IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Frank C. Brown, Jr., :

 Plaintiff, : Case No. 2:10-cv-965

 v. : JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kemp

Captain Andre J. Johnson, :

et al.,

 Defendants. :

REPORT AND RECOMMENDATION

AND ORDER

Plaintiff, Frank C. Brown, a state prisoner formerly housed

at the London Correctional Institution, filed this 42 U.S.C.

§1983 case claiming that his constitutional rights were violated

by certain actions which, he contends, were taken in retaliation

for his exercise of his First Amendment rights. Currently before

this Court is the State of Ohio’s motion to dismiss former

corrections officer Bridgette Klotz (Doc. #85), Defendants’

motion for summary judgment (Doc. #86), and Mr. Brown’s motion

for a preliminary injunction and a temporary restraining order

(Doc. #81). For the reasons set forth below, the Court will

recommend that the State of Ohio’s motion to dismiss Defendant

Klotz be granted, Defendants’ motion for summary judgment be

granted (Doc. #86), and Mr. Brown’s motion for a preliminary

injunction and a temporary restraining order be denied as moot

(Doc. #81).

I. Background

As set forth in prior orders of this Court, Mr. Brown

alleges that in September, 2010, he was removed from his prison

job in the law library as retaliation for the exercise of his

First Amendment rights. Prior to that time, he had filed an

informal complaint against a corrections officer about the loss

of a legal mail pass, and, when he was not allowed to see a log

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 1 of 12 PAGEID #: <pageID>
book, he threatened to sue. He was then threatened with

institutional charges but none were ever filed. Mr. Brown’s

complaint recites other instances where corrections officials

harassed him for filing grievances or pursuing litigation,

including filing false charges against him, and he asserts that

all of this retaliatory conduct culminated in the loss of his job

assignment in the law library. He also claims that, on other

occasions, he was given some extra duty as punishment and given a

verbal reprimand, again as part of an overall pattern of

retaliation.

In an order filed on April 4, 2011, the Court concluded that

these allegations were sufficient, under the law of retaliation

as set forth in Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th

Cir. 1999), to state a claim which could survive the initial

screening required by 28 U.S.C. §§1915(e) and 1915A. Thereafter,

the Court denied Defendants’ motion to dismiss on the grounds of

qualified immunity and granted Mr. Brown’s motion for leave to

amend his complaint. The Court later granted Mr. Brown an

extension of time to amend his complaint. Mr. Brown has not

filed an amended complaint or sought leave for additional time in

order to do so. The Court also issued an Opinion and Order

denying Mr. Brown’s motion for injunctive relief and later denied

Mr. Brown’s motion for reconsideration on this issue.

Currently before this Court is a motion to dismiss former

corrections officer Bridgette Klotz (Doc. #85), Defendants’

motion for summary judgment (Doc. #86), and Mr. Brown’s motion

for a preliminary injunction and a temporary restraining order

(Doc. #81). The Court will first consider whether Mr. Brown

exhausted his administrative remedies as required by the Prison

Litigation Reform Act of 1996 (PLRA), 42 U.S.C. §1997e(a), prior

to bringing this lawsuit, an issue raised in both the motion to

dismiss and the motion for summary judgment.

-2-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 2 of 12 PAGEID #: <pageID>
II. Exhaustion of Administrative Remedies

In its motion to dismiss, the State of Ohio1 argues that Mr.

Brown’s claim against Defendant Klotz is barred because he failed

to exhaust his administrative remedies with respect to that

claim. Similarly, in the motion for summary judgment, Defendants

argue that Mr. Brown’s “failure to exhaust his administrative

remedies bars his claims as to Defendants Johnson, Richardson,

Ferrell, Foy, Frye, Hurwood, and Mason.” (Doc. #86 at 5).

Defendants attach a Declaration of Suzanne Evans, a Correctional

Grievance Officer for the ODRC, in support of their assertion

that Mr. Brown did not exhaust his administrative remedies as to

these Defendants. Id. at Ex. 1. Defendants do not, however,

argue that Mr. Brown failed to exhaust his administrative

remedies with respect to his claim against Defendant Decarlo

Blackwell, Inspector of Institutional Services at the London

Correctional Institution. Id. at n.1. Accordingly, Mr. Brown’s

claim against Defendant Blackwell will be considered infra in

this Report and Recommendation. 

The PLRA requires a prisoner to exhaust administrative

remedies prior to filing an action in federal court. 42 U.S.C.

§1997e(a). “To exhaust a claim, a prisoner must proceed through

all steps of a prison or jail’s grievance process, because an

inmate ‘cannot abandon the process before completion and claim

that he has exhausted his remedies.’” Umani v. Caruso, No. 07-CV10649, 2008 WL 2216283 at *5 (E.D. Mich. May 27, 2008) (quoting

Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999)). 

Although exhaustion is not a jurisdictional prerequisite, it is a

1 The State of Ohio filed the motion pursuant to O.R.C.

§109.361, which allows the Ohio Attorney General to make an

appearance to represent the State of Ohio’s interests despite the

fact that Defendant Klotz has made no request for representation. 

(Doc. #85 at n.1). 

-3-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 3 of 12 PAGEID #: <pageID>
mandatory requirement. See Wyatt v. Leonard, 193 F.3d 876, 879

(6th Cir. 1999). Failure to properly exhaust bars suit in

federal court. See Woodford v. Ngo, 548 U.S. 81, 126 S. Ct. 2378

(2006). 

Prisoners are not required to plead and prove exhaustion in

their complaint, rather failure to exhaust is an affirmative

defense. See Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910 (2007). 

Compliance with the grievance procedures will vary between

systems and from claim to claim, “but it is the prison's

requirements, and not the PLRA, that define the boundaries of

proper exhaustion.” Id. at 921. Exhaustion is mandatory even if

proceeding through the administrative process would appear to the

inmate to be “futile.” Hartsfield, at 308-310. That is, “there

is no futility exception to the exhaustion requirement.” Unami

at *6 (citing Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819

(2001)). As the Court of Appeals recently observed, “[t]he point

of the PLRA exhaustion requirement is to allow prison officials

‘a fair opportunity’ to address grievances on the merits, to

correct prison errors that can and should be corrected and to

create an administrative record for those disputes that

eventually end up in court.” Reed-Bey v. Pramstaller, 603 F.3d

322, 324 (6th Cir. 2010).

In the complaint, Mr. Brown acknowledged that there is a

prisoner grievance procedure at the London Correctional

Institution which he did not comply with. (Doc. #1, Ex. 1 at 5). 

As to the reason for his noncompliance, Mr. Brown stated, “That

is the basis and reasons for this action. I was taken in

handcuffs to the captain’s office for filing an Informal

Complaint Resolution against a C.O. and was told by Lts. that

‘Your next one better be worded right or you are going to the

hole!’.” Id. As the State of Ohio observes in its reply brief

in support of its motion to dismiss, although Mr. Brown opposed

-4-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 4 of 12 PAGEID #: <pageID>
the motion, he failed to respond to the State of Ohio’s argument

that he failed to exhaust his administrative remedies. (Doc. #89

at 1-2). 

Mr. Brown did not file an opposition to the motion for

summary judgment, instead filing a “motion for time extension.” 

(Doc. #88). In the motion, Mr. Brown argues that he is unable to

effectively respond because Defendants have refused to permit him

to retain his legal documents and did not allow him to take the

documents with him when he transferred to another institution. 

Defendants oppose Mr. Brown’s motion for an extension of time,

stating that “Plaintiff’s Motion cites to Federal Rule of Civil

Procedure 7(a), but it is more appropriately construed as a Rule

56(d) motion.” (Doc. #90 at 1). Fed. R. Civ. P. 56(d), “When

Facts Are Unavailable to the Nonmovant,” provides:

If a nonmovant shows by affidavit or declaration that,

for specified reasons, it cannot present facts essential

to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations

or to take discovery; or

(3) issue any other appropriate order.

Id. Defendants argue that the Court should deny Mr. Brown’s

motion because it is not properly supported by an affidavit or a

declaration as required by Fed. R. Civ. P. 56(d). Moreover,

Defendants assert that even if the motion were properly

supported, Mr. Brown “does not identify any material facts he

seeks to show are in dispute, or describe how his legal files

would assist him.” (Doc. #90 at 2.)

Here, Mr. Brown admits in his complaint that he did not

exhaust his administrative remedies. Further, in his motion for

an extension of time, Mr. Brown does not suggest that the

materials he seeks would indeed demonstrate that he satisfied the

-5-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 5 of 12 PAGEID #: <pageID>
exhaustion requirement. Instead, Mr. Brown claims a need for the

materials “in order for him to effectively refute and rebut

[Defendants’] perjury.” (Doc. #88 at 1). In his reply in

support of his motion for an extension, Mr. Brown asserts that

the materials he seeks will demonstrate that “he initiated

grievance procedures against defendants” which led to issuance of

false conduct reports. (Doc. #91 at 1). Although he claims to

have initiated the grievance process, he does not argue that the

materials will demonstrate his exhaustion of that process. On

this basis, the “motion for time extension” (Doc. #88) will be

denied.

 In his complaint, Mr. Brown’s explanation as to why he did

not exhaust his administrative remedies seems to suggest that he

feared retaliation if he pursued his rights fully using the

institution’s grievance procedure. A prisoner’s general

allegation that he feared retaliation from the prison staff,

however, does not excuse the prisoner from exhausting his

administrative remedies. See Himmelreich v. Federal Bureau of

Prisons, No. 4L10-CV-2404, 2013 WL 3787619, at *3 (N.D. Ohio July

18, 2013); see also Sarah v. Deshambo, 67 Fed. Appx. 346, 346

(6th Cir. 2003) (finding that the district court properly

dismissed plaintiff’s complaint without prejudice where

“plaintiff plainly alleged that he did not exhaust available

administrative grievance remedies because he feared

retaliation”). Stated differently, “courts have not recognized a

fear of retaliation as an exception to the PLRA’s exhaustion

requirement.” Ramos v. Gansheimer, No. 1:12 CV 132, 2013 WL

775353, at *6 (N.D. Ohio Feb. 26, 2013). Accordingly, Mr.

Brown’s fear of retaliation does not excuse his compliance with

the PLRA’s exhaustion requirement. Because Mr. Brown did not

exhaust his administrative remedies, it will be recommended that

the complaint against Defendant Klotz and all Defendants, except

-6-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 6 of 12 PAGEID #: <pageID>
Defendant Blackwell, be dismissed without prejudice. 

III. Motion for Summary Judgment Against Defendant Blackwell 

The Court now examines the motion for summary judgment as it

applies to Defendant Blackwell. Although the motion is captioned

as one for summary judgment, it does not attach or cite to any

evidence relating to Mr. Brown’s claims against Defendant

Blackwell. Rather than arguing that there is no genuine dispute

of material fact pursuant to Fed. R. Civ. P. 56, Defendants

instead argue that the allegations in Mr. Brown’s complaint are

deficient and “fail to state a viable retaliation claim” against

Defendant Blackwell. (Doc. #86 at 11). Consequently,

Defendants’ arguments as to Defendant Blackwell are properly

analyzed under Fed. R. Civ. P. 12 based on Mr. Brown’s alleged

failure to state claim on which relief can be granted. 

Accordingly, the Court will examine the face of the complaint and

determine whether, taking all of Mr. Brown’s allegations as true

and construing them in the light most favorable to him, Mr.

Brown’s allegations state a legal claim against Defendant

Blackwell. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556,

127 S. Ct. 1955, 167 L. Ed.2d 929 (2007); see also McLoyd v.

United States, No. 04-605, 2006 WL 2135837, n.1 (D.N.J. July 27,

2006)(finding that motion brought pursuant to Fed. R. Civ. P. 56

should be analyzed under Fed. R. Civ. P. 12(b)(6)). Further,

because the Court must limit its consideration to the pleadings

and the attached exhibits, see Twombly, 550 U.S. at 556,

providing Mr. Brown the additional time he seeks in his “motion

for time extension” is unnecessary. Because nothing in the

requested documents would change the pleadings, additional time

is not warranted. On this basis, the Court again will deny Mr.

Brown’s “motion for time extension.” (Doc. #88).

In the complaint, Mr. Brown alleges that Defendant Blackwell

retaliated against him for using the grievance procedure. 

-7-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 7 of 12 PAGEID #: <pageID>
Specifically, Mr. Brown argues that Defendant Blackwell filed two

dispositions in response to his informal complaints that were

retaliatory in nature. In order to state a First Amendment

retaliation claim against Defendant Blackwell, Mr. Brown must

allege that he engaged in a protected activity, that Defendant

Blackwell took an adverse action against him that would deter a

person of ordinary firmness from continuing to engage in that

activity, and that the adverse action was motivated at least in

part by Mr. Brown’s protected activity. See Thaddeus-X, 175 F.3d

at 394.

In his complaint, Mr. Brown first relies upon a disposition

issued by Defendant Blackwell in response to Mr. Brown’s informal

complaints concerning adequate clothing. In response to these

complaints, Defendant Blackwell issued a disposition which

included the statement “Sgt. Hodson will get you into 2.4

compliance.” (Doc. #1, Ex. A). According to Mr. Brown, this

language demonstrates that Defendant Blackwell was retaliating

against him for his use of the grievance process.

This Court disagrees. A thorough reading of the disposition

demonstrates that, in response to Mr. Brown’s grievance,

Defendant Blackwell had Sgt. Hodson conduct a property inventory

to determine if Mr. Brown had adequate clothing. As a result of

that inventory, it was discovered that Mr. Brown was over the

property limit on certain property items. In particular, Mr.

Brown was found to have, among other items, “1 extra set of state

blues; 2 extra pair pf state boots; 1 extra hat; and 5 extra

pairs of state socks.” Id. Defendant Blackwell’s reference to

2.4 compliance related to the amount of space an inmate is

provided to store personal property. (Doc. #86 at 13 (stating

that 2.4 compliance refers to “the ODRC policy which limits

inmates to 2.4 cubic feet of personal property”)).

Although the filing of a legitimate grievance is indeed a

-8-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 8 of 12 PAGEID #: <pageID>
protected activity, Hill v. Lappin, 630 F.3d 468, 472 (6th Cir.

2010), enforcing prison rules against an inmate is not an adverse

action. See, e.g., Sales v. Smith, No. 2:11-cv-239, 2012 WL

5389675, at *6 (S.D. Ohio Nov. 2, 2012)(finding that plaintiff

failed to show an adverse action was taken against him where

retaliation claim was based on enforcement of prison rules). As

this Court has observed, inconsequential actions do not rise to

the level of a constitutional deprivation. Thaddeus-X, 175 F.3d

at 398. Mr. Brown does not allege that he was, in fact, brought

into “2.4 compliance.” Moreover, even assuming that did happen,

Defendant Blackwell’s enforcement of the ODRC policy does not

constitute an adverse retaliatory action. 

The Court now turns to the second disposition issued by

Defendant Blackwell which Mr. Brown claims is retaliatory. In

that disposition, Defendant Blackwell alleges that Mr. Brown

engaged in disrespectful behavior toward prison officials. With

respect to this behavior, the disposition provides, “Due to your

continued disrespect towards staff you will be recommended to be

suspended from using the Inmate Grievance procedure due to abuse

and disrespect to staff.” (Doc. #1, Ex. D). Mr. Brown claims

that this constitutes retaliation for his use of the grievance

process, noting “[i]t was not allowed.” Id. at ¶25. Mr. Brown

has not set forth any allegations claiming that Defendant

Blackwell indeed made the recommendation as provided in

disposition, or that he was suspended from using the

institution’s grievance procedure. Thus, the Court must consider

whether the threat to recommend suspension alone is sufficient to

constitute an adverse action for purposes of a retaliation claim.

The Court finds that it is not. The threat alone did not

impair Mr. Brown’s First Amendment right to file legitimate

grievances. A careful reading of the record demonstrates that

Defendant Blackwell made the threat in reaction to what he

-9-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 9 of 12 PAGEID #: <pageID>
perceived to be a frivolous grievance. The Court of Appeals has

found that “there is no constitutionally protected due process

right to unfettered access to the grievance process.” Threatt v.

Birkett, No. 07-1752, 2008 U.S. App. LEXIS 28074, at *2 (6th Cir.

Feb. 15, 2008)(quoting Walker v. Michigan Dept. of Corr., 128

Fed. Appx. 441, 445 (6th Cir. 2005)). That is, the First

Amendment right to file institutional grievances only applies to

non-frivolous claims. Walker, 128 Fed. Appx. at 445. Here, Mr.

Brown has not alleged that he attempted to file a legitimate

grievance but was denied access to the process as a result of

Defendant Blackwell’s disposition. Mr. Brown thus fails to

allege that Defendant Blackwell engaged in an adverse retaliatory

action.

In addition to these claims, Mr. Brown also generally

alleges that Defendant Blackwell continually failed to provide

him with “the required forms in the required amounts in the

required time limits” in order for him to “timely grieve and/or

appeal the incidents or conditions of his environment. . . .”

(Doc. 1 at ¶26). Although Mr. Brown claims to have documents to

support this allegation, he fails to attach them to the

complaint. Mr. Brown likewise alleges that Defendant Blackwell

“recruited other [sic] to engage in retaliation” against him for

his use of the inmate grievance procedure. Id. at ¶27. General

allegations that Defendant Blackwell failed to provide Mr. Brown

with forms and recruited others to join him in retaliating

against Mr. Brown are insufficient to state a plausible claim for

relief. For these reasons, the Court will recommend dismissal of

the First Amendment retaliation claim against Defendant

Blackwell.

IV. Conclusion 

Based upon the forgoing, the Court recommends that the

complaint against Defendant Klotz and all Defendants, except

-10-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 10 of 12 PAGEID #: <pageID>
Defendant Blackwell, be dismissed without prejudice for failure

to exhaust administrative remedies. The Court likewise

recommends that claim against Defendant Blackwell be dismissed

with prejudice. Consequently, the Court recommends that the

State of Ohio’s motion to dismiss Defendant Klotz be granted

(Doc. #85), Defendants’ motion for summary judgment be granted

(Doc. #86), and Mr. Brown’s motion for a preliminary injunction

and a temporary restraining order be denied as moot (Doc. #81). 

There being no remaining claims for resolution, this Court

recommends that this case be terminated.

Further, for good cause shown, the motion to withdraw as

attorney for Defendant Klotz is granted. (Doc. #84). For the

reasons stated herein, Mr. Brown’s motion for a time extension is

denied. (Doc. #88). In addition, Defendants’ motion to strike

Mr. Brown’s response in opposition to the motion for judgment on

the pleadings (Doc. #31) and Mr. Brown’s motion to deny the

motion for leave to file an answer instanter (Doc. #80) are

denied as moot.

V. Procedure on Objections

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A 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 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

-11-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 11 of 12 PAGEID #: <pageID>
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/Terence P. Kemp 

 United States Magistrate Judge 

 

 

-12-

Case: 2:10-cv-00965-EAS-TPK Doc #: 92 Filed: 08/06/13 Page: 12 of 12 PAGEID #: <pageID>