Brown-Austin

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

YUSEF BROWN-AUSTIN, Case No. 1:24-cv-397

Plaintiff, McFarland, J.

Bowman, M.J.

v.

ANNETTE CHAMBERS-SMITH, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Yusef Brown-Austin, through counsel, filed this prisoner civil rights case

against eleven defendants on July 29, 2024. This matter is now before the Court on

Plaintiff’s motion for an emergency restraining order (Doc. 46) and the parties’ responsive

memoranda. (Docs.49, 55, 68). Also before the Court is Plaintiff’s motion to supplement

pleadings (Doc. 47) and the parties’ responsive memoranda. (Docs. 50, 56). The motions

will be addressed in turn.

A. Background and Facts

This is a re-filed action by Plaintiff Yusuf Brown-Austin, an individual incarcerated

at Southern Ohio Correctional Facility (“SOCF”). This is Mr. Brown-Austin’s third lawsuit

stemming from mostly the same set of events. All three of Mr. Brown-Austin’s claims

stem from his transfer from the Northeast Ohio Correctional Center (“NEOCC”) to the

Ohio State Penitentiary (“OSP”) on July 29, 2022. Mr. Brown-Austin alleged in all three

actions that he was transferred to OSP without being afforded constitutional due process

and has since been retaliated against for complaining about his transfer. Mr. Brown-

Austin contends his security classification was raised without affording him due process.

The instant action was filed on July 29, 2024. In addition to the new complaint,

Plaintiff moved for preliminary injunctive relief. (Docs. 1, 3.) Within a few weeks, Plaintiff

twice amended his original complaint. (Docs. 5, 8.)

In a prior order denying preliminary injunctive relief, Judge McFarland closely

reviewed the allegations and claims presented in Plaintiff’s Second Amended Complaint.

In the interest of judicial economy, the undersigned adopts most of Judge McFarland’s

summary.1

Plaintiff was initially incarcerated at the Northeastern Ohio Correctional

Center ("NEOCC"). (Second Am. Compl., Doc. 8, ¶¶ 1, 2.) Defendant Core

Civic Inc. operates the NEOCC pursuant to a contract with the State of Ohio.

(Id. at ¶ 2.) During Plaintiff's incarceration, Core Civic failed to sufficiently

staff the NEOCC. (Id. at ¶ 4.) To remedy this, the staff negotiated with the

prison's gang leaders, agreeing that if the gangs reduced prison violence,

the NEOCC would allow the gang leaders to "control the prison." (Id. at ¶

20.)

At first, Plaintiff willingly participated in this agreement. (Second Am.

Compl., Doc. 8, ¶¶ 24-29.) In June 2022, however, a guard brought a loaded

firearm into the NEOCC, which an inmate retrieved. (Id. at ¶ 30.) The

NEOCC administration ordered Plaintiff to take the firearm from the inmate,

but Plaintiff refused. (Id.) Later, Plaintiff's brother alerted the Ohio State

Highway Patrol that the NEOCC ordered Plaintiff to seize a firearm from

inside the prison. (Id. at ¶ 33.) This angered Defendants, who began to

question whether they could trust Plaintiff. (Id. at ¶ 34.) Around the same

time, Plaintiff was placed under heightened security after another inmate

was attacked. (Id. at ¶ 31.)

On July 29, 2022, Plaintiff was transferred to the Ohio State Penitentiary.

(Second Am. Compl., Doc. 8, ¶ 36.) On August 1, 2022, Plaintiff attended a

hearing concerning the attack at the NEOCC. (Id. at ¶ 38.) At the hearing,

Plaintiff was "found guilty," despite "the officer say[ing] they had no evidence

from the case." (Id.) Later that month, a security review was held, and

Plaintiff was again placed under heightened security. (Id. at ¶ 39.) Plaintiff,

however, was not present at the security review. (Id.) Plaintiff was then

transferred to the Southern Ohio Correctional Facility ("SOCF"). (Id. at ¶

44.) Since his transfer, Plaintiff has experienced threats and mistreatment

from corrections officers. (Id. at ¶¶ 46-49.)

1Below, the undersigned separately addresses allegations in the above-captioned complaint that pertain to

events after July 28, 2023.

(Doc. 37, Order and Opinion pp. 1-2, PageID 466-467.)

B. Motion for TRO

Plaintiff’s current motion for a TRO asks the Court to enjoin Defendnats from

increasing Plaintiff’s security status to level E (super max) without Due Process or

justification or from any further restrictions against Plaintiff for filing this lawsuit within 14

days. (Doc. 46 at. 1). Plaintiff also asks the Court to Order Defendants to arrange for

Plaintiff’s security level to remain at 4AT (ET) or lower to prevent Plaintiff from being

moved from his current unit back to level E.

For the reasons outlined below, Plaintiff’s request for a TRO and injunctive relief is

not well-taken.

In determining whether to issue a preliminary injunction, this Court must balance

the following factors:

1. Whether the party seeking the injunction has shown a “strong” likelihood of

success on the merits;

2. Whether the party seeking the injunction will suffer irreparable harm absent the

injunction;

3. Whether an injunction will cause others to suffer substantial harm; and

4. Whether the public interest would be served by a preliminary injunction.

Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v.

Lexington Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v.

Daeschner, 228 F.3d 729, 736 (6th Cir. 2000)).

The four factors are not prerequisites but must be balanced as part of a decision

to grant or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.

1985). “[A] district court is not required to make specific findings concerning each of the

four factors used in determining a motion for preliminary injunction if fewer factors are

dispositive of the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003),

abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th

Cir. 2012) (en banc). “The purpose of a preliminary injunction is to preserve the status

quo until a trial on the merits.” S. Glazer’s Distribs. of Ohio, LLC v. Great Lakes Brewing

Co., 860 F.3d 844, 848-49.

A preliminary injunction is an extraordinary remedy that should only be granted

“upon a clear showing that the plaintiff is entitled to such relief.” S. Glazer’s Distribs. of

Ohio, LLC, 860 F.3d at 849 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22

(2008)); see also Overstreet, 305 F.3d at 573. This same four-factor analysis applies to a

motion for a TRO. See Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati,

363 F.3d 427, 432 (6th Cir. 2004). However, a TRO may issue only if: (A) specific facts in

an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss,

or damage will result to the movant before the adverse party can be heard in opposition;

and (B) the movant’s attorney certifies in writing any efforts made to give notice and the

reasons why it should not be required. Fed. R. Civ. P. 65(b)(1) (emphasis added).

On the record presented, Plaintiff has demonstrated none of the factors required

to obtain a temporary restraining order or other preliminary injunctive relief. Namely,

Plaintiff has not shown a substantial likelihood of success on the merits of his retaliation

claims against Warden Davis and UMC Oppy relating to classification. In order to

establish a retaliation claim, a plaintiff must establish each of the following elements: “(1)

the plaintiff engaged in protected conduct; (2) and 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.

Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (quoting Thaddeus-X, 175 F.3d

at 394).

Moreover, “threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements,” are not enough to establish a claim for retaliation. Ashcroft

v. Iqbal, 556 U.S. 662 (2009). A plaintiff must be able to refer to evidence supporting

material facts to sufficiently state a claim of retaliation. Harbin-Bey v. Rutter, 420 F.3d 571,

580 (6th Cir 2005) (quoting Guitierrez v. Lynch, 826 F.2d 1534, 1538-1539 (6th Cir. 1987).

A prisoner has no constitutional right to remain incarcerated in a particular prison or to be

held in a specific security classification. Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir.

2005) (citing Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976)).

Here, Plaintiff has not provided any evidence supporting his allegation that Warden

Davis and UMC Oppy engaged in any adverse action against him. Plaintiff alleges that

he was subjected to an adverse action because his security classification was raised to

ERH. However, the evidence presented by Defendants in opposition to Plaintiff’s motion

for a TRO shows that Plaintiff’s security classification was raised at the instruction of

Deputy Director Moore upon his assaulting of another inmate at NEOCC. (See Doc.49,

Ex. 1, Oppy Decl. Ex. B).

Next, Plaintiff has not shown that he will be irreparably harmed unless Warden

Davis and UMC Oppy are enjoined and ordered to reduce his classification. The evidence

submitted by Defendants shows that Plaintiff may be placed in ERH for a period of up to

five years. Notably, Defendant Oppy’ s declaration provides that Plaintiff was a member

of a security threat group (“STG”) or gang, was assigned an “Extensive Restrictive

Housing” (“ERH”) classification level after having assaulted another inmate with a

manufactured weapon at NEOCC in 2022. (Doc. 49, Oppy Decl. Ex. B). After being

assigned the ERH classification, the Deputy Director of Prison Offices for the Ohio

Department of Rehabilitation and Correction (“ODRC”), Ernie Moore, made it a part of Mr.

Brown-Austin’s Individual Adjustment Plan (“IAP”), that he was to remain in ERH for up to

five (5) years due to seriousness of his assault, which resulted in the inmate being treated

in a medical facility outside the institution. Id.

Additionally, ODRC policy provides that while prison officials may consider

reducing his classification to ERHT, they are within their discretion and authority to keep

him at ERH should they find that the seriousness of his assault warrants his continued

placement in ERH. (Doc. 49, Oppy Decl., Ex. A., Section VI.B.1. and VI.B.2. of ODRC

Policy No. 53-CLS-10).

It is well established that the Court’s intervention in internal prison operations

without an urgently compelling and extraordinary reason is viewed as against public

interest.” Roach v. Hiland, No. 5:12-cv-P169-R, 2013 WL 1501424, at *2 (W.D. Ky., Apr.

1, 2013). As detailed above, Defendants determined that Plaintiff should be placed in

ERH for a period of up to five years because of the seriousness of his assault on another

inmate at NEOCC in 2022. (Doc. 49, Oppy Decl., Ex. B). It was further determined that

Plaintiff remains a sufficient security concern and therefore the reduction in his ERH

classification was unwarranted, because he cannot safely be managed in a less restrictive

environment. Id. at Oppy Declaration at ¶¶ 16, 18, 21, and 24).

Last, the third and fourth factors weigh against issuing an injunction. As noted by

Defendants, it is generally in the best interests of all if courts refrain from becoming

involved in day-to-day prison operations. Moreover, the Court’s intervention in internal

prison operations without an urgently compelling and extraordinary reason is viewed as

against public interest.” Roach v. Hiland, No. 5:12-cv-P169-R, 2013 WL 1501424, at *2

(W.D. Ky., Apr. 11, 2013). Additionally, the public interest is served by Plaintiff remaining

in an ERH unit due to his assault on another inmate with a weapon.

Notably, he has failed to demonstrate a substantial likelihood of success on the

merits of his claims against Defendants, or to connect those claims to the preliminary

injunctive relief he seeks, or to show that he will suffer irreparable harm without that relief.

More importantly, Plaintiff requests an Order requiring Defendant to affirmatively correct

alleged deficiencies that have not yet been proven and that are – at best – only loosely

connected to the claims at issue. “Such affirmative relief is generally beyond the scope

and purpose of preliminary injunctive relief.” Perry v. Warden Warren Corr. Inst., No. 1:20-

cv-30, 2020 WL 1659875, at *2 (S.D. Ohio Mar. 30, 2020), R&R adopted, 2020 WL

4022225 (S.D. Ohio July 16, 2020) (citing Southern Milk Sales, 924 F.2d at 102); see also

Martin, 924 F.2d at 102. For these reasons, Plaintiff’s motion for TRO should be denied.

C. Motion to add Supplemental Pleadings Pursuant to 15(d)

In the proposed supplemental pleading attached to his motion Mr. Brown-Austin

alleges that Defendants Jeremy Oppy and Cynthia Davis, have engaged in new acts of

retaliation against him by having Mr. Brown-Austin’s security classification reduced from

extended restrictive housing (“ERH”) to “extended restrictive housing transition”

(“ERHT”), which is a temporary reduction to determine whether the incarcerated person

is capable of being housed in a lesser restrictive environment. (Doc. 47-1). Mr. Brown

alleges that after having been moved to ERHT, he was shortly placed back into ERH due

to Defendants Oppy and Davis’s retaliation against him for bringing this lawsuit. .Id.

Fed. R. Civ. P 15(a)(2) allows for a party to “amend its pleadings with the opposing

party’s written consent or the court’s leave.” Furthermore, “[t]he court should freely give

leave when justice so requires.” Id. The Court has discretion on whether to grant or deny

leave to amend. Walker v. Joyce, No. 3:15-cv-136, 2016 U.S. Dist. LEXIS 186248, *2

(S.D. Ohio July 8, 2016) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). In exercising

this discretion, the trial court may consider such factors as “undue delay, bad faith or

dilatory motive on the part of a movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment [and] futility of the amendment[.]” Foman v. Davis, 371 U.S.

178, 182 (1962). See also Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001

(6th Cir. 2005). A court may also deny leave to amend or supplement a complaint based

upon repeated failures to cure deficiencies by amendments previously allowed. Foman,

371 U.S. at 182.

Defendants contend that Plaintiff’s proposed supplemental claims mirror the

retaliation claims currently alleged against Defendants Oppy and Davis. See also Jones

v. Hamilton Cnty., No. 23-3002, 2023 U.S. App. LEXIS 29975, 2023 WL 7391704 (6th

Cir. Nov. 8, 2023) (amending complaint would be futile when the proposed amended

pleading contains “materially the same” allegations in a prior pleading that could not

withstand to a motion to dismiss).

Here, Plaintiff’s proposed supplemental pleading and his current pleadings both

contend that Defendants are improperly keeping him in ERH placement in retaliation for

this lawsuit. As noted by Defendants, “this will now amount to Mr. Brown-Austin’s fourth

bite at the proverbial apple in this action alone as it relates to his classification stemming

from the events that occurred at NEOCC in 2022. Not only is this prejudicial to the

defendants, but it is not in the best interests of judicial economy.” (Doc.50 at 6). The

undersigned agrees. In light of the foregoing, Plaintiff’s motion to supplement and/or

amend his complaint is not well-taken.

I. Conclusion

For all of these reasons, IT IS THEREFORE RECOMMEND THAT Plaintiff’s

motion for a TRO (Doc.46) should be DENIED, and Plaintiff’s motion to add supplemental

pleadings against Defendant Oppy (Doc. 47) and Davis should be DENIED.

/s Stephanie K. Bowman

Stephanie K. Bowman

United States Chief Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

YUSEF BROWN-AUSTIN, Case No. 1:24-cv-397

Plaintiff, McFarland, J.

Bowman, M.J.

v.

ANNETTE CHAMBERS-SMITH, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).