IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Steven S. Brown, :

 Plaintiff, : Case No. 2:13-cv-0006

 v. : JUDGE GEORGE C. SMITH

 Magistrate Judge Kemp

Director Mohr, et al., :

 Defendants. :

REPORT AND RECOMMENDATION AND ORDER

This prisoner civil rights case is before the Court to

consider several motions. They include a motion for judgment on

the pleadings filed by defendants Dr. Krisher, Insp. Whitten, Mr.

Heiss, Mr. Seacrest, Warden Jeffries, DW Upchurch, and Ryan Dolan

and a motion to dismiss filed by Director Mohr. Plaintiff Steven

S. Brown has also filed several motions including a motion to

“reserve” defendants, a motion for an order to serve Nurse Smith,

a motion to amend the complaint, a motion seeking a an order to

“reserve” defendants Stout and Trout, and a motion to appoint

counsel. Defendants also have filed a motion to stay discovery

and a motion for an extension of time to file a reply in support

of their motion for judgment on the pleadings. For the following

reasons, the Court will recommend that the motion for judgment on

the pleadings and the motion to dismiss be granted in part and

denied in part. The remaining motions will be resolved as set

forth below.

I. Background

This case has been pending for more than three years. The

Court has detailed its somewhat tortured history in previous

orders and will not repeat it at any length here. For ease of

reference and to provide clarity, however, the Court will restate

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the remaining allegations of Mr. Brown’s complaint in light of

the Court’s most recent Report and Recommendation (Doc. 139),

which was adopted and affirmed by order dated February 2, 2016

(Doc. 154). 

Briefly, the Report and Recommendation struck many of the

allegations of Mr. Brown’s third amended complaint and allowed

Mr. Brown to incorporate by reference several of the allegations

of his original complaint as transferred here from the Western

Division. Further, the Court limited the complaint’s temporal

scope to events which occurred between Mr. Brown’s transfer to

RCI on January 18, 2011 and his transfer out on April 6, 2011,

and between his return to RCI on March 15, 2013, and the date his

motion for leave to amend was filed, which was August 26, 2013. 

Mr. Brown’s operative complaint, as it currently stands, includes

the following allegations from the original complaint, stated

here verbatim:

12) The C/O upon arriving at Ross gave the plaintiff

all his non-carry medication which included narcotics. 

His nazi celly ended up stealing them along with much

of the plaintiff’s other property.

13) When the prison authorities found out that they had

given the plaintiff the narcotics they had his cell

searched but could not find them so they put him in the

hole.

14) They transfered him a few hours later to a hospital

cell and in the morning he saw a doctor named Dr.

Krishner. This Doctor stopped all plaintiff’s

medication including pain medication, insulin, seizure

medication, vitamine D and other medications. 

Plaintiff was told that by the doctor that he was under

instruction by Central Office to cut costs and to stop

prescribing pain medication. This doctor also stoppeda previous order for a consult with a neurologist and

for a c-pap machine for sleep apnia.

15) As a result of this denial of the plaintiffs right

to medical care and medication he had seizures,

suffered extreme pain, and complacations from sleep

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apnia including high blood pressure and mental health

problems. He also suffered high blood sugars and his 3

month A1c was over 9.

16) When the plaintiff was released from the hospital

unit and he went to get his property he found that much

of his property was missing and his legal papers were

destroyed. The property officer refused to acknowledge

that the property was missing and tried to force the

plaintiff to sign the John Doe C/O refused to let him

have the rest of his property.

17) The plaintiff went in serch of a supervisor and

found Warden Jefferies. He tried to explain about the

property, his nazi celly and the denial of medical

care. The warden refused to allow the plaintiff to

explain and started yelling at him about him being out

of place. In frustration the plaintiff said “what kind

of place are you running here.” For that he was taken

to the hole.

18) In the hole he was put on the top floor and top

bunk. Due to the doctor stopping high doses of sizure

medication the plaintiff had a seizure and fell from

the top bunk hurting his back, neck and arm.

19) The plaintiff had a privious order to be housed on

the bottom bunk and on the bottom range but Dr.

Krishner did not renew it. The plaintiff told the

nurses including nurse Smith but they refused to put

him in a safe place.

20) The plaintiff was moved to another cell closer to

the medical department. This cell had a shower in it

and no ventilation. Thus the whole cell was covered in

black mold. This mold made the plaintiff sick. The

cell was also full of flys and fly larve (black worms),

growing in stgnant water. The plaintiff was not given

enough food and his diabetic snack was canceled so he

could not take his insulin.

21) The plaintiff complained about these conditions to

the warden, deputy warden, health care administrator

and inspector but he received no relief.

22) The plaintiff continued to suffer in pain,

seizures, and from sleep apnia, He then got a 105

temperature and was returned to the hospital unit and

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placed in a cell with no heat by Nurse Smith. He was

not given his blood pressure and heart medication. He

threatened to sue the nurse and she said, you cant sue

if your dead a lot of good the money will do you in

prison. The plaintiff replied how about if I use it to

hire a private detective to see what could be dug up on

you.

23) Plaintiff was moved out of the cell with no heat by

a nurse on the next shift and also given his

medication. Nurse Smith had tried to kill the

plaintiff by denying medical care and medication and by

putting the plaintiff in a cell with no heat when it

was 12N outside.

24) Plaintiff made a complaint against Nurse Smith and

the next day she retaliated by writing a bogus tickit

saying the plaintiff threatened her.

25) Also in retaliation the RIB chairman found the

plaintiff guilty without allowing witnesses and

recommended that the plaintiff be sent to Lucasvillehigher security. This was done several months later

under the orders of Warden Jefferies, attorney general

Dolan, Edwin Voorhies, Greg Trout, Austin Stout, Trevor

Clark and others.

...

27) Deputy Warden Upchurch refused to approve the

plaintiffs Kosher diet. She also refused to provide

mental health care after the conditions made the

plaintiff go crazy and his mother died.

28) While being held in isolation the plaintiff’s mom

became very ill and had to go to the hospital for

ovarian cancer. They gave her a few weeks to live. 

The plaintiff asked to be permitted to call her but

Warden Jefferies, Robert Whitten, and others refused to

allow him to call and say goodby. Plaintiff’s mother

kept calling out for him and to talk to him.

...

32) After the plaintiffs mother died he went crazy. He

was kept in isolation, he was denied medical care,

mental health care, after passing out he was assaulted

by John Doe C/O’s because he could not walk, he could

not sleep for days due to severe pain, sleep apnia, and

grief, remorse and anger at the prison authorities for

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torturing him and not allowing him to go to the

funeral. The totally of his circumstances constituted

cruel and unusual punishment, denial of court access,

retaliation, withholding legal mail, destruction of his

property, deliberatly putting him in a cell with a

nazi, denying kosher food, denying health care, denying

mental health care, destruction of his legal papers,

giving him bogus tickits and danying him due process in

his disciplinary hearings. Those responsible for these

acts at Ross Correctional include, Mary Anne Reese,

Ryan Dolan, Greg Trout, Edwin Voorhies, Austin Stout,

Director Mohr, Warden Jefferies, Ms. Ward from Mental

Health, Mr Seacrest from mental health, Deputy Warden

Upchurch, Dr. Krisher, Inspector Whitten, C/O Riggs who

assaulted me, Lisa Bethel - health care adminstrator,

John Doe Dep. Warden of Operations for failing to

properly supervise his employees which harmed the

plaintiff and put him in unconstitutional conditions,

Lt. Yates for denying due process in RIB and for

retaliation, Gary Croft for retaliation and denial of

medical care and denial of court access, Mr Heiss for

illegally withholding legal mail, illegally destroying

legal documents, for retaliation for making complaints

of abuse, disciplinary issues and conditions and for

condoning the plaintiffs torture in the hole and

antisemitism by Ross staff.

33) The plaintiff was transferred back to Lucasville

and put in unconstitutional conditions by Ron Eleby and

Warden Jeffries. This move was in retaliation for

making complaints and partially caused by the

plaintiff’s behavior when they tortured him at Ross

into insanity.

...

83) Plaintiff was transferred to Toledo where for 3

months there was no Doctor working here at all. This

was the directors fault, Mr. Mohr who is responsible

for providing a doctor. The plaintiff did not get

medications or care for serious illnesses including

diabetes, rectal bleeding, herniated discs, shoulder

pain and torn rotator disc, neuropathy, high blood

pressure, enemia, contractures, pereferal vascular

diseases and heart problems. 

 

Further, the operative complaint includes the following

allegations from the third amended complaint, numbered

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according to Mr. Brown and stated here verbatim:

1. The plaintiff’s security was dropped and he was

sent to R.C.I. on 1-18-11. Then he was returned to

maximum security on 4-6-11. He was again returned to

R.C.I. on 3-15-13.

2. On the way to R.C.I. on 1-18-11 the plaintiff was

assaulted by C/O Riggs in retaliation for the plaintiff

being a jail house lawyer. When he struck the

plaintiff he said “Here something to remember us by. 

This act violated the plaintiffs constitutional right

8th Amendment and 14th Amendment.

2. Upon arrival at W.C.I. the plaintiff’s legal

documents were dumped and ransacked by a John Doe

Leutenant. Some were destroyed. This was in

retaliation for the plaintiff being a jail house lawyer

and for filing lawsuits. Some of the documents were

destroyed along with his art supplies. This act

violated the plaintiff’s 8th and 1st amendment rights.

3. This same Lt. John Doe gave the plaintiff his

dispenced only medication by mistake.

4. The plaintiff is a conservative Jewish person. He

was put in a cell with a Neo-Nazi inmate. This inmate

took the plaintiffs, dispenced by nurse narcotic

medication. The pills were worth $2.00 a piece and

there were about 100 pills.

5. The inmate had pictures of Hitler all over the

walls, swaztias tatooed all over him and said “he hates

Jews and N[ ].” By the Warden (Jeffries) and the John

Doe cell assigner knowingly putting the plaintiff in

danger violated the plaintiffs 8th and 1st Amendment

rights an RLUPA.

6. The nurses found the pills missing and sent C/O’s

to get them. The plaintiff had not even unpacked. He

had been on the phone in the block while his celly was

stealing the pills. The C/O’s searched the cell and

when they could not find them took the plaintiff to the

hole in the medical unit.

7. The plaintiff was told his Nazi celly told them he

had taken all the pills. So he was put on observation

in the medical unit.

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8. The next morning he saw the institutional doctor. 

Dr. Krisher stated since you misused your medication

I’m discontinuing your Ultrim (a pain pill) and your

Neurotin (a seizure medication used for diabetic

neuropathy). The plaintiff was on the maximum dose of

each medication. He also stopped the plaintiff’s

insulin, Vitamin D, blood pressure meds and other

medication.

9. The plaintiff was released from the medical unit

the next morning. When he went to get his property

half of his stuff was missing, that had been packed up

by corrections officers.

10. When the plaintiff said, he would not sign the

property slip the C/O said “then you won’t get any of

your property,” and will be punished for refusing to

sign that you got all of your property.”

11. The plaintiff left the property room without

property to find a supervisor. He went to the Capt.’s

office where he ran into Warden Jeffries. He tried to

explain all that had happened since he came to R.C.I.

but the Warden refused to let him talk. When the

plaintiff said, that the doctor, Nazi inmates, and the

denial of his seizure diabetes medication, and pain

medication were going to put his life in danger and he

would be liable he told Lt. to take him to the hole.

12. In the hole the plaintiff had a seizure due to the

abrupt withdrawal of his seizure medication, his pain

medication, and insulin.

13. He fell from the top bunk and injured his neck,

head, shoulder and back. At SOCF he had a bottom bunk,

bottom range restriction but Dr. Krisher refused to

renew that also.

14. To cover up the Dr’s deliberate indifference to

the plaintiff’s medical needs as claimed above the

nurses and Dr. Krisher refused to provide medical care

for the injuries from falling out of the bunk.

15. The plaintiff was then put in an unheated cell in

the medical unit. It was 10" outside. There were

holes in the corner of the wall where air came in. Due

to this extreme cold the plaintiff got a 104" fever. 

He asked to be moved into a heated cell but Nurse Smith

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refused. She also refused to give the plaintiff his

heart and diabetes pills saying Dr. Krisher did not

sign the order and refused to treat the plaintiff’s

fever.

16. When the plaintiff complained Nurse Smith wrote a

retaliatory report saying that I had treatened her.

Which was a lie.

17. The next shift the plaintiff was moved into a

heated cell and given his medication.

18. Due to the plaintiff’s complaints about the way he

had been treated at RCI by dening him medical care,

medication, safe conditions and his religious rights,

Warden Jeffries had his security raised.

19. After being released from the hospital unit and

not getting care for his injuries the plaintiff was put

in a supermax type cell in a section of the hole

reserved for super isolation. The conditions in this

cell and unit constituted cruel and unusual conditions,

to wit/ no ventilation, no windows, black mold, small

flys all over the cell (100's), cockroaches, maggots

growing in stagnant water, filthy walls with grafetti

and Nazi symbols all over the wall, no recreation, no

telephone calls, no books to read, excessive noise,

daily retaliatory cell searches, no legal documents

allowed. The conditions made the plaintiff psyically

and mentally ill due to being in there for 4 months. A

capt. who was gay would touch his private partes

everyday, wink at him and throw kisses at him.

20. The plaintiff complained of these conditions to

Warden Jeffries, Inspector Whitten, Mr Heiss, Mary Anne

Reese, Mr. Voorhies, Deputy Warden Upchurch, Mr.

Seacrest and Director Moore to no avail. He also

completed the grievance process and was denied relief

by L.C. Covel.

21. During this period of isolation the plaintiff had

3 active cases in court in which he was denied access

to by withholding his legal documents, dening access to

his appointed lawyer, dening access to a phone and

legal phone, refusing to give him legal mail and

discovery documents, to access a law library, to buy

stamps and legal supplies, his lawbooks and case law. 

This denial of his right to access the courts and

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O.D.R.C. administrators harmed his ability to seek help

with his mistreatment at R.C.I. from his lawyer or the

Ross County Courts, to provide documents in support of

his habeas corpus that proved actual innocence of his

crime, to pursue post conviction remedies, to make

court deadlines in his civil rights case and due this

total denial of his right to access the court finally

signed under duress a settlement in Brown v. Voorhies

(Cincinnati). This deliberate denial of court access

and retaliation for seeking redress of the violation of

constitutional rights was done by O.D.R.C. lawyers,

Clark, Stout, Trout, Mary Anne Reese, Warden Voorhies,

Warden Jeffries, Mr. Heiss, D.W. Upchurch, Mr. Heiss,

Lt. Cockrel, Ryan Dolan, Director Moore and Mr.

Whitten. 

22. Even though the plaintiff had been approved for a

kosher diet for year Deputy Warden Upchurch refused to

approve this diet at R.C.I. even when the plaintiff

went on a hunger strike. He was even punished for

writing a grievance over this issue by Upchurch who is

a antisemite.

23. While being held in isolation the plaintiffs

mother became ill and put in Hospice with ovarian

cancer. His sister and the hospice people had called

and asked that the plaintiff be permitted to talk to

her. She was begging to be allowed to say goodbye

before she died. His sister wrote that she was in

severe pain and constantly called out to talk to him. 

Warden Jeffries refused to allow the plaintiff to call. 

On 2-4-11 the plaintiff wrote a kite that said, “Sir,

my mom is 80 and has cancer. Please allow me to call

her. She cant write and she is to weak, I want to say

good bye before she dies.” “Thanks.” Warden Jeffries

responded in Large Red Letters, all capitalized, YOU

WILL NOT BE PERMITTED PHONE PRIVELEDGES FOR THAT

REQUEST AT THIS TIME. cc: Inspector.

24. In severe isolation the plaintiff was going crazy

from worry about his mom, severe pain and diabetes

complecations, insomnia from worry, pain and stress. 

Insomnia from sleep apnia. Stress from not being able

to access the courts, withdrawal from seizure and pain

med’s and anger at being mistreated knowing and

maliciously by Warden Jeffries, and others for daring

to make complaints of unconstitutional treatment and

retaliation.

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25. In frustration the plaintiff cussed everyone and

went completely crazy. He begged for help and was not

given health treatment. He wrote Mary Anne Reese, Mr.

Voorhies, and Director Mohr begging for help. None

responded. This torture continued in the form of

harassment like making fun of my mom dying, tearing up

my legal papers, spilling my food on the floor,

refusing to give me medication, holding and destroying

my legal mail. The following did these things, Warden

Jeffries, DW Upchurch, Mr. Heiss, Capt. Posey, Lt.

Yates, UMA Pence, Mr. Seacrest, ODRC Lawywers Trout,

Stout, and Clark, Warden Voorhies, Director Mohr, and

Ryan Nolan.

31. When the plaintiff complained that he was going

crazy and could not get care, two days after his mom

died Warden Jeffries had the plaintiff put in a suicide

cell naked. The plaintiff did not request this or

threaten to kill himself. This was done to make the

plaintiff more miserable. Warden Jeffries and some

C/O’s for 2 days came and taunted the plaintiff by

asking if he wanted to call his mom now, the size of

his penis, and we’ll teach you to make complaints. He

received no visits by mental health personnel. This

placement was done to harass, humiliate and torture the

plaintiff.

33. The court in Columbus in Brown v. Voorhies

appointed a lawyer to represent the plaintiff. The

plaintiff was supposed to sent the lawyer all his

proofs and documents. Ross Correctional Staff refused

to allow the plaintiff to send his documents or even to

bring them with him when the lawyers came to visit. 

They refused to allow the plaintiff to send out DVD’s

to be copied and sent back in. They refused to give

the plaintiff discovery that had been sent in by the

defendants. They were rude and nasty to the lawyer

when he came. This was done by Warden Jeffries, Mr.

Heiss, Mr. Whitten and O.D.R.C. lawyers.

34. In further retaliation the plaintiff was again

transferred back to SOCF on 4-6-11.

37. On 3-15-13 the plaintiff was transferred back to

Ross Correctional. Upon arrival Dr. Krisher again

stopped the plaintiffs seizure medication, pain

medication and canceled all the ordered tests fromm

S.O.C.F. for his abnormal blood test, rehumtology,

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colonoscopy and other tests. The plaintiff continued

to be sick. The severe, now untreated neuropath made

it impossible to walk sometimes. He could not go to

chow, programs or any where else due to the pain. He

suffered excessive pain from headaches from being

beaten. His neck was damaged with 4 herniated disc’s

and vertibrea compressing his spinal cord. His blood

pressure and diabetes were out of control, he was

denied his c-pap machine for sleep apnia and suffered

sleep depravation from apnia and pain. His hands were

contorted with contractures, and arthritis, his kidneys

hurt from high blood pressure, joint damage in his

knees, elbows and feet.

38. There is no doctor who works at R.C.I. Dr.

Krisher supposedly supervises 2 nurse practioners names

Ms. Kardaras and Ms. Hawk but Dr. Krisher has A.L.S.

and is very sick. He does not supervise because he is

so sick. He goes to Thailand for “alternative

treatment” and I never saw him at Ross except 1 time. 

Because he canceled all my tests, denied my previously

prescribed medication and refused to treat my serious

illnesses he and his nurse practioners were

deliberately indifferent to my serious medical needs, a

violation of my constitutional rights. The plaintiff

could not function and asked for Americans with

disabilities accomadations and was denied based on

report by Lisa Bethal.

40. The plaintiff was forced to refuse to go in his

cell so he could be put in isolation where his food,

insulin and medication could be brought to him. Due to

this he was denied access to a law library, programs,

jobs, commissary and exercize. This is a violation of

the A.D.A. and the 1st and 8th Amendments.

41. The plaintiff was previously approved to get

kosher food before being transferred to R.C.I. When he

got there he kited the chaplin and Rabbi, so he could

follow his religious laws by remaining kosher. Both

approved the kosher diet and informed Mr Ford the

kitchen manager to provide the diet. He refused. The

plaintiff filed complaints and finally after 4 months

of complaints Mr. Ford provided it. Then ARAMART

Corporation took over the food service. They cut the

portions, the quality of food, provided rancid meats,

cold and frozen food, unheathy prepackaged food full of

transfats, high salt, unheathy chemicals and unkosher

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dishes. The plaintiff, a diabetic with high blood fats

and high blood pressure complained. The institutional

nutritionist agreed that the food was unhealthy and was

damaging the plaintiffs health but stated the neither

the local ARAMART representitives nor the local

nutritionist could change the food that was approved by

the administrative nutritionist in Columbus and ARAMART

executives. These John Doe defendants and Director

Mohr are in violation of the plaintiff’s constitutional

rights upon the U.S. Constitution, state policy and

state law that requires the Director or provide

adequate food and is derelict in his duty. 

44. Through out his stay at R.C.I. the plaintiff was

deliberatly celled in a 2 man cell with Nazi’s,

skinheads, and Christian sepratist. This was done,

knowing the plaintiff would live with these people and

were knowingly putting the plaintiff in danger. Many

times his property was stolen and he was threatened

into refusing to lock.

45. Warden Oppi finally moved the plaintiff to the

religious POD but he again was housed with a Christian

Sepratist who believed that Jew’s were the cause of

every problem since the beginning of time and should be

eraticated. The plaintiff asked Sgt. Anderson to be

moved. Sgt. Anderson afer fold the plaintiff was

Jewish and did not want to live with an anti-semite

said, “Jews don’t belong in the religious block, it’s

for Christians. The plaintiff had to refuse to lock

and again was punished. When the plaintiff complained

to Mr. Pence the Unit Manager, Sgt Anderson denied what

he said. The plaintiff complained to Mr. Heiss, and

Warden Oppi about his saftey and the conditions but

they ignored the complaints also Mr Byrd. 

34. At R.C.I. due to a unconstitutional property

policy was not permitted to have all his legal papers. 

This policy, that limits inmates from keeping legal

documents and property over 2.4 cubic feet in there

cell is unconstitutional when it prevents inmates from

exercizing their constitutional rights to redress by

making them destroy or send out proofs of their claims,

discovery document necessary for appeal or any other

document needed in any active case. This denial and

taking of the plaintiff’s legal documents caused delay

and the inability to file new claims over civil rights

violation, post conviction petitions, appeals in the

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Court of Appeal, probate issues, and also forced the

plaintiff to seek more time to file his pleadings in

Brown v. Voorhies that finally angered Judge Frost

enough that he dismissed his case. The policy name is

61-PRP-01.

35. The plaintiff was indigent and could not afford to

make copies or send legal mail. O.D.R.C. will not debit

an inmates account for copies or legal mail if he has

over $12.00 on his account in a one month period or if

he is indigent. The indigent amount and the policy of

non debiting inmates accounts so he can meet deadlines

are both unconstitutional. (75-MAL-01, 59-LEG-01)

ODRC pays inmates $12.00 a month at least. With this

money an inmate must buy hygiene items, paper, pens,

commissary items, laundry detergent, stamps, phone

time, medical co-pay, and other items. This leaves no

money for copies and postage to access the courts. 

Additionally, many inmates have money taken out for

court costs, child support, fines, restitution, and

victims compensation. Even if an inmate is paid the

$12.00 and it is taken from him he is not considered

indigent. Additionally, another unconstitutional

policy prevents the medical department from prescribing

over the counter medicine. (69-OCH-2). O.D.R.C. is

mandated by the constitution to provide medical care. 

Also in Ohio it is a criminal violation not to provide

medical care. In the commissary for instance it costs

$15.41 for prilosec, $4.46 for laxitive so on. I was

denied medication I needed for pain, stomach problems,

sinus problems, sinus problems, colds and other

problems because I was forced to choose between the

meidcation I needed or accessing the court. When I was

enemic I could not buy vitamines. Additionally inmates

are provided only 3 sets of clothes. You must wash

these clothes by hand every 2 days in you sink. The

clothes do not get clean or sanitized. You must spend

$5.00 for laundry detergent. O.D.R.C. is mandated by

the Constitution and Ohio law - (see Dereliction of

Duty) to provide inmates with clothes. Thus the policy

of only giving inmate 3 sets of clothes in

unconstitutional.

Additionally it is very expensive to make phone

calls. It is mandated by law that inmates have contact

with their families.

In totallity, the indigent amount is too low, when

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you consider he has to buy all the above things and be

able to access the courts. All inmates wheather they

are indigent or not should have their accounts debited

so they can access the courts especially when Ohio

courts will not excuse late filings and procedurally

bar your appeal which then bars habeas corpus review

and further post conviction in Ohio or delayed appeals

where the appellate courts apply res judicata.

The plaintiff has been harmed by the above

policies where in Brown v. Voorhies, and in this case,

he could not serve defendants, in appeals that were

untimely with his probate issues, by not getting O.T.C.

medication and in Brown v. Voorhies where Judge Frost

became so mad that he dismissed the case. Done by

Director Mohr.

36. Since Director Mohr and Chief Medical Officer Eddy

have taken over the medical care, medication, access to

specialist care, access to institutional doctors,

access to over the counter medications have be cut. 

Due to directives by Dr. Eddy the plaintiffs consults

that had been ordered by institutional doctor were not

approved. These consults including an operation on his

broken orbital bone, colonoscopy, rehumatology consult,

hand clinic, neurologist for his neck, MRI on his neck,

diabetes consult, bone marrow biopsy, and pain clinic. 

Additionally many of the plaintiffs medications were

discontinued because Dr. Eddy and Director Mohr took

them off the formulary. 

37. There is no doctor working at R.C.I. Dr. Eddy

replaced doctors in many institutions with Nurse

Practioners. At RCI, there are 2 nurses for 1400

inmates. Many inmates suffer from delays, limitted

formulary and no over the counter medications.

38. The plaintiff has serious medical problems

including diabetes, uncontroled high blood pressure,

high blood fats (lipids), cardiovascular problems such

as edemas, blockages in his heart, and arteries, severe

periferal neuropathies, cluster headaches, diplopias,

sleep apnia, rehumatoid artritus, nodules and growths

on his bones, 4 disc’s in his neck that are herniated,

disc’s that are deteriorated, disc’s and vertebrea that

are compressing his spinal cord causing severe pain

down his shoulder and weakness in his arm and hand,

severe contractures in his hands along with severe

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artritus and P.T.S.D. from being beaten and tortured

for years.

39. Prior to the change of administration the

plaintiff was on 300 mgs of Ultram, 3600 mgs of

Neurontin, Niacine, Fish Oil, Vitamine D, and other

medications that completely controled his problems. 

All these drugs were taken off the formulary. The

Niacine and fish oil completely controled the blood

fats in fact they were low. The Ultram controled the

severe neck pain and cluster headaches, the Neurontin

controled the neuropath well. Since these policys and

administrator changed I have been assaulted severely 3

times. Each time the E.R. doctors ordered MRI’s of my

neck, neurologist consults, an operation on my broken

orbital bone and when my blood values were messed up

specialist care. 

40. For that including a colonoscopy for a bleeding

rectum, rehumatoligist, hemotologist and neurosurgeon. 

Dr. Eddy denied all these tests. The plaintiff has

suffered severe pain that has effected his sleep and

mental health. He has deteriorated and lost 50 lbs at

Ross. Even though the institutional personel stated to

me that they were prevented by policy and Dr. Eddy from

giving me medical care they are responsible.

41. The plaintiff claims that Director Mohr and Dr.

Eddy have instituted policies and procedures that have

harmed my health, caused me to suffer severe pain and

prevented me from seeing a doctor and getting

medication due to the limitted formulary.

In addition to these allegations, Mr. Brown’s third amended

complaint, in its claims for relief section and stated here only

as it relates to the remaining defendants in this case, indicates

that he is pursuing the following claims against the following

individuals:

1. A denial of access to the courts claim against

Director Mohr, Mr. Stout, Mr. Trout, Mr. Clark, Mr.

Dolan, Warden Jeffries, Mr. Heiss, and Inspector

Whitten.

2. A claim for deliberate indifference to his serious

medical needs against Director Mohr and Dr. Krisher.

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3. A claim for unconstitutional policies relating to

medication and access to medical specialists against

Director Mohr.

5. A claim for violation of his right to practice his

religion against Dirctor Mohr and Mr. Heiss.

6. An unconstitutional conditions of confinement claim

against Warden Jeffries, Insp. Whitten, Mr. Heiss,

Assistant Director Voorhies and Mr. Clark.

7. A claim for retaliation against Dr. Krisher, Warden

Jeffries, Nurse Smith, Insp. Whitten, Mr. Heiss,

Assistant Director Voorhies, DW Upchurch, Mr. Seacrest,

Director Mohr, Mr. Clark, Mr. Stout, and Mr. Dolan. 

II. Motion for Judgment on the Pleadings

A. The Motion

Defendants Krisher, Whitten, Heiss, Seacrest, Jeffries,

Upchurch and Dolan have moved for judgment on the pleadings,

contending that, at the time of filing, they “are the only

defendants who have been served and/or have not been dismissed by

the Court.” In their motion these Defendants assert that Mr.

Brown is not entitled to injunctive relief because he no longer

is imprisoned at the Ross Correctional Institution. Further,

they contend that any claims against them in their official

capacities are barred by the Eleventh Amendment. Finally, they

contend that they are entitled to qualified immunity on Mr.

Brown’s remaining claims.

The moving Defendants interpret Mr. Brown’s complaint as

raising nine specific allegations of unconstitutional conduct and

categorize these claims individually, based on Mr. Brown’s

paragraph numbering in the third amended complaint, as follows:

1. Allegation One: Warden Jeffries violated

Brown’s 1st and 8th Amendment and RLUIPA rights by

putting him in a cell with a Neo-Nazi inmate (¶5).

2. Allegation Two: Dr. Krisner violated Brown’s

8th Amendment and ADA rights with medical indifference

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(¶¶ 8,12,13,37, 38).

3. Allegation Three: Defendant Jeffries

retaliated against Brown (¶¶11, 18, 31).

4. Allegation Four: Conditions of Confinement in

the supermax cell against Jeffries, Whitten, Heiss,

Upchurch, and Seacrest violated the Eighth Amendment

(¶¶19-20).

5. Allegation Five: Denial of access to courts by

withholding legal documents and mail, denying access to

court-appointed lawyer, denying access to the phone,

denying access to a law library, denying stamps and

legal supplies, denying a pen and paper, denying law

books by Jeffries, Heiss, Upchurch, Dolan, Whitten

(¶¶21, 33).

6. Allegation Six: Defendant Upchurch violated

Plaintiff’s First Amendment right to the free exercise

of his religion by denying him kosher meals (¶22).

7. Allegation Seven: Defendant Jeffries refused

to allow Plaintiff to speak to his dying mother in

violation of the 8th Amendment (¶23).

8. Allegation Eight: Defendants Jeffries,

Upchurch, Heiss, Seacrest, and Dolan violated

Plaintiff’s Eighth Amendment right to be free from

torture (¶25).

9. Allegation Nine: Defendant Heiss violated

Plaintiff’s Eighth Amendment rights because he ignored

Plaintiff’s complaints about his safety and the

conditions at RCI (¶45). 

Mr. Brown responded to this motion on June 3, 2016. This

filing takes issue with every point raised by the Defendants. 

Mr. Brown addresses the claims identified by the Defendants and

sets forth the paragraphs of the third amended complaint he

believes support each claim. He also offers a detailed

discussion of how these claims are not subject to dismissal. The

Court notes that, in their briefing, neither Mr. Brown nor

Defendants refer to the allegations of the original complaint by

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paragraph number. As a review of those allegations indicates,

however, they overlap with, and appear to be encompassed by, the

allegations of the third amended complaint. 

In their reply, aside from restating their original

positions, Defendants assert that Mr. Brown has improperly

attempted to raise new claims in his response.

B. Legal Standard

A motion for judgment on the pleadings filed under

Fed.R.Civ.P. 12(c) attacks the sufficiency of the pleadings and

is evaluated under the same standard as a motion to dismiss. 

Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir.

1979). In ruling upon such motion, the Court must accept as true

all well- pleaded material allegations of the pleadings of the

opposing party, and the motion may be granted only if the moving

party is nevertheless clearly entitled to judgment. Southern

Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479

F.2d 478, 480 (6th Cir. 1973). The same rules which apply to

judging the sufficiency of the pleadings apply to a Rule 12(c)

motion as to a motion filed under Rule 12(b)(6); that is, the

Court must separate factual allegations from legal conclusions,

and may consider as true only those factual allegations which

meet a threshold test for plausibility. See,e.g., Tucker v.

Middleburg-Legacy Place, 539 F.3d 545 (6th Cir. 2008), citing,

inter alia, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 

Further, as always, pro se complaints are to be construed

liberally in favor of the pro se party. See Haines v. Kerner,

404 U.S. 519, 520 (1972). It is with these standards in mind

that the motion for judgment on the pleadings must be decided.

 C. Analysis

The Court will turn first to Defendants’ argument that any

claims for injunctive relief must be dismissed because Mr. Brown

is no longer housed at RCI. The Court agrees. See Kensu v.

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Haigh, 87 F.3d 172, 175 (6th Cir. 1996)(“to the extent

[plaintiff] seeks declaratory and injunctive relief his claims

are now moot as he is no longer confined in [that] institution”).

Additionally, to the extent that Mr. Brown is suing any of

these Defendants in their official capacities for money damages,

such claims are barred by the Eleventh Amendment. “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). 

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 v. Knight, 532

F.3d 567, 572 (6th Cir. 2008), citing Will v. Michigan Dept. of

State Police, 491 U.S. 58, 66 (1989); 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). 

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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). Accordingly,

because the claims at issue here are claims for monetary damages,

claims against defendants in their official capacities are barred

by the Eleventh Amendment.

D. Remaining Claims as Identified by Defendants

As explained above, taking into account all of Mr. Brown’s

allegations, Defendants have moved for judgment on the pleadings

on the basis of qualified immunity as to nine claims they have

identified by specific paragraph as set forth in the third

amended complaint. They note in their motion that these claims

are very similar to claims raised by Mr. Brown in Brown v.

Voorhies, Case No. 2:07-cv-13 (Frost, J.), a case involving

alleged unconstitutional actions Mr. Brown suffered while housed

in the Franklin County Jail. 

Defendants contend that in the remaining paragraphs of his

pleadigns, Mr. Brown has not identified any specific Defendant

responsible for any alleged constitutional violation. They also

contend that liability cannot be based on the doctrine of

respondeat superior. Consequently, in addition to the nine

claims they have identified by specific paragraph, they argue

that any other claims contained in the remaining paragraphs must

also be dismissed for these reasons. 

As noted above, in his response, Mr. Brown recognizes the

claims as characterized by Defendants and sets forth the

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paragraphs he contends support such claims. To the extent that

Mr. Brown’s response can be read as going beyond this and

attempting to incorporate new claims, the Court will not consider

them.

For ease of discussion, the Court will address the specific

claims as raised by the Defendants’ motion and explained by Mr.

Brown. Because the Defendants primarily rely on the affirmative

defense of qualified immunity, the Court will address this legal

standard before considering the individual claims.

Before doing so, however, the Court notes that Defendants’

motion raises another issue, the issue of service. As a starting

point, the current defendants in this case are these thirteen

individuals: Dr. Krisher, Robert Whitten, Nurse Smith, Charlie

Heiss, D.W. Upchurch, Mr. Seacrest, Warden Jeffries, Director

Mohr, Trevor Clark, Austin Stout, Greg Trout, Ryan Dolan and Mr.

Voorhies. According to the motion for judgment on the pleadings,

at the time of its filing, only the seven moving defendants had

been served. Director Mohr has now been served and has filed a

motion to dismiss. Additionally, as explained below, Defendants

Trout, Stout, and Nurse Smith have not been served. According to

the Court’s review of the docket, summonses were returned

executed as to the remaining two defendants, Mr. Voorhies and

Trevor Clark, on January 12, 2016, indicating a service date of

January 6, 2016. (Doc. 149). These Defendants did not join in

any of the pending dispositive motions. 

Also before addressing the issue of qualified immunity, the

Court will set forth the organizational structure it will apply

in considering Mr. Brown’s numerous allegations. First, as

noted, the Court views the operative complaint as encompassing

two time periods - January 18 to April 6, 2011, and March 15 to

August 26, 2013. Further, the Court construes the allegations of

Paragraphs 1 through 33 of the third amended complaint as

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relating to the first time period and Paragraphs 37 through 45

and Paragraphs 32 through 41 as relating to the second time

period. The allegations of the original complaint which were

incorporated by reference relate to the time period between

January 18 and April 6, 2011, with the exception of Paragraphs 33

and 83. 

1. Qualified Immunity

Public officials sued under 42 U.S.C. §1983 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 (1982). Conversely, “if

the law was clearly established, the immunity defense should

fail, since a reasonably competent public official should know

the law governing his conduct.” Id. at 818-19.

As explained in Dominique v. Telb, 831 F.2d 673 (6th Cir.

1987), when the defense of qualified immunity is raised, a

plaintiff must include in the pleadings factual allegations

necessary to support the conclusion that the defendants violated

clearly established law. When the defense is raised by motion,

“the District Court must decide the purely legal question of

whether the law at the time of the alleged action was clearly

established in favor of the plaintiff.” Id. The Court's

decision on this issue should indicate the law as the Court

perceives it and the basis for its conclusion that the

constitutional rights at issue were clearly established.

In order for a constitutional right to be clearly

established, it is necessary that a decision of the Supreme

Court, the highest Court of the state, or a Court of Appeals

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announce the constitutional principle. See Robinson v. Bibb, 840

F.2d 349 (6th Cir. 1988). A single, idiosyncratic decision from

one Court of Appeals is not sufficient to establish clearly a

constitutional right. Davis v. Holly, 835 F.2d 1175 (6th Cir.

1987).

Generally, dismissals on the basis of qualified immunity are

“made pursuant to summary judgment motions, not 12(b)(6)

sufficiency of the pleadings motions.” Grose v. Caruso, 284

Fed.Appx. 279, 283 (6th Cir. 2008). However, “this circuit

permits a reviewing court to dismiss under Fed.R.Civ.P. 12(b)(6)

based on qualified immunity.” Jackson v. Schultz, 429 F.3d 586,

589 (6th Cir. 2005)(citation omitted). As the Court recognized

in Shoup v. Doyle, 974 F.Supp.2d 1058, 1071-1072 (S.D. Ohio

2013)(Rice, J.), this presents two issues. The first issue is

whether a plaintiff has stated a viable claim which the Court may

consider under the 12(b)(6) standard. Id. However,

“‘[q]ualified immunity is an affirmative defense and a plaintiff

does not need to anticipate it to state a claim.’” Id., quoting

Jackson, 429 F.3d at 589. That is, “there is no heightened

pleading standard for claims brought under Section 1983.” Id.

(citation omitted). The Rule 12(b)(6) analysis is basically

collapsed into the first part of the qualified immunity inquiry.” 

Id. at 1073, citing Pearson v. Callahan, 555 U.S. 223 (2009). A

qualified immunity defense raises a second issue, however,

because it imposes a burden on a plaintiff “beyond simply stating

a viable claim under Section 1983.” Id. at 1072. Rather, in

addition, a plaintiff must “demonstrate that the constitutional

rights were ‘clearly established’ at the time of the alleged

violation to survive Defendants’ qualified immunity challenge.” 

Id., quoting Jackson, at 589. Consequently, for each claim

identified by the Defendants, the Court must first consider

whether the allegations, construed in Mr. Brown’s favor, are

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sufficient to state a claim under §1983. If he has sufficiently

alleged such a violation, only then will the Court need to

address whether the right was clearly established at the time of

the alleged violation such that a reasonable prison official

would have known of the violation.

2. Allegation One: Warden Jeffries violated Brown’s 1st and 8th

Amendment and RLUIPA rights by putting him in a cell with a NeoNazi inmate (¶5)

Defendants assert that Warden Jeffries did not violate Mr.

Brown’s rights by placing him in a cell with a Neo-Nazi inmate. 

They construe this claim as a failure to protect claim and

contend that Mr. Brown has not demonstrated that Warden Jeffries

was deliberately indifferent to a substantial risk of serious

harm to Mr. Brown. In response, Mr. Brown asserts that “[i]t

would be obvious to anyone that putting a Jew in a cell with a

Nazi is asking for trouble and could cause the Jew to be

killed....” He explains that he had been attacked, robbed, and

extorted by Nazi inmates prior to his incarceration at RCI and

that, upon his arrival there, he requested not to be housed with

a Nazi. He asserts that “[h]e was told he had no say where he

celled by policy and per Warden Jeffries who refused to separate

prisoners by race, religion, or for any other reason.” While he

states that his cellmate stole his medication, he does not state

that he was in any physical danger or suffered any physical harm. 

Further, he does not specifically identify this inmate, does not

indicate how long he was housed with this particular inmate, does

not discuss this inmate’s behavioral history, and does not state

that this inmate specifically threatened him in any way. A fair

reading of both the operative complaint and Mr. Brown’s response,

however, suggests that he was housed with this inmate for a short

period of time and, after the inmate stole his medication, Mr.

Brown was removed from the cell. 

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Here, Defendants correctly point out that the key

constitutional issue raised by Mr. Brown is whether, by housing

him with a Neo-Nazi cellmate, they demonstrated deliberate

indifference to a serious risk of physical harm. See generally

Farmer v. Brennan, 511 U.S. 825 (1994). In the specific context

of threats of harm posed by other inmates, the Court of Appeals

has recognized the duty of prison officials to protect inmates

against assault at the hands of other inmates. See Wilson v.

Yaklich, 148 F.3d 596, 600 (6th Cir. 1998) (“Without question,

prison officials have an affirmative duty to protect inmates from

violence perpetrated by other prisoners”). 

A failure to protect claim is governed by standards

substantially similar to those applied to the claim for

deliberate indifference to serious medical needs. Amick v. Ohio

Dep’t of Rehabilitation & Correction, 521 Fed.Appx. 354, 361 (6th

Cir. Nov. 27, 2013). To make out a prima facie case, a

plaintiff’s “allegations must satisfy an objective component and

a subjective component.” Id., citing Farmer, 511 U.S. at 835-38. 

A plaintiff satisfies the objective component by alleging “that

absent reasonable precautions, an inmate is exposed to a

substantial risk of serious harm.” Id. “To satisfy the

subjective component, a plaintiff must allege that the defendant

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

substantial risk of harm would exist if reasonable measures were

not taken, that the defendant actually drew the inference, and

that the defendant acted in disregard of that risk.” Id., citing

Farmer, 511 U.S. at 837. 

Mr. Brown has not alleged facts indicating deliberate

indifference to serious physical harm. The facts he alleges

about the theft of his medication do not show that he was

subjected to a substantial risk of serious physical harm. See

Tillman v. Huss, 2013 WL 4499228, *13 (W.D. Mich. Aug. 19,

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2013)(verbal harassment, false misconduct charges, and theft of

property are incidents not involving a substantial risk of

serious physical harm). Consequently, the Court will recommend

that the motion for judgment on the pleadings be granted with

respect to this claim against Warden Jeffries.

3. Allegation Two: Dr. Krisner violated Brown’s 8th Amendment

and ADA rights with medical indifference (¶¶8,12,13,37,38)

Defendants argue that they are entitled to judgment on the

pleadings on this claim because, in response to Mr. Brown’s

motion seeking a preliminary injunction, they provided his

medical records demonstrating that he has received treatment for

all of his actual ailments. Because this evidence, along with a

declaration from Nurse Kelli Cardaras, are already part of the

record in this case, Defendants assert that it is proper for the

Court to consider them in ruling on the current motion. 

In response, Mr. Brown argues that his claim against Dr.

Krisher is set forth in paragraphs 4,7-8, 11-19, 24-25, 31, 37-

41, 46, 53, and 56-60. He claims Ms. Cardaras’ declaration is

perjured and relates only to his second incarceration at RCI. He

specifically objects to its use in connection with Defendants’

current motion, stating that “he objects to the use of this

affidavit in this motion or consider that motion one of summary

judgment and allow a full briefing after discovery is done.” 

While Defendants are correct that the Court may take items

in the record into account when considering a motion for judgment

on the pleadings, there is no requirement that the Court do so. 

In this case, the item in the record the Defendants urge the

Court to consider is an affidavit they submitted in response to

Mr. Brown’s earlier motion for preliminary injunctive relief. 

Had Defendants filed this affidavit in response to the current

motion, the Court would be unable to consider it without

converting the motion to one for summary judgment. Northville

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Downs v. Granholm, 622 F.3d 579, 585 (6th Cir. 2010). This would

have required notice and an opportunity to present all material

relevant to a motion for summary judgment. Id. In light of

this, and Mr. Brown’s specific objection, the Court declines to

consider this affidavit in connection with the current motion for

judgment on the pleadings. To hold otherwise may allow

Defendants to benefit solely from Mr. Brown’s filing of a

preliminary injunction motion while simultaneously disadvantaging

him simply for having done so. 

Looking at Mr. Brown’s operative complaint, he is correct

that the allegations of deliberate indifference to his serious

medical needs encompass both periods of his incarceration at RCI. 

Allegations arising during his incarceration at RCI between

January 18, 2011 and his transfer out on April 6, 2011, appear to

be set forth prior to Paragraph 34. Allegations arising during

the time period from his return to RCI on March 15, 2013, and the

date his motion for leave to amend was filed - August 26, 2013 -

appear to be set forth beginning with Paragraph 37. 

To establish an Eighth Amendment violation premised on

inadequate medical care, Mr. Brown must demonstrate that the

defendants acted with “deliberate indifference to serious medical

needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994), quoting

Estelle v. Gamble, 429 U.S. 97, 104 (1976). To rise to the level

of an Eighth Amendment violation, a prison official must “know of

and disregard an excessive risk to inmate health or safety; the

official must both be aware of the facts from which the inference

could be drawn that a substantial risk of serious harms exists,

and he must also draw the inference. Farmer, 511 U.S. at 837-38.

Where a prisoner has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgments. Westlake

v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). 

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 Turning to the allegations of the complaint as they relate

to Mr. Brown’s medical care during his first period of

incarceration at RCI, these allegations indicate the following. 

Mr. Brown saw Dr. Krisher after his arrival at RCI. Dr. Krisher

discontinued Mr. Brown’s medication based on Mr. Brown’s misuse. 

While he was “[i]n the hole,” he had a seizure and fell from his

top bunk injuring his neck, head, shoulder and back. He asserts

that Dr. Krisher had refused to renew his bottom range

restriction. In Paragraph 14, he contends that Dr. Krisher

refused to treat him for these injuries but in Paragraph 15, he

states that he was placed in the medical unit. While he states

that he was placed in an unheated cell in that unit, got sick,

and was denied medication, he also states in Paragraph 17 that on

“[t]he next shift” he was moved into a heated cell and given his

medication. The Court does not construe Paragraphs 19, 24-25,

and 31 as relating to an Eighth Amendment claim against Dr.

Krisher. 

With respect to Mr. Brown’s first period of incarceration at

RCI, none of these allegations, even liberally construed in Mr.

Brown’s favor, suggest a denial of medical care sufficient to

support an Eighth Amendment claim. At most, they suggest

disagreement with a recommended course of action. Even to the

extent that Mr. Brown contends that he was forced to endure

difficult conditions upon his initial placement in the medical

unit, he also explains that his exposure to these conditions did

not last for more than one shift. Disagreement over the

correctness of a medical judgment is not sufficient to establish

deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 106

(1976). Consequently, the Court will recommend that the motion

for judgment on the pleadings be granted as to Mr. Brown’s Eighth

Amendment claim directed to Dr. Krisher as it relates to Mr.

Brown’s first period of incarceration at RCI. 

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Turning to the allegations of the complaint relating to Mr.

Brown’s second period of incarceration at RCI, the Court notes

that, to the extent Mr. Brown cites to Paragraphs 46, 53, and 56-

60 as setting forth his claim, these paragraphs have been

stricken. A review of the remaining paragraphs identified by Mr.

Brown, Paragraphs 37-41, indicates that the allegations directed

to Dr. Krisher are primarily contained in Paragraph 37. This

paragraph alleges Dr. Krisher’s denial of Mr. Brown’s medication,

his cancellation of numerous previously ordered medical tests,

and his failure to treat Mr. Brown’s numerous medical conditions

including high blood pressure, diabetes, and sleep apnea. Mr.

Brown alleges that Dr. Krisher’s failure to provide medical care

left him sick and in pain. 

These allegations, liberally construed in Mr. Brown’s favor

are sufficient to state an Eighth Amendment claim. Because the

Defendants assert only that, based on Ms. Cardaras’ affidavit,

they have established that Mr. Brown was not denied medical care

in violation of his Eighth Amendment rights, they have not

addressed the second prong of their qualified immunity argument. 

Moreover, that the deliberate indifference to an inmate’s serious

medical need violates the Eighth Amendment was well-established

by the relevant time period. See Estelle v. Gamble, supra. 

Consequently, the Court will recommend that the motion for

judgment on the pleadings be denied as to Mr. Brown’s Eighth

Amendment claim directed to Dr. Krisher as it relates to Mr

Brown’s second period of incarceration at RCI. 

4. Allegation Three: Defendant Jeffries retaliated against Brown

(¶¶11, 18, 31)

Defendants contend that Mr. Brown cannot satisfy the second

prong of a retaliation claim because he both preferred being

placed in isolation, the alleged adverse action he suffered, and

admits that he will not stop making complaints. At one point in

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his response, Mr. Brown contends that his claim for retaliation

against Warden Jeffries is clearly spelled out in Paragraphs 11,

12, 18, 19, 20, 21, 23, 24, 25, 31, 32, 33, and 34. See Response

(Doc. 172) pp. 15-16. Later in his response, he states that his

claim of retaliation against Warden Jeffries is stated in

paragraphs 5, 11, 18, 20, 21, 23, 25, 31, 35, 32, and 34. Id. at

p. 18. 

A review of all of these paragraphs reveals very broad and

non-specific claims of retaliation for various verbal complaints

Mr. Brown made about his medical care and conditions of

confinement which resulted in either his security level being

raised or his placement in segregation. In Paragraph 20 he

states that “[h]e also completed the grievance process and was

denied relief by L.C. Covel.” There are no factual allegations 

suggesting that Warden Jeffries was aware of the grievance

process. 

To state a retaliation claim, a plaintiff must allege three

elements: (1) that he or she was engaged in protected conduct;

(2) an adverse action was taken against him or her that would

deter a person of ordinary firmness from continuing to engage in

that conduct; and (3) the adverse action was motivated at least

in part by the plaintiff’s protected conduct. Thaddeus-X v.

Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Retaliation claims

must include a “chronology of events from which retaliation may

plausibly be inferred.” Ishaaq v. Compton, 900 F.Supp. 935 (W.D.

Tenn. 1995) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th

Cir. 1988)). 

As noted, the focus of Defendants’ argument on this claim is

that Mr. Brown’s preference for isolation and his admission that

he will not stop making complaints prevents him from establishing

the second prong of a retaliation claim. Because Defendants have

limited their argument to this issue, the Court will limit its

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consideration of Mr. Brown’s allegations of retaliation to this

issue as well. Defendants’ argument is not compelling. As the

Court of Appeals has explained, “[t]he relevant question

regarding the second prong of the Thaddeus-X test is whether the

defendant’s adverse conduct was ‘capable of deterring a person of

ordinary firmness.’” Harbin-Bey v. Rutter, 420 F.3d 571, 579

(6th Cir. 2005), quoting Bell v. Johnson, 308 F.3d 594, 606 (6th

Cir. 2002). “Actual deterrence need not be shown.” Id. That

is, “the adverseness inquiry is an objective one, and does not

depend upon how the particular plaintiff reacted.” Bell, 308

F.3d at 606. 

The Court of Appeals has held that both the placement in

administrative segregation and an increase in security-level

classification constitute an adverse action. See Hill v. Lappin,

630 F.3d 468, 474 (6th Cir. 2010)(recognizing that the placement

in administrative segregation or something comparable constitutes

an adverse action); King v. Zamiara, 150 Fed.Appx. 485, 494 (6th

Cir. 2005)(recognizing that increase in security-level

classification was an adverse action because it resulted in more

restrictions). Because the Defendants assert only that Mr. Brown

did not state a claim for retaliation as a result of his failure

to satisfy the second element, they do not go further and address

the second prong of their qualified immunity argument. That is, 

assuming Mr. Brown has stated a claim, Defendants do not address

whether, prior to the relevant time period, the law was not clear

that prison officials could not retaliate against prisoners for

engaging in protected conduct. Further, they do not suggest that

it was not well-established that these specific forms of conduct

constituted adverse action for purposes of a retaliation claim 

prior to the relevant time periods in the complaint. 

The Court is not inclined to make the Defendants’ argument

for them. Moreover, it seems likely that the Court of Appeals

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would agree that these specific contours of a retaliation claim

were well-established by the relevant time period. See, e.g., 

Herron v. Harrison, 203 F.3d 410, 416 (6th Cir. 2000) (“Under the

proper standard expressed in Thaddeus-X, however, this court has

found that placing an inmate in administrative segregation ‘could

deter a person of ordinary firmness from exercising his First

Amendment rights’”); King v. Zamiara, supra. Consequently, the

Court will not recommend that Mr. Brown’s retaliation claim

against Warden Jeffries be dismissed on grounds of qualified

immunity.

5. Allegation Four: Conditions of Confinement in the Supermax

Cell against Jeffries, Whitten, Heiss, Upchurch and Seacrest

violated the Eighth Amendment (¶¶19-20)

Defendants construe Mr. Brown’s complaint as setting forth a

conditions of confinement claim in Paragraphs 19-20. To the

extent that Mr. Brown is contending that he was forced to endure

unconstitutional conditions of confinement in a supermax cell at

RCI, they contend that RCI is not a supermax prison. Further,

they contend that he has failed to meet the pleading standard

because he has not identified which Defendant was responsible. 

Additionally, they contend that the conditions he complains of

arose at the Southern Ohio Correctional Facility and on a date

that falls outside the confines of this case. Finally, they

argue that Mr. Brown does not allege all of the elements of an

Eighth Amendment claim because he does not allege that any

defendant was aware that a substantial risk of harm existed. 

Rather, they assert he has only alleged that they did not respond

to his complaints. They note that Section 1983 liability cannot

be based on the mere failure to act.

In response, Mr. Brown states that his Eighth Amendment

conditions of confinement claim is set forth in Paragraphs 4-5,

11, 15, 19-21, 23-26, 40, 43-45, and 52-54. The Court’s review

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of these paragraphs, with respect to a conditions of confinement

claim, indicates the following. Upon his arrival at RCI, he was

placed in a cell with a Neo-Nazi inmate who stole his medication. 

Warden Jeffries ordered Mr. Brown be taken “to the hole” after

Mr. Brown voiced complaints. Mr. Brown was placed in an unheated

cell in the medical unit. Because of these complaints, Warden

Jeffries raised Mr. Brown’s security level. He spent four months

in a “supermax type cell” in cruel and unusual conditions. He

complained of these conditions to various officials to no avail. 

Paragraph 21 appears to relate to his access to the courts claim

and does not appear to relate to conditions of confinement. 

Paragraphs 23 and 24 do not appear to relate to a conditions of

confinement claim. Paragraph 26 has been stricken. In Paragraph

40, as it relates to conditions of confinement, Mr. Brown alleges

that he was denied commissary privileges and exercise. Paragraph

43 has been stricken. In Paragraph 44, Mr. Brown alleges that he

was housed with Nazis, skinheads, and Christian separatists. 

Paragraph 45 relates primarily to individuals who are not

defendants in this action. The allegations of Paragraph 45 with

respect to Mr. Heiss are that he ignored Mr. Brown’s complaints

about his safety and conditions. Paragraphs 52-54 have been

stricken. Mr. Brown concludes his explanation of this claim by

stating that “ [t]he complaint alleges defendants Jeffries,

Whitten, Heiss, Upchurch and Seacrest were made aware of the

unconstitutional conditions and were deliberately indifferent to

the plaintiff’s rights to be housed in adequate conditions.” See

Response (Doc. 172), p. 26.

To sufficiently allege a conditions of confinement claim

under the Eighth Amendment, a plaintiff must plead facts that

establish that a sufficiently serious deprivation has occurred. 

Melendez v. Houghlen, 2016 WL 375083, *2 (N.D. Ohio Feb. 1,

2016), citing Wilson v Seiter, 501 U.S. 294, 298 (1991). 

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“Seriousness is measured in response to ‘contemporary standards’

of decency.’” Id., quoting Hudson v. McMillian, 503 U.S. 1,8

(1992). “Routine discomforts of prison life do not suffice.” 

Id. Only deliberate indifference to extreme deprivations

regarding the conditions of confinement will implicate the

protections of the Eight Amendment. Further, a plaintiff must

allege that prison officials acted with a sufficiently culpable

state of mind. Id. A prison official violates the Eighth

Amendment only when both the objective and subjective components

are met. Farmer v. Brennan, 511 U.S. 825, 833 (1994).

Here, Mr. Brown’s allegations relate to nothing more than

the routine discomforts of prison life. The closest he comes to

stating such a claim is his description of the conditions of his

isolation cell. However, he does not associate this allegation

with any particular defendant. Moreover, he explains in his

response that he seeks to hold certain Defendants liable based

solely on their failure to respond to his complaints. He does

not, however, provide any specific detail of his alleged

complaints to these Defendants such as how he made the

complaints, the information he provided in his complaints, or

whether they received any of his complaints. At most he suggests

that he undertook the grievance process and was denied relief by

an individual who is not named as a defendant in this case. 

Generally, supervisory liability under §1983 does not attach

when it is premised on a mere failure to act; it must be based on

active unconstitutional behavior. Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999). Absent any more specific detail from

Mr. Brown suggesting that Defendants had some personal knowledge

of these conditions but allowed them to persist, Mr. Brown has

not set forth a conditions of confinement claim sufficient to

survive a motion for judgment on the pleadings. For these

reasons, the Court will recommend that the motion for judgment on

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the pleadings be granted as to Mr. Brown’s conditions of

confinement claim against Defendants Jeffries, Whitten, Heiss,

Upchurch, and Seacrest. 

The Court notes that, included within this claim as Mr.

Brown explains it, are allegations that he was denied the right

to call his dying mother. Defendants have construed these

particular allegations as attempting to state a claim against

Warden Jeffries for an Eighth Amendment violation. As such, they

have treated it as an independent claim and have addressed it

separately. The Court will address Defendants’ argument as to

these allegations below. 

6. Allegation Five: Denial of access to the courts by withholding

legal documents and mail, denying access to court-appointed

lawyer, denying access to the phone, denying access to a law

library, denying stamps and legal supplies, denying a pen and

paper, denying law books by Jeffries, Heiss, Upchurch, Dolan,

Whitten (¶¶21, 33)

According to Mr. Brown’s operative complaint, he is

asserting a claim for the denial of his right of access to the

courts against Director Mohr, Mr. Stout, Mr. Trout, Mr. Clark,

Mr. Dolan, Warden Jeffries, Mr. Heiss and Insp. Whitten. The

Defendants do not challenge the various allegations that Mr.

Brown contends form the basis of many facets of an access to the

courts claim. Rather, the focus of Defendants’ motion is that,

even assuming Mr. Brown suffered all of the deprivations he

contends, including lack of access to a law library, denial of

legal supplies, interference with legal mail, limitations on the

amount of legal material he may store in his cell and the many

other allegations he makes that arguably could fall under the

umbrella of an access to the courts claim, Mr. Brown has not

demonstrated actual injury and, as a result, has not set forth

such a claim.

As the Court of Appeals has explained:

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“[T]he right [of access to the courts] is ancillary to

the underlying claim, without which a plaintiff cannot

have suffered injury by being shut out of court.”

Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct.

2179, 153 L.Ed.2d 413 (2002). To bring a §1983 claim

for violation of a prisoner's right of access to the

courts, the prisoner must “plead and prove prejudice

stemming from the asserted violation.” Pilgrim v.

Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). In order

words, he must demonstrate “actual injury,” Lewis v.

Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d

606 (1996), by showing that his underlying claim was

non-frivolous. See id. at 353, 116 S.Ct. 2174

(reasoning that the “actual injury” requirement means

that inmates must “demonstrate that a nonfrivolous

legal claim ha[s] been frustrated or was being

impeded.”). “It follows that the underlying cause of

action, whether anticipated or lost, is an element that

must be described in the complaint....” Harbury, 536

U.S. at 415, 122 S.Ct. 2179.

A plaintiff need not demonstrate that the underlying

claim would have been successful; instead, deprivation

of an “arguable (though not yet established) claim” is

sufficient. Lewis, 518 U.S. at 353 n. 3, 116 S.Ct.

2174. However, though a complaint must be construed in

the light most favorable to the plaintiff when the

defendant files a motion to dismiss, the complaint must

still contain “enough facts to state a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at

570, 127 S.Ct. 1955. In a denial-of-access case, “the

underlying cause of action and its lost remedy must be

addressed by allegations in the complaint sufficient to

give fair notice to a defendant,” just “[l]ike any

other element of an access claim.” Harbury, 536 U.S. at

416, 122 S.Ct. 2179 (citing Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 513–15, 122 S.Ct. 992, 152 L.Ed.2d

1 (2002)).

The Supreme Court has already addressed the specificity

with which these underlying claims must be pleaded:

Although we have no reason here to try to describe

pleading standards for the entire spectrum of

access claims, this is the place to address a

particular risk inherent in backward-looking

claims. Characteristically, the action underlying

this sort of access claim will not be tried

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independently, a fact that enhances the natural

temptation on the part of plaintiffs to claim too

much, by alleging more than might be shown in a

full trial focused solely on the details of the

predicate action.

Hence the need for care in requiring that the

predicate claim be described well enough to apply

the “nonfrivolous” test and to show that the

“arguable” nature of the underlying claim is more

than hope. And because these backward-looking

cases are brought to get relief unobtainable in

other suits, the remedy sought must itself be

identified to hedge against the risk that an

access claim be tried all the way through, only to

find that the court can award no remedy that the

plaintiff could not have been awarded on a

presently existing claim.

Id. (footnotes omitted). Ultimately, the Court

concluded that “the complaint should state the

underlying claim in accordance with Federal Rule of

Civil Procedure 8(a), just as if it were being

independently pursued.” Id. at 417, 122 S.Ct. 2179.

Essentially, a claim for denial of access to the courts

has unique pleading requirements: a plaintiff must

plead a case within a case, alleging the law and facts

sufficient to establish both the interference with his

access to the courts, and the non-frivolous nature of

the claim that was lost.

Brown v. Matauszak, 415 Fed.Appx. 608, 612 (6th Cir. 2011).

Mr. Brown recognizes his obligation to allege actual

injury. In his response, he describes the harm he suffered in

this way:

Access to the court and stated harm. 

This harm was claimed throughout the complaint. 

See paragraph 21). This denial of his right to access

the courts and O.D.R.C. administrators harmed his

ability to persue his two lawsuits in federal court,

his ability to seek help with his mistreatment at

R.C.I. from his lawyer or the Ross County Courts, to

provide documents in support of his habeas corpus, that

proved actual innocence of his crime, to persue post

conviction remedies, to meet court deadlines in his

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civil rights cases and due to the total denial of his

right to access the court [he ]finally signed, under

duress a settlement in Brown v. Voorhies - (Cincinnati)

“THIS RETALIATION for seeking redress of the violation

of constitutional rights was done by ... Warden

Jeffries.

This is clear enough. The plaintiff clearly

stated a claim for the denial of his right to access

the courts and the harm caused by the defendants

including Jeffries. Therefore this issue cannot be

dismissed for failure to state a claim and a judgment

on the pleadings.

Access to the Court

Additionally, it is properly claimed that

Jeffries, Heiss, Upchurch, Dolan and Whitten denied

access to the courts as alleged in paragraphs (21 &

33). This claim does claim harm by this denial and

makes specific charges of how, what, where when and

why.

A conspiracy was also claimed by these defendants

to deny court access to force a settlement in Brown v.

Voorhies, where the Cincinnatti Court had awarded, and

upheld by the Chief Judge, a $675,000.00 default

judgment. And as claimed as harm, for this 

denial of access to the court, retaliation, denial of

medical care and literal torture by the refusal to

allow me to call my dying mom, that the plaintiff

signed a settlement for $5000.00 so he could call his

mom who was calling out from her death bed to say

goodbye before she died.

It is alleged that this harm and more occurred

from 4 1/2 months at RCI and more months at SOCF in

isolation conditions.

A prisoner has a right to adequate, effective, and

meaningful access to the courts under the First

Amendment. Lewis v. Casey, 518 U.S. 343 346 (1986). 

This denial was properly claimed as this court found on

review of the complaint already. 

Clearly, Mr. Brown has not met the pleading standard for an

access to the courts claim. His allegations, while numerous and

repetitive, are completely devoid of any detail. The only case

he mentions by name is Brown v. Voorhies, a case in which he

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readily admits he received a settlement. He cites generally to

various forms of litigation he was unable to pursue but he does

not cite to any deadlines he missed or the non-frivolous nature

of any claims he wished to present. Consequently, the Court will

recommend that the motion for judgment on the pleadings be

granted as to Mr. Brown’s claim for a denial of access to the

courts against Defendants Mr. Heiss, Warden Jeffries, and Insp.

Whitten.

7. Allegation Six: Defendant Upchurch violated Plaintiff’s First

Amendment right to the free exercise of his religion by denying

him kosher meals (¶22)

Defendants contend that, although Mr. Brown asserts in his

operative complaint at Paragraph 22 that Defendant Upchurch

violated his right to the free exercise of his religion by

denying him kosher meals, he admits in Paragraph 41 that he

received kosher meals. The Defendants interpret paragraph 41 as

raising a complaint over the quality of food served by Aramark,

an entity that is not a defendant here. They then contend that

complaints about the quality of food do not rise to the level of

a constitutional violation. Mr. Brown responds that he has

stated a claim for the denial of kosher food in paragraphs 22 and

41 of his operative complaint. 

 Under the First Amendment, prisoners have the right to the

free exercise of their religion. Cruz v. Beto, 405 U.S. 319, 322

(1972). Within this right, prisoners “have a constitutional

right to be served meals that do not violate their sincerely-held

religious beliefs.” Robinson v. Jackson, 615 Fed.Appx. 310 (6th

Cir. 2015), citing Colvin v. Caruso, 605 F.3d 282, 290 (6th Cir.

2010). 

A fair reading of Mr. Brown’s allegations relating to the

denial of kosher food indicates the following. According to

Paragraph 22, during his first incarceration at RCI, Defendant

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Upchurch refused to approve his kosher diet. She then punished

him for “writing a grievance over the issue.” According to

Paragraph 41, during his second incarceration at RCI, the kitchen

manager, Mr. Ford, refused to provide a kosher diet. This denial

of kosher food during Mr. Brown’s second incarceration at RCI

lasted for approximately four months until he was placed back on

a kosher diet. Mr. Brown challenges the quality of the food he

received after Aramark took over the food service during his

second incarceration.

The Court does not believe that the allegations of Paragraph

41 undermine the allegations of Paragraph 22. However, the

allegations of Paragraph 41 do not relate to Mr. Brown’s claim

against Ms. Upchurch and will not be considered here. Under this

construction of the complaint, Mr. Brown’s claim against Ms.

Upchurch is that she denied his request for kosher food during

his first incarceration at RCI for some period of time between

January 18, 2011 and April 6, 2011. He also indicates that, to

the extent he pursued a grievance over it, she punished him for

it. 

Granted, Mr. Brown’s allegations can easily be characterized

as light on specifics. He does not explain the length of time he

was denied a kosher diet during his first incarceration or any

other details relating to this alleged denial. Further, he does

not explain what type of punishment he was subjected to or the

nature of his pursuit of the grievance process. As opposed to

the majority of his other claims, however, he specifically

identifies Ms. Upchurch as the responsible party and states her

conduct clearly. At the same time, Defendants’ motion for

judgment on the pleadings on grounds of qualified immunity does

not address the issue as Mr. Brown has framed it. They have

neither argued that Mr. Brown did not have a constitutional right

to a kosher diet, nor that any right to a kosher diet was not

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clearly established at the time of his incarceration at RCI. 

Consequently, the Court will not recommend that the motion 

for judgment on the pleadings be granted as to this claim.

8. Allegation Seven: Defendant Jeffries refused to allow

Plaintiff to speak to his dying mother in violation of the Eighth

Amendment (¶23)

Defendants construe this Paragraph as alleging an Eighth

Amendment violation against Defendant Jeffries based on his

alleged refusal to allow Mr. Brown to speak to his dying mother. 

Although they have included this claim with claims that they

contend must be dismissed on grounds of qualified immunity, they

contend that this particular claim must be dismissed under the

doctrine of res judicata. According to Defendants, this claim

was fully litigated in Brown v. Voorhies, Case No. 2:07-cv-13.

In response, Mr. Brown explains that Brown v. Voorhies was

filed in 2007 and that it was still pending in 2011 while he was

incarcerated at RCI. He states that there are no claims from any

incident at Ross in the 2007 action. According to Mr. Brown,

that case involved events which occurred at the Franklin County

Jail in 2005 and SOCF in 2007. He contends that this particular 

claim was raised for the first time in this action and “has never

been litigated in any court.” 

 A review of Brown v. Voorhies, indicates that Mr. Brown’s

explanation is correct. That action, filed in 2007 and relating

to events at the Franklin County Jail, does not address the

events of February 4, 2011, at RCI. Further, Warden Jeffries was

not a named defendant in that case. The Court of Appeals has

explained that res judicata bars the same parties from

relitigating issues that were either actually litigated or could

have been raised in an earlier action. J.Z.G. Res., Inc. v.

Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996). As noted,

that is not the situation presented here. Consequently, the

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Court will recommend that the motion for judgment on the

pleadings be denied with respect to this claim directed to Warden

Jeffries to the extent it relies on the doctrine of res judicata.

9. Allegation Eight: Defendants Jeffries, Upchurch, Heiss,

Seacrest, and Dolan violated Plaintiff’s right to be free from

torture (¶25)

Defendants construe the allegations of Paragraph 25 as

asserting a claim of torture. In response, Mr. Brown explains

that this claim is fully encompassed by Paragraphs 19, 20, 21,

24, 25, 28, 31, 35, 54, 53, 52. Paragraphs 28, 35, and 52-54

have been stricken. The allegations of the remaining paragraphs

have been addressed in connection with Mr. Brown’s other claims,

with the exceptions of Paragraph 25, as construed by Defendants

here, and Paragraph 31. 

The allegations of Paragraph 25 are that, after being denied

his request to call his mother, Mr. Brown “went completely crazy”

and his request for mental health treatment was denied. He

contends that he was harassed, his legal papers were torn up, his

food was spilled on the floor, he was denied his medication, and

his legal mail was destroyed. 

The allegations of Paragraph 31 are that Warden Jeffries had

Mr. Brown placed in a suicide cell naked, not because Mr. Brown

had threatened to kill himself, but for the purpose of making Mr.

Brown more miserable. Mr. Brown contends that Warden Jeffries

and others taunted him for two days and that he was not visited

by mental health personnel. Defendants construe the allegations

of Paragraph 31 as relating to the claim of retaliation against

Warden Jeffries and have addressed them in this way. As

indicated above, based on the argument Defendants presented

relating to that claim, the Court will not recommend that the

motion for judgment on the pleadings be granted as to this

retaliation claim.

Focusing on the allegations of Paragraph 25, Defendants

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contend that Mr. Brown has not met the pleading requirements to

state a claim under §1983 because he has failed to connect the

individuals responsible to his various allegations. Further,

they assert that certain allegations such as spilling his food or

making fun of his mother’s death do not rise to the level of an

Eighth Amendment violation. Further, they maintain that they

have already established that Mr. Brown has not stated a claim of

deliberate indifference to his medical needs. Further, they

explain that, again, Mr Brown has not demonstrated any prejudice

to his ability to pursue his legal claims.

The Court agrees that many of the allegations of Paragraph

25 are addressed in the context of other claims. Additionally,

to the extent that Mr. Brown contends he suffered taunting and

verbal harassment, he has not stated an Eighth Amendment

violation. Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987). 

This leaves Mr. Brown’s allegation that he requested and was

denied mental health treatment in connection with the events

surrounding his mother’s death. The Court agrees with Defendants

that Mr. Brown has not stated these allegations in such a way as

to identify any of the moving Defendant’s role in this denial. 

That is, Mr. Brown has not met the plausibility standard to allow

the Court to draw the reasonable inference that any of the moving

Defendants were responsible for the alleged denial of mental

health treatment. See Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Consequently, the Court will recommend that the motion

for judgment on the pleadings be granted as to this claim as it

relates to Warden Jeffries, DW Upchurch, Mr. Heiss, Mr. Seacrest,

and Mr. Dolan. 

10. Allegation Nine: Defendant Heiss violated Plaintiff’s Eighth

Amendment rights because he ignored Plaintiff’s complaints about

his safety and the conditions at RCI (¶45)

The final claim identified by Defendants is an Eighth

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Amendment claim against Mr. Heiss. As they explain it, Mr. Brown

contends that he complained about his safety and conditions to

Mr. Heiss, including complaining about being housed with a

Christian Separatist. With respect to this latter allegation

specifically, Defendants contend that Mr. Brown has not stated a

claim for failure to protect. Mr. Brown does not address this

claim directly in his response. 

The Court agrees that Mr. Brown has not stated any claim

against Mr. Heiss in Paragraph 45. The standard for a failure to

protect claim has been set forth above. Here, as with his

earlier claim, Mr. Brown has not set forth any allegations

suggesting that Mr. Heiss was aware of any immediate threat of

harm to Mr. Brown. Mr. Brown also alleges that he complained to

Mr. Heiss about various conditions and Mr. Heiss did not respond

to his complaints. The way in which Mr. Brown frames this

allegation suggests that he believed Mr. Heiss had some authority

to remedy the alleged conditions and did not. Again, as

explained above, supervisory liability under §1983 does not

attach when it is premised on a mere failure to act; it must be

based on active unconstitutional behavior. Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999). For these reasons, the motion

for judgment on the pleadings will be granted as to any claims

contained in Paragraph 45 directed to Mr. Heiss.

III. Director Mohr’s Motion to Dismiss

Director Mohr has filed a motion to dismiss setting forth

similar arguments to those raised above. That is, he contends

that Mr. Brown is not entitled to injunctive relief because he is

no longer incarcerated at RCI. Further, Director Mohr argues

that any claims against him in his official capacity are barred

by the Eleventh Amendment. He also interprets Mr. Brown’s

complaint as alleging his involvement in four specific claims and

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contends that he is entitled to qualified immunity on these

claims. In addition to these arguments, he asserts initially

that the claims against him must be dismissed in accordance with

Rule 12(b)(5) because he was not timely served. 

In response, Mr. Brown again takes issue with every point

raised by Director Mohr. Mr. Brown’s position will be set forth,

as necessary, below.

A. Legal Standard

Fed.R.Civ.P. 12(b)(6) provides that the Court may, upon

motion, dismiss a claim for relief asserted in any pleading for

failure to state a claim upon which relief can be granted. 

Fed.R.Civ.P. 8(a) requires the party pleading a claim for relief

to make a “short and plain statement of the claim showing that

the pleader is entitled to relief.” When evaluating such a claim

in the context of a Rule 12(b)(6) motion, the Court must

ordinarily accept as true all of the well-pleaded factual

allegations of the complaint. However, Rule 8(a) has been

interpreted to require that the pleader allege “more than labels

and conclusions, and a formulaic recitation of the elements of a

cause of action will not do ....” Bell Atlantic v. Twombley, 550

U.S. 544, 555 (2007). Moreover, the factual allegations

themselves “must be enough to raise a right to relief above the

speculative level ....” Id.

Twombley established a test of “facial plausibility,”

replacing the prior standard, announced in Conley v. Gibson, 355

U.S. 41 (1957), under which a complaint was able to withstand a

motion to dismiss if there were any possibility that the pleader

could prove a viable claim for relief. Expanding upon Twombley’s

“facial plausibility” test, the Supreme Court, in Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1949 (2009), held that “[a] claim has

facial plausibility when the plaintiff pleads factual content

that allows the Court to draw a reasonable inference that the

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defendant is liable for the misconduct alleged.” Iqbal

reiterated the principle that legal conclusions, couched as

factual allegations, need not be accepted as true, and that the

mere recital “of the elements of a cause of action, supported by

mere conclusory statements,” cannot save a claim from dismissal

under Rule 12(b)(6). Id. at 1950. Further, Iqbal allows the

reviewing court “to draw on its judicial experience and common

sense” when deciding if it is plausible that the pleader can,

based on the facts alleged, obtain any relief. Id. It is still

true, however, that pro se complaints are construed liberally in

favor of the pleader, even though they, too, must satisfy the

“facial plausibility” standard articulated in Twombley. See

Haines v. Kerner, 404 U.S. 519 (1972); Stanley v. Vining, 602

F.3d 767, 771 (6th Cir. 2010); see also Erickson v. Pardus, 551

U.S. 89 (2007). It is with these standards in mind that the

instant motion will be decided.

C. Analysis

The Court will turn first to Director Mohr’s argument that

he was not timely served. Rule 12(b)(5) provides that a

complaint may be attacked for insufficient service or process. 

A motion under that Rule is the proper vehicle for challenging

the failure to deliver a summons and complaint in accordance with

Rule 4(m). Under Rule 4(m), the Court has discretion to dismiss

the action or, if a plaintiff shows good cause, to extend the

time for service. 

The Court has addressed the issue of service more than once

throughout the duration of this action. Those discussions

explained the status of attempts at service in detail, and, at

various times, granted Mr. Brown’s requests for extensions of

time for service. That discussion will not be repeated here. 

Rather, for the reasons readily apparent from a review of the

Court’s docket and its previous opinions, the Court concludes

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that Mr. Brown has demonstrated good cause for the delay in

serving Director Mohr. In short, this delay was not the result

of Mr. Brown’s lack of diligence or neglect. Further, Director

Mohr has not cited any prejudice he has suffered from the delay. 

For these reasons, the Court will not recommend that Director

Mohr’s motion to dismiss be granted on the basis of Rule

12(b)(5).

Next, to the extent that Mr. Brown seeks injunctive relief

or money damages against Director Mohr in his official capacity,

those claims will be dismissed for the same reasons explained

above in connection with the motion for judgment on the

pleadings.

D. Remaining Claims Identified by Director Mohr

1. Allegation One: Conditions of Confinement in the Supermax

Cell against Director Mohr ¶¶19-20)

Director Mohr contends that he did not force Mr. Brown to

endure unsafe conditions of confinement at RCI. He asserts the

same arguments as the other defendants on this issue - that these

allegations relate to conditions at SOCF and that Mr. Brown has

failed to meet the pleading standards for a conditions of

confinement claim. Specifically, Director Mohr explains that Mr.

Brown does not allege that he was aware of a substantial risk of

serious harm to Mr. Brown. Director Mohr asserts that Mr. Brown

only alleges that he complained to Director Mohr. In response to

this argument, Mr. Brown contends that these paragraphs explain

that he complained about these conditions to Director Mohr. 

Allegations of direct involvement in constitutional

deprivations, rather than attempts to impose liability by virtue

of the doctrine of respondeat superior, are necessary in order to

hold an individual defendant liable under §1983. Monell v.

Department of Social Services, 436 U.S. 658 (1978). Although

there are other legal claims that can properly be asserted

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against a supervisor simply because someone under his or her

supervision may have committed a legal wrong, liability for

constitutional deprivations under 42 U.S.C. §1983 cannot rest on

such a claim. Consequently, unless the plaintiff's complaint

affirmatively pleads the personal involvement of a defendant in

the allegedly unconstitutional action about which the plaintiff

is complaining, the complaint fails to state a claim against that

defendant and dismissal is warranted. See also Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984). This rule holds true

even if the supervisor has actual knowledge of the constitutional

violation as long as the supervisor did not actually participate

in or encourage the wrongful behavior. See Shehee v. Luttrell,

199 F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be

held liable under §1983 for failing to respond to grievances

which alert them of unconstitutional actions); see also Stewart

v. Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002) (“supervisory

liability under §1983 cannot attach where the allegation of

liability is based upon a mere failure to act”).

Mr. Brown’s allegations relating to any conditions of

confinement claim he is attempting to assert against Director

Mohr indicate that the basis for Director Mohr’s alleged

liability arises strictly from his supervisory role as ODRC

Director and not because he had any personal involvement in the

alleged conditions. Consequently, the Court will recommend that

Director Mohr’s motion to dismiss be granted as to this claim. 

2. Allegation Two: Denial of access to the courts by withholding

legal documents and mail, denying access to court-appointed

 lawyer, denying access to the phone, denying access to a law

library, denying stamps and legal supplies, denying a pen and

paper, denying law books by Director Mohr (¶21)

Director Mohr contends again that he cannot be held liable

under the theory of respondeat superior and that Mr. Brown has

not alleged an actual injury sufficient to state an access to the

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courts claim. In response, Mr. Brown contends that he was

prevented from pursuing certain non-specific forms of litigation

and that he has asserted that various ODRC policies

unconstitutionally limit his right of access to the courts

including the property policy and various “indigent policies”

that essentially require him to choose between medication,

laundry, and phone calls and accessing the courts. 

As explained above, Mr. Brown has not stated a claim for

denial of access to the courts. As a result, to the extent that

Mr. Brown is seeking to hold Director Mohr liable for policies

that impact that right, he has not stated a claim against

Director Mohr. Consequently, the Court will recommend that

Director Mohr’s motion to dismiss be granted as to this claim.

3. Allegation Three: Director Mohr violated Plaintiff’s Eighth

Amendment right to be free from torture (¶25)

Director Mohr raises the same issues in his motion to

dismiss that the Defendants above raised in connection with their

motion for judgment on the pleadings. A review of this Paragraph

indicates that the only allegation relating to Director Mohr is

that Mr. Brown wrote to him for help and Director Mohr did not

respond. This suggests again that Mr. Brown is attempting to

hold Director Mohr liable solely on the basis of his supervisory

role as ODRC Director. As with Mr. Brown’s other claims against

Director Mohr asserted on this basis, the Court will recommend

that the motion to dismiss be granted as to any claim against

Director Mohr set forth in Paragraph 25.

4. Allegation Four: Director Mohr was deliberately indifferent

to Plaintiff’s medical needs (¶36)

In Paragraph 36, Mr. Brown contends that Director Mohr

violated his Eighth Amendment rights because medication, access

to specialist care, access to institutional doctors, and access

to over the counter medications have been cut. Further, Mr.

Brown asserts that many of his medications were discontinued when

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Director Mohr took them off the formulary. Director Mohr

contends that he was not deliberately indifferent to Mr. Brown’s

medical needs under the Eight Amendment. Consistent with the

Defendants’ approach in connection with the motion for judgment

on the pleadings, Director Mohr relies on Ms. Cardaras’ affidavit

in support of his motion. 

The allegations directed to Director Mohr in Paragraph 36

relate to Mr. Brown’s second period of incarceration at RCI. 

Beyond these allegations, Mr. Brown asserts in Paragraph 41 that

Director Mohr has instituted policies and procedures that have

been harmful to Mr. Brown’s health and resulted in the denial of

medical treatment. Construing these allegations liberally at the

pleading stage, they are sufficient to state a claim against

Director Mohr in his individual capacity for allegedly

instituting policies that have deprived Mr. Brown of his

constitutional rights under the Eighth Amendment relating to

medical care. See Monell, 436 U.S. at 690. 

As explained above, the Court will not consider Ms.

Cardaras’ affidavit in connection with Mr. Brown’s claim of

deliberate indifference to his medical needs. Similar to the

other Defendants, because Director Mohr contends only that Mr.

Brown was not denied medical care in violation of his Eighth

Amendment rights, he has not addressed the second prong of a

qualified immunity argument. Moreover, that the deliberate

indifference to an inmate’s serious medical need violates the

Eighth Amendment was well-established by the relevant time

period. See Estelle v. Gamble, supra. Consequently, the Court

will recommend that the motion to dismiss be denied as to Mr.

Brown’s Eighth Amendment claim against Director Mohr. 

IV. Remaining Motions

A. Mr. Brown’s Motion to Appoint Counsel

Mr. Brown has filed another motion seeking the appointment

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of counsel. This motion is 15 pages in length and raises a

number of issues that Mr. Brown contends demonstrate his need for

counsel. These issues include his indigence, his imprisonment in

a supermax facility, the nature of his claims, his difficulties

with receiving legal mail, and his various disabilities and

health issues.

 There is no right to counsel in prisoner civil rights

cases. Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996). 

Rather, such appointment of counsel “is a privilege that is

justified only by exceptional circumstances.” Lavado v. Keohane,

992 F.2d 606 (6th Cir. 1993). Courts, in evaluating whether the

appointment of counsel is warranted, “generally examine the

nature of the case, the plaintiff’s ability to prosecute the case

in a pro se capacity, and the ‘complexity of the factual and

legal issues involved.’” Shavers v. Bergh, 516 Fed. Appx. 568,

571 (6th Cir. 2013), quoting Lavado, 992 F.3d at 606. 

Mr. Brown has not demonstrated that this is an exceptional

case necessitating the appointment of counsel. Despite Mr.

Brown’s litany of issues which he believes warrants the

appointment of counsel, he has adequately represented himself to

date in this case and other cases filed in this Court. A review

of not only the motion itself, but his numerous and frequently

extremely lengthy filings, indicates his active prosecution of

this action, his understanding of the issues he is raising, his

obligation to respond to Defendants’ various filings, and his

ability to articulate his position. Consequently, the motion to

appoint counsel will be denied.

B. Mr. Brown’s Motion for Leave to Amend 

Mr. Brown has moved for leave to amend his complaint to name

Dr. Eddy as a defendant in this case. According to Mr. Brown,

Dr. Eddy was named as a defendant in the original and the second

amended complaint. He contends that his current complaint

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contains claims against Dr. Eddy in Paragraphs 33 and 36-41. He

explains that it was always his intent to name Dr. Eddy as a

defendant here, but that he simply forgot to include Dr. Eddy in

his list of defendants set forth in his third amended complaint. 

This motion is unopposed.

Some history of Mr. Brown’s filings is necessary here. On

August 26, 2013, Mr. Brown sought leave to file an amended and

supplemented complaint (Doc. 26). This motion specifically

stated:

In the instant case, the plaintiff wants to amend

the suit to reflect his errors in the suit concerning

the capacities of those he sued, to include dates and

times once he receives his grievance files and medical

records, add John Does’ names and clarify the original

complaint.

... Additionally, the plaintiff’s rights under the

Constitution continue to be violated by the same

defendants’ after he was transferred back to Ross

Correctional in March of 2013 from Southern Ohio

Correctional. He request[s] leave to include a

supplemental complaint over the denial of his rights

to:

1) Medical care and constitutional medical policy

and procedure

2) Denial of the right to access the courts and

policy and procedures that deny copies, postage - and

indigent status

3) Retaliation for exercise of constitutional

rights

4) Totallity (sic) of conditions at Ross

Correctional

5) Stolen and lost property deliberatly (sic) done

by the State Corrections Personel (sic). 

On August 30, 2013, certain defendants moved for a more

definite statement (Doc. 27). Mr. Brown’s motion to amend was

granted and the motion for a more definite statement was denied

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as moot by order dated March 28, 2014 (Doc. 49). The order

stated:

... With respect to the motion for leave to amend, the

Court notes that Mr. Brown has not provided a proposed

amended complaint for the Court’s review. He has,

however, described his intended amendments and his

motion is unopposed. Consequently, the motion for

leave to amend (Doc. 26) is granted. Mr. Brown shall

file an amended complaint consistent with the

representations in his motion within 28 days of the

date of this order. 

On April 11, 2014, Mr. Brown filed his amended complaint

which he captioned as a second amended complaint. The defendants

moved to strike that pleading on April 25, 2014 (Doc. 52). The

basis for that motion was Mr. Brown’s failure to amend his

complaint in accordance with previous Court orders.

By order dated November 6, 2014 (Doc. 92), the Court granted

defendants’ motion to strike that pleading. In striking the

second amended complaint, the Court stated:

...in granting Mr. Brown leave to file an amended

complaint, this Court specifically directed that his

amended complaint conform to the representations in his

motion for leave. Mr. Brown’s motion for leave raised

issues relating to conditions at Ross Correctional

Institution only. Mr. Brown’s amended complaint naming

defendants and raising issues relating to SOCF is

inconsistent with the Court’s instruction. Further,

the Court in Case No. 1:12-cv-583 specifically retained

the claims relating to SOCF and transferred only the

remaining claims involving conditions at RCI or those

involving ODRC employees located in Columbus. 

Consequently, the Court will grant the defendants’

motion and will strike the amended complaint for Mr.

Brown’s failure to comply with this Court’s orders. 

Mr. Brown will be directed to file an amended complaint

in this case which complies with the terms of the

Court’s previous orders. See Docs. 12 and 49 in Case

No. 1:12-cv-583 and Doc. 49 in Case No. 2:13-cv-06. 

His failure to do so may result in a recommendation

that this case be dismissed for Mr. Brown’s failure to

comply with the Court’s orders. 

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The Court directed Mr. Brown to file another amended complaint

within fourteen days of the date of the order. 

Mr. Brown filed his third amended complaint on September 11,

2015 (Doc. 132) and defendants moved to dismiss. In the Report

and Recommendation and Order issued on December 17, 2015 (Doc.

139), the Court noted:

This brings the Court to Dr. Eddy. Mr. Brown does

not include Dr. Eddy in his list of named defendants

although multiple allegations in the complaint are

directed to him. Dr. Eddy, however, was not named as a

defendant in any of the claims transferred to this

Court. Further, Mr. Brown did not seek leave to name

Dr. Eddy as a defendant. Consequently, the Court will

not construe the complaint as naming Dr. Eddy as a

defendant. 

In seeking leave to amend to file a second amended

complaint, Mr. Brown did not indicate his intention to name Dr.

Eddy as a defendant and, therefore, he was not granted leave to

do so. To the extent he did so in is second amended complaint,

that complaint has been stricken. Consequently, to the extent

that Mr. Brown has included claims against Dr. Eddy in his third

amended complaint, as indicated, he has done so without leave of

Court. The question raised by Mr. Brown’s current motion then is

whether, at this point, leave to amend should be granted to allow

Mr. Brown to name Dr. Eddy as a defendant. 

Fed.R.Civ.P. 15(a)(2) states that when a party is required

to seek leave of court in order to file an amended pleading,

“[t]he court should freely give leave when justice so requires." 

The United States Court of Appeals for the Sixth Circuit has

spoken extensively on this standard, relying upon the decisions

of the United States Supreme Court in Foman v. Davis, 371 U.S.

178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321 (1971), decisions which give substantial meaning to

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the phrase "when justice so requires." In Foman, the Court

indicated that the rule is to be interpreted liberally, and that

in the absence of undue delay, bad faith, or dilatory motive on

the part of the party proposing an amendment, leave should be

granted. In Zenith Radio Corp., the Court indicated that mere

delay, of itself, is not a reason to deny leave to amend, but

delay coupled with demonstrable prejudice either to the interests

of the opposing party or of the Court can justify such denial. 

Applying the liberal standard above to the current scenario,

the Court will grant the motion for leave to amend the complaint

to include Dr. Eddy. As exhibited by the chronology of events

explained above, the Court cannot conclude that Mr. Brown has

moved to name Dr. Eddy as a defendant for purposes of delay or in

bad faith. Further, as noted, this motion is unopposed so

Defendants have failed to set forth any prejudice they will

suffer if this motion is granted. 

C. Mr. Brown’s Motions to “Reserve” Defendants

This brings the Court to yet another issue relating to

service in this case. Mr. Brown has three pending motions

relating to service issues. The first motion seeks to re-serve

Austin Stout and Greg Trout, contending that these Defendants

were served at the ODRC but the summonses came back unexecuted

because they no longer work there. Mr. Brown asks the Court for

an order directing the United States Marshal or defense counsel

to obtain current addresses for Mr. Stout and Mr. Trout and

directing the U.S. Marshal to attempt service again. Further, he

explains that the Marshal mistakenly attempted to serve Director

Mohr at RCI, so he requests that service on Director Mohr be

attempted again. This motion (Doc. 155) is moot because Director

Mohr has now been served and Mr. Brown has filed a second motion

to attempt service on Mr. Trout and Mr. Stout and has provided

what he has characterizes as their current addresses. 

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Consequently, this motion will be denied on that basis.

Mr. Brown’s second motion seeks an order directing that

service be attempted on Nurse Smith at her current address. 

According to this motion, following the Court’s most recent

order, the Marshal served Nurse Smith at RCI even though she no

longer works there. Mr. Brown explains that, prior to this

attempted service at RCI, the Defendants provided her current

address to the Court, the U.S. Marshal, and him. He believes

that the Marshal’s Office should have the correct address and

that it is part of the record in this case. He is unable to

provide it because it was “taken [from him] and destroyed by the

defendants.” If his belief is untrue, he requests that the Court

order defense counsel to provide Nurse Smith’s correct address

again.

A review of the Court’s docket indicates that a summons was

originally issued to Nurse Smith at RCI on May 14, 2013 (Doc.

17). On May 21, 2013, the summons was returned executed as to

Nurse Smith (Doc. 18). On May 29, 2013, the summons was returned

unexecuted as to Nurse Smith accompanied by a letter explaining

that there was no Nurse Smith at RCI (Doc. 21). 

On December 11, 2013, Mr. Brown filed a motion requesting

that service be attempted again on several defendants, including

Nurse Smith (Doc. 41). By Report and Recommendation and Order

dated April 29, 2014 (Doc. 53), the Court directed the Defendants

to provide the U.S. Marshal Service with the last known address

for Nurse Smith. On May 16, 2014, Defendants filed a notice with

the Court stating “that on May 9, 2014, they provided the last

known address of Defendant Smith to the United States Marshals.” 

See Doc. 61. They did not include the address in the notice. 

The Court’s Report and Recommendation and Order (Doc. 53)

also had directed Mr. Brown to complete service on various

defendants, including Nurse Smith, within 14 days of the date of

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the order. Mr. Brown quickly sought an extension of time for

service on these defendants (Doc. 56). This motion was

ultimately denied as moot by order dated November 6, 2014 (Doc.

92), striking Mr. Brown’s second amended complaint, directing him

to file a third amended complaint, and allowing him 30 days after

the filing of his third amended complaint to properly serve the

defendants. 

Shortly after this order, Mr. Brown filed a motion for an

extension of time to file his third amended complaint (Doc. 98). 

This motion was granted by order dated February 23, 2015 (Doc.

108), and directed Mr. Brown to file his third amended complaint

within 30 days of the Court’s ruling on objections to the Report

and Recommendation and motion for reconsideration. The Court

issued its order ruling on the objections and motion for

reconsideration on May 13, 2015 (Doc. 123), and directed Mr.

Brown to file his third amended complaint as previously ordered. 

Almost immediately, Mr. Brown filed a motion for an extension of

time to file his third amended complaint (Doc. 124). 

 On July 10, 2015, Mr. Brown filed a motion for an order to

serve the third amended complaint and attached a copy of that

pleading to the motion (Doc 128). On September 11, 2015, he

filed his third amended complaint as a stand alone document (Doc.

132). Defendants filed a motion to dismiss the third amended

complaint on October 9, 2015 (Doc. 135). The Court issued a

Report and Recommendation and Order on December 17, 2015 (Doc.

139), in which it directed the Clerk to prepare and finalize

summonses for defendants Nurse Smith, Ryan Dolan, Ed Voorhies,

Director Mohr, Austin Stout, Greg Trout, and Trevor Clark. A

summons issued to Nurse Smith at RCI was returned unexecuted on

January 27, 2016. Mr. Brown filed his current motion to re-serve

Nurse Smith shortly thereafter. It is unopposed. 

In light of all of the above, Mr. Brown’s motion to re-serve

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Nurse Smith will be granted. Defense counsel is directed to

again provide Nurse Smith’s last known address to the Court

within ten days of the date of this order. 

Mr. Brown’s third motion seeks service on Defendants Trout

and Stout at their current addresses, which he has now provided. 

This motion also is unopposed. Much of the above discussion

relating to Nurse Smith also applies to these Defendants. 

Consequently, the motion to re-serve Defendants Trout and Stout

will be granted. 

D. Defendants’ Remaining Motions

Defendants have moved for a stay of discovery pending a

resolution of the motion for judgment on the pleadings. Further,

they have moved for an extension of time to file a reply in

support of that motion. In light of this Report and

Recommendation and because the Defendants have already filed

their reply, these motions are moot and will be denied on that

basis. 

V. Recommendation and Order

For the reasons stated above, the Court recommends that the

motion for judgment on the pleadings (Doc. 161) be granted in

part and denied in part. The motion for judgment on the

pleadings is denied as to Mr. Brown’s claims against Ms. Upchurch

set forth in Paragraph 22, denied as to a retaliation claim

against Warden Jeffries, denied as to an Eighth Amendment claim

directed to Dr. Krisher for the alleged denial of medical care

during Mr. Brown’s second incarceration at RCI, and denied as to

the Eighth Amendment claim against Warden Jeffries to the extent

that Defendants have relied on the doctrine of res judicata. The

motion for judgment on the pleadings is granted in all other

respects as it relates to Defendants Whitten, Heiss, Seacrest and

Dolan and any other claims directed to Warden Jeffries, Dr.

Krisher or Ms. Upchurch. It is further recommended that the

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motion to dismiss (Doc. 173) be granted in part and denied in

part. The motion is denied as to Mr. Brown’s Eighth Amendment

claim relating to medical care and granted in all other respects.

Further, it is ordered that the motion to reserve defendants

(Doc. 155), the motion to stay discovery (Doc. 162) and the

motion for an extension of time (Doc. 174) are denied as moot. 

The motion for appointment of counsel (Doc. 160) is denied. The

motion to amend the complaint (Doc. 158) is granted. Finally,

the motions to re-serve defendants Stout, Trout and Nurse Smith

(Docs. 156 and 159) are granted. Defense counsel shall provide

Nurse Smith’s last known address to the Court within ten days.

PROCEDURE ON OBJECTIONS TO REPORT AND RECOMMENDATION

 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).

MOTION FOR RECONSIDERATION OF ORDER

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Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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Case: 2:13-cv-00006-GCS-SLO Doc #: 177 Filed: 09/09/16 Page: 60 of 60 PAGEID #: <pageID>