) relief where

the defendants had five months to conduct discovery, did not file a formal discovery request until

weeks before the deadline, and did not pursue other forms of discovery). He was not even diligent

in filing his proposed interrogatories to support his Rule 56(d) request. What’s more, Plaintiff

never asked to extend the discovery deadline. (Cf. Doc. 38 (opposing Defendants’ extension but

expressly saying he was not “ask[ing] for extension of the schedule”)). Ultimately, this case has

been pending since December 2022, and Plaintiff could have researched his case and determined

what discovery he needed for the years this case remained in the pleadings and in formal discovery.

He did not. Instead, he chose to focus on other litigation. (Doc. 41 at 2). That choice has

consequences.

In sum, the third and fourth Plott factors weigh against Plaintiff, and the fifth is neutral at

best, since Plaintiff sent no discovery requests to Defendants at all.

b. Plaintiff’s Awareness of the Subject of the Desired Discovery

Plaintiff fares no better on the first factor, which considers when he learned of the issues

that are the subjects of the requested discovery. “This factor primarily pertains to situations where

there was something that prevented a party from learning about a subject of desired discovery until

after some discovery had already been sought.” Doe, 928 F.3d at 492–93 (citation modified).

Here, nothing prevented Plaintiff from seeking the requested materials sooner.

To begin, Plaintiff seeks copies of documents attached to Defendants’ Motion for Summary

Judgment, which he says are illegible and unusable. (Doc. 44 at 1). Yet according to Defendants,

these documents “are copies of the very same pages [Plaintiff] himself submitted, and are just as

illegible, as were those he previously provided prison officials in support of his requests for

religious accommodation and which he filed in previous cases.” (Doc. 45 at 1 (saying no clearer

copies exist)). So, legibility aside, it is clear Plaintiff knew of the documents before now, despite

his assertions otherwise. (Doc. 53 at 2). Plaintiff could have requested copies during discovery to

“prove” his claims or to address Defendants’ “credibility and disparate treatment.” (Id. at 2; see

also id. at 1 (arguing Plaintiff’s original copies were less damaged); Doc. 45 at 1 (noting Plaintiff

submitted these documents to prison officials or filed them in his other cases)). The fact that he

did not doesn’t mean he was unaware of them for the purposes of Rule 56(d). Cf. Burnett v.

Herron, No. 18-cv-12471, 2023 WL 2712476, at *9 (E.D. Mich. Mar. 30, 2023) (finding a plaintiff

was aware of the existence of his medical records when he filed his complaint based upon medical

issues).

Next are Plaintiff’s proposed interrogatories to Defendants Urrah and Davis. For Urrah,

Plaintiff submits three questions concerning her job duties and her communications with other

Defendants about Defendants’ Motion. (Doc. 48 at 2). Plaintiff does not explain why he couldn’t

inquire about Defendant Urrah’s job duties during discovery or why this information matters now.

(Id.; see also Doc. 53 at 2).

For Defendant Davis, Plaintiff wants discovery related to a declaration he submitted for

Defendants’ Motion. (Doc. 44 at 1–2). Specifically, Plaintiff asks for definitions within

regulations, clarification about Defendant Davis’s understanding of Islamic practices, explanations

of Defendants’ security concerns, policies for Christian prisoners, statistics on various prisoners’

faiths, complaints Davis received about ODRC staff and Islamic service providers, information on

meetings Davis had about services for Muslim prisoners, and a list of Islamic service providers.

(Doc. 51 at 1–7). Yet these topics are all related to issues Plaintiff raised in his Amended

Complaint. (Compare Doc. 51 at 2–7 (asking for Defendant Davis’s understanding of

requirements for Jumah service and Khutba; differences between ODRC policies for Christian and

Muslim prisoners; statistics on faith groups within Ohio’s prisons; information on ODRC’s Islamic

service providers; and Defendant Davis’s understanding of requirements) with Doc. 8 at ¶¶ 8–9,

11–12, 15–16, 22, 24, 32, 57, 64 (saying ODRC’s leadership includes no Imams and challenging

ODRC’s qualifications for Islamic service providers); id. at ¶¶ 11, 16, 20–21, 28b, 30, 40, 43, 50,

72–73 (discussing differing treatment between Christian and Muslim prisoners); id. at ¶¶ 19, 28a,

28f, 36, 37–39, 55, 69 (discussing issues with ODRC’s requirements for Jummuah services); id.

at ¶¶ 29, 30, 50, 67 (referencing the policy about which he wants Defendant Davis to answer

interrogatories); id. at ¶ 74 (referencing statistics on numbers of Jewish prisoners within ODRC

that Plaintiff obtained in the 2016 Action)). Simply put, these matters have been at the heart of

this case all along, and Plaintiff simply failed to conduct discovery on them when he had the

chance.

Lastly, Plaintiff seeks to propound interrogatories to three Imams referenced in

Defendants’ Motion about their understanding of various Islamic practices, their experiences as

Islamic service providers for ODRC, and their programming recommendations for ODRC. (Doc.

49 at 2–3; Doc. 50 at 2–3; Doc. 52 at 2–3). Again, these are not recently discovered issues. ODRC

service providers’ practices, credentials, and understanding of Islamic rites and rituals are at the

forefront of Plaintiff’s Amended Complaint. (See, e.g., Doc. 8 at ¶¶ 12, 19, 22, 35, 39, 49, 58, 64,

67, 68 (discussing issues with Islamic service providers’ qualifications and practices, as well as

two specific contractor’s credentials and work history)). Plus, Plaintiff’s requests are procedurally

improper. Rule 33 allows a party to serve interrogatories only on another party, and the three

Imams are not defendants in this action. (See Doc. 8 at ¶¶ 8–12); Fed. R. Civ. P. 33(a)(1).

In sum, the substance of Plaintiff’s request shows the true motivation behind his request.

Plaintiff wants to reopen discovery on issues he failed to pursue sooner. None of the proposed

discovery addresses new matters Plaintiff was unaware of before Defendants moved for summary

judgment. As such, the first Plott factor falls against him.

c. Impact of the Desired Discovery

Finally, the Court addresses the second Plott factor: the impact the requested discovery

would have on the outcome of this case. Plott, 71 F.3d at 1196. As detailed below, Plaintiff’s

claims fail because he did not exhaust his administrative remedies or because he should have filed

them sooner. Although Plaintiff briefly notes “earlier attempts to exhaust remedies and appeals

prior to the ODRC adoption of electronic process,” none of the proposed discovery goes to this

issue. (Doc. 53 at 2; see Docs. 44, 47, 48, 49, 50, 51, 52). As for the other issues in the case,

Plaintiff’s reasons for why he needs the at-issue discovery are conclusory and vague. Summers v.

Leis, 368 F.3d 881, 887 (6th Cir. 2004) (saying “[b]are allegations or vague assertions of the need

for discovery are not enough” and that a party moving for Rule 56(d) relief must offer with “some

precision . . . exactly how he expects [the requested] materials would help him in opposing

summary judgment”). For instance, Plaintiff generally states certain information would be

“relevant” or go to “credibility and disparate treatment” but nothing more. (Doc. 53 at 2; see also

Doc. 44 at 1–2 (saying what discovery he wants but no specific reasons why)). And even assuming

the discovery responses would help Plaintiff, the other factors weigh heavier. See, e.g., FTC, 767

F.3d at 623 (“This Court’s main inquiry is whether the moving party was diligent in pursuing

discovery.” (citation modified)).

***

At base, Plaintiff admits he prioritized other litigation and ignored this case for many

months. (Doc. 41 at 1–2). He did not attempt any discovery until Defendants moved for summary

judgment. (Doc. 44). Rule 56(d) is not a vehicle for fixing this type of neglect. Given that most

of the Plott factors decidedly weigh against him, the Court DENIES Plaintiff’s Rule 56(d) requests

and DENIES his Motion to file his interrogatories instanter as moot. (Docs. 44, 46).

B. Plaintiff’s Extension Request

Now, the Court must decide whether Plaintiff should have more time to respond to

Defendants’ Motion. As discussed, Defendants filed their summary judgment motion on July 1,

meaning Plaintiff’s opposition was due July 22. (Doc. 43); S.D. Ohio Civ. R. 7.2(a)(2) (“Any

memorandum in opposition shall be filed within twenty-one days after the date of service of the

motion.”). In lieu of a response, on July 25, Plaintiff asked for discovery under Rule 56(d) and an

indefinite extension of time to oppose Defendants’ Motion. (Doc. 44). Specifically, Plaintiff

wants “21 days from the receipt of” the requested Rule 56(d) relief to file his response. (Id. at 1).

Under Federal Rule of Civil Procedure 6(b)(1), the Court may grant extensions of time “for

good cause.” The primary factors the Court must consider are “the moving party’s diligence in

attempting to meet the deadlines” and “prejudice to the nonmoving party.” Layman v. United

Parcel Serv., Inc., No. 3:17-cv-738, 2019 WL 1966123, at *3 (W.D. Ky. May 2, 2019) (citing Inge

v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)). Ultimately though, extensions are

discretionary. “[E]ven if a party demonstrates good cause, a district court is not required to grant

a motion to extend time.” Ott v. Fed. Home Loan Mortg. Corp., 535 F. App’x 488, 489 (6th Cir.

2013).

None of Plaintiff’s given reasons establish good cause. To start, Plaintiff says that an

extension will allow him “to receive an affidavit contra from an expert on some of the issues

raised” by Defendants’ Motion. (Doc. 44 at 1). But this is just speculation, as Plaintiff does not

identify this expert or say whether the expert has even agreed to help. (Id; Doc. 53 at 2); see, e.g.,

Ewert v. Holzer Clinic, Inc., No. 2:09-cv-131, 2010 WL 2854125, at *3 (S.D. Ohio 2010) (denying

an extension request based on speculation about the substance of future deposition testimony).

Next, Plaintiff asserts problems with the law library’s computers prevented him from

copying and printing necessary documents and, seemingly, from researching legal issues. (Doc.

44 at 2; Doc. 53 at 2). Plaintiff offers no proof of his alleged law library issues, and notably,

Plaintiff has used this excuse to obtain extensions before. (See Doc. 44 at 2 (asserting law library

issues with no support); Doc. 10 (requesting an extension because of “limited access to prison law

library”)). What’s more, Plaintiff appears to say these issues recently improved and that it takes

only “three (3) days to get prints and copies.” (Doc. 44 at 2 (saying the law library had issues

“[f]or over a month” but that “there has been progress”)). Plaintiff does not explain why a three-

day printing delay necessitates an open-ended deadline for him to file a response due over two

months ago. (Doc. 44); see, e.g., Washington v. Miami Cnty., No. 3:20-cv-173, 2022 WL

22715101, at *3 (S.D. Ohio Aug. 29, 2022) (denying a late extension request and noting that the

plaintiff did not identify when he lost access to writing materials and the law library).

Finally, Plaintiff seemingly asserts that the “very large number of cases” cited in

Defendants’ Motion warrants an extension. (Doc. 53 at 2). The Court disagrees. Plaintiff had

many years to research and prepare his case, considering he’s been litigating similar issues in this

Court since 2016. (See Doc. 54 at 6 (noting Plaintiff’s representation that he filed this action after

attempts to amend in the 2016 Action were denied)). Nowhere does he explain why he failed to

do so until Defendants filed their Motion. See, e.g., Blue v. Hartford Life & Acc. Ins. Co., 698

F.3d 587, 594 (6th Cir. 2012) (affirming a denial of an extension of time to respond to a summary

judgment motion where the extension resulted from counsel “wait[ing] until the last minute to

begin working on his motions”).

Importantly, this is not the only time Plaintiff has asked for an extension, missed a deadline,

or filed other things to buy more time. Consistent across Plaintiff’s lengthy history of litigating in

this District are his efforts to delay a resolution in every one of his cases. For example:

• In all his cases, including this one, Plaintiff asked for or received numerous extensions.

(See, e.g., Docs. 11, 20, 26); Tolliver v. Ohio Parole Board, et al. (“Tolliver II”), No. 2:22-

cv-4566 (S.D. Ohio), Docs. 7, 18; The 2016 Action, Case No. 2:16-cv-1020, Docs. 53, 81,

83, 88, 98, 159.

• Instead of following the Court’s orders, Plaintiff often filed unauthorized amendments,

moved to amend even after the Court denied previous amendments, or asked to stay the

case entirely. Compare Tolliver II, No. 2:22-cv-4566 (S.D. Ohio Apr. 5, 2024), Doc. 16

(noting that Plaintiff never identified Doe Defendants or submitted service documents and

ordering him to file service copies and forms) with id. at Docs. 17, 18 (filing, instead of

service documents, an unauthorized amendment, which was stricken from the docket);

compare id. at Doc. 18 (ordering Plaintiff to provide service copies and forms) with Doc.

21 (moving to stay the case for 90 days); compare id. at Doc. 23 (noting, on January 6,

2025, that the stay ended December 18, 2024, and ordering Plaintiff to file a status report

“regarding his intention to proceed with this action”) with id. at Docs. 24, 25, 26 (filing a

status report, an evidentiary motion, and another unauthorized complaint)). Compare The

2016 Action, No. 2:16-cv-1020 (S.D. Ohio Aug. 31, 2020), Doc. 92 (denying Plaintiff’s

motion to appoint counsel and ordering him to submit service forms for two defendants)

with id. at Doc. 93 (moving for a stay instead, so Plaintiff could amend a second time);

compare id. at Doc. 94 (warning Plaintiff “there is little basis to permit . . . an amended

complaint here”) with Doc. 100 (moving to amend anyway); compare id. at Doc. 112

(denying that motion to amend and setting a case schedule); Doc. 149 (extending the

dispositive motion deadline) with Doc. 153 (objecting to that extension and incorrectly

asserting Plaintiff had a right to amend); compare id. at Doc. 159 (granting Plaintiff an

extension to respond to a summary judgment motion) with Docs. 164, 165 (moving to

amend again).

• Multiple times, when the Court noted Plaintiff missed a deadline, Plaintiff represented that

he sent documents on time, but the Court mysteriously did not receive them. (See, e.g.,

Docs. 26 (granting an extension to respond to a motion to dismiss sua sponte when Plaintiff

did not file anything by the deadline), 27 (saying Plaintiff mailed his response on April 27,

2024, but the Court apparently didn’t receive it); Doc. 41 (noting Plaintiff claimed to have

sent discovery requests to the wrong person in November 2024, but also saying he started

drafting a notice of unfulfilled discovery in June 2025)); Tolliver II, No. 2:22-cv-4566,

Docs. 18, 19, 20 (saying, in response to an order to file service forms and copies, that he

did not receive the order and that he sent in a motion to stay the case, which the Court never

received).

• A few times in the 2016 Action, Plaintiff even filed meritless appeals, which resulted in

further extensions to the case schedule. See The 2016 Action, Case No. 2:16-cv-1020,

Docs. 78 (granting a motion to voluntarily dismiss the appeal, after Plaintiff’s motion for

leave to proceed in forma pauperis on appeal was denied because his appellate arguments

lacked merit), 126 (dismissing Plaintiff’s appeal because the appellate court lacked

jurisdiction), 198 (same).

Because of this conduct, the 2016 Action took nine years to resolve, and Plaintiff’s other

case filed in 2022, Tolliver II, is still in the pleading stage. See The 2016 Action, No. 2:16-cv-

1020, Doc. 274 (closing the case on August 13, 2025); Tolliver II, No. 2:22-cv-4566, Doc. 30

(moving to file a second amended complaint, after two unauthorized amendments were previously

stricken from the docket). These facts are unsurprising, given Plaintiff’s conduct in this case.

Here, Plaintiff failed to engage in discovery, research the relevant legal issues, or seek expert

assistance for over two years. (Doc. 42 at 3–4 (discussing Plaintiff’s failure to pursue discovery)).

Then, at the last minute, he moved for Rule 56(d) relief and an extension of time to respond to

Defendants’ summary judgment motion. (Doc. 44). Certainly, such conduct does not show

Plaintiff diligently attempted to meet deadlines. See, e.g., Barnes v. Malinak, No. 3:15-cv-556,

2017 WL 3161686, at *2–3 (E.D. Tenn. July 25, 2017) (finding no good cause to extend a

discovery deadline where the plaintiffs delayed taking or scheduling depositions for five months

and did not produce an expert report on time); Dunning v. War Memorial Hosp., 534 F. App’x

326, 332 (6th Cir. 2013) (affirming a trial court’s denial of an extension, even where the court did

not previously warn the parties no further extensions would be granted, where counsel repeatedly

“fail[ed] to adhere to the court’s scheduling orders”). Rather, it appears this extension request is

just another attempt to cure past failures and postpone the end of this case. These delay tactics

stop here.

Also worth noting, Defendants would be prejudiced by an extension. Currently, a trial in

this matter is scheduled for February 2, 2026, with pre-trial deadlines beginning in December 2025.

(Doc. 34). Although Plaintiff baldly asserts he would be ready for trial on February 2 (Doc. 53 at

2), the Court does not share his optimism, given Plaintiff’s undefined extension request and his

history of missing deadlines.

At bottom, Plaintiff’s dilatory conduct and explanations do not meet the good cause

standard for an extension of time. Plaintiff’s Motion for an extension of time (Doc. 44) is thus

DENIED.

C. Defendants’ Motion for Summary Judgment

Next for the Court’s consideration, Defendants present a myriad of reasons why they are

entitled to summary judgment. (Doc. 43 at 11–17 (arguing Plaintiff failed to exhaust his

administrative remedies and the statutes of limitations bars his claims), 17–38 (arguing Plaintiff’s

Section 1983, RLUIPA, and state law claims fail on their merits), 39 (arguing qualified immunity

applies)). But the Undersigned need only address a few. Ultimately, Plaintiff’s 2022 claims are

unexhausted or barred by res judicata, and Defendants are entitled to summary judgment. The

Undersigned also separately considers Plaintiff’s 2016 claims.

1. Exhaustion

The Undersigned begins by summarizing ODRC’s administrative remedy mechanisms

before turning to Plaintiff’s specific efforts to exhaust his administrative remedies.1

a. ODRC’s Policies

The Prisoner Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e, et seq.,

provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of

this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are

available are exhausted.” Lamb v. Kendrick, 52 F.4th 286, 292 (6th Cir. 2022) (quoting 42 U.S.C.

§ 1997e(a)). To comply with this requirement, a prisoner must follow the applicable procedural

rules at his correctional institution. Id. (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). Said

differently, a prisoner must “take advantage of each step the prison holds out for resolving the

claim internally and by following the critical procedural rules of the prison’s grievance process”

to properly exhaust his claims. Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)

(internal quotation omitted).

Because Plaintiff’s claims concern religion, two different policies apply. To begin, for

“inmate complaints related to any aspect of institutional life . . . including . . . conditions of

confinement,” prisoners must use a three-step process. Ohio Admin. Code 5120-9-31(K)

(effective from May 1, 2008, to April 4, 2019). First, “[w]ithin fourteen calendar days of the date

of the event giving rise the complaint,” the prisoner must file an informal complaint to the direct

1 Defendants attached to their Motion the most up-to-date versions of the relevant policies, including ODRC Policy

72-REG-01, 72-REG-02, and Ohio Administrative Code 5120-9-31. (Doc. 43-3 at 5–15). Upon review, the current

policies superseded earlier polices that were in place during the time when Plaintiff allegedly pursued or would have

pursued his administrative remedies. (See id. at 9, 10, 16 (noting the policies superseded others, or that the Ohio

Administrative Code was modified). The Court has reviewed previous versions of these policies. See 2016 Action,

No. 2:16-cv-1020 (S.D. Ohio Mar. 20, 2019), Doc. 46-6 (earlier version of 72-REG-01), 46-7 (earlier version of 72-

REG-02) (“72-REG-02 eff. 2018”); Ohio Admin. Code 5120-9-31 (effective from May 1, 2008, to April 4, 2019).

The policies, for exhaustion purposes in this case, do not materially differ. Still, the Court cites the earlier policies for

ease of reference and clarity.

supervisor of the staff member or department most directly responsible for the complained-of

issue. Id. at (K)(1). “If the inmate is dissatisfied with the informal complaint response, or the

informal complaint process has been waived,” the prisoner may then submit a grievance to the

inspector of institutional services. Id. at (K)(2). After that, if the prisoner is still unsatisfied, he

may appeal to the Office of Chief Inspector. Id. at (K)(3). Once the Chief Inspector decides the

appeal, the prisoner has exhausted his administrative remedies. Id. (“The decision of the chief

inspector or designee is final.”); see also Perdue v. Morgan, No. 1:13-cv-878, 2015 WL 1807899,

at *3 (S.D. Ohio Apr. 20, 2015), report and recommendation adopted, No. 1:13-cv-878, 2015 WL

3852906 (S.D. Ohio June 22, 2015).

A prisoner’s administrative filings have substantive requirements, too. Informal

complaints and grievances “must contain specific information; dates, times, places, the event

giving rise to the complaint and, if applicable the name or names or personnel involved and the

name or names of any witnesses.” Ohio Admin. Code 5120-9-31(K) (effective from May 1, 2008,

to April 4, 2019). If the prisoner does not know the identity of those involved, he may file a

“John/Jane Doe” complaint. Id. “[D]ates, times, places, physical descriptions of any unidentified

personnel and the actions of said personnel giving rise to the complaint,” however, are required.

Id. Similarly, appeals must “contain a clear, concise statement explaining the basis for the appeal.”

Id.

Importantly though, this three-step process does “not serve as an additional or substitute

appeal process” for “issues or actions which already include an appeal mechanism beyond the

institutional level or where a final decision has been rendered by central office staff.” Ohio Admin.

Code 5120-9-31(B) (effective from May 1, 2008, to April 4, 2019). In other words, the three-step

process applies only to “inmate complaints related to any aspect of institutional life that directly

and personally affects the grievant,” including “complaints regarding policies, procedures,

conditions of confinement, or the actions of institutional staff.” Id. at (A). Complaints outside of

that scope are still subject to other administrative remedy procedures. Id. at (B); (Doc. 43 at 12–

13).

Such is the case for religious accommodations. These types of complaints and requests are

handled according to ODRC policy 72-REG-02. See 2016 Action, No. 2:16-cv-1020 (S.D. Ohio

Mar. 20, 2019), Doc. 46-7 (earlier version of 72-REG-02) (“72-REG-02 eff. 2018”). When a

prisoner enters a correctional institution, his religious affiliation is noted “at the reception center.”

72-REG-02 eff. 2018, at VI.A. But accommodations are not granted based on affiliation alone.

Id. Instead, to receive a religious accommodation, a prisoner first must request a meeting with the

chaplain and a request for religious accommodation form. Id. VI.G.1. On the form, the prisoner

must list the branch of his religion; the “specific practice, observance, or item requested”; the

“basis for the requested religious practice,” such as religious writings or traditions; and the

“[n]ames of any religious leaders needed to verify the request.” Id. at VI.G.2. The prisoner then

must submit the completed form to the chaplain, who will meet with the prisoner and ask him to

explain his views. Id. at VI.G.3. The prisoner may also submit additional written materials in

support of the request. Id. Based upon the information provided, the chaplain will make a

recommendation, which is then referred to the institution’s Religious Accommodation Review

Committee. Id. at VI.G.5. The Committee reviews the written request and supporting materials

with the chaplain’s recommendation. Id. at VI.G.6. After the Committee’s evaluation is complete,

it then recommends an appropriate response to the prisoner’s accommodation request. Id. at

VI.G.7.

The process doesn’t stop there. The Committee’s recommendation is then forwarded to

the managing officer/designee for review. Id. at VI.G.8. That officer’s decision is then sent to the

prisoner and the chaplain’s office. Id. at VI.G.8. The tracks diverge based upon the contents of

the request. If the prisoner’s accommodation concerns new dietary requests, congregate services,

or previously unobserved or not recognized holidays, the managing officer’s decision is then sent

to the religious services administrator for a final decision. Id. at VI.G.10; see also id. at VI.H

(discussing the steps the religious services administrator must take to make a decision). If the

accommodation concerns something else, the managing officer’s decision is final. Id. at VI.G.9,

10. A prisoner can appeal a managing officer’s final decision to the religious services

administrator, but the religious service administrator is the last step. Id. at VI.G.11.

Ultimately, regardless of whether Ohio Administrative Code 5120-9-31 or 72-REG-02

applies, under the PLRA, a prisoner must exhaust the applicable process before filing suit in federal

court. Williams v. Harris, No. 1:11-cv-362, 2012 WL 3150955, at *10 (S.D. Ohio Aug. 2, 2012)

(“In stating that no action shall be brought until such administrative remedies as are available are

exhausted, the plain language of the PLRA makes clear the exhaustion is a mandatory precondition

to filing an action in federal court.” (citation modified)), report and recommendation adopted, No.

1:11-cv-362, 2012 WL 6721088 (S.D. Ohio Dec. 27, 2012). Not after. Hopkins v. Ohio Dep’t of

Corr., 84 F. App’x 526, 527 (6th Cir. 2003) (“Exhaustion may not be completed after a federal

complaint has been filed.”) (citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)). If a

prisoner files claims in federal court that were not exhausted prior to the suit, those claims should

be dismissed without prejudice. Boyd v. Corr. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2004)

(“A dismissal under § 1997e should be without prejudice.”); Bell v. Konteh, 450 F.3d 651, 654–

55 (6th Cir. 2006); Adams v. Smith, 166 F. App’x 201, 204 (6th Cir. 2006).

b. Plaintiff’s Exhausted Claims

Under either mechanism, it appears that Plaintiff did not exhaust his administrative

remedies for the claims at issue in this lawsuit. From January 19, 2018, through January 29, 2023,

Defendants aver Plaintiff filed nine grievances related to religious issues. (Doc. 43 at 15).

Defendants provide copies of these grievances, along with a declaration from ODRC Assistant

Chief Inspector Uriah Melton, who reviewed the grievances at issue and Plaintiff’s institutional

record. (Doc. 43-1 at 1–3 (declaration from Uriah Melton stating she reviewed grievances,

electronic institutional communication, and kites), 4–7, 10–12, 13–16, 17–20, 28–31 (exhausted

grievances)). Plaintiff exhausted only five through all three steps. (Doc. 43 at 15; Doc. 43-1 at 3;

id. at 4–7, 10–12, 13–16, 17–20, 28–31 (copies of exhausted grievances)).

Plaintiff’s exhausted grievances concern the following topics:

1. “[A]n allegedly offensive and inappropriate speech delivered by an unqualified

Imam, was fully exhausted by the decision rendered by Eugene Butch Hunyadi

of the Office of the Chief Inspector on August 1, 2018” (“Greivance 1”). (Doc.

43 at 16; Doc. 43-1 at 10–12)

2. “[A]n Imam’s alleged failure to provide normative contract services due to his

lack of conformity to mainstream practices, was fully exhausted by the decision

rendered by Eugene Butch Hunyadi of the Office of the Chief Inspector on

August 22, 2018” (“Greivance 2”). (Doc. 43 at 16; Doc. 43-1 at 17–20).

3. “ODRC’s alleged failure to provide qualified Islamic services providers who

are educated in mainstream Muslim rites and know how to conduct valid

Jummah services, was fully exhausted by the decision rendered by Eugene

Butch Hunyadi of the Office of the Chief Inspector on September 21, 2018”

(“Greivance 3”). (Doc. 43 at 16; Doc. 43-1 at 4–7).

4. “[A]n Imam’s alleged failure to keep to the contract schedule and provide

normative services, was fully exhausted by the decision rendered by Eugene

Butch Hunyadi of the Office of the Chief Inspector on September 21, 2018.”

(“Greivance 4”). (Doc. 43 at 16; Doc. 43-1 at 13–16).

5. “[A] Jummah service that was allegedly interrupted by a noisy program being

held in an adjacent room, was fully exhausted by the decision rendered by Marc

Bratton of the Office of the Chief Inspector on March 25, 2020” (“Greivance

5”). (Doc. 43 at 16; Doc. 43-1 at 28–31).

Importantly, only Grievances 1, 2, 3, and 4 arguably relate to Plaintiff’s alleged claims in

this case. All three could, very generously, be construed as related to Plaintiff’s RLUIPA and First

Amendment claims, Plaintiff’s Eighth Amendment claim, or Plaintiff’s Breach of Contract claim.

(Compare Doc. 4 at 8 and Doc. 8 at ¶¶ 6, 12, 34 and Doc. 9 at 10–11 with Doc. 43-1 at 4–7, 10–

12, 13–16, 17–20). None relate to Plaintiff’s Equal Protection claim about meals. And even

generously construed, Grievance 5―involving one interrupted Jummah service―is not similar

enough to Plaintiff’s expansive claims in this case for exhaustion purposes. (Compare Doc. 43-1

at 28 with supra I.B.).

Plaintiff may submit that other attempts to administratively exhaust his claims should be

considered. But problems abound. For instance, Plaintiff’s Amended Complaint alleges he

exhausted his administrative remedies for “relevant grievances” with Annette Chambers-Smith on

March 29, 2023; with Mike Davis on March 21, 2023; with Jennifer Urrah on March 16, 2023,

and via a religious diet accommodation request on May 4, 2023. (Doc. 8 at ¶ 14; see, e.g., Doc.

43-2 at 3–5; Doc. 43-3 at 100–103). But because each of these were purportedly filed after Plaintiff

initiated this case, the Court should not consider any claims at issue in those grievances exhausted

for the purposes of this lawsuit. Hopkins, 84 F. App’x at 527; Freeman, 196 F.3d at 645. Plaintiff

may also submit that the religious accommodation requests for kosher or halal meals in 2014,

2015, or 2016 constitute exhaustion for his 2022 meal-related claim. (See Doc. 43-2 at 6–15).

But, as discussed in more detail below, res judicata bars consideration of those here. Lastly, to the

extent that Plaintiff sent letters outlining his litigation efforts, proposing “rational resolutions,” or

advising the recipient of “a statewide problem,” those letters are not proper administrative

procedures. See, e.g., Ohio Admin. Code 5120-9-31(K); 72-REG-02; (see Doc. 43-3 at 96–99

(“Request for Assistance in Islamic Services Complaints” letter sent to Mike Davis in October

2023), 100 (“Notice of informing Jennifer Urrah about religious issues relevant to her departmental

mission” letter sent to Mike Davis in March 2023), 101–103 (“Denial of Jummah and Other

Islamic Services at most Ohio prisons” letter sent to Jennifer Urrah in March 2023)).

All in all, Plaintiff only arguably exhausted some of his claims. But even to the extent his

claims are wrapped up in the exhausted grievances listed above, there is another wrinkle. Namely,

res judicata.

2. Res Judicata

“The doctrine of res judicata . . . provides that a final judgment on the merits of an action

precludes the parties or their privies from relitigating issues that were or could have been raised in

a prior action.” Pram Nguyen ex rel. U.S. v. City of Cleveland, 534 F. App’x 445, 451 (6th Cir.

2013) (quoting In re Alfes, 709 F.3d 631, 638 (6th Cir. 2013)). Res judicata is an affirmative

defense upon which Defendants bear the burden of proof. Neff v. Flagstar Bank, FSB, 520 F.

App’x 232, 327 (6th Cir. 2013) (noting that Federal Rule of Civil Procedure 8(c) lists res judicata

as an affirmative defense). For an action to be barred by the doctrine, four elements must be met:

(1) a final decision on the merits by a court of competent jurisdiction; (2) a

subsequent action between the same parties or their privies; (3) an issue in the

subsequent action which was litigated or which should have been litigated in the

prior action; and (4) an identity of the causes of action.

Pram Nguyen ex rel U.S., 534 F. App’x at 451.

In Lawlor v. National Screen Service Corporation, the Supreme Court found that even if a

subsequent claim involved “essentially the same course of wrongful conduct” as the previous suit,

res judicata does not bar claims that did not exist when that action was filed. 349 U.S. 322, 327–

28 (1955). In other words, “a plaintiff [is not] barred from asserting ‘new claims based on

continuous wrongful conduct, even if that conduct is identical to the subject of a prior suit.’”

Kalyango v. Ohio Univ., No. 2:22-cv-2028, 2023 WL 2499867, at *10 (S.D. Ohio Mar. 14, 2023)

(quoting Pram Nguyen ex rel. U.S., 534 F. App’x at 451). The Sixth Circuit has explained why

res judicata does not apply in these circumstances:

Ordinarily, the ‘transaction’ that gives rise to a cause of action will be clearly

delineated. A car accident victim, for example, must bring all tort claims related to

the accident in a single suit or be barred from raising them later. However, when a

plaintiff alleges an ongoing course of harmful conduct, as with a nuisance or pattern

of harassment, the task of pinpointing the transaction becomes more challenging.

On the one hand, a plaintiff should not be permitted to repeatedly challenge the

same conduct over and over, but neither should a defendant have perpetual

immunity from suit based on a single adjudication that may have ended in

settlement or a decision in the plaintiff’s favor. A successful plaintiff should not

be forever barred from asserting new claims based on continuous wrongful conduct,

even if that conduct is identical to the subject of a prior suit.

The solution to this dilemma can be found in the interplay between the doctrines of

claim and issue preclusion. If a plaintiff sues a defendant more than once based on

an ongoing course of conduct, the doctrine of claim preclusion will typically not

prevent the plaintiff from asserting a cause of action that arose after the first suit

was decided. Because it did not yet exist, such a cause of action literally could not

have been brought in the first suit. However, once a court actually litigates the

merits of an issue, the doctrine of issue preclusion will prevent a plaintiff from

relitigating the issue in a subsequent suit.

Pram Nguyen ex rel U.S., 534 F. App’x at 451–52.

Further, in determining whether a plaintiff’s later allegations are barred by res judicata,

“the crucial date is the date the [prior] complaint was filed.” Reynolds, 2018 WL 5928117, at *4

(quoting Springs v. U.S. Dep’t of Treasury, 567 F. App’x 438, 445 (6th Cir. 2014)); see also

Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 840 n.3 (6th Cir. 2000) (rejecting a res

judicata defense because the events underlying plaintiff’s claims occurred after the filing of a

previous, related action). This is because a “plaintiff has no continuing obligation to file

amendments to the complaint to stay abreast of subsequent events; [a] plaintiff may simply bring

a later suit on those later-arising claims.” Reynolds, 2018 WL 5928117, at *4 (internal quotation

omitted) (emphasis removed).

Based upon these principles, the Court previously stated that “any claims that Plaintiff had

prior to the filing of the amended complaint in his previous suit should have been brought in that

action. Plaintiff can, however, pursue claims that arose after that date.” (Doc. 30 at 8); see Ball

by Burba v. Kasich, 244 F.Supp.3d 662, 677 (S.D. Ohio 2017) (finding res judicata did not bar

plaintiff’s claims because they were based in facts arising after a previous consent decree and the

“surrounding regulatory scheme” had changed); Reynolds, 2018 WL 5928117, at *5 (“Claims

arising from factual events occurring after the filing of a complaint are not barred by res

judicata.”); Springs, 567 F. App’x at 445 (finding a claim was not barred by res judicata “because

the factual predicate for that claim did not exist” during the earlier suit).” (Doc. 30 at 8; see also

Doc. 31 (adopting Doc. 30)).

In the 2016 Action, Plaintiff amended his complaint on December 3, 2018. No. 2:16-cv-

1020 (S.D. Ohio Dec. 3, 2018), Doc. 30. All exhausted grievances that concern matters raised in

this lawsuit, discussed above, should have been brought in the 2016 Action. Each were fully

exhausted before December 2018. (See Doc. 43-1 at 4–7 (exhausted by a September 21, 2018,

decision), 10–12 (exhausted by an August 1, 2018, decision), 13–16 (exhausted by a September

21, 2018, decision); 17–20 (exhausted by an August 22, 2018, decision)). Consequently, each are

barred by res judicata.

In sum, there is no evidence in the record that Plaintiff properly exhausted his Equal

Protection claim. And even to the extent that the Court could generously construe his exhausted

grievances as relating to his RLUIPA, First Amendment, Eighth Amendment, or Breach of

Contract claims, those claims are all barred by the doctrine of res judicata. Because Plaintiff has

not raised a genuine issue of material fact as to either proposition, the Undersigned

RECOMMENDS Defendants be GRANTED summary judgment on all of Plaintiff’s 2022

Action claims.

D. The 2016 Action Remanded Claims

Finally, the Court considers Plaintiff’s RLUIPA and breach of contract claims from the

consolidated 2016 Action. (Doc. 54). As previously noted, the Sixth Circuit remanded these

claims for this Court’s consideration. (2016 Action, Doc. 272).

In their Motion for Summary Judgment, Defendants discuss these claims in a cursory

manner. (Doc. 43 at 36–38). But the Court does not read Defendants’ limited discussion as

substantive briefing on either of these claims. Importantly, at the time Defendants filed the Motion,

the 2016 Action had not yet been consolidated with the 2022 Action. So, all of Defendants points

are made within the confines of their unfulfilled request that the Court not consolidate the two

cases. (Id.). Even more, Defendants also appear to concede that the Motion for Summary

Judgment at bar is not meant to substantively address Plaintiff’s 2016 Action claims. (Doc. 43 at

38 (noting no schedule has been set for the consideration of Plaintiff’s RLUIPA or breach of

contract claims in the 2016 Action)). For these reasons, the Undersigned declines to grant

summary judgment to Defendants on Plaintiff’s remanded 2016 claims based on the record before

the Court. But this leaves portions of this case unresolved. And this matter must move forward.

Accordingly, Plaintiff is ORDERED to file a notice limited in scope to whether he wishes

to still pursue his 2016 RLUIPA and breach of contract claims, either in whole or in part. Plaintiff

must file the notice within twenty-one (21) days of the date of this Order. The Court will not

grant Plaintiff additional time. Plaintiff is WARNED that the Court will not consider any parts of

his forthcoming notice that respond beyond the Court’s narrow question. Plaintiff is further

WARNED that failure to file this notice could result in his 2016 claims being dismissed for failure

to prosecute.

If Plaintiff chooses to pursue the remanded RLUIPA and breach of contract claims, the

Court SETS the following deadlines:

• Dispositive motions due November 21, 2025

• Responses due December 11, 2025

• Replies due January 7, 2026

The Court will not grant extensions to these deadlines absent extenuating circumstances.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiff’s Rule 56(d) Motion (Doc. 44),

DENIES as moot his Motion to File Interrogatories Instanter (Doc. 46), and DENIES his Request

for Additional Time to Respond to Defendants’ Motion for Summary Judgment (Doc. 44). The

Undersigned further RECOMMENDS GRANTING Defendants’ Motion for Summary

Judgment (Doc. 43). Finally, the Court ORDERS Plaintiff to provide the notice detailed herein

regarding his remanded 2016 claims within twenty-one (21) days and SETS a related briefing

schedule.

IT IS SO ORDERED.

Date: September 25, 2025 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

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 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 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 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).