Pough

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANCE POUGH, ) Case No. 1:24-cv-2016

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) James E. Grimes, Jr.

STEVE WEISHAR, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiff Lance Pough, an inmate representing himself, brings this action

under Section 1983 against the Grafton Correction Institution prison investigator,

Steve Weishar, and the Chairman of the Rules Infraction Board, John Faltay, in their

individual and personal capacities. Defendants move to dismiss. For the following

reasons, the Court GRANTS the motion.

STATEMENT OF FACTS

Taking the facts alleged in the complaint as true and construing them in

Plaintiff’s favor, as the Court must on the motion before it, Plaintiff bases his claims

on the following events.

A. The Alleged Assault

Although Plaintiff Lance Pough is currently incarcerated at North Central

Correctional Institution in Marion, Ohio, the relevant events occurred while he was

an inmate at Grafton Correctional Institution in Lorain County, Ohio. (ECF No. 1,

¶¶ 1 & 65 PageID #2.)

In June 2022, there was an attempted assault on a Grafton inmate that

resulted in an internal prison investigation into Mr. Pough. (Id., ¶¶ 10–19,

PageID #4–7.) According to the complaint, inmate Allen Oliver warned Mr. Pough

“to stay away from inmate Donny Berry because prison officials were investigating

him and were going to pick him up.” (Id., ¶ 10, PageID #4.) Instead, Mr. Pough told

Berry about the warning he was given. (Id.) As a result, Berry and Oliver had an

“argument and verbal dispute.” (Id.) Because Berry was “shouting loudly” during

the dispute, Oliver felt threatened and sought out another inmate to “assault and

fight” Berry on his behalf. (Id.) Berry asked inmate Bobby Nolan to “find someone

who could do the job.” (Id.) Nolan recruited inmate Lloyd Kelley Jr. (Id.) Kelley

attempted to assault Berry, but the two ended up talking instead. (Id., ¶ 11, PageID

#4–5.) During their conversation, Kelley explained to Berry that he had been sent by

Nolan and Oliver to assault him. (Id.)

Because of the attempted assault on Berry, Mr. Pough was placed in temporary

confinement. (Id., ¶ 15, PageID #5–6.) Unbeknownst to Mr. Pough, he was

investigated and put into confinement because Nolan, Oliver, and Kelley allegedly

informed Investigator Weishar that Mr. Pough was the mastermind behind the

attempted assault on Berry. (Id., ¶¶ 10–19, Page ID# 4–7.) Therefore, Investigator

Weishar filed a conduct report against Mr. Pough for violating Rule 4 (causing, or

attempting to cause, physical harm to another) and Rule 60 (attempting to commit,

aiding another in the commission of, soliciting another to commit, or entering into an

agreement with another to commit any of the above acts) for his alleged involvement

in the attempted assault on Berry. (Id., ¶ 22, PageID #8; ECF No. 1-3, PageID #32.)

The underlying conduct report did not include the names of accusers, victims, or the

time and location where the alleged incident took place. (Id., ¶ 22, PageID #8.) In

July 2022, Mr. Pough was formally charged with violating Rule 4 and Rule 60 and

subjected to two hearings of the rules infraction board, which Lt. Faltay oversaw.

(Id., ¶ 3, PageID #2.)

Mr. Pough claims that Investigator Weishar and Lt. Faltay’s actions during

the investigation and disciplinary proceedings violated his constitutional rights. (Id.,

¶¶ 2–9, PageID #2–4.) Because Investigator Weishar and Lt. Faltay had different

roles in the underlying disciplinary proceedings, and Mr. Pough obtained knowledge

of their actions at different times, the Court outlines the events giving rise to the

claims against each Defendant separately.

B. Lt. Faltay

When Mr. Pough was formally charged with violating Rule 4 and Rule 60 for

his alleged involvement in the assault of inmate Berry, Lt. Faltay served as the

Chairman of the Rules Infraction Board at Grafton Correctional Institution and acted

as a decisionmaker on the board. (Id., ¶ 3, PageID #2.)

In July 2022, Mr. Pough was formally charged with violating Rule 4 and

Rule 60 for his alleged involvement in the assault on Berry. (Id.) And his first

disciplinary hearing was scheduled for July 20, 2022. (Id., ¶ 23, PageID #8.)

Immediately preceding the hearing, on July 20, 2022, Lt. Faltay allegedly told

Mr. Pough that he would “find him guilty based on events that preceded the alleged

assault.” (Id., ¶ 25, PageID #9.) Mr. Pough claims that inmate Kenneth Livingston

witnessed this interaction. (Id.; ECF No. 1-10, ¶¶ 4–5, PageID #39.) Because of the

interaction, Mr. Pough told Lt. Faltay during the hearing that he was “biased and

predisposed” against him, which Lt. Faltay allegedly did not deny. (ECF No. 1,

¶¶ 26–27, PageID #9–10.)

Mr. Pough was found guilty at the initial hearing and appealed the decision.

(Id.) While his appeal was pending, and without Mr. Pough’s knowledge, the

Warden’s Administrative Review Board reversed and returned the July 20 decision

for reconsideration. (Id., ¶ 28, PageID #10.) The review board based its decision on

Lt. Faltay’s failure to find credible the statements of the confidential informants who

provided the basis for the report. (Id.)

Then, on July 28, 2022, Mr. Pough was unexpectedly called to a second hearing

for the same alleged assault. (Id., ¶ 29, PageID #10.) Mr. Pough contends that,

because he did not receive prior notice of this hearing, he was unable to call certain

witnesses for his defense. (Id., ¶ 30, PageID #10.) The second panel comprised of Lt.

Faltay and Mr. Tolley, who again found Mr. Pough guilty of violating Rule 4 and Rule

60. (Id., ¶ 32, PageID #11; ECF No. 1-6, PageID #35.)

Mr. Pough appealed this decision to the Warden, but this time the decision was

affirmed. (ECF No. 1-8, PageID #37.) Therefore, Mr. Pough appealed to Legal

Services, which also upheld the board’s decision. (ECF No. 1, ¶ 32, PageID #11; ECF

No. 1-9, PageID #38.) Because of the guilty finding, Mr. Pough’s security level was

increased from a level one to a level three in September 2022. (ECF No. 1, ¶ 3,

PageID #3–4.) With an increased security level, Mr. Pough was transferred from

Grafton to Mansfield Correctional Institution. (ECF No. 1, ¶ 9, PageID #3.)

C. Investigator Weishar

In August 2023, Kelley was transferred to Mansfield. (Id.) There, he

encountered Mr. Pough. (Id.) Kelley informed Mr. Pough about the alleged

conspiracy between himself and inmates Oliver and Nolan to blame the attempted

assault of inmate Berry on Mr. Pough. (Id.; ECF No. 1-1, PageID #18.) Additionally,

Kelley detailed Investigator Weishar’s alleged conduct surrounding Mr. Pough’s 2022

disciplinary actions. (Id., ¶ 9, PageID #3.)

According to the complaint, Investigator Weishar told Kelley that he “wanted

to get Pough off the compound . . . because . . . Pough had previously filed complaints

and grievances against his co-worker,” Officer Judkins. (Id., ¶ 19, PageID #7.)

According to Mr. Pough, in 2022 he filed a lawsuit against members of Grafton’s

parole board, which led to allegedly retaliatory searches of his property by Officer

Judkins and prompted Mr. Pough to file a grievance. (Id., ¶ 36, PageID #13.)

Before the investigation into Mr. Pough for the assault on Berry, Investigator

Weishar allegedly told Kelley that “his statements don’t have to be true, and

[Investigator Weishar] doesn’t care if they are true, as long as they are corroborated

by other inmate statements.” (Id., ¶ 20, PageID #7.) Based on this information,

Mr. Pough filed an internal complaint against Investigator Weishar for retaliatory

conduct on July 31, 2024. (Id., ¶ 34, PageID #3.)

On August 6, 2024, the prison’s seven-day deadline to respond to Mr. Pough’s

complaint expired. (Id.) Therefore, Mr. Pough filed a second complaint and, again,

did not receive a response within the deadline. (Id.) Mr. Pough attempted to escalate

the complaint to a grievance. (Id.) However, his assigned prison tablet was not

functional at that time. (Id.) Despite requesting the assistance of both the prison

inspector and ViaPath/GTL officials to file his grievance, Mr. Pough received no help.

(Id.) Ultimately, Mr. Pough was unable to escalate his complaint to a grievance

within the prison system. (Id., ¶ 35, PageID #12.)

STATEMENT OF THE CASE

On September 11, 2024, Mr. Pough sent a handwritten complaint under

Section 1983, which was received on September 16, 2024. (ECF No. 1-16,

PageID #47.) But it was not accepted because there was no filing fee or motion to

proceed in forma pauperis. (ECF No. 1-13, PageID #43.) Then, Mr. Pough filed a

motion to proceed in forma pauperis, and the amended complaint was docketed on

November 18, 2024. (ECF No. 1; ECF No. 2.) Included with the complaint were

affidavits from inmates allegedly involved in the conspiracy against him. (ECF

No. 1-1; ECF No. 1-10; ECF No. 1-11.)

Under Rule 15(c), an amendment to a complaint relates back to the date of the

original complaint when “the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out—or attempted to be set out—in the

original pleading.” Fed. R. Civ. P. 15(c). “When a petitioner files for permission to

file [in forma pauperis], a complaint is considered filed on the day the clerk’s office

receives both the complaint and the application to proceed IFP.” Scott v. Evans, 116

F. App’x 699, 701 (6th Cir. 2004). Mr. Pough’s initial filing was rejected because it

was filed without a motion to proceed in forma pauperis and without payment of the

filing fee. (ECF No. 1-13, PageID #43.) Though Mr. Pough's complaint is titled

“Amended Complaint 15(C) Relate Back,” the complaint was not considered filed until

Mr. Pough filed his motion to proceed in forma pauperis, which was on November 18,

2024. Therefore, Mr. Pough’s second complaint does not relate back to his initial

attempted filing and is considered filed on November 18, 2024.

Defendants move to dismiss the case for failure to state a claim, and raise

arguments based on the statute of limitations, the Eleventh Amendment, and

qualified immunity. (ECF No. 13, PageID #131.)

MOTION TO DISMISS STANDARD

Under Rule 12(b)(6), a court may dismiss a complaint if it fails to state a claim

on which a court may grant relief. Fed. R. Civ. P. 12(b)(6). A motion under Rule

12(b)(6) tests “the plaintiff’s cause of action as stated in the complaint” and is “not a

challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d

950, 958–59 (6th Cir. 2005). A complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is plausible where “the plaintiff pleads factual content that allows

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

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To survive a motion to

dismiss, a complaint must “raise a right to relief above the speculative level” into the

“realm of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5.

On a motion to dismiss, the Court construes factual allegations in the light

most favorable to the plaintiff, accepts them as true, and draws all reasonable

inferences in the plaintiff’s favor. Wilburn v. United States, 616 F. App’x 848, 852

(6th Cir. 2015) (citing DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). But

a pleading must offer more than mere “labels and conclusions,” and “a formulaic

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Nor is a court required to accept “[c]onclusory

allegations or legal conclusions masquerading as factual allegations.” Eidson v.

Tennessee Dep’t of Child.’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing Twombly,

550 U.S. at 544).

Therefore, the Court must distinguish between “well-pled factual allegations,”

which must be treated as true, and “naked assertions,” which need not be. Iqbal, 556

U.S. at 678 (cleaned up); see also, e.g., Center for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (determining that because some of the

plaintiff’s factual allegations were not well-pled, their conclusory nature disentitled

them to the presumption of truth). A plaintiff need not include detailed factual

allegations, but must provide more than “an unadorned, the-Defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678. Rule 8 “does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.

Although the pleadings and documents pro se litigants file are liberally

construed and held to less stringent standards than the formal pleadings of lawyers,

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004), litigants who do not have a

lawyer are not exempt from the requirements of the Federal Rules of Civil Procedure.

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Even a pro se complaint must

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face’” to avoid dismissal. Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570).

ANALYSIS

Section 1983 does not provide a statute of limitations. Therefore, federal courts

borrow the applicable limitations period from the most analogous one available under

State law. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); see Owens v. Okure,

488 U.S. 235, 249–50 (1989). For the claims Plaintiff asserts, the most analogous

statute is Ohio’s two-year limitations period in Section 2305.10(A) of the Ohio Revised

Code. Ohio Rev. Code § 2305.10; see Browning v. Pendleton, 869 F.2d 989, 992 (6th

Cir. 1989) (en banc).

But federal law governs when a plaintiff’s federal claims against a defendant

accrue. Wallace v. Kato, 549 U.S. 384, 388 (2007); see Green v. City of Southfield, 759

F. App’x 410, 414 (6th Cir. 2018) (citing Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.

1984)). “The statute of limitations commences when the plaintiff knows or has reason

to know of the injury which is the basis of h[is] action.” Green, 759 F. App’x at 414

(quoting Sevier, 742 F.2d at 273) (cleaned up). Under the discovery rule, however,

equitable tolling delays the accrual of the statute of limitations until the plaintiff

knew or should have known of the injury which is the basis of the claim. Sevier, 742

F.2d at 273. “This inquiry focuses on the harm incurred, rather than the plaintiff’s

knowledge of the underlying facts which gave rise to the harm.” Friedman v. Estate

of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991) (citation omitted). “A plaintiff has

reason to know of his injury when he should have discovered it through the exercise

of reasonable diligence.” Sevier, 742 F.2d at 273 (citing Briley v. California, 564 F.2d

849, 855 (9th Cir. 1977)).

It is generally inappropriate to dismiss claims based on a statute of limitations

at the motion to dismiss stage. Snyder-Hill v. Ohio State Univ., 48 F.4th 686, 698

(6th Cir. 2022) (citation omitted). But if the allegations in the complaint

“affirmatively show” that a claim is time barred, then dismissal is warranted. Id.

(quoting Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th Cir. 2013)).

Defendants contend that Plaintiff’s entire complaint is time barred. (ECF

No. 13, PageID #135–36.) Because Plaintiff allegedly obtained knowledge of

Defendants’ actions at different times, equitable tolling applies differently to the

claims against each Defendant.

I. Lt. Faltay

Plaintiff’s claims against Lt. Faltay arise from his alleged bias against

Mr. Pough at the two hearings of the rules infraction board and the “lack of notice” of

the second hearing, which Plaintiff contends violated his constitutional rights by

denying him the ability to call witnesses on his behalf. (ECF No. 1, PageID #1.) Other

than the conduct or facts relating to the hearings, Plaintiff bases his claims against

Lt. Faltay on no other allegations.

Construing the complaint in favor of Plaintiff, Mr. Pough knew of the perceived

bias at the time of the second hearing when it occurred on July 28, 2022. Sevier, 742

F.2d at 273. Indeed, Plaintiff argued in his appeal of that decision that Lt. Faltay

“was biased and predisposed and not impartial at the July 28, 2022 R.I.B. hearing

based on his conduct during the July 20, 2022 R.I.B. hearing.” (ECF No. 1,

PageID #11.) Therefore, Plaintiff’s cause of action against Lt. Faltay accrued on July

28, 2022. Because Plaintiff’s complaint was deemed filed on November 18, 2024, his

complaint was filed outside the two-year statute of limitations. Plaintiff’s claims

against Lt. Faltay are untimely.

II. Investigator Weishar

Plaintiff claims that Investigator Weishar retaliated against him. To

determine when Plaintiff’s claims against Investigator Weishar accrued, the Court

must determine when Plaintiff knew or had reason to know of the injury that is the

basis for his retaliation claim. Sevier, 742 F.2d at 273.

Defendants do not take a firm position on when Plaintiff’s claims for retaliation

against Investigator Weishar accrued. Instead, they contend that the factual

allegations regarding Plaintiff’s retaliation claim could have occurred on various

dates: (1) at the earliest on July 13, 2022 when Investigator Weishar issued the

conduct report (ECF No. 15, PageID #159); (2) on July 22, 2022 when Mr. Pough was

found guilty at the hearing of the rules infraction board (ECF No. 13, PageID #136);

or (3) at the latest on August 15, 2022 when Mr. Pough filed his appeal with the Office

of Chief Legal Counsel (ECF No. 15, PageID #158–59). Although Defendants do not

identify it as a potential accrual date, Plaintiff’s appeal to the Office of Chief Legal

Counsel was not complete until September 14, 2022. (ECF No. 1-9.)

II.B.1. Exhaustion

Plaintiff did not argue for tolling of the statute of limitations for his claims

against Investigator Weishar. Instead, Plaintiff argues that he “attempted to

exhaust the retaliation claim” by filing complaints against Investigator Weishar and

escalate them to grievances. (ECF No. 14, PageID #145.) Specifically, Plaintiff

asserts that he filed his first complaint against Investigator Weishar on July 31, 2024,

to which there was not a response until after the “7 day deadline” of August 6, 2024.

(Id.) Plaintiff filed a second complaint after that deadline, on an unspecified date in

August 2024. (Id.) He states that he never received a response to either complaint.

(Id.) Additionally, Plaintiff claims that he attempted to escalate both complaints to

grievances but was unable to do so because the “escalation button/process on the

phone tablet was inoperable and would not work.” (Id.) Only after these

administrative remedies failed, through no fault of his own, did Plaintiff file this

lawsuit. (ECF No. 1-16, PageID #47.) Based on these events, Plaintiff maintains

that the statute of limitations does not bar his claims against Investigator Weishar.

(ECF No. 14, PageID #146.)

The Prison Litigation Reform Act mandates 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 confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C § 1997e(a).

Because the statute unambiguously requires administrative exhaustion as a

threshold to litigation, the statute of limitations for a civil rights action may be tolled

for the time in which these remedies are being exhausted. Brown v. Morgan, 209

F.3d 595, 596 (6th Cir. 2000); see also Waters v. Evans, 105 F. App'x 827 (6th Cir.

2004) (applying Brown to a prisoner’s Section 1983 claim).

Plaintiff appears to argue that his lawsuit is timely because he was unable to

exhaust, such that the limitations period did not begin to run or was tolled. This

argument fails. Plaintiff filed his administrative complaints against Investigator

Weishar well outside the fourteen-day deadline to do so. See Ohio Admin. Code

§ 5120–9–31(J)(1) (requiring an inmate to file an informal complaint within fourteen

calendar days of the incident). The incident involving Investigator Weishar occurred

on July 13, 2022 when he filed the conduct report against Plaintiff. And Plaintiff’s

appeal to the Office of Chief Legal Counsel was not complete until September 14,

2022. Even this latter date is nearly two years before Plaintiff filed his first

administrative complaint on July 31, 2024. Under the Act, compliance with prison

grievance procedures is all that is required to exhaust. Jones v. Bock, 549 U.S. 199,

216 (2007). Because Plaintiff did not follow the required administrative procedures,

the attempted filing of an administrative complaint and escalation to a grievance

some two years after the conduct at issue cannot provide a basis for tolling the statute

of limitations. However, the failure to exhaust does not bar this complaint because

Defendants did not raise failure to exhaust administrative remedies as a defense.

(ECF No. 13.) Therefore, they forfeited the defense. Horton v. Potter, 369 F.3d 906,

911 (6th Cir. 2004).

III.B.2. Equitable Tolling

Equitable tolling might not apply in all cases, particularly in retaliation cases

like this one. See Reguli v. Russ, 109 F.4th 874, 885 (6th Cir. 2026) (White, J.,

concurring) (“I would not relegate the discovery of a retaliatory motive in cases where

retaliation is an element of the claim to the domain of equitable tolling in all cases.

This is especially so because equitable tolling, unlike accrual, is generally determined

under state law.”) Nevertheless, the Court, as it must, liberally construes the

complaint in Plaintiff’s favor and considers whether equitable tolling applies to

Plaintiff’s claims against Investigator Weishar.

Plaintiff claims that he did not discover Investigator Weishar’s alleged

retaliation until August 2023 when Kelley informed him that there was a

“conspiracy . . . to place blame on [him] for the assault and attempt[ed] assault on

inmate Donny Berry.” (Id., ¶ 9, PageID #3.) Even so, his lawsuit is untimely for two

reasons.

First, the complaint, construed in Plaintiff’s favor, shows that he did not act

with reasonable diligence to pursue his claims. August 2023 still fell within the

limitations period. The latest accrual date for Plaintiff’s claims against Investigator

Weishar is September 14, 2022. Therefore, if Plaintiff had acted with reasonable

diligence, he could have exhausted his administrative remedies and/or filed suit

before expiration of the limitations period. Sevier, 742 F.2d at 273 (citing Briley, 564

F.2d at 855). But Plaintiff waited almost a year—until July 31, 2024—to file an

informal complaint. And he did not file this complaint until November 18, 2024.

Indeed, Plaintiff provides no justification for this delay. Although Plaintiff had the

necessary information providing the basis for his claims against Investigator Weishar

with in the limitations period, and months to spare before its expiration, he failed to

pursue his claims with reasonable diligence.

Second, in determining whether equitable tolling applies, courts focus on the

harm incurred, not the plaintiff’s knowledge of the underlying facts that gave rise to

the harm. Friedman, 929 F.2d at 1159 (citation omitted). This principle is consistent

with the general legal rule that a statute of limitations runs from when a tort was

committed, even if the injured party did not know or have reason to know of the tort.

See Reguli, 109 F.4th at 887 (Murphy, J., concurring) (“[A] broad discovery rule

conflicts with . . . traditional principles. Even as late as 1939, the Restatement of

Torts noted that many States continued to adhere to the view that ‘the statutory

period runs from the time the tort was committed although the injured person had

no knowledge or reason to know of it.’” (citation omitted)).

Plaintiff should have known of the harm about which he complains by

September 14, 2022, at the latest. The fact that he did not learn of the underlying

facts until a year later—still within the limitations period—does not make his claims

timely. For these reasons, equitable tolling does not apply to Plaintiff’s claims against

Investigator Weishar, and the claims are time barred.

CONCLUSION

Plaintiff Lance Pough makes serious allegations that merit further

investigation and due consideration by the appropriate authorities. Because

Plaintiffs claims are time barred, this case is not the appropriate means for doing so.

Accordingly, those efforts fall to others to undertake.

For all the foregoing reasons, the Court GRANTS Defendants’ motion to

dismiss (ECF No. 18).

SO ORDERED.

Dated: February 9, 2026

J.PhilipCalabrese

United States District Judge

Northern District of Ohio

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