NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0043n.06

No. 18-4019

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JEFFREY D. MANN,

Plaintiff-Appellant,

v.

GARY C. MOHR, et al.,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: SILER, GIBBONS, and THAPAR, Circuit Judges.

PER CURIAM. Jeffrey D. Mann, a pro se Ohio prisoner, appeals the district court’s 

judgment in favor of the defendants in this civil rights action filed under 42 U.S.C. § 1983 and the 

Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. As 

set forth below, we AFFIRM. 

Mann, an inmate at Grafton Correctional Institution (GCI), filed this action against thirtyeight defendants, including the director and other administrators of the Ohio Department of 

Rehabilitation and Correction (ODRC), the warden and other employees of GCI, the director of 

the Ohio Adult Parole Authority (OAPA), members of the Ohio Parole Board, the executive 

director of the Joint Committee on Agency Rule Review (JCARR), and the chair of the Ohio 

Legislative Service Commission (LSC). In his amended complaint, Mann asserted six causes of 

action: (1) denial of his right to practice his Native American religion and retaliation for attempting 

to exercise that right, in violation of RLUIPA and various constitutional amendments; 

(2) unconstitutional discrimination against him as a member of a class created by a 1996 change 
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to Ohio’s sentencing laws; (3) abuse of discretion by the Ohio Parole Board; (4) violation of the 

Racketeer Influenced and Corrupt Organizations Act by the Ohio Parole Board; (5) intentional 

infliction of emotional distress by the Ohio Parole Board; and (6) “deprivation of civil rights 

against all defendants.” 

Upon the defendants’ motion to dismiss and motion to sever certain claims, the district 

court (1) dismissed Claim 2 with prejudice for failure to state a claim and (2) severed and dismissed 

without prejudice Claims 3 through 6 (and the defendants against whom those claims were 

brought) on the basis that, after the dismissal of Claim 2, there was no longer a common question 

of law or fact to warrant joining the various allegations and numerous defendants. Mann filed a 

motion to reinstate some of the defendants who had been dismissed, arguing that they were

implicated in the conduct alleged in Claim 1, the only remaining claim. The district court 

construed Mann’s motion under Federal Rule of Civil Procedure 59(e) and denied it. 

Thereafter, Mann filed (1) praecipes requesting that the clerk enter default pursuant to 

Federal Rule of Civil Procedure 55(a) on the basis that several defendants had failed to file an 

answer or other responsive pleading after the district court had disposed of all outstanding motions;

(2) a motion to compel the clerk to enter default and default judgment; and (3) a motion to prohibit 

the defendants from filing an untimely answer. The district court denied Mann’s motions and 

ordered the defendants to answer the amended complaint. That same day, the defendants filed an 

answer along with a motion for leave to file their answer instanter, which the district court granted. 

Both parties moved for summary judgment as to Claim 1. A magistrate judge issued a 

report and recommendation that summary judgment be granted in favor of the defendants and that 

all outstanding motions be denied as moot. Over Mann’s objections, the district court adopted the 

magistrate judge’s report and recommendation, denied Mann’s motion for summary judgment, and 
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granted the defendants’ motion for summary judgment. Mann filed a motion for relief from 

judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), which the district court denied. 

This timely appeal followed. Mann argues on appeal that the district court erred in 

(1) dismissing Claim 2, (2) severing Claims 3 through 6, (3) refusing to reinstate the dismissed 

defendants, (4) refusing to compel the clerk to enter default and refusing to enter a default 

judgment, (5) allowing the defendants to file an untimely answer, (6) denying his motion for 

summary judgment, (7) granting the defendants’ motion for summary judgment, and (8) denying 

his motion for relief from judgment. 

Dismissal of Claim 2 

Prior to 1996, Ohio inmates received indeterminate sentences and became eligible for 

parole after serving their minimum sentences, with parole decisions delegated to the OAPA. Ohio 

enacted a new sentencing system in 1996, abandoning indeterminate sentences in favor of fixed 

terms of incarceration determined by the sentencing judge. See Michael v. Ghee, 498 F.3d 372, 

373-74 (6th Cir. 2007). Mann alleged in Claim 2 that the new sentencing regime created two 

“de facto” classes of prisoners: (1) prisoners like him who are serving indefinite sentences and are 

required to attend regularly scheduled parole hearings before the Ohio Parole Board, which has 

sole discretion over their release dates (the parole class), and (2) prisoners who are serving definite 

sentences and do not appear before the Ohio Parole Board because their release dates are 

determined by Ohio statutory law and the sentencing judge (the non-parole class). Mann claimed 

that the defendants have created and enforced policies, practices, and procedures that discriminate 

against him and other members of the parole class in violation of the Equal Protection Clause, 

alleging in particular that these policies, practices, and procedures create the opportunity for the 

Ohio Parole Board to extend the incarceration of members of the parole class and not members of 
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the non-parole class, even when members of both classes commit the same rule violation at the 

same time.

Two of the defendants named in Claim 2, LSC Chair and Senator Keith Faber and JCARR 

Executive Director Larry Wolpert, filed a motion to dismiss Mann’s complaint. The magistrate 

judge construed Claim 2 as asserting a violation of the Ex Post Facto Clause and recommended 

dismissing that claim for failure to state a claim upon which relief may be granted. The district 

court adopted the magistrate judge’s recommendation and dismissed Claim 2 with prejudice 

against all defendants. 

We review de novo the district court’s dismissal for failure to state a claim pursuant to 

Federal Rule of Civil Procedure 12(b)(6). Crosby v. Univ. of Ky., 863 F.3d 545, 551 (6th Cir. 

2017). “To survive a motion to dismiss, 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)).

Mann contends that the district court erred in miscasting his equal protection claim as an 

ex post facto claim. Even so, dismissal of Claim 2 was warranted. See Abercrombie & Fitch 

Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002) (“[W]e may affirm on 

any grounds supported by the record even if different from the reasons of the district court.”). 

Mann cannot “make out a violation of his equal protection rights simply by showing that other 

inmates were treated differently.” Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992). The new 

sentencing regime’s creation of two classes did not implicate a fundamental right or target a 

suspect class. See Michael, 498 F.3d at 379 (holding that there is no fundamental right to parole 

and that prisoners are not considered a suspect class). “[A] classification neither involving 

fundamental rights nor proceeding along suspect lines is accorded a strong presumption of 
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validity”; that is, “[s]uch a classification cannot run afoul of the Equal Protection Clause if there 

is a rational relationship between the disparity of treatment and some legitimate governmental 

purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). Mann cannot overcome the 

presumed validity of the new sentencing regime, which this court has previously upheld against 

an equal protection challenge. See Michael, 498 F.3d at 379-80. Accordingly, Claim 2 was 

properly dismissed. 

Severance and Dismissal of Claims 3 Through 6

Mann contends that the district court erred in severing Claims 3 through 6. We review the 

severance of joined claims for abuse of discretion. Parchman v. SLM Corp., 896 F.3d 728, 733 

(6th Cir. 2018). Federal Rule of Civil Procedure 20 provides that defendants may be joined in one 

action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative with 

respect to or arising out of the same transaction, occurrence, or series of transactions or 

occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” 

Fed. R. Civ. P. 20(a)(2). Under Rule 18(a), a party asserting a claim may join “as many claims as 

it has against an opposing party.” Rule 21 allows the district court, in the event of misjoinder or 

nonjoinder, to “add or drop a party” or “sever any claim against a party.” In determining whether 

to sever claims, courts consider the following factors:

(1) whether the claims arise out of the same transaction or occurrence;

(2) whether the claims present some common questions of law or fact;

(3) whether settlement of the claims or judicial economy would be facilitated;

(4) whether prejudice would be avoided if severance were granted; and

(5) whether different witnesses and documentary proof are required for separate 

claims.

Parchman, 896 F.3d at 733 (quoting Productive MD, LLC v. Aetna Health, Inc., 969 F. Supp. 2d 

901, 940 (M.D. Tenn. 2013)). 
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The district court granted the defendants’ motion to sever Claims 3 through 6 and dismissed

those claims without prejudice, leaving Mann’s claim for denial of his religious rights asserted in 

Claim 1. In Claims 3 through 5, Mann alleged that the Ohio Parole Board had abused its discretion 

since the enactment of the sentencing law in 1996, had engaged in a pattern of racketeering activity

by forcing prisoners to remain incarcerated beyond their lawful sentences, and had intentionally 

inflicted emotional distress upon him. Claim 6 raised a general “deprivation of civil rights” claim 

against all defendants. The district court determined that, after the dismissal of Claim 2 

challenging Ohio’s sentencing structure, no common question of fact or law existed to warrant

joining the various allegations and numerous defendants.

On appeal, Mann argues that the chain of events demonstrates that his claims arose from 

the same transaction or occurrence—that the defendants retaliated against him for asserting his 

religious rights by issuing him a false misconduct report which led to the extension of his sentence 

by the Ohio Parole Board. But Claim 1 raised individualized allegations against GCI employees

about the denial of Mann’s right to practice his Native American religion and retaliation against 

him for attempting to exercise that right. Claims 3 through 5 challenged the Ohio Parole Board’s 

decision-making process affecting Mann and other members of the parole class. Given the 

differences in the allegations and in the named defendants, the district court did not abuse its 

discretion in determining that there was no common nexus between Claim 1 and Mann’s other 

claims to warrant their joinder.

Denial of Motion to Reinstate Defendants

After the district court dismissed Claims 2 through 6, Mann moved to reinstate the 

following defendants as erroneously dismissed: ODRC Director Gary C. Mohr, Assistant ODRC 

Director Steve Huffman, ODRC Chief of Staff Linda James, ODRC Northern Regional Director 
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Jesse Williams, ODRC Legislative Liaison Scott Neely, ODRC Chief Legal Counsel Stephen 

Gray, and ODRC Chief Inspector Gary Croft. Mann asserted that these defendants were 

implicated in Claim 1 because they had “an integral and active part in the promulgation and 

creation of the Ohio Administrative Code[] and the ODRC Policies” used to deny him the ability 

to practice his Native American religion. 

The district court construed Mann’s motion as a motion under Federal Rule of Civil 

Procedure 59(e) to alter or amend its order dismissing these defendants and denied the motion. 

We review the denial of Mann’s motion for abuse of discretion. Intera Corp. v. Henderson, 428 

F.3d 605, 619 (6th Cir. 2005). “A Rule 59 motion should only be granted if there was (1) a clear 

error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a 

need to prevent manifest injustice.” Mich. Flyer LLC v. Wayne Cty. Airport Auth., 860 F.3d 425, 

431 (6th Cir. 2017). 

With the exception of Croft, these defendants were not named in Claim 1. Generally 

referencing “the Defendants”—when there were thirty-eight defendants listed in the complaint—

failed to satisfy basic pleading requirements and failed to place these particular defendants on 

notice that Mann sought to hold them responsible for the allegations made in Claim 1. See Wells 

v. Brown, 891 F.2d 591, 593-94 (6th Cir. 1989); see also Gilmore v. Corr. Corp. of Am., 92 F. 

App’x 188, 190 (6th Cir. 2004) (“Merely listing names in the caption of the complaint and alleging 

constitutional violations in the body of the complaint is not enough to sustain recovery under 

§ 1983.”). As for Croft, Mann alleged that he filed a grievance against GCI Warden Bennie Kelly 

to compel Kelly to answer his appeal and that Croft denied his grievance. The alleged denial of a 

grievance or failure to intervene failed to state a claim against Croft. See Grinter v. Knight, 

532 F.3d 567, 576 (6th Cir. 2008); Alder v. Corr. Med. Servs., 73 F. App’x 839, 841 (6th Cir. 
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2003). For these reasons, the district court did not abuse its discretion in denying Mann’s motion 

to reinstate these defendants.

Untimely Answer

Mann argues that the district court erred in denying his motions to compel the clerk to enter 

default in accordance with Federal Rule of Civil Procedure 55(a) and to prohibit the defendants 

from filing an untimely answer. The district court denied Mann’s motions, stating that courts 

disfavor default judgments and that Mann had not shown prejudice, and ordered the defendants to 

file an answer to the amended complaint. That same day, the defendants filed an answer along 

with a motion for leave to file their answer instanter, which the district court granted. Mann 

contends that the district court abused its discretion in allowing the defendants’ untimely answer.

We review the decision to allow a late-filed answer for abuse of discretion. Morgan v. 

Gandalf, Ltd., 165 F. App’x 425, 428 (6th Cir. 2006). Federal Rule of Civil Procedure 6(b)(1)(B) 

provides that, “[w]hen an act may or must be done within a specified time, the court may, for good 

cause, extend the time . . . on motion made after the time has expired if the party failed to act 

because of excusable neglect.” Courts balance the following factors in making the excusableneglect determination: “(1) the danger of prejudice to the nonmoving party, (2) the length of the 

delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the 

delay was within the reasonable control of the moving party, and (5) whether the late-filing party 

acted in good faith.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006). 

Mann, who had filed numerous requests for extensions of time, failed to assert any 

prejudice resulting from the defendants’ delay in filing an answer. The defendants filed their 

answer approximately seven weeks after the deadline. As grounds for the delay, the defendants 

asserted that turnover in the Ohio Attorney General’s Office resulted in multiple different attorneys 
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being assigned to the case and that the current attorney, who had been assigned that week, promptly 

filed an answer upon discovering the missed deadline. Mann’s failure to assert prejudice and the 

defendants’ lack of bad faith weighed in favor of finding excusable neglect. “Further, if the district 

court had denied leave to file the tardy answer and default had entered instead, defendants almost 

certainly would have been entitled to have the default set aside, given their facially meritorious 

defense and the strong policy favoring adjudication on the merits.” Morgan, 165 F. App’x at 430 

(citing Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir. 

1986)). Under these circumstances, we can find no abuse of discretion in allowing the defendants’ 

untimely answer.

Summary Judgment on Claim 1

Mann contends that the district court erred in denying his motion for partial summary 

judgment and granting the defendants’ motion for summary judgment on Claim 1. We review the 

district court’s decision to grant summary judgment de novo. Hanrahan v. Mohr, 905 F.3d 947, 

953 (6th Cir. 2018). Summary judgment is appropriate “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). 

Mann primarily argues on appeal that the defendants relied on unsworn declarations and 

therefore failed to support their summary judgment motion with any admissible evidence. The 

defendants submitted unsworn declarations made under penalty of perjury pursuant to 28 U.S.C. 

§ 1746. Such unsworn declarations may be considered on summary judgment. See Fed. R. Civ. 

P. 56(c)(4); see also Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998). 

Mann does not raise any other specific objection to the district court’s decision to grant 

summary judgment in favor of the defendants. Instead, in support of his argument that the district 
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court erred in denying his motion for partial summary judgment, Mann merely restates the 

allegations made in Claim 1. Mann’s argument boils down to: The defendants failed to submit 

any admissible evidence (which is incorrect); therefore, he should prevail. In his reply brief, Mann 

attempts to incorporate by reference the arguments made in his memorandum in opposition to the 

defendants’ motion for summary judgment. But we do not allow argument by reference to the 

briefing below. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 452-53 (6th Cir. 

2003). By failing to address the district court’s analysis in any detail, Mann has abandoned his 

appeal from the district court’s decision to grant summary judgment in favor of the defendants. 

See Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007). 

Denial of Motion for Relief from Judgment

Mann finally argues that the district court erred in denying his motion for relief from 

judgment filed under Federal Rule of Civil Procedure 60(b)(6). We review the denial of Mann’s 

Rule 60(b)(6) motion for abuse of discretion. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th 

Cir. 2006). Under Rule 60(b)(6), the district court may grant relief from a final judgment for “any 

other reason that justifies relief.” This provision applies only in “unusual and extreme situations 

where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th 

Cir. 1990).

Mann asserted in his Rule 60(b)(6) motion that the timing of the district court’s opinion 

adopting the magistrate judge’s report and recommendation (one day after he filed his reply 

memorandum in support of his objections) indicated that the district court did not conduct a de 

novo review. In its opinion, issued a month after Mann filed his initial objections, the district court 

stated that it had reviewed the magistrate judge’s report and recommendation de novo and had 
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considered all of Mann’s objections. We can discern no abuse of discretion in the district court’s 

denial of Mann’s Rule 60(b)(6) motion.

For these reasons, we AFFIRM the district court’s judgment in favor of the defendants.