-IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RONALD D. LEONARD, et al.,

Plaintiffs,

v. Case No. 2:10-CV-347

JUDGE MARBLEY

ERNIE MOORE, et al., MAGISTRATE JUDGE KING

Defendants.

______________________________________________________________________

RONALD D. LEONARD,

Plaintiff,

v. Case No. 2:10-CV-951

JUDGE MARBLEY

ERNIE MOORE, et al., MAGISTRATE JUDGE KING

Defendants.

REPORT AND RECOMMENDATION

These cases1 are brought pursuant to 42 U.S.C. § 1983. This

matter is before the Court for consideration of Defendants’ Motion for

Summary Judgment, Doc. No. 53 filed in 2:10-CV-347, and Defendants

Knab and Mohr’s Motion for Summary Judgment, Doc. No. 60 filed in

2:10-CV-951. For the reasons that follow, it is RECOMMENDED that

these motions be granted. The Court will address each of these

motions in each case separately.

I. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, DOC. NO. 53, 2:10-CV-347

1

This Court previously consolidated these actions. Order and Report and

Recommendation, Doc. No. 9, p. 2.

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A. Background

In Civil Action No. 2:10-CV-347, plaintiff,2 a state inmate

proceeding without the assistance of counsel, complains of

“involuntary daily exposure” to asbestos and mold while incarcerated

in the Chillicothe Correctional Institution (“CCI”) between the period

of May 8, 2009 through April 28, 2010.3 Declaration of Ronald D.

Leonard, ¶¶ 2-3 (“Leonard Declaration”), attached to Plaintiff’s

Response to Defendant’s [sic] Ernie Moore and Gary Croft’s MSJ (Doc

#53), Doc. No. 57 (“Plaintiff’s Response”);4 Complaint, Doc. No. 1, p.

2.5 According to plaintiff, asbestos exists throughout CCI’s

dormitories and black mold grows in CCI’s showers. Leonard

Declaration, ¶ 3. Plaintiff alleges that, in June or July 2009, Ernie

Moore, former CCI deputy director and former director of Ohio

Department Rehabilitation and Corrections (“ODRC”), toured CCI and

took photographs capturing images of asbestos at CCI. Id. at ¶¶ 8-9;

Complaint, ¶ 4. According to plaintiff, Gary Croft, ODRC Chief

Inspector, failed “to investigate a substantial risk to the safety and

future health of plaintiff[].” Leonard Declaration, ¶ 6.

The unverified Complaint names Ernie Moore and Gary Croft as

2

On July 8, 2011, the Court dismissed the claims of former plaintiff

Cole Worthington for failure to prosecute. Order, Doc. No. 40.

3

Plaintiff is currently incarcerated at the Toledo Correctional

Institution. Doc. No. 43. 

4

Plaintiff’s Response is a document that combines plaintiff’s response

to the instant motion as well as plaintiff’s response to the motion for

summary judgment filed in Civil Action 2:10-cv-951. More specifically, pages

1-3 of Doc. No. 57 respond to the motion in the latter case and pages 3-7

comprise the Leonard Declaration addressing this action.

5

The Complaint is unverified.

2

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defendants in their individual and official capacities. Id. at 1. In

moving for summary judgment, defendants note that the current ODRC

director is Gary Mohr and, in a later filing, refer to defendants as

Croft and Mohr. Defendants’ Motion for Summary Judgment, Doc. No. 53,

pp. 1 n.1, 2 n.2; Reply in Support of Defendants Croft and Mohr's

Motion for Summary Judgment, Doc. No. 56 (“Reply”). 

Under Rule 25 of the Federal Rules of Civil Procedure, Mr. Mohr,

current ODRC director, is substituted as defendant in place of Mr.

Moore, former ODRC director, as to the official capacity claims

against this defendant. See Fed. R. Civ. P. 25(d) (“An action does

not abate when a public officer who is a party in an official capacity

dies, resigns, or otherwise ceases to hold office while the action is

pending. The officer’s successor is automatically substituted as a

party.”). However, because plaintiff also sued Mr. Moore in his

individual capacity, Mr. Moore remains a defendant in this action as

to the personal capacity claims asserted against him. Id.; cf. Gulett

v. Haines, 229 F. Supp. 2d 806, 814 (S.D. Ohio 2002) (noting that

current sheriff is not automatically substituted for former sheriff

with respect to individual capacity claims).

The unverified Complaint alleges that defendants’ inaction

violated plaintiff’s rights under the United States Constitution and

“constitutes a Deliberate Indifference to Plaintiffs [sic] health and

safety[.]” Complaint, ¶ 6. Plaintiff seeks monetary damages,

including punitive damages, because the “acts ommissions [sic] and

misconduct of Defendants is a direct and proximate result of

Plaintiffs [sic] injury now and in the future. Plaintiffs [sic] also

seek relief [] for emotional distrees [sic] from the imminent danger

3

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to thier [sic] health and safety[.]” Complaint, p. 2.

B. Standard

The standard for summary judgment is well established. This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,

which provides in pertinent part:

The 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). In making this determination, the evidence

must be viewed in the light most favorable to the non-moving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment

will not lie if the dispute about a material fact is genuine, “that

is, if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986). However, summary judgment is appropriate if the

opposing party fails to make a showing sufficient to establish the

existence of an element essential to that party’s case and on which

that party will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The mere existence of a scintilla

of evidence in support of the opposing party’s position will be

insufficient; there must be evidence on which the jury could

reasonably find for the opposing party. Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial

responsibility of informing the district court of the basis for its

motion, and identifying those portions of the record which demonstrate

the absence of a genuine issue of material fact. Catrett, 477 U.S. at

323. Once the moving party has met its initial burden, the burden

then shifts to the nonmoving party who “must set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S.

4

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at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino

Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party

must present evidence that creates a genuine issue of material fact

making it necessary to resolve the difference at trial”). “Once the

burden of production has so shifted, the party opposing summary

judgment cannot rest on the pleadings or merely reassert the previous

allegations. It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’” Glover v. Speedway

Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003)(citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986)). Instead, the non-moving party must support the assertion

that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1). 

In ruling on a motion for summary judgment “[a] district court is

not ... obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party’s claim.” 

Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller,

889 F.2d 108, 111 (6th Cir. 1989)). Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists

on a particular issue, only upon those portions of the verified

pleadings, depositions, answers to interrogatories and admissions on

file, together with any affidavits submitted, specifically called to

its attention by the parties.” Id. See also Fed. R. Civ. P. 56(c)(3).

C. Claims for Monetary Damages Against Defendants in Their

Official Capacity

As noted supra, plaintiff has sued defendants Mohr and Croft in

their official capacity for monetary damages. “[A] suit against a

state official in his or her official capacity is not a suit against

the official but rather is a suit against the official’s office.” 

5

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Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See also

Wolfel v. Morris, 972 F.2d 712, 718-719 (6th Cir. 1992). The Eleventh

Amendment to the United States Constitution bars a suit for money

damages against a state agency and state employees named in their

official capacity unless the State has waived its immunity or Congress

has overridden immunity under § 5 of the Fourteenth Amendment. Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989). The State

of Ohio has not waived its immunity to suit in this Court, nor has

Congress abrogated the state’s immunity. Accordingly, plaintiff’s

claims under 42 U.S.C. § 1983 for money damages against defendants

Mohr and Croft in their official capacities are barred by the Eleventh

Amendment. See, e.g., Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir.

2011) (holding that, to the extent the plaintiff sought monetary

damages from state prison employees in their official capacity,

Eleventh Amendment immunity operated as a bar). 

D. Claims for Monetary Damages Against Defendants in Their

Personal Capacity

Plaintiff alleges that defendants Moore, former CCI deputy

director and former ODRC director, and Croft, ODRC Chief Inspector,

were deliberately indifferent to plaintiff’s health and safety in

violation of plaintiff’s constitutional rights. Complaint, ¶¶ 4, 6.6

More specifically, plaintiff alleges that defendants were deliberately

6

To the extent that the Complaint may be read to assert a claim of

emotional distress, see, e.g., Complaint, p. 2, Ohio Revised Code §§ 9.86 and

2743.02(F) bars this state law claim. See McCormick v. Miami Univ., 693 F.3d

654, 665 (6th Cir. 2012) (finding no claim under Ohio law against state

employees in their individual capacities because “Ohio law requires that, as a

condition precedent to asserting a cause of action against a state employee in

his individual capacity, the Court of Claims must first determine that the

employee is not entitled to the immunity provided for in Revised Code section

9.86"). 

6

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indifferent to “inhumane conditions” at CCI arising from the existence

of asbestos and black mold in that facility. Id. at ¶ 4; Leonard

Declaration, ¶ 3. He also contends that defendant Moore “approved and

knowingly acquiesced in” defendant Croft’s misconduct, which was

apparently a “failure to investigate substantial risk to the safety

and future health” of plaintiff. Leonard Declaration, ¶ 6. 

“[T]he treatment a prisoner receives in prison and the conditions

under which he is confined are subject to scrutiny under the Eighth

Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). The test

for determining deliberate indifference in contravention of the Eighth

Amendment based on environmental conditions in a prison contains both

an objective component and a subjective component. Id. at 35-36. 

First, in order to satisfy the objective component, an inmate must

establish that his medical needs are “sufficiently serious.” Farmer

v. Brennan, 511 U.S. 825, 834 (1994); Talal v. White, 403 F.3d 423,

426 (6th Cir. 2005). In the context of a claim that prison officials

failed to protect an inmate from toxic exposure, the inmate must

demonstrate “either that [he] suffered an actual serious injury to

[his] present health or faced a substantial risk of serious harm to

[his] future health from involuntary exposure to [the toxin].” Scuba

v. Wilkinson, No. 1:06-cv-160, 2009 U.S. Dist. LEXIS 122122, at *19

(S.D. Ohio Aug. 14, 2009) (internal quotation marks omitted). 

Additionally, “the prisoner must show that the risk of which he

complains is not one that today’s society chooses to tolerate.” 

Helling, 509 U.S. at 36. 

 Second, the subjective component of deliberate indifference

requires that an inmate establish that prison authorities acted with

7

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deliberate indifference to the inmate’s health or safety. Farmer, 511

U.S. at 834. The prison official can be held liable only if he knows

that the inmate faces a substantial risk of serious harm and fails to

take reasonable measures to abate the risk. Id. at 847. In other

words, “the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. at 837. More than

a lack of due care on the part of the prison official is required in

order to satisfy the subjective component of a deliberate indifference

claim. Id. at 835. See also Horn by Parks v. Madison County Fiscal

Court, 22 F.3d 653, 660 (6th Cir. 1994) (“However, the conduct for

which liability attaches must be more culpable than mere negligence;

it must demonstrate deliberateness tantamount to intent to punish.”)

(citations omitted).

In this case, plaintiff has not met the objective component of

his Eighth Amendment claim. He has not offered any proof, or even

alleged, that he suffered an actual serious injury arising from the

possible exposure to asbestos and black mold at CCI. Indeed,

plaintiff’s medical records establish that he has never complained of,

or showed symptoms of, illnesses associated with exposure to asbestos

or black mold. Declaration of Health Care Administrator Diann Lento,

¶¶ 6-9 (“Lento Declaration”), attached to Motion for Summary Judgment.

Similarly, plaintiff has not shown a “substantial risk of serious

harm” to his future health resulting from “daily exposure” to asbestos

and mold. Although plaintiff avers that asbestos and black mold is

present at CCI and that his health and safety face a “substantial

risk,” Leonard Declaration, ¶¶ 3, 6, 9, he has presented no

8

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scientific, statistical or other evidence establishing a substantial

risk of serious harm to his future health because of involuntary

exposure at CCI. Scuba, 2009 U.S. Dist. LEXIS 122122, at *21-22

(citing, inter alia, Helling, 509 U.S. at 35) (holding that plaintiff

inmates could not establish substantial risk of serious harm to future

health where inmates presented “no scientific, statistical, or other

evidence demonstrating a likelihood of serious harm to their future

health from involuntary exposure to asbestos”). The mere showing that

asbestos is present is not sufficient to establish an Eighth Amendment

violation. Walters v. Swim, No. 96-3144, 1996 U.S. App. LEXIS 33106,

at *4 (6th Cir. Dec. 13, 1996). Indeed, “[f]or exposure to airborne

asbestos fibers to create a substantial risk of serious harm . . . the

intensity and duration of the exposure must be significant.” Pack v.

Artuz, 348 F. Supp. 2d 63, 80 (S.D.N.Y. 2004) (citing Falise v.

American Tobacco Co., 94 F. Supp.2d 316, 324 (E.D.N.Y. 2000)). 

Finally, plaintiff has offered no evidence that the risk of harm from

his alleged exposure was so serious that it was “not one that today’s

society chooses to tolerate.” Helling, 509 U.S. at 36. In sum,

plaintiff’s own perceived risk of speculative harm to his future

health resulting from involuntary exposure to asbestos and black mold

is insufficient to establish the objective component of his claim. 

Having concluded that plaintiff has not established that he

suffers from an actual serious injury or faces a “substantial risk of

serious harm” to his future health, it follows that he cannot

establish the subjective component that defendants Moore and Croft

were aware of such an injury or risk and disregarded it. Cf. Farmer,

511 U.S. at 837 (“[T]he official must both be aware of facts from

9

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which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.”); Jones v. Caruso,

No. 10-1515, 421 Fed. Appx. 550, at *552 (6th Cir. April 28, 2011)

(finding no error in grant of summary judgment against an inmate

plaintiff on his Eighth Amendment deliberate indifference claim after

concluding that the plaintiff did not meet the objective component,

i.e., he failed to show that his exposure to environmental tobacco

smoke was a serious health threat). Indeed, plaintiff offers no

evidence that either defendant Moore or defendant Croft was even aware

of the alleged existence of black mold at CCI. Similarly, plaintiff

has failed to offer facts from which defendants could infer that

plaintiff faced a substantial risk of serious harm from black mold or

that either defendant drew that inference.

As to his claim based on exposure to asbestos, plaintiff avers

that defendant Moore became aware of the existence of asbestos at CCI

during a tour of the facility in June or July 2009. Leonard

Declaration, ¶¶ 8-9. In addition, plaintiff avers that defendant

Moore “approved and knowingly acquiesced in the misconduct of his

subordinate” defendant Croft.7 Id. at ¶ 5. However, plaintiff offers

no evidence that defendant Moore perceived that plaintiff suffered

from an actual serious injury or that plaintiff faced a substantial

risk of serious harm to his future health. Taken as a whole,

plaintiff has offered no evidence that defendant Moore deliberately

exposed plaintiff to asbestos in violation of his constitutional

rights. 

7

Defendant Croft’s alleged misconduct is discussed infra.

10

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As to defendant Croft, plaintiff avers that he filed an informal

complaint related to defendant Croft’s “failure to investigate a

substantial risk to the safety and future health of” plaintiff,

Leonard Declaration, ¶ 6, and a grievance against defendant Croft for

“improperly investigating the informal complaint[,]” id. at ¶ 4.8

However, these statements are insufficient to establish that defendant

Croft was aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and that defendant Croft

actually drew that inference. Moreover, to the extent that plaintiff

attempts to posit liability on defendant Croft for alleged

deficiencies in the grievance process, it is well established that

there is “no inherent constitutional right to an effective prison

grievance procedure.” Overholt v. Unibase Data Entry, Inc., No.

98—3302, 2000 U.S. App. LEXIS 14087, at *9-10 (6th Cir. June 14,

2000). See also Lee v. Mich. Parole Bd., No. 03-1775, 104 Fed. Appx.

490, at *493 (6th Cir. June 23, 2004) (“Section 1983 liability may not

be imposed simply because a defendant denied an administrative

grievance or failed to act based upon information contained in a

grievance.”) (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.

1999)). 

In short, plaintiff’s claims under 42 U.S.C. § 1983 for money

damages against defendants Moore and Croft in their personal

8

In so averring, plaintiff disputes the characterization of his

complaint and/or grievance contained in the decisions of defendant Croft,

Chief Inspector. See Leonard Declaration, ¶¶ 4-7; Exhibits C and D attached

to the Motion for Summary Judgment. For purposes of this motion only, the

Court will accept plaintiff’s recitation of this complaint and/or grievance.

11

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capacities must fail.9 

II. DEFENDANTS KNAB AND MOHR’S MOTION FOR SUMMARY JUDGMENT, DOC. NO.

60, 2:10-CV-951

A. Background

In Civil Action 2:10-CV-951, on April 28, 2010, the United States

Department of Homeland Security contacted CCI about a package and

letter from a CCI inmate that were sent to the Inspector General’s

Office in Washington, D.C. Conduct Report, attached as Exhibit C to

Defendant Knab and Mohr’s Motion for Summary Judgment, Doc. No. 60

(“Motion for Summary Judgment”). The package contained a white

substance in a clear medical bag that the letter’s author represented

was asbestos taken from the D-1 dormitory at CCI. Id. Although the

letter reflected a false inmate name and number, officials at CCI

conducted an investigation, concluded that plaintiff had sent the

package, and charged plaintiff with violation of prison rules. Id. 

On May 18, 2010, the CCI Rules Infraction Board (“RIB”), after

comparing plaintiff’s handwriting with the handwriting on the letter

described above, found plaintiff guilty of violating Rules 54 and 55

of the Inmate Rules of Conduct.10 Declaration of Meredith Rinna, ¶ 4,

attached as Exhibit A to the Motion for Summary Judgment (“Rinna

9

Because the Court concludes that plaintiff’s constitutional claims

cannot survive the Motion for Summary Judgment, the Court need not, and does

not, consider defendants’ alternative arguments based on an alleged failure to

demonstrate a physical injury, an alleged failure to exhaust administrative

remedies and the defense of qualified immunity.

10Rule 54 prohibits “[u]nauthorized use of telephone or violation of

mail and visiting rules[.]” O.A.C. § 5120-9-06(C)(54). Rule 55 prohibits

“[u]se of telephone or mail to threaten, harass, intimidate, or annoy

another[.]” Id. at (C)(55). 

12

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Declaration”).11 On May 24, 2010, following a hearing, plaintiff was

placed in Local Control Segregation (“segregation”). Id. at ¶ 5;

Exhibits D and E, attached to Motion for Summary Judgment. 

On October 21, 2010, plaintiff filed this action, naming

defendants Ernie Moore, former ODRC director, and Robin Knab, CCI

Warden, in their personal and official capacities. Complaint, Doc.

No. 1, pp. 1, 5. Plaintiff alleges that defendants Moore and Knab

retaliated against him for his pursuit of his claims regarding

exposure to mold and asbestos in Civil Action 2:10-cv-10-347. Id. at

5-6. In particular, plaintiff alleges that he was placed in solitary

confinement in April 2010 and denied access to the courts in violation

of his rights under the First Amendment to the United States

Constitution. Id. In addition, construing the Complaint liberally,

see, e.g., Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)

(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)), plaintiff

apparently alleges that defendants created and/or were part of a

conspiracy pursuant to 42 U.S.C. § 1985(3). Id. at 5-6. Although the

Complaint is not entirely clear in this regard, it appears that

plaintiff also asserts a claim for “emotional or mental distress.” 

Id. at 6. Plaintiff seeks monetary damages and “any other relief that

this Court would deem just and proper, that he may be entitled to as a

result of the Defendants [sic] actions in violation of the 1st

Amendment to the United States Constitution.” Id. at 7. 

Defendants have moved for summary judgment on plaintiff’s claims

11The Rinna Declaration refers to several documents, which are

purportedly attached thereto, but which defense counsel inexplicably failed to

attach. See, e.g., id. at ¶¶ 4-9.

13

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in this case. In response to the Motion for Summary Judgment,

plaintiff has filed Plaintiff’s Response to Defendant’s [sic] Gary

Mohr Director ODRC Case No. 2:10-cv-951 & Warden Knab (MSJ Doc 60),

Doc. No. 64 (“Plaintiff’s Response”).12 With the filing of the Reply

in Support of Defendants Knab and Mohr’s Motion for Summary Judgment,

Doc. No. 65 (“Reply”), this matter is ripe for resolution.

B. Claims for Monetary Damages Against Defendants in Their

Official Capacity 

As noted supra, Gary Mohr, current ODRC director, is substituted

as defendant in place of defendant Moore, former ODRC director, as to

the official capacity claims against this defendant. See Fed. R. Civ.

P. 25(d). However, as discussed in more detail above, plaintiff’s

claims under 42 U.S.C. § 1983 for money damages against defendants

Mohr and Knab in their official capacities are barred by the Eleventh

Amendment. See, e.g., Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir.

2011).

C. Claims for Monetary Damages Against Defendants in Their

Personal Capacity13

1. Retaliation

In moving for summary judgment, defendants raise a number of

arguments, including that plaintiff has failed to exhaust his

administrative remedies. Motion for Summary Judgment, pp. 6-8. 

Plaintiff does not respond to this argument. Plaintiff’s Response,

12As noted supra, Plaintiff’s Response also contains a declaration

addressing the motion for summary judgment filed in Civil Action 2:10-cv-347.

13Although Gary Mohr takes the place of defendant Moore as to the

official capacity claims against this defendant, plaintiff’s claims against

defendant Moore in his personal capacity remain. Fed. R. Civ. P. 25(d). Cf.

Gulett v. Haines, 229 F. Supp. 2d 806, 814 (S.D. Ohio 2002).

14

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pp. 1-3.14

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”),

requires that a prisoner filing a § 1983 claim first exhaust available

administrative remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002);

Booth v. Churner, 532 U.S. 731 (2001). The PLRA provides, in

pertinent part:

No action shall be brought with respect to prison conditions

under [section 1983 of this title], or any other Federal

law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as

are available are exhausted.

42 U.S.C. § 1997e(a).

In order to satisfy the exhaustion requirement, an inmate

plaintiff must “complete the administrative review process in

accordance with the applicable procedural rules . . . as a

precondition to bringing suit in federal court.” Woodford v. Ngo, 548

U.S. 81, 88 (2006). “[F]ailure to exhaust is an affirmative defense

under the PLRA, and [] inmates are not required to specially plead or

demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S.

199, 216 (2007). Exhaustion is not a jurisdictional predicate but the

requirement is nevertheless mandatory, Wyatt v. Leonard, 193 F.3d 876,

879 (6th Cir. 1999), even if proceeding through the administrative

procedure would appear to the inmate to be “futile.” Hartsfield v.

Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999). The United States Court

of Appeals for the Sixth Circuit has noted that failure to exhaust “is

an affirmative defense on which the defendant bears the burden of

14Instead, plaintiff argues at length that defendant Moore is not

entitled to summary judgment because he did not file a motion. Id. This

argument is addressed infra.

15

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proof.” Vandiver v. Corr. Med. Servs., 326 Fed. Appx. 885, at *888

(6th Cir. May 1, 2009) (citing Jones, 549 U.S. 199, 127 S. Ct. at

922-23). 

Ohio employs a three-step grievance procedure for inmate claims.

Ohio Admin. Code § 5120-9-31. First, an inmate must file an informal

complaint. Ohio Admin. Code § 5120-9-31(K)(1). If that complaint

does not result in a decision satisfactory to the inmate, the inmate

can appeal the decision to the Inspector of Institutional Services.

Ohio Admin. Code § 5120-9-31(K)(2). If that appeal is found to be

without merit, the inmate can then appeal the decision to the Chief

Inspector. Ohio Admin. Code § 5120-9-31(K)(3).

In support of their position that plaintiff did not exhaust his

administrative remedies as to his retaliation claim, defendants offer

the affidavit of Suzanne Evans, a Correctional Grievance Officer for

ODRC’s Chief Inspector’s Office. Affidavit of Suzanne Evans, ¶ 2,

which is attached as Exhibit F to the Motion for Summary Judgment

(“Evans Affidavit”). As part of her job duties, Officer Evans handles

appeals from inmates and direct grievances to the Office of the ODRC

Chief Inspector. Id. According to Officer Evans, all inmates in ODRC

custody are given written and verbal instructions on how to use the

inmate grievance procedure, including directions for appeals to the

Chief Inspector and direct grievances filed with that office. Id. at

¶ 7. Officer Evans avers that plaintiff “has not presented any

grievances or appeals to the Office of the Chief Inspector alleging

that Ernie Moore and/or Warden Knab retaliated against him via his

placement in segregation in April 2010.” Id. at ¶ 8. Similarly,

plaintiff “has not presented any grievances or appeals to this office

16

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since 2009 alleging that Ernie Moore and/or Warden Knab denied him

access to the courts.” Id. 

Having submitted no evidence to rebut the Evans Declaration, this

Court concludes that plaintiff has failed to exhaust his

administrative remedies as to his retaliation claim. That being the

case, plaintiff’s retaliation claim cannot proceed.

2. Conspiracy

Plaintiff alleges that, “in contravention to 42 U.S.C. . . . Sec

1985(3)[,]” “a conspiracy was created” on April 28, 2010, which

resulted in plaintiff’s “unlawful[]” placement in solitary confinement

and “deprived [him] of his civil rights.” Complaint, p. 5. In order

to prevail on a claim for civil conspiracy under Section 1985(3),

plaintiff must establish the following elements:

(1) a conspiracy; (2) for the purpose of depriving, either

directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges or

immunities of the laws; (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his

person or property or deprived of any right or privilege of

a citizen of the United States. 

Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d

807, 832 (6th Cir. 2007) (quoting Vakilian v. Shaw, 335 F.3d 509, 518

(6th Cir. 2003)). Accordingly, it is well-established that such a

conspiracy exists “only where the discrimination was based on race or

membership in another class comprising ‘discrete and insular

minorities that receive special protection under the Equal Protection

Clause because of inherent personal characteristics.’” Royal Oak

Entm’t, LLC v. City of Royal Oak, No. 05-1637, 205 Fed. Appx. 389, at

*399 (6th Cir. Nov. 9, 2006) (quoting Volunteer Med. Clinic, Inc. v.

Operation Rescue, 948 F.2d 218, 224 (6th Cir. 1991)). Finally, a

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plaintiff must plead a Section 1985(3) conspiracy claim “‘with some

degree of specificity and . . . vague and conclusory allegations

unsupported by material facts will not be sufficient to state such a

claim.’” Center for Bio-Ethical Reform, Inc., 477 F.3d at 832

(quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)). 

See also Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008) (“[P]leading

requirements governing civil conspiracies are relatively strict.”).

With this standard in mind, the Court concludes that plaintiff’s

civil conspiracy claim must fail. First, his vague allegations are 

completely devoid of any specificity. Id.; Complaint, pp. 5-6. 

Second, plaintiff has failed to establish his membership in a

protected class, i.e., he has not shown that defendants discriminated

against him based on his race or because he was part of another class

specially protected under the Equal Protection Clause. In this

regard, prisoners are not a suspect class for equal protection

purposes. Fox v. Smith, No. 08-1165, 2008 U.S. App. LEXIS 27864, at

*8 (6th Cir. Sept. 19, 2008) (citing Hadix v. Johnson, 230 F.3d 840,

843 (6th Cir. 2000)). For these reasons, defendants are entitled to

summary judgment on this claim.

3. Emotional distress

To the extent that the Complaint may be construed to assert a

claim of mental or emotional distress, see, e.g., id. at 6, Ohio

Revised Code §§ 9.86 and 2743.02(F) bars this state law claim. See

McCormick v. Miami Univ., 693 F.3d 654, 665 (6th Cir. 2012) (finding

no claim under Ohio law against state employees in their individual

capacities because “Ohio law requires that, as a condition precedent

to asserting a cause of action against a state employee in his

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individual capacity, the Court of Claims must first determine that the

employee is not entitled to the immunity provided for in Revised Code

section 9.86"). 

In sum, plaintiff’s claims under 42 U.S.C. § 1983 for money

damages against defendants Moore and Knab in their personal capacities

must fail.15 In reaching this conclusion, the Court is mindful that

plaintiff takes the position that defendant Moore is not entitled to

summary judgment because no motion was filed on his behalf. See

Plaintiff’s Response, pp. 1, 3. However, “district courts are widely

acknowledged to possess the power to enter summary judgments sua

sponte, so long as the losing party was on notice that []he had to

come forward with all of h[is] evidence.” Celotex Corp. v. Catrett,

477 U.S. 317, 326 (1986). See also Employers Ins. of Wausau v.

Petroleum Specialties, Inc., 69 F.3d 98, 104-05 (6th Cir. 1995). 

Because plaintiff will have the opportunity to object to this Report

and Recommendation, see infra, this recommendation therefore serves as

plaintiff’s notice that he must come forward with all of his evidence,

if any, as to his personal capacity claims against defendant Moore. 

WHEREUPON, it is RECOMMENDED that Defendants’ Motion for Summary

Judgment, Doc. No. 53 filed in 2:10-CV-347, be GRANTED.16 It is also

RECOMMENDED that Defendants Knab and Mohr’s Motion for Summary

15Because the Court concludes that plaintiff’s constitutional claims

cannot survive the Motion for Summary Judgment, the Court need not, and does

not, consider defendants’ alternative arguments based on an alleged failure to

demonstrate a physical injury, res judicata and the defense of qualified

immunity.

16In other words, the Court recommends that all claims against

defendants Mohr, Croft and Moore in 2:10-cv-347 be dismissed.

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Judgment, Doc. No. 60 filed in 2:10-CV-951, be GRANTED.17 

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

thereof in question, as well as the basis for objection thereto. 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

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

The parties are specifically advised that 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 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); Smith v. Detroit Federation of

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

Plaintiff is ADVISED that, to the extent that he objects to this

recommendation, in particular as to the personal capacity claims

against defendant Moore, he must come forward with evidence in support

of his claims against defendant Moore sufficient to overcome the

arguments made in support of summary judgment.

November 16, 2012 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

17This Court therefore recommends that all claims against defendants

Mohr, Knab and Moore in 2:10-cv-951 be dismissed.

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