UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

DERRICK SWEETING, Case No. 1:17-cv-727 

Plaintiff, 

Dlott, J. 

vs Bowman, M.J. 

THOMAS SCHWEIGTZER, et al., 

Defendants. 

REPORT AND RECOMMENDATION 

Plaintiff, an inmate currently incarcerated at Ohio State Penitentiary (“OSP”) brings 

this action against defendants Thomas Schweitzer, Major Spurlock, Lt. Husbard, Lt. 

Couch, Lt. Shankin, and Sgt. Mrs. Hilis. This matter is now before the Court on 

Defendants motion for summary judgment (Doc. 35) and the parties’ responsive 

memoranda. 

I. Background and Facts

Plaintiff initiated this action on October 30, 2017. (Doc 1). Plaintiff’s Complaint was 

ultimately sua sponte dismissed by this Court because he “failed to state a viable claim 

under § 1983” (Doc. 5 at PageID 24). Plaintiff then filed an amended complaint (Doc. 12), 

laying out his claims against the Defendants. Plaintiff’s claims revolve around an incident 

involving Plaintiff and another inmate, Marcus Arnold (Doc. 12 at Page ID 55). Plaintiff 

was assaulted by Arnold on December 23, 2016. Plaintiff asserts that Arnold assaulted 

him because Sergeant Melissa Hillis paid Arnold to do so. Plaintiff further asserts that 

Hillis informed inmates who were members of the Bloods gang that Plaintiff was informing 

on them, and that Plaintiff threatened to start a gang war. (Doc 12). Based on the 
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foregoing, Plaintiff’s amended complaint asserts claims under section 1983 for alleged 

violation of his Constitutional rights under the Eighth Amendment. Plaintiff also asserts a 

claim for negligence under state law. 

Defendants now move for summary judgment asserting that they are entitled to 

judgment as a matter of law. For the reasons that follow, the undersigned finds that 

Defendants’ motion is well-taken. 

II. Standard of Review 

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if 

the movant shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” A dispute is “genuine” when “the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the evidence and draw 

all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden of 

showing an absence of evidence to support the non-moving party’s case. Celotex Corp. 

v. Catrett, 477 U.S. 317, 325 (1986). 

Once the moving party has met its burden of production, the non-moving party cannot 

rest on his pleadings, but must present significant probative evidence in support of his 

complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 

477 U.S. at 248-49. The mere existence of a scintilla of evidence to support the nonmoving party’s position will be insufficient; the evidence must be sufficient for a jury to 

reasonably find in favor of the nonmoving party. Id. at 252. 
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III. Analysis 

A. Immunity 

As an initial matter, Defendants asserts that Plaintiff’s claims against them in their 

official capacities are barred by the Eleventh Amendment. Where a state has not waived 

its immunity, the Eleventh Amendment acts as a jurisdictional bar to a federal court lawsuit 

against a state. Wolfel v. Morris, 972 F.2d 712, 718 (6th Cir. 1992); Wilson-Jones v. 

Caviness, 107 F.3d 358, 358 (6th Cir. 1997). Ohio has not waived its sovereign immunity, 

and Congress did not disturb the states’ Eleventh Amendment immunity when it passed 

42 U.S.C. § 1983. Wolfel, 972 F.2d at 718; Mackey v. Cleveland State Univ., 837 F. Supp. 

1396, 1403 (N.D. Ohio 1993). The Eleventh Amendment thus precludes all suits, whether 

for injunctive or monetary relief, against the state and its departments. Cox v. Kentucky 

Dep’t of Transp., 53 F.3d 146, 152 n.2 (6th Cir. 1995) (citing Pennhurst State School & 

Hospital v. Halderman, 465 U.S. 89, 100–01, 79 L.Ed.2d 67 (1984)). Moreover, a suit 

against a state official in his or her official capacity is deemed a suit against the official’s 

office. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Accordingly, a suit 

against a state official in his or her official capacity is no different from a suit against the 

state itself, and is also barred by the Eleventh Amendment. Id.; see also Hall v. Medical 

College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984) (holding that the Eleventh 

Amendment barred suit against university officers sued in their official capacities). To the 

extent Plaintiff’s complaint seeks to hold Defendants liable in their official capacities, the 

undersigned agrees that Eleventh Amendment bars that claim for monetary relief. Will,

491 U.S. at 65. 
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B. Exhaustion 

Defendant next contends that Plaintiff failed to properly exhaust his administrative 

remedies before filing this action. 

A centerpiece of the PLRA is its requirement that a prisoner exhaust all available 

state administrative remedies before filing a lawsuit in federal court challenging the 

conditions of his confinement. Woodford v. Ngo, 548 U.S. 81, 84 (2006). In pertinent part, 

the PLRA provides: 

No action shall be brought with respect to prison conditions under section 

1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any 

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

correctional facility until such administrative remedies as are available are 

exhausted. 

42 U.S.C. § 1997e(a). “Congress enacted § 1997e(a) to reduce the quantity and 

improve the quality of prisoner suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). This 

exhaustion requirement “applies to all inmate suits about prison life, whether they involve 

general circumstances or particular episodes, and whether they allege excessive force or 

some other wrong.” Id. at 532. “A prisoner’s failure to exhaust his intra-prison 

administrative remedies prior to filing suit ‘is an affirmative defense under the PLRA . . ..’” 

Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012) (quoting Jones v. Bock, 549 U.S. 

199, 216 (2007)). The defendants bear the burden of proof on the affirmative defense of 

failure to properly exhaust administrative remedies. Napier v. Laurel Cnty., Ky., 636 F.3d 

218, 225 (6th Cir. 2011)(citing Jones v. Bock, 549 U.S. 199, 204 (2007)). “Summary 

judgment is appropriate only if defendants establish the absence of a genuine dispute as 

to any material fact regarding non-exhaustion.” Surles, 678 F.3d at 455. 
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An Ohio prisoner may not file a complaint in federal court until he has filed a 

grievance using the Ohio inmate grievance procedure, the grievance has been acted on, 

and the prisoner has exhausted all of his administrative appellate rights with respect to 

the grievance. Id. at *10 (citing White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997)); 

see also Brown v. Warden, Ross Corr. Inst., No. 2:10-cv-822, 2012 U.S. Dist. LEXIS 

115045, at *37–38 (S.D. Ohio Aug. 15, 2012) (“An inmate does not exhaust his remedies 

under § 5120-9-31 until he has received a decision in an appeal to the office of the Chief 

Inspector.”). “Proper exhaustion demands compliance with an agency's deadlines and 

other critical procedural rules because no adjudicative system can function effectively 

without imposing some orderly structure on the course of its proceedings.” Woodford, 548 

U.S. at 91 (2006). Ohio has established the following three-step “inmate grievance 

procedure” to “address inmate complaints related to any aspect of institutional life that 

directly and personally affects the [inmate],” including “complaints regarding policies, 

procedures, conditions of confinement, or the actions of institutional staff.” Ohio Admin. 

Code 5120-9-31(A). All inmates receive written and oral descriptions of this procedure. 

Ohio Admin. Code 5120-9-31(C). ODRC maintains an inmate grievance procedure that 

is available to all inmates regardless of their disciplinary status at each of its institution. 

See Ohio Admin. Code 5120-9-31(D). 

Here, the record indicates that Plaintiff did not initiate or complete any step of the 

inmate grievance procedure with respect to any issue he was facing regarding anything 

mentioned in the complaint. The Assistant Chief Inspector of DRC has submitted 

evidence that confirmed that Plaintiff did not complain with an ICR, Grievance, or Appeal, 
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as demonstrated by his failure to appeal his RIB decision and his grievance history. (See 

Doc. 35, Exhs. A, B, and C). 

Accordingly, pursuant to the PLRA, Plaintiff cannot seek redress under § 1983. 

C. Eighth Amendment Claims and Qualified Immunity 

Plaintiff claims that Defendants actions violated his constitutional rights under the 

Eighth Amendment by failing to protect him. To make out a failure to protect claim under 

the Eighth Amendment, a plaintiff must prove both an objective and subjective 

component, and must show that a prison official was deliberately indifferent to his safety 

or welfare. Farmer v. Brennan, 511 U.S. 825, 833 (1994). To prove that he faces an 

objectively substantial risk of harm, a plaintiff must allege more than a generalized fear 

or threat of harm. See Blacker v. Satterthwaite, 2011 WL 6338851 at (S.D. Oct. 14, 2011); 

Mosquera v. Delgado, 2010 WL 2010973 at *4 (additional citations omitted) (inmate who 

alleged that he repeatedly told defendants that he feared for his health and safety due to 

“serious threats and conflict” with gang members did not show objective conditions posing 

a substantial risk in part because inmate identified only a general conflict). 

Here, Plaintiff asserts that Defendant Hillis informed inmates who were members 

of the Bloods gang that Plaintiff was informing on them, and that Plaintiff threatened to 

start a gang war. (Doc 12). However, Plaintiff presents no evidence in support of this 

assertion and therefore has failed to establish any constitutional violation. 

Defendants are also entitled to qualified immunity. Notably, qualified immunity 

protects government officials “from liability for civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional rights of which a reasonable 

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 
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L.Ed.2d 396 (1982). Qualified immunity not only insulates government officials from 

individual liability for money damages, but from the burdens and expenses of litigation 

and trial. Saucier v. Katz, 533 U.S. 194, 200–201, 121 S.Ct. 2151, 150 L.Ed.2d 272 

(2001). 

The doctrine of qualified immunity is intended to balance the following competing 

interests: “the need to hold public officials accountable when they exercise power 

irresponsibly and the need to shield officials from harassment, distraction, and liability 

when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 

S.Ct. 808, 815, 172 L.Ed. 2d 565 (2009). Qualified immunity “‘gives ample room for 

mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly 

violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 

(1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 

(1986). See also Dorsey v. Barber, 517 F.3d 389, 394 (6th Cir. 2008). 

Qualified immunity applies regardless of whether the official's error was a mistake 

of law or a mistake of fact, or a mistake based on mixed questions of law and fact. 

Pearson, 555 U.S. at 231, 129 S.Ct. 808. Here, Defendants are entitled to qualified 

immunity in their individual capacities on the record presented because Plaintiff has failed 

to show that any Defendant violated any clearly established constitutional right of which 

a reasonable person would have known. 

D. Negligence 

Last, Plaintiff’s tort claims against the State of Ohio are barred by preclusion and 

subject to dismissal. Notably, Plaintiff has already litigated his negligence claim in the 
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Court of Claims, which has exclusive jurisdiction over tort actions against the State of 

Ohio. This issue was resolved in the Court of Claims of Ohio Case No. 2017-00668AD. 

The doctrine of collateral estoppel, or issue preclusion, "precludes relitigation of 

issues of fact or law actually litigated and decided in a prior action between the same 

parties and necessary to the judgment, even if decided as part of a different claim or 

cause of action." Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 

661 (6th Cir. 1990); Hobart Corp. v. Dayton Power & Light Co., 997 F. Supp. 2d 835, 849, 

2014 U.S. Dist. LEXIS 20953, *34, 78 ERC (BNA) 1638. Under the doctrine of nonmutual 

claim preclusion, dismissal may be appropriate where the subsequent lawsuit arises out 

of the same operative facts with only slight changes to the legal theory asserted or the 

parties sued. See Randles v. Gregart, 965 F.2d 90, 93 (6th Cir. 1992). Federal courts 

must give the same preclusive effect to a state-court judgment as that judgment receives 

in the rendering state. 

Accordingly, Plaintiff’s negligence claims are barred by preclusion.1

IV. Conclusion 

In light of the foregoing, it is herein recommended that Defendants motion for 

summary judgment (Doc. 35) be GRANTED and this matter CLOSED.

s/Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

 

1 Additionally, because plaintiff’s federal claims should be dismissed, the Court no longer has original 

jurisdiction and should decline to exercise supplemental jurisdiction over any pendant state-law claims. See 

28 U.S.C. § 1367(c)(3). Accordingly, any state law claims should also be dismissed without prejudice.
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

DERRICK SWEETING, Case No. 1:17-cv-727 

Plaintiff, 

Dlott, J. 

vs Bowman, M.J. 

THOMAS SCHWEIGTZER, et al., 

Defendants. 

NOTICE

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on 

timely motion by either side for an extension of time. All objections shall specify the 

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in 

support of the objections. A party shall respond to an opponent’s objections within 

FOURTEEN DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).