UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LONNY BRISTOW,

Plaintiff,

 Civil Action 2:10-cv-00958

v. Judge James L. Graham

 Magistrate Judge E.A. Preston Deavers

WILLIAM A. ELEBY,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Lonny Bristow, who is proceeding without the assistance of counsel, brings this

action under 42 U.S.C. § 1983 against Defendant, William A. Eleby, Chief of the Bureau of

Classification and Reception, alleging that Defendant violated his Constitutional rights. This

matter is before the Court for consideration of Defendant’s Motion to Revoke Plaintiff’s In

Forma Pauperis status, Limit Plaintiff’s Future Federal Court Filings and Dismiss the Instant

Case (ECF No. 6), Defendant’s Motion to Strike (ECF No. 12), and Plaintiff’s Motion to Accept

Supplement (ECF No. 13). For the reasons that follow, Defendant’s Motion to Strike is

DENIED, Plaintiff’s Motion to Accept Supplement is GRANTED. In addition, it is 

RECOMMENDED that Defendant’s Motion to Dismiss be GRANTED as barred by the

doctrine of res judicata. 

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I. BACKGROUND

Plaintiff is a former prisoner. Until May 2010, Plaintiff was incarcerated at the Southern

Ohio Correctional Facility (“SOCF”), an Ohio Department of Rehabilitation and Correction

(“ODRC”) maximum security prison. According to Plaintiff’s Complaint, in 2001, while at

SOCF, Steve Hamilton, also a prisoner, recounted facts to Plaintiff concerning aggravated

robberies that were part of an ongoing trial involving Hamilton. Plaintiff reported the facts about

the aggravated robberies to prison authorities and later testified against inmate Hamilton in the

Scioto County Court of Common Pleas. As a result of Plaintiff’s testimony, inmate Hamilton

was convicted and sentenced to an additional twenty-seven years in prison. Soon after testifying,

Plaintiff received a handwritten letter from Joshawa Reed, another prisoner, stating “I run thick

through Lucasville,” which Plaintiff construed as a death threat. (Compl. ¶ 5, ECF No. 3.) 

Plaintiff alleges that inmates Hamilton and Reed were both members of the Aryan Brotherhood

prison gang. Plaintiff turned over inmate Reed’s letter to SOCF authorities and requested

placement in protective control. The prison granted Plaintiff’s request. Thereafter, for many

years, Plaintiff had been granted institutional separation from inmates Hamilton and Reed. In

January 2006, Plaintiff was transferred back to SOCF. Defendant subsequently transferred

inmates Hamilton and Reed to SOCF, but denied Plaintiff’s requests to be placed in protective

control. In October 2008, an unidentified inmate fractured Plaintiff’s nose. Then, several days

later, another unidentified inmate assaulted Plaintiff. Plaintiff alleges that inmate Reed ordered

these attacks. After this second attack, Plaintiff was placed in protective control. 

Once back in protective control, Plaintiff initiated a suit in this Court against Defendant

Eleby, Bristow v. Eleby, Case No. 08-cv-250 (S.D. Ohio) (“250 Case”). In this action, as in the

instant case, Plaintiff alleged that Defendant Eleby acted with deliberate indifference to his

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safety because he failed to place him in protective control after transferring inmate Hamilton to

SOCF. In support of his claims against Defendant, Plaintiff referenced his testimony against

inmate Hamilton, inmate Reed’s letter stating “I run thick through Lucasville,” the history of

institutional separation from inmates Reed and Hamilton, and Defendant’s denial of Plaintiff’s

request to be placed in protective control. (250 Case, Am. Compl. ¶¶ 3, 4, 6 , 8–19, 26, 27, ECF

No. 7.) Based upon the two assaults, Plaintiff moved for injunctive relief, seeking placement in

protective control and transfer to an institution other than SOCF. (250 Case, ECF No. 60.) The

Court denied Plaintiff’s request for relief, primarily because Plaintiff was, at that time, already in

protective custody. (250 Case, December 8, 2008 Report and Recommendation 5–7, ECF No.

84.) More than two years after filing the 250 Case, Plaintiff moved to voluntarily dismiss the

action, acknowledging that “this dismissal will operate as a dismissal with prejudice.” (250

Case, ECF No. 111 at ¶ 40.) The Court agreed and dismissed Plaintiff’s case with prejudice. 

(250 Case, ECF No. 113.) 

While the 250 Case was pending in this Court, Plaintiff filed another case in the United

States District Court for the Southern District of Ohio Western Division, Bristow v. Davis, et al.,

Case No. 1:08-cv-900 (W.D. Ohio) (“900 Case”). In the 900 Case, Plaintiff sought declaratory,

injunctive, and monetary relief against Defendant Eleby and Cynthia Davis, SOCF Protective

Control Committee Chairperson, for their alleged deliberate indifference to his safety as

exhibited by their denial of Plaintiff’s request to be placed in protective control and their transfer

of Reed to SOCF. His claims were again premised upon his allegations that he had testified

against fellow SOCF inmate Hamilton; that he had subsequently received a death threat from

fellow SOCF inmate Reed, that he had a history of protective control, and the denial of his

requests to be placed in protective control after inmates Reed and Hamilton were transferred to

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SOCF. (900 Case, Compl. ¶¶ 1, 2, 4–5, 11–17, 21, and 33, ECF No. 1-1.) Plaintiff also

referenced the October 2008 incident, wherein another inmate fractured his nose. (Id. at ¶ 25.) 

Upon consideration of Plaintiff’s motion to proceed in forma pauperis and his complaint, the

Court denied his motion and dismissed his complaint as malicious under 28 U.S.C. §§

1915(e)(2)(b)(i) and 1915A. (900 Case, January 26, 2009 Order, ECF No. 2.) The Court

explained that the issue of whether Defendant Eleby “has been or is presently deliberately

indifferent to [P]laintiff’s safety” was being litigated in the 250 Case, and thus, this action was

duplicative and malicious. (Id. at 5.) Plaintiff sought reconsideration of the Court’s order

pursuant to Federal Rule of Civil Procedure 60(b)(1), arguing that his Complaint was not

duplicative. He maintained that the 900 Case was based on the presence of inmate Reed, while

the 250 Case was based on the presence of inmate Hamilton. The Court denied Plaintiff’s

motion, explaining that “whether defendant Eleby is or has been deliberately indifferent to

plaintiff’s safety, whether from any danger posed by inmate Hamilton or inmate Reed, is an issue

to be resolved by [the 250 Case].” (900 Case, February 11, 2009 Order 2, ECF No. 7.) The

Court concluded that the 900 Case was properly dismissed as malicious. 

Upon Plaintiff’s release from prison, he filed the instant action under 42 U.S.C. § 1983,

once again alleging that Defendant’s failure to continue Plaintiff’s institutional separation from

inmates Reed and Hamilton, and his denial of Plaintiff’s request to be placed in protective

control constituted deliberate indifference to his safety in violation of his Eighth Amendment

rights. Defendant moves to dismiss this action as barred by the doctrine of res judicata and for

failure to state a claim. (ECF No. 6.) In addition, Defendant asks the Court to revoke Plaintiff’s

in forma pauperis status and to place limits on his future filings. Plaintiff opposes dismissal,

asserting that the doctrine of res judicata is inapplicable under the circumstances of this case.

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Defendant’s motion to strike Plaintiff’s Supplemental Memorandum is also pending. 

(ECF No. 12.) Defendant asks the Court the strike Plaintiff’s Supplemental Memorandum

because he failed to comply with Southern District of Ohio Local Civil Rule 7.2(a)(2), which

limits the memoranda that may be filed without leave of Court to the opposition and reply. In

response, Plaintiff filed a motion requesting leave to file his Supplemental Memorandum and

asking the Court deny Defendant’s Motion to Strike. (ECF No. 13.) 

II. THE DOCTRINE OF RES JUDICATA

 Defendant contends that the doctrine of res judicata operates to bar the instant action. 

Under the doctrine of res judicata or claim preclusion, “a final judgment on the merits bars

further claims by parties or their privies based on the same cause of action.” Montana v. U.S.,

440 U.S. 147, 153 (1979). The United States Court of Appeals for the Sixth Circuit has

instructed that res judicata requires proof of the following four elements: “(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.” Kane v. Magna

Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). “The purpose of res judicata is to promote the

finality of judgments, and thereby increase certainty, discourage multiple litigation, and conserve

judicial resources.” Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981).

III. ANALYSIS

As a preliminary matter, the Court DENIES Defendant’s Motion to Strike and GRANTS

Plaintiff’s Motion to Accept Supplement. Accordingly, the undersigned has reviewed and

considered Plaintiff’s Supplemental Memorandum. 

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The undersigned agrees with Defendant, that res judicata operates to bar the instant

action. The instant action simply reasserts the same claims and causes of action against

Defendant Eleby arising out of the same facts Plaintiff alleged in the 900 Case and the 250 Case. 

More specifically, in this case, as in the prior actions, Plaintiff asserts that Defendant Eleby acted

with deliberate indifference to his safety in failing to maintain institutional separation between

himself and inmates Reed and Hamilton and in refusing his requests to be placed in protective

control. In addition, in all of the actions, Plaintiff’s deliberate indifference claims are premised

upon the same facts and allegations, namely, his testimony against inmate Hamilton, inmate

Reed’s subsequent threat, and his history of protective control and institutional separation from

inmates Hamilton and Reed. 

With regard to the 900 Case, Plaintiff does not dispute that the instant action simply

reasserts the same claims and causes of action against Defendant Eleby arising out of the same

facts. Indeed, Plaintiff, in his Memorandum in Opposition, states that he “did try and file this

very suit in case # 08-CV-900.” (Pl.’s Mem. in Opp. 3, ECF No. 8.) Instead, Plaintiff appears to

conclude the that 900 Case does not provide a basis for claim preclusion because the Court did

not reach the required final judgment on the merits. Plaintiff states that the Court dismissed the

900 Case “because plaintiff did not meet the imminent danger of serious physical injury

requirement because he was in protective control.” (Supplemental Memorandum 2, ECF No.

10.) 

 Although Plaintiff is correct that, in the 900 Case, the Court did deny Plaintiff’s request

for leave to proceed in forma pauperis pursuant to 28 U.S.C. §§ 1915(g), the Court also sua

sponte dismissed Plaintiff’s Complaint as malicious pursuant to 28 U.S.C. § 1915(e)(2)(b)(i). 

The Court then denied Plaintiff’s motion for reconsideration, which specifically challenged the

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Court’s conclusion that the 900 Case should be dismissed under § 1915(e) as malicious. A

court’s dismissal of a “complaint pursuant to the provisions of § 1915(e) . . . constitutes an

adjudication on the merits for purposes of res judicata.” Burton v. Cleveland Ohio

Empowerment Zone, 102 F. App’x 461, 463 (6th Cir. 2004) (citing Denton v. Hernandez, 504

U.S. 25, 34 (1992); Smith v. Morgan, 75 F. App’x 505, 507 (6th Cir. 2003)). Thus, the

undersigned rejects Plaintiff’s assertion that Court cannot rely on the 900 Case as a basis for

concluding that his Complaint is barred by the doctrine of res judicata. 

The undersigned also rejects Plaintiff’s contention that claim preclusion does not flow

from the 250 Case.1

 Plaintiff does not seem to dispute that the Court in the 250 Case reached a

final decision on the merits for purposes of res judicata. In the 250 Case, the Court dismissed

Plaintiff’s action with prejudice. “A dismissal with prejudice acts as an adjudication on the

merits and a bar to any further action between the parties on the claim.” Harrison v. Randolph,

No. 201-cv-1082, 2001 WL 1678791, at *1 (S.D. Ohio Dec. 31, 2001) (citing Semtek Int’l Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 503 (2001)). Further, Plaintiff acknowledges that the

facts of both cases are identical. (Pl.’s Mem. in Opp. 3, ECF No. 8 (“the factual predicate for

both Reed and Hamilton are the same”).) Plaintiff appears to contend, however, that res judicata

does not apply because the claims in the instant action differ from the claims in the 250 Case. 

Specifically, he explains that the 250 Case is based on the presence of inmate Hamilton at SOCF

as contrasted with the instant case, which is based on the presence of inmate Reed at SOCF. The

undersigned is not persuaded that the distinction is one that makes a difference in the outcome of

1

Even if the 250 Case did not give rise to claim preclusion, the undersigned would

recommend dismissal based upon the claim preclusion arising from the 900 Case. The

undersigned nonetheless addresses Plaintiff’s arguments with regards to the 250 Case for the

sake of completeness and as an alternative basis for applying the doctrine of res judicata. 

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this case. In Wilkins v. Jakeway, 183 F.3d 528 (6th Cir. 1999), the Sixth Circuit discussed the

applicability of res judicata in a similar situation: 

Although we do not question the veracity of counsel’s intent, the fact remains

that, by bringing two different suits which present two different theories of the

case arising from the same factual situation, counsel has engaged in the precise

behavior the doctrine res judicata seeks to discourage. See generally Restatement

(Second) of Judgments § 24, 25 cmt. a, d (explaining that res judicata

extinguishes all claims arising out of the same transaction of series of

transactions. As such, a plaintiff is pressured to present all material relevant to the

claim in one action, including any and all theories of the case even where those

theories are based on different substantive grounds.). This type of duplicity

should be avoided at all costs. “Courts apply the doctrine of res judicata to

promote the finality of judgments, which in turn increases certainty, discourages

multiple litigation and conserves judicial resources.” Sanders Confectionery

Products, Inc., v. Heller Financial Inc., 973 F.2d 474, 480 (6th Cir. 1992), cert.

denied, 506 U.S. 1079, 113 S.Ct. 1046, 122 L.Ed.2d 355 (1993). 

183 F.3d at 535. The Court in the 900 Case similarly rejected Plaintiff’s assertions that the 900

Case was not duplicative of the 250 Case because the 250 Case was premised upon the presence

of inmate Hamilton whereas the 900 Case was premised upon the presence of inmate Reed. The

Court explained that: “[w]hether defendant Eleby is or has been deliberately indifferent to

plaintiff’s safety, whether from any danger posed by inmate Hamilton or inmate Reed, is an issue

to be resolved by Bristow v. Eleby, Case No. 2:08-cv-00250.” (900 Case, February 11, 2009

Order 2, ECF No. 7.) 

In sum, the undersigned concludes that the doctrine of res judicata operates to bar the

instant action. Based upon this conclusion, the undersigned declines to consider Defendant’s

alternative basis for dismissal or to discuss the issue of vexatious litigation with respect to

Plaintiff’s filings. The Court, however, cautions Plaintiff that any future filing arising from the

facts upon which this action is based will meet with the identical fate and that the Court may, in

that instance, be inclined to take up the issue of whether he should be limited in his ability to

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pursue additional lawsuits in federal court. 

IV. CONCLUSION

The Court DENIES Defendant’s Motion to Strike (ECF No. 12) and GRANTS

Plaintiff’s Motion to Accept Supplement (ECF No. 13). In addition, the undersigned

RECOMMENDS that the Court GRANT Defendant’s Motion to Dismiss, dismissing the action

as barred by the doctrine of res judicata. (ECF No. 6.) 

V. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

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

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

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issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: July 6, 2011 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers

United States Magistrate Judge

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