Krzywkowski

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GRADY KRZYWKOWSKI,

Plaintiff,

v. Civil Action 2:24-cv-3902

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

MIKE DAVIS, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Grady Krzywkowski, an Ohio inmate who is proceeding without the assistance

of counsel, sues several employees of the Ohio Department of Rehabilitation and Correction

(“ODRC”), Grafton Correctional Institution (“GCI”), and Marion Correctional Institution

(“MCI”) for breach of a settlement agreement protecting Plaintiff’s religious accommodations

and for retaliation in violation of the First Amendment. Defendants have moved for summary

judgment. (ECF No. 128.) For the reasons that follow, it is RECOMMENDED that Defendants’

Motion for Summary Judgment be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff adheres to the Netzarim or Natsarim Messianic Jewish faith (Pl.’s Decl. ¶ 30,

ECF No. 139-1) and has a long history of conflict with ODRC regarding accommodations for his

religious beliefs. In 2014, while he was housed at GCI, Plaintiff filed suit against several ODRC

employees, alleging that they violated his First and Fourteenth Amendment rights and the

Religious Land Use and Institutionalized Persons Act, and that they retaliated against him when

he sought to assert his rights. (See S.D. Ohio Case No. 2:14-cv-2159.) The parties to that case

eventually reached a settlement agreement in 2018 (the “Settlement Agreement”) and stipulated

to dismissal in 2019. The Settlement Agreement provides that “Defendants” (defined in the

agreement to include ODRC) “shall continue to provide [religious] accommodations to Plaintiff

in accordance with ODRC policy.” (Settlement Agreement § II.3, ECF No. 4-3.) Specifically,

4. Defendants shall continue to exercise best efforts to provide Plaintiff access to

the Grafton Correctional Institution (“GCI”) chapel on Saturday mornings for

congregational Shabbat services or the viewing of Natsarim/Messianic Jewish

instructional videos as space, staffing, and ODRC policies permit.

5. Defendants shall continue to exercise best efforts to follow up with qualified

Natsarim volunteers who have been identified to them to assist with and/or lead

Natsarim congregate services on Shabbat and/or Natsarim holy days.

* * *

10. Defendants shall exercise best efforts to provide Plaintiff access to the GCI

chapel to view Natsarim/Messianic Jewish instructional videos on the eight (8)

Natsarim holy days . . . .

(Id. at §§ II.4–II.10.) The Settlement Agreement further provides that, should Defendants breach

any of the Agreement’s terms, Plaintiff may initiate a new lawsuit in a state court or in the

United States District Court for the Southern District of Ohio. (Id. at § V.)

Plaintiff alleges that Defendants began breaching the Settlement Agreement almost

immediately after it was executed. Plaintiff contends that several times between 2018 and 2023,

Defendants “did not exercise best efforts when they denied the Plaintiff access to weekly 7th

Day Sabbath Natsarim Jewish religious services, i.e., Netzarim High Holy days or access to his

religious items., including [ ] interfering with prospective Netzarim clergy volunteers,

interruption to his religious diets, work proscriptions, inhibiting the Plaintiff’s religious items.”

(Am. Compl. ¶ 16, ECF No. 5.) Plaintiff also alleges that Defendants retaliated against him for

asserting his rights to religious accommodations by placing him in segregated housing, issuing

grievance restrictions, and issuing false conduct reports. (Id. at ¶ 70.) In 2021, Plaintiff filed an

action for breach of the Settlement Agreement and retaliation in the Court of Common Pleas for

Lorain County, Ohio. (See Krzywkowski v. Foley, et al., Lorain County Court of Common Pleas,

Case No. 21-cv-20424.) Plaintiff survived summary judgment in that case, but later voluntarily

dismissed the action without prejudice, over the defendants’ objections, on May 8, 2023. (See

State Court Filings, ECF No. 1-16, PAGEID #365–367.)

Three months after the dismissal of the Lorain County action, Plaintiff was transferred

from GCI to MCI on August 21, 2023. (Mustard Decl. ¶ 4, ECF No. 129-7.) After the transfer,

Defendants declined to make the MCI chapel available to Plaintiff on the same terms required by

the Settlement Agreement for the GCI chapel. Defendants took the position that the Settlement

Agreement did not require them to provide chapel access to Plaintiff at MCI. (See Sept. 18, 2023

Email from Mike Davis to Blaire Smith and Katrenia Baker-Webb, ECF No. 1-9, PAGEID

#205) (“For the record, the settlement was just for GCI.”)

Plaintiff commenced this action on January 30, 2024. (ECF No. 1.) After an initial screen

of Plaintiff’s Amended Complaint under 28 U.S.C. §§ 1915, 1915A, and after ruling on

Defendants’ Motion for Judgment on the Pleadings, the Court concluded that Plaintiff could

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

94, 99.) Defendants filed the subject Motion for Summary Judgment on November 7, 2025.

(ECF No. 128.)

II. STANDARD OF REVIEW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. ANALYSIS

A. Breach of Contract

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

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

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

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

(Ohio Ct. App. 2018)). Defendants contest only the third element of Plaintiff’s breach of contract

claims.

Defendants are entitled to summary judgment on Plaintiff’s claim that they breached the

Settlement Agreement provision requiring them to “continue to exercise best efforts to follow up

with qualified Natsarim volunteers who have been identified to them to assist with and/or lead

Natsarim congregate services on Shabbat and/or Natsarim holy days.” (Settlement Agreement,

§ II.5, ECF No. 4-3.) Defendant Ronald Smith, GCI’s chaplain at the time Plaintiff was housed

there, avers that he contacted each of the eleven prospective volunteers identified to him by

Plaintiff as well as four other potential volunteers. (R. Smith Decl.¶¶ 4–5, ECF No. 129-1).

Further, Defendant Blaire Smith, MCI’s chaplain, also avers that he contacted each of the seven

prospective volunteers identified to him by Plaintiff, and also “call[ed] every Messianic,

Sabbatarian, and Netzarim house of worship within a 2-hour radius of MCI to find additional

religious leaders interested in commuting to MCI to lead worship services or who knew of

someone else who would be willing to do so.” (B. Smith Decl. ¶¶ 4–5, ECF No. 129-6.) Plaintiff

does not dispute this evidence. And though the parties dispute why Rabbi Humphrey refused to

continue volunteering at MCI (Plaintiff alleges that prison officials made him feel unsafe when

they accused him of misconduct that was never verified), Defendants have established that they

discharged their duty to “exercise best efforts to follow up” with relevant volunteers. Defendants

are therefore entitled to summary judgment on Plaintiff’s claim for breach of § II.5 of the

Settlement Agreement.

Defendants are not, however, entitled to summary judgment on Plaintiff’s claim that they

breached the Settlement Agreement’s provisions requiring them to exercise best efforts to

provide Plaintiff with chapel access while he was housed at MCI. (Settlement Agreement §§ II.4,

II.10, ECF No. 4-3.) First, Defendant Mike Davis (ODRC’s Religious Service Administrator)

sent an email to Defendant Blaire Smith (MCI’s Chaplain) and Defendant Katrenia Baker-Webb

(MCI’s Deputy Warden) suggesting that ODRC need not comply with the Settlement

Agreement’s requirements while Plaintiff was housed at MCI. (See Sept. 18, 2023 Email, ECF

No. 1-9, PAGEID #205) (“For the record, the settlement was just for GCI.”). Defendants explain

this by asserting that chapel access was not necessary to accommodate Plaintiff’s religious needs

at MCI, because MCI (unlike GCI) has a television system allowing for the streaming of

religious videos to Plaintiff’s personal TV or any day room TV without interruption. (Baker-

Webb Decl. ¶ 3, ECF No. 129-8).1 Thus, argue Defendants, the chapel access provisions of the

Settlement Agreement were necessary only because there was no alternative location at GCI for

Plaintiff to view religious videos. Once alternate spaces became available to Plaintiff following

his transfer to MCI, Defendants contend that they were no longer obligated to provide chapel

access.

The problem with this argument is that it is unsupported by the text of the Settlement

Agreement. The agreement requires Defendants to use their best efforts to “provide Plaintiff

access to the Grafton Correctional Institution (“GCI”) chapel on Saturday mornings for

congregational Shabbat services or the viewing of Natsarim/Messianic Jewish instructional

videos as space, staffing, and ODRC policies permit” and to “provide Plaintiff access to the GCI

chapel to view Natsarim/Messianic Jewish instructional videos on the eight (8) Natsarim holy

days . . . .” (Settlement Agreement §§ II.4, II.10, ECF No. 4-3) (emphasis added). This plain

language is definitive as to the obligation to provide chapel access. See, e.g., Shanesville Invs.

1 Even if true in theory, Plaintiff disputes that religious videos are available to him in practice.

(Dowell Decl. ¶¶ 9–10, ECF No. 139-15 (averring that these videos “often . . . do not play at

all”).)

LLC v. Eclipse Res. I, LP, 358 F. Supp. 3d 665, 670 (S.D. Ohio 2018) (courts interpreting

contracts must give effect to the intent of the parties, and “the Court presumes the intent of the

parties will reside in the language they choose to use in their agreement”) (cleaned up) (citing

Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 86 Ohio St.3d 270, 273 (1999), and Graham v.

Drydock Coal Co., 76 Ohio St.3d 311, 313 (1996)). Defendants cannot read out provisions of the

Settlement Agreement because it suits their purpose (or even because they think it suits

Plaintiff’s purpose).

Defendants fare no better in arguing that they were not required to provide access to the

MCI chapel, because the Settlement Agreement speaks only to the GCI chapel. When one

considers that Defendants held—and exercised—the unilateral right to transfer Plaintiff to a

different facility (which, according to this argument, terminated Defendants’ obligation to

provide chapel access), without affording Plaintiff a reciprocal right to terminate his obligations

under the Settlement Agreement, Defendants’ view of the Settlement Agreement would render

the chapel access provision illusory. See, e.g., Faurecia Auto. Seating, Inc. v. Toledo Tool & Die

Co., 579 F. Supp. 2d 967, 973 (N.D. Ohio 2008) (“By giving Faurecia an exclusive right to

terminate the Letters without liability only as to it, while failing to give the same right to Toledo

Tool, the Letters of Intent are illusory.”). But “courts disfavor interpretations that render

contracts illusory or unenforceable, and prefer a meaning, which gives the contract vitality.”

Northgate Lincoln-Mercury Inc. v. Ford Motor Co., 507 F. Supp. 3d 940, 947 (S.D. Ohio 2020)

(cleaned up). Accordingly, the undersigned construes the Settlement Agreement to require

Defendants to use their best efforts to provide chapel access in whatever facility Plaintiff is

housed. As Defendants have offered no evidence to demonstrate that they used any efforts, let

alone their best efforts, to make the MCI chapel available to Plaintiff, Defendants are not entitled

to summary judgment on Plaintiff’s claim for breach of the Settlement Agreement’s chapel

access provisions.

The Court, however, must be mindful of the appropriate Defendants for this claim. Only

those Defendants who were responsible for construing the Settlement Agreement in a legally

indefensible manner to deny Plaintiff access to MCI’s chapel could be said to have breached the

Settlement Agreement. The September 18, 2023 email from Defendant Davis asserting that “the

settlement was just for GCI” establishes Davis’s involvement in construing the Settlement

Agreement. (See Sept. 18, 2023 Email from Mike Davis to Blaire Smith and Katrenia Baker-

Webb, ECF No. 1-9, PAGEID #205). But the record lacks evidence demonstrating as a matter of

law that any of the other Defendants were involved in construing the Settlement Agreement to

deny Plaintiff chapel access. Although Defendants Katrenia Baker-Webb (MCI’s Deputy

Warden) and Blaire Smith (MCI’s chaplain) would have determined Plaintiff’s chapel access

absent the Settlement Agreement, it appears that they merely followed the instructions of Davis,

the Religious Service Administrator for all of ODRC, in denying Plaintiff access to MCI’s

chapel. (See Baker-Webb Decl. ¶ 10, ECF No. 129-8) (“[Defendant] Davis also told me that the

chapel access the Settlement Agreement provided for Mr. Krzywkowski only applied to the

chapel at GCI, and not the chapel at MCI . . . .”). Accordingly, Plaintiff’s breach of contract

claim may proceed only against Defendant Davis.

Although Plaintiff did not move for summary judgment on this claim,2 the undersigned

recommends that the Court enter summary judgment in Plaintiff’s favor against Defendant Mike

2 Plaintiff filed an early motion for summary judgment on the sole ground that Defendants failed

to timely respond to his requests for admissions. The Court denied that motion on March 25,

2026 (ECF No. 125). Plaintiff has not moved for summary judgment on the basis of Defendants’

faulty contractual interpretation.

Davis pursuant to Federal Rule of Civil Procedure 56(f)(1) for breach of the Settlement

Agreement’s chapel access provisions. For the reasons set forth above, the undersigned

concludes that there are no genuine issues of material fact precluding entry of judgment in

Plaintiff’s favor as to liability for compensatory damages arising out of Davis’s improper

construal of the Settlement Agreement to not require chapel access for Plaintiff at MCI. Any

objection to the intended judgment entry must be filed WITHIN FOURTEEN DAYS of the

date of this Report and Recommendation.

B. First Amendment Retaliation

A First Amendment retaliation claim involves three elements:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from continuing

to engage in that conduct; and (3) there is a causal connection between elements

one and two—that is, the adverse action was motivated at least in part by the

plaintiff’s protected conduct.

Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). The undersigned concluded on two

previous occasions that Plaintiff had established his engagement in protected conduct by seeking

religious accommodation and by filing, maintaining, and dismissing his suit against Defendants

in Lorain County. (See ECF Nos. 33, 94, citing Hayes v. Tenn., 424 F. App’x 546, 549 (6th Cir.

2011) (“Prisoners retain the First Amendment right to the free exercise of their religion.”) (citing

Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985)); Thaddeus-X, 175 F.3d at 391 (inmates

have a First Amendment right to file lawsuits challenging their prison conditions)). Defendants

do not dispute that Plaintiff engaged in this protected conduct, but they argue that Plaintiff

cannot establish an adverse action or retaliatory motive.

Defendants’ arguments fall short. “[A]n adverse action is one that would ‘deter a person

of ordinary firmness’ from the exercise of the right at stake.” Thaddeus-X, 175 F.3d at 396 (6th

Cir. 1999) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir.1982)). Defendants’ denial of

chapel access to Plaintiff at MCI in violation of the Settlement Agreement satisfies this element.

See LaFountain v. Harry, 716 F.3d 944, 948 (6th Cir. 2013) (transfer that had the effect of

depriving a prisoner of benefits due under a settlement agreement constituted an adverse action).

Defendants also have not shown that Plaintiff cannot establish a retaliatory motive for

denying Plaintiff chapel access at MCI. Plaintiff submits an August 14, 2023 email sent by

Defendant Ronald Smith (GCI’s Chaplain) to, among others, Defendants Mike Davis (ODRC’s

Religious Service Administrator) and Keith Foley (GCI’s Warden), with the subject “Transfer.”

(ECF No. 139-6.) In this email, Chaplain Smith summarizes the difficulties GCI experienced in

trying to accommodate Plaintiff’s religious needs in the face of Plaintiff’s disruptiveness:

[Plaintiff] has turned every initiative to enable him to become a productive citizen

into a battle, pushing his will through this institution and those that serve here into

countless grievances and in due course, litigation. These action were initiated by

[Plaintiff] shortly after his arrival to Grafton Correctional Institution in 2013 and

have continued to the present.

* * *

I have interviewed [Netzarim volunteer] Donald West regarding the current

atmosphere within the Messianic Community, and . . . he does acknowledge the

tension and the demonstrations of anger by the subject of this letter. Chaplain Hill

. . . has also witnessed the slamming doors, the arguments with Religious Services

program aides, and the attempts by [Plaintiff] to lead a group (calling his peers to

worship by blowing a ram’s horn, writing agenda items on a whiteboard, insisting

that he read passages of Torah during service, etc.), a group that already has a

leader/supervisor in Donald West.

(Id.) Defendant Mike Davis responds to this email, stating, “Thank you for the summation. It is

clear that he presents a problem relative to the provision of religious services beyond his own

stated requests.” (Id.) Thus, it is clear that several GCI and ODRC employees—including Mike

Davis—were frustrated with Plaintiff’s persistent requests for religious accommodation at GCI.

When also considering the four-month gap between Plaintiff’s dismissal of the Lorain County

action and Davis’s email disclaiming application of the Settlement Agreement to MCI, the record

reflects a dispute of fact as to whether the denial of access to MCI’s chapel was retaliatory. See,

e.g., Lemaster v. Lawrence Cty., Ky., 65 F.4th 302, 310 (6th Cir. 2023) (four and a half months

between protected First Amendment activity and adverse action, in combination with other

evidence, could support retaliatory motive).

Further, Defendants are not entitled to qualified immunity on Plaintiff’s First Amendment

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

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

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

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

2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). But “[t]he defense of qualified

immunity protects officials from individual liability for money damages[, ] not from declaratory

or injunctive relief.” Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir. 2001). Here, Plaintiff

seeks only injunctive relief for his retaliation claim; qualified immunity therefore does not apply.

Again, however, the Court must be mindful of the appropriate Defendants for this claim.

Again, the only Defendants who could be liable for retaliation would be those responsible for the

adverse action—that is, those involved in construing the Settlement Agreement’s provisions to

not require chapel access at MCI. As explained above, the only possibly responsible person on

the record before the Court is Mike Davis. There is no evidence suggesting that Defendants

Baker-Webb or B. Smith (who had no dealings with Plaintiff prior to his transfer) had a

retaliatory motive for denying Plaintiff chapel access at MCI; rather, it appears they were merely

following the instructions of Davis, who advised that “the chapel access the Settlement

Agreement provided for Mr. Krzywkowski only applied to the chapel at GCI, and not the chapel

at MCI . . . .” (Baker-Webb Decl. ¶ 10, ECF No. 129-8.) Accordingly, Plaintiff’s First

Amendment retaliation claim may proceed only against Defendant Davis.3

IV. DISPOSITION

For these reasons, it is RECOMMENDED that Defendants’ Motion for Summary

Judgment (ECF No. 128) be GRANTED IN PART and DENIED IN PART, in that it is

RECOMMENDED that

 Plaintiff’s breach of contract claim on grounds that Defendants failed to follow up

with Netzarim volunteers, and all claims against Defendants Foley, Cheers, R.

Smith, Mustard, May, Baker-Webb, and B. Smith be DISMISSED;

 Plaintiff’s breach of contract claim, on grounds that Defendants denied Plaintiff

chapel access at MCI and Plaintiff’s First Amendment retaliation claim be

permitted to proceed against Defendant Davis; and

 the Court enter judgment in Plaintiff’s favor against Defendant Davis as to

liability for breach of the Settlement Agreement’s chapel access provision.

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

3 Aside from Plaintiff’s transfer to MCI and subsequent denial of chapel access, Plaintiff

asserts that Defendants took several other actions against him (transferring Plaintiff out of the

Faith Based Housing Unit; failing to provide Plaintiff with a functional tablet to access the

grievance procedure; canceling Messianic religious services and preventing a Messianic

volunteer from entering GCI to facilitate Sabbath services; and using chapel porters to harass

Plaintiff and fellow congregates) that amount to an adverse action for purposes of his retaliation

claim. See Thaddeus-X, 175 F.3d at 396 (quoting with approval Bart v. Telford, 677 F.2d 622,

625 (7th Cir. 1982) (“‘[A]n entire campaign of harassment’ was actionable because although it

was ‘trivial in detail,’ it ‘may have been substantial in gross.’”). As best the undersigned can tell,

all of these actions took place prior to Plaintiff’s transfer out of GCI and were taken by GCI

employees. Accordingly, because Plaintiff seeks only prospective relief on his retaliation claim,

none of the GCI employees can be liable for retaliation with regard to these actions. See Kensu v.

Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (concluding that inmate’s claims for declaratory and

injunctive relief were rendered moot upon inmate’s transfer from the prison about which he

complained).

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

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

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

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

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

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

U.S.C. § 636(b)(1).

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

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

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

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

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

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE