Ernell Hailes, 

Plaintiff, 

v. 

Corby Free, eta/., 

Defendants. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Case No. 2:12-cv-687 

Judge Michael H. Watson 

OPINION AND ORDER 

Plaintiff objects to the Order and Report and Recommendation ("Order and 

R&R") Magistrate Judge Deavers issued in this prisoner civil rights case brought 

pursuant to 42 U.S.C. § 1983. The Order and R&R denied Plaintiff's motion to 

add additional defendants to the case and recommended dismissing Plaintiff's 

First Amendment retaliation claim. For the following reasons, the Court overrules 

Plaintiff's objections. 

I. FACTS 

Plaintiff is a Seventh Day Adventist in the custody of the Chillicothe 

Correctional Institution. He states that he was granted a religious 

accommodation to relieve him from working on Saturdays, his Sabbath. 

Nonetheless, he contends that Defendant Officer Elam woke Plaintiff up early 

one Saturday morning and directed Plaintiff to report to snow duty. He states 

that when he refused, Defendant Elam took him to Defendant Lieutenant Collier, 

who placed him into segregation as retaliation for exercising his First Amendment 

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right to the free exercise of religion. Additionally, Plaintiff states that he showed 

his religious accommodation paperwork to both Defendants but that it was 

ignored. 

II. STANDARD OF REVIEW 

This case invokes two standards of review. With respect to the ruling on 

Plaintiff's motion to add defendants, Magistrate Judge Deavers issued an order 

pursuant to Federal Rule of Civil Procedure 72(a). In considering objections to 

Rule 72(a) Orders, the Court must modify or set aside any portion of the order 

that is clearly erroneous or contrary to law. 

With respect to Defendants' motion for summary judgment on Plaintiff's 

First Amendment claim, Magistrate Judge Deavers issued an R&R pursuant to 

Federal Rule of Civil Procedure 72(b)(2). That rule provides that "[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may 

serve and file specific written objections to the proposed findings and 

recommendations." Fed. R. Civ. P. 72(b)(2). "The district judge must determine 

de novo any part of the magistrate judge's disposition that has been properly 

objected to. The district judge may accept, reject, or modify the recommended 

disposition; receive further evidence; or return the matter to the magistrate judge 

with instructions." Fed. R. Civ. P. 72(b)(3). 

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Ill. ANALYSIS 

Plaintiff fails to address the R&R's conclusion that he was not engaging in 

protected activity when he failed to report for snow duty on his Sabbath because 

his failure to report violated the ODRC's policy on Institutional Religious Services. 

His silence on that conclusion means the Court will not review it de novo. 28 

U.S.C. § 636(b) ("A judge of the court shall make a de novo determination of 

those portions of the report or specified proposed findings or recommendations 

to which objection is made."). Because the Court adopts that conclusion, 

Plaintiff's First Amendment retaliation claim necessarily fails. The Court 

nonetheless addresses Plaintiff's objections for completeness. 

Plaintiff's objections are somewhat difficult to decipher, but the Court has 

construed the document as making the following arguments: 

First, Plaintiff argues at the beginning and end of his objections that the 

Court should reject the R&R because it was not received by Plaintiff until June 

25, 2014, and there is no way he could "meet" it. The Court construes these 

portions of the objections as a request that the Court accept the objections as 

timely filed, which the Court has already done. Order, ECF No. 58. 

Second, Plaintiff requests an extension of time to file objections, arguing 

the R&R was issued without complete knowledge of the facts. Plaintiff's request 

is denied. Despite his request for an extension of time, Plaintiff sufficiently 

argued the bases for his objections in the remainder of the document. The Court 

finds none of those objections has merit. 

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Third, Plaintiff objects again to the Ohio Attorney General's office 

representing Defendants, states conclusorily that Defendants are "colluding," and 

complains of the Magistrate Judge's refusal to add "them" to this case. The 

Court interprets Plaintiff's reference to "them" as a reference to Lawrence 

Freeman, Amy Hamilton, and Deputy Warden Cunningham, who Plaintiff sought 

to add as additional defendants in this case-a request the Order portion of the 

Order and R&R denied. He again contends that Lawrence Freeman, Amy 

Hamilton, and Deputy Warden Cunningham have retaliated against Plaintiff and 

attempted to deny Plaintiff his right to a trial by refusing to sign and advising 

others not to sign the affidavits Plaintiff requested they sign. /d. at 6. 

Nothing in Plaintiff's objections on these issues shows the Order was 

clearly erroneous or contrary to law in its denial of Plaintiff's motion for joinder 

under Federal Rule of Civil Procedure 20. Indeed, Plaintiff's reiteration of his 

argument confirms that his claims against Freeman, Hamilton, and Deputy 

Warden Cunningham do not arise out of the same transaction or occurrence as 

his claims against Officer Elam and Lieutenant Collier. Accordingly, those 

objections are overruled. 

Fourth, Plaintiff argues the prison officials alleged they were never shown 

Plaintiff's religious accommodation paperwork. He contends that, to the contrary, 

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Bruce Wilson's affidavit proves that Plaintiff showed his religious accommodation 

paperwork to Defendants before they placed him in segregation. 1 

Plaintiff apparently contends that Mr. Wilson's affidavit creates a genuine 

dispute of material fact as to whether Plaintiff showed the religious 

accommodation paperwork to Defendants before Lieutenant Collier placed him in 

segregation. The R&R, however, assumed that a genuine issue of material fact 

existed as to whether Plaintiff showed his religious accommodation paperwork to 

Defendants. R&R at 9-10, ECF No. 53. There is thus no error in the R&R on 

that point. 

Fifth, Plaintiff contends the R&R erred in finding that Defendants' actions 

were "unintended." He contends that he provided proof via Mr. Wilson's affidavit 

that their actions were intentional. He also asserts that the dismissal of the 

misconduct ticket Plaintiff was issued for refusing to report to snow duty shows 

Defendants' actions were "intentional and intended to cause harm to Plaintiff." 

Obj. 5, ECF No. 57. Essentially, Plaintiff argues that because he showed the 

religious accommodation paperwork to Defendants before he was placed in 

segregation, Defendants' actions were an intentional perversion of justice. Obj. 

5, ECF No. 57. 

1 In this portion of his objections, Plaintiff also offers an explanation of why he received a 

religious accommodation in the first place. He explains that he was originally assigned 

to kitchen duties and was forced to work on his Sabbath every other week. After 

receiving the religious accommodation paperwork, Plaintiff says he was excused from 

working in the kitchen on the Sabbath, "and this was intered [sic] into their computer." 

Obj. 4, ECF No. 57. The Court finds the origination of his religious accommodation is 

irrelevant to the claims in this case. 

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The Court construes this objection as an argument that Defendants 

retaliated against Plaintiff due to his exercise of religion and an objection to the 

R&R's conclusion that Plaintiff failed to raise a genuine dispute of material fact as 

to whether his exercise of religion was a motivating factor in placing Plaintiff into 

segregation. The Court agrees with the R&R, however, that the mere fact that 

Plaintiff was told to work snow duty even after showing his religious 

accommodation paperwork to Defendants2 is not evidence of Defendants' 

motivation in telling Plaintiff to work snow duty. 

Moreover, the Court has reviewed the Hearing Officer's Report finding 

Plaintiff not guilty of an offense violation for refusing to work snow duty. Ex. C, 

ECF No. 42-1, PAGEID # 320-21. The report does not, as Plaintiff suggests, 

state that Officer Elam and Lieutenant Cunningham acted intentionally to retaliate 

against Plaintiff for exercising his right to religion. Similarly, nothing in Wilson's 

affidavit, or any evidence submitted by Plaintiff, showed that Plaintiffs exercise of 

his religion was a motivating factor in Defendants' actions. Plaintiffs objections 

to the R&R's finding that he failed to raise a genuine dispute of fact as to 

causation are therefore overruled.3 

Sixth, Plaintiff argues that verbal harassment, accompanied by 

punishment, is unconstitutional. This appears to be in response to the R&R's 

2 Which the Court assumes because there is a genuine dispute of material fact on that 

~oint. 

As noted above, even if the Court found a genuine dispute of material fact as to 

causation, Plaintiff's claim still fails because there is no dispute of fact as to whether he 

engaged in protected activity. 

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conclusion that verbal harassment alone does not rise to the level of a 

constitutional violation. R&R 8, ECF No. 53. 

This objection fails because the R&R concluded only that Plaintiff's claims 

based solely on verbal harassment, i.e. the name calling, fail to rise to the level of 

a constitutional violation. Plaintiff's contention on objection is that the verbal 

harassment amounts to a constitutional violation when paired with the 

segregation. The R&R agreed with Plaintiff on that point, and Defendants 

conceded that Plaintiff's placement into segregation constituted an adverse 

action. /d. at 10. 

Finally, Plaintiff argues that snow removal could have been performed by 

inmates other than himself. He asserts that because CCI agreed to the religious 

accommodation, it should be recognized by Defendants upon Plaintiff showing it 

to them. This argument fails because Plaintiff does not cite to any binding 

authority holding that conduct that otherwise violates a legitimate prison 

regulation becomes protected conduct if other inmates could perform the work. 

IV. CONCLUSION 

Plaintiff's objections are overruled. The Court adopts the R&R. The Clerk 

shall enter judgment for Defendants and terminate the case. 

IT IS SO ORDERED. 

Case No. 2:12-cv-687 

M CHAEL H. WATSON, JUDGE 

UNITED STATES DISTRICT COURT 

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