IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jason Jones, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0545

Chief Inspector : JUDGE GREGORY L. FROST

Gary R. Croft, 

 : Magistrate Judge Kemp

Defendant. :

REPORT AND RECOMMENDATION

 Plaintiff, Jason Jones, an inmate who was housed at Ross

Correctional Institution at the time relevant to this action,

filed this action against defendants Chief Inspector Gary R.

Croft and Institutional Inspector Whitten pursuant to 42 U.S.C.

§1983. According to the complaint, both of these defendants

conspired and demonstrated deliberate indifference when informed

of the imminent danger of murder or brutal attack faced by Mr.

Jones. Defendants have filed a motion for summary judgment,

which is now fully briefed. For the reasons set forth below, the

Court recommends that the motion (#20) be granted. 

I. Introduction

This is one of three cases filed by Mr. Jones asserting

claims of deliberate indifference to his safety arising from an

alleged conspiracy between various prison officials and prison

inmates. The allegations in this action involve Defendants’

actions and inactions relating to a Notification of Grievance

that Mr. Jones filed on June 13, 2011 claiming that he was in

substantial risk of serious physical harm (Compl. at ¶2). Mr.

Jones accuses Defendant Croft of violating his need for safety by

failing to take action to ensure Mr. Jones’s safety, delaying the

response to the Notification of Grievance, and ultimately denying

the grievance. Mr. Jones accuses Defendant Whitten of refusing

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to make blank grievance forms available to Mr. Jones and failing

to ensure Mr. Jones’ safety after being made aware of the

substantial risk of serious physical harm to Mr. Jones. 

II. Legal Standard

 Summary judgment is not a substitute for a trial when facts

material to the Court's ultimate resolution of the case are in

dispute. It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the

absence of a material factual dispute and the moving party is

entitled to judgment as a matter of law. Poller v. Columbia

Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving

party bears the burden of demonstrating that no material facts

are in dispute, and the evidence submitted must be viewed in the

light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970). Additionally, the Court must

draw all reasonable inferences from that evidence in favor of the

nonmoving party. United States v. Diebold, Inc., 369 U.S. 654

(1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support

of any material element of a claim or defense on which that party

would bear the burden of proof at trial, even if the moving party

has not submitted evidence to negate the existence of that

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Of

course, since "a party seeking summary judgment ... bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact," Celotex, 477 U.S. at 323, the

responding party is only required to respond to those issues

clearly identified by the moving party as being subject to the

motion. It is with these standards in mind that the instant

motion must be decided. 

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The facts which the Court must take as true for purposes of

a summary ruling are those which have been properly supported. 

As Fed. R. Civ. P. 56(c) states, proper support for facts at this

stage of the case can come from “depositions, documents,

electronically stored information, affidavits or declarations,

stipulations ..., admissions, interrogatory answers, or other

materials....” One common feature of all these types of

information is that they be properly authenticated or sworn to. 

As the Court of Appeals has said, “it would [be] improper for the

district court to consider documents that were not admissible in

evidence” when ruling on a summary judgment motion. Alexander v.

CareSource, 576 F.3d 551, 561 (6th Cir. 2009). 

III. Analysis

Mr. Jones has brought claims relating to his conditions of

confinement alleging that Defendants violated his constitutional

rights. While Mr. Jones stated in his complaint that this action

was brought pursuant to 42 U.S.C. §§ 1983, 1985(3), 1986, and

1987, both parties have referred exclusively to section 1983 in

their briefing. There is no need to analyze claims pursuant to

section 1987, because that section does not provide a private

right of action. Trapp v. Kimpel, 3:13-CV-18, 2013 WL 4510570,

*3 (S.D. Ohio Aug. 23, 2013) (quoting Carpenter v. Ashby, 351

Fed. Appx. 684, 687 (3rd Cir. 2009) as stating “[o]n its face, §

1987 does not authorize a private right of action.”). 

Accordingly, this Court will address sections 1983, 1985(3) and

1986, but will begin its analysis with section 1983, which

provides in relevant part: “Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State

..., subjects, or causes to be subjected, any citizen of the

United States ... to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law ....” 42 U.S.C. §

1983. 

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“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” 

Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir.

1998) (internal quotations and citations omitted). A plaintiff

seeking relief under § 1983 may bring a claim against a public

official in the official's individual or official capacity. 

Individual-capacity claims “seek to impose individual liability

upon a government officer for actions taken under color of state

law .” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116

L.Ed.2d 301 (1991). In contrast, an official-capacity claim is

“another way of pleading an action against an entity of which an

officer is an agent.” Monell v. Dep't of Soc. Servs., 436 U.S.

658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Mr. Jones

did not specify in the complaint which type of claim he was

bringing, and Defendants made arguments addressing both officialcapacity and individual-capacity claims. The parties’ arguments

regarding each type of claim will be addressed below. 

Regarding the types of damages at issue, Mr. Jones’s prayer

for relief requested monetary damages or, alternately, release

from his sentence and conviction. However, “[h]abeas is the

exclusive remedy . . . for the prisoner who seeks ‘immediate or

speedier release’ from confinement.” Skinner v. Switzer, 131 S.

Ct. 1289, 1293 (2011). Accordingly, release from sentence and

conviction is not a proper remedy for Mr. Jones’s claims, and

only his request for damages is before the Court. 

A. Official Capacity Claims

“[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.” Grinter v. Knight, 532 F.3d 567,

572 (6th Cir. 2008) (quoting Will v. Mich. Dep't of State Police,

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491 U.S. 58, 71 (1989)). “Indeed, when officials sued in this

capacity in federal court die or leave office, their successors

automatically assume their roles in the litigation.” Hafer v.

Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L. Ed. 2d 301 (1991)

(citing inter alia Fed. R. Civ. Pro. 25(d)(1); Fed. R.App. Pro.

43(c)(1)). As a result, an official capacity suit is, for most

purposes, “‘no different from a suit against the State.’” McCoy

v. Michigan, 369 F. App'x 646, 654 (6th Cir. 2010) (quoting Will

v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,

105 L.Ed.2d 45 (1989)). 

The Eleventh Amendment to the United States Constitution

“bars suits brought in federal court against a state and its

agencies unless the state has waived its sovereign immunity or

consented to be sued in federal court.” Grinter, 532 F.3d at 572

(citing Will, 491 U.S. at 66; additional citations omitted). 

This immunity extends to claims against individuals sued in their

official capacity to the extent that those claims seek monetary

damages. Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011),

reh'g denied (Sept. 12, 2011); see also McCormick v. Miami Univ.,

693 F.3d 654, 662 (6th Cir. 2012). Ohio has not waived its

sovereign immunity or consented to being sued in federal court. 

See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999);

see also Barker, 649 F.3d at 432 (“The burden of establishing

Eleventh Amendment immunity lies with the state, and the defense

is waived if it is not raised.”) (citations omitted). 

Furthermore, section 1983 has not abrogated that immunity, see

Campbell v. Hamilton Cnty., 23 F. App'x 318, 327 (6th Cir. 2001)

(quoting Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d

358 (1979)), and Mr. Jones has not argued that 1985(3) or 1986

abrogated that immunity, nor does the language of those sections

indicate an intent to abrogate Eleventh Amendment immunity. 42

U.S.C. §§ 1983, 1985(3), 1986. Accordingly, because the claims

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at issue here are claims for monetary damages, to the extent

Defendants are sued in their official capacities, the claims

against them are barred by the Eleventh Amendment.

Mr. Jones responds to that argument by making a variety of

arguments. His first argument discusses “discretion” authority,

and while the question of whether government officials are

performing discretionary functions is relevant to whether

qualified immunity protects defendants sued in their individual

capacity, it is not relevant to the question of whether Eleventh

Amendment immunity protects defendants sued in their official

capacity. Mr. Jones also suggests that municipal liability

exists here, but neither of the Defendants are municipalities, so

that argument is irrelevant. Mr. Jones discusses absolute

immunity, but that is distinct from Eleventh Amendment immunity,

and not applicable here. Absolute immunity applies to the

legislative immunity created by the Speech or Debate Clause, the

immunity of the President of the United States from damages

liability arising from official acts, and the provision of

judicial immunity for certain acts. Forrester v. White, 484 U.S.

219, 229, 108 S. Ct. 538, 545, 98 L. Ed. 2d 555 (1988). In

contrast, Eleventh Amendment immunity relates to the immunity of

states and state agencies from suits. Mr. Jones has not sued

legislators, the President, or judges, so absolute immunity is

not applicable here. Mr. Jones also argues that he has exhausted

his administrative remedies, and that his claims are not barred

by the statute of limitations. Neither of those arguments are

relevant to whether Eleventh Amendment immunity bars claims

against Defendants in their official capacity. Mr. Jones makes

additional arguments and assertions regarding jurisdiction and

monetary damages, but he does not provide any legal authority to

contradict the conclusion that Eleventh Amendment immunity

protects Defendants from being sued for monetary damages in their

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official capacities. To the extent that Mr. Jones has sued

Defendants in their official capacities, such claims are barred

by the Eleventh Amendment. 

B. Individual Capacity Claims

In opposition to any claims brought against Defendants in

their individual capacity, Defendants raised the defenses of

qualified immunity, failure to state a claim upon which relief

can be granted, and lack of sufficient personal involvement of

Defendants. 

Public officials sued in their individual capacities may

raise “qualified immunity” as a defense to the suit. That defense

has been explained as follows:

[G]overnment officials performing discretionary

functions, generally are shielded from liability for

civil damages insofar as their conduct does not violate

clearly established constitutional or statutory rights

of which a reasonable person would have known.

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982) (citations omitted). Conversely, when such

officials violate constitutional or statutory rights, “if the law

was clearly established, the immunity defense ordinarily should

fail, since a reasonably competent public official should know

the law governing his conduct.” Id. at 818–19. “Qualified

immunity balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). 

Whether qualified immunity applies involves “a two-step

inquiry, addressing (1) whether, considering the allegations in a

light most favorable to the injured party, a constitutional right

has been violated and (2) whether that right was clearly

established.” Yoder v. Univ. of Louisville, 12-5354, 2013 WL

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1976515, *6 (6th Cir. May 15, 2013) (citing Saucier v. Katz, 533

U.S. 194, 201 (2001) and Campbell v. City of Springboro, Ohio,

700 F.3d 779, 786 (6th Cir. 2012)). Those two steps need not be

addressed in that order. See Pearson, 555 U.S. at 236–37.

Turning to the first step, Mr. Jones has sued Defendants

pursuant to section 1983 for violations of his constitutional

rights. His description of the constitutional violations

follows:

Chief Inspector Gary R. Croft and Institutional

Inspector Whitten demonstrated Deliberate Indifference

while conspiring under color of state law, also

depriving Plaintiff of [procedural] Due Process rights

. . . [by] failing to take corrective action to address

risk faced by Plaintiff by failing to prevent staff

from intimidating or physically harming Plaintiff. 

Thus violating Plaintiffs [sic] eighth Amendment Rights

by failing to protect and Cruel and Unusual Punishment

rights. . . . 

(Compl. at ¶ 1.) While Mr. Jones has alleged the violation of

both the Due Process Clause of the Fourteenth Amendment and the

Eighth Amendment’s prohibition against cruel and unusual

punishments, the claim under the Due Process Clause of the

Fourteenth Amendment is redundant of the Eighth Amendment claim

and need not be considered because “the Due Process Clause

affords [prison inmates] no greater protection than does the

Cruel and Unusual Punishment Clause.” Stewart v. Wilkinson, No.

2:03-cv-0687, 2008 WL 2674843, *9 (S.D. Ohio July 7, 2008)

(quoting Whitley v. Albers, 475 U.S. 312, 327 (1986) and citing

Lee v. Baker, 181 F.3d 101 (table), 1999 WL 282652 at *1 (6th

Cir. Apr. 30, 1999)). Accordingly, the question addressed in the

first step is whether Mr. Jones can demonstrate that his Eighth

Amendment right to be free from cruel and unusual punishment has

been violated. 

“In its prohibition of ‘cruel and unusual punishments,’ the

Eighth Amendment places restraints on prison officials, who may

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not, for example, use excessive physical force against prisoners.

. . . and must ‘take reasonable measures to guarantee the safety

of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(citations and internal quotations omitted). In the context of

an Eighth Amendment failure to protect claim, in order for a

denial of a grievance to rise to the level of a constitutional

violation, there must be allegations that the defendant had

subjective knowledge of the threats and that the defendant acted

unreasonably in disregarding the risk. Williams v. McLemore, 247

Fed. Appx. 1 (6th Cir. June 19, 2007) (holding that plaintiff

failed to state a claim against several defendants involved in

the grievance process but did state a claim against one defendant

involved in the grievance process). 

A mere failure to respond to a grievance does not state a

claim under § 1983 where that non-response did not cause or

contribute to the constitutional violation. “The ‘denial of

administrative grievances or the failure to act’ by prison

officials does not subject supervisors to liability under §1983.” 

Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (citations

omitted); see also Argue v. Hofmeyer, 80 Fed. Appx. 427, 430 (6th

Cir. 2003) (holding that the plaintiff failed to state a claim

concerning the alleged interference with his ability to file

grievances “because there is no inherent constitutional right to

an effective prison grievance procedure”). Furthermore,

“[f]ailing to follow proper procedures is insufficient to

establish an infringement of a liberty interest,” or a procedural

due process claim. Grinter v. Knight, 532 F.3d 567, 574-75 (6th

Cir. 2008) (citing Olim v. Wakinekona, 461 U.S. 238, 250 (1983) &

Sweeton v. Brown, 27 F.3d 1162, 1165 (6th Cir. 1994)). An

official's failure to act may rise to the level of a

constitutional violation where that failure is an abandonment of

“the specific duties of his position ... in the face of actual

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knowledge of a breakdown in the proper workings of the

department,” that “result[s] directly in a violation of the

plaintiff's” constitutional rights. Hill v. Marshall, 962 F.2d

1209, 1213 (6th Cir. 1992) (involving an official who repeatedly

failed to review and respond to the medical needs of the prison

population); see also Williams v. McLemore, 247 Fed. Appx. 1 (6th

Cir. 2007) (following the denial of the plaintiff’s grievance,

the plaintiff was stabbed). However, there is no liability

where officials’ only involvement was to deny administrative

grievances and to fail to remedy the alleged behavior or

intervene on the inmate’s behalf. Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999).

Here the claims at issue involve delay in response to and

denial of a grievance. In light of the fact that the delay in

response and the denial of a grievance are not themselves

constitutional violations even if the delays violated prison

regulations, the question is whether those actions caused or

contributed to a constitutional violation in such a way that the

processing of the grievance was elevated to the level of a

constitutional violation. 

Mr. Jones has failed to demonstrate that any actions or

inactions by Defendants in processing or failing to process the

grievance caused any constitutional violation. Defendants

contend that “[Mr.] Jones has yet to come forward with any

specifics as to any injuries he did incur that he can attribute

to the operation of [the conspiracy alleged in his grievance].” 

(Doc. #20 at 18.) In his objections to the motion for summary

judgment, Mr. Jones wrote, “[a] review of Plaintiffs [sic] civil

Complaint will annul all these allegations and a review of

Plaintiff’s Proper non-Falsified medical records will show that

Plaintiff did receive a eternal [sic] injury to his right eye

from Defendants [sic] actio[n]s and inactions.” (Doc. #27 at

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14.) However, Mr. Jones has not attached any medical records to

his opposition or identified where in the record such medical

records may be found. The allegations in Mr. Jones’ complaint

are not verified, and therefore the allegations that as a result

of Defendants’ inactions, Mr. Jones suffered “daily mental and

emotional distress and serious inflicted physical injury as a

result of Plaintiffs [sic] imminent Danger,” and received

“multiple cuts and serious eye injury” (compl. at ¶4.), are not

evidence. Mr. Jones has not provided any other evidence of a

constitutional violation arising from Defendants’s actions or

inactions. In addition, even if properly supported evidence

demonstrated a constitutional violation of Mr. Jones’ rights, he

has not provided any affidavits or other properly supported

evidence to demonstrate the cause of any such violations and to

connect them to the actions or inactions of Defendants. 

Mr. Jones argues that “every Administrative rule that

Defendants break is essentially a violation of criminal law.” 

(Doc. #27 at 6.) However, as discussed above, violations of

prison regulations are not in and of themselves constitutional

violations such that they would prevent qualified immunity from

protecting Defendants. See, e.g., Grinter, 532 F.3d at 574-76

(citations omitted). 

Mr. Jones makes a separate argument in his opposition that

he was only given the option of being given a disciplinary

violation and placed in “segregation ‘Defined as [disciplinary]

confinement or local control,’ or wait and gather more evidence .

. . Plaintiff state[d] that he did not violate any rules and

didnt [sic] deserve D.C.” (Doc. #27 at 7.) He stated that

Defendant Whitten was the one who presented him with the option

of being placed in segregation. (Doc. #27 at 13; Compl. at ¶3.) 

Unlike his allegations in civil docket number 2:11-cv-871 that

alleged that he was placed in disciplinary confinement in order

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to protect him because there was no lawful protective custody

facility (see case 2:11-cv-00871 at doc. # 16 at 2), here Mr.

Jones has alleged that he was offered disciplinary confinement

and declined it, and that Defendant Whitten “released Plaintiff

back to population.” (Doc. #27 at 7.) Being offered

disciplinary confinement and being permitted to decline it does

not rise to the level of a constitutional violation, and, as

discussed above, Defendants’ failure to provide protective

custody for Mr. Jones in this case did not rise to the level of a

constitutional violation. 

The discussion of the claims against Defendants in their

individual capacity has, to this point, focused on the claims

pursuant to section 1983. However, qualified immunity would

apply equally to the claims brought pursuant to sections 1985(3)

and 1986, because no constitutional right has been violated here. 

Furthermore, “[t]o prevail on a § 1985(3) claim, one must prove

(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.” Radvansky v. City of Olmsted Falls, 395 F.3d

291, 314 (6th Cir. 2005) (internal quotation marks omitted). In

light of the absence of any evidence of a constitutional

violation, Mr. Jones cannot succeed on any claim that Defendants

conspired to violate his rights. See Anderson v. County of

Hamilton, 780 F.Supp. 2d 635, 652 (S.D. Ohio 2011) (in order for

a conspiracy claim to succeed, “plaintiff must allege facts

showing not only an agreement by defendants to violate

plaintiff's constitutional rights, but also an actual deprivation

of a constitutional right”). Additionally, “ ‘[w]here plaintiff

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has stated no cause of action under § 1985, no cause of action

exists under § 1986.’” Id. at 315 (quoting Braley v. City of

Pontiac, 906 F.2d 220, 227 (6th Cir. 1990)). 

In light of the fact that qualified immunity should shield

Defendants here from liability for damages, there is no need to

consider Defendants’ other defenses. 

VII. Recommendation

For these reasons, it is recommended that Defendants’ Motion

for Summary Judgment (Doc. 20) be granted and that this case be

dismissed.

 VIII. 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

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 

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United States Magistrate Judge 

 

 

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