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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

GERALD BULLOCKS, Case No. 1:18-cv-23 

Plaintiff, 

Dlott, J. 

 vs Bowman, M.J. 

AARON MUMMERT, et al., 

Defendants. 

REPORT AND RECOMMENDATION 

 Plaintiff, a prisoner at the Southern Ohio Correctional Facility (SOCF), filed a pro 

se civil rights complaint against defendants Aaron Mummert and Linnea Mahlman. This 

matter is now before the Court on the parties’ cross motions for summary judgment. 

I. Background and Facts 

In the complaint, Plaintiff alleges that on or about February 12, 2017, he filed an 

informal complaint resolution because he had been denied recreation on several 

occasions. In the informal complaint, Plaintiff complains that certain inmates are not 

getting basketballs during recreation, that his block has outside recreation more than 

inside recreation, and that he was “refused” recreation “at least 5 times in the past 2 

weeks.” (Doc. 17, Ex. D). 

On February 14, 2017, in response to Plaintiff’s complaint, Defendant found: “After 

pulling documentation, I have seen where your block has gone on a consistent basis. 

Your block has been rotated as all other blocks with inside/outside rec every other day.” 

(Doc. 17 at Ex. D). 
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Thereafter, that same day, Defendant issued Plaintiff a conduct report. The report 

states that “[Plaintiff] made accusations that his housing block J3 is being denied 

recreation on a consistent basis. After pulling over a month of recreation documentation 

the inmate has lied about being denied recreation as well as not getting to go to inside 

recreation these accusations have been proven to be false.” Id. The conduct report 

charged Plaintiff with a violation of Rule 27. 

An institutional hearing was held to resolve the conduct report. (Doc. 17, Ex. E). 

The hearing report found that “[s]egregation sheets and DVR video show this inmate 

coming and going from recreation. [Plaintiff] is using the ICR system to harass and 

intimidate staff by using falsehoods as a lie and threat.” Id. The Hearing Officer found 

Plaintiff guilty of a Rule 27 violation, giving false information or lying to departmental 

employees. Id. As a result, Plaintiff was “placed on a recreation restriction from 

02/15/2017 through 03/07/2017.” Id. at Ex. G. 

On March 6, 2017, Plaintiff filed another grievance asserting that he was given a 

conduct report in retaliation for filing his prior grievance complaining about his lack of 

recreation. (Doc. 17, Ex. G). Plaintiff’s grievance was denied because the conduct report 

was not greivable since a separate appeal process was available. Id. Plaintiff then filed 

an appeal to the Chief Inspector. Id. at Ex. H. 

Upon review, the Chief Inspector determined that there was not an investigation 

into Plaintiff’s claim of retaliation and whether the conduct report was issued as a result 

of utilizing the grievance process in violation of AR 5120-9-31(F). Such provision states, 

in relevant part: 

An inmate may be subject to disciplinary action for disrespectful threatening 

or otherwise inappropriate comments made in an informal complaint, 
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grievance, or grievance appeal. Only the inspector of institutional 

services, with the approval of the chief inspector or designee, may initiate 

disciplinary action based upon the contents of an informal complaint, 

grievance or grievance appeal. 

 Doc. 17, Ex. B.2) (emphasis added). 

Defendant Mummert, the recreation supervisor, was not authorized to issue a 

conduct report. Accordingly, the decision of the Inspector was reversed. Id. The conduct 

report was overturned and removed from Plaintiff’s institutional disciplinary history. 

Thereafter, Plaintiff filed the instant action asserting that Defendant Mummert 

retaliated against him in violation of his constitutional rights under the First Amendment. 

Plaintiff’s complaint further asserted that Defendant Mahlman failed in her duty to 

investigate the claims of retaliation. Upon sua sponte review of the complaint pursuant 

to the Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 

U.S.C. § 1915A(b), Plaintiff’s complaint was dismissed with prejudice with the exception 

of Plaintiff’s First Amendment retaliation claim against defendant Mummert. (Doc. 7). 

 Now before the Court are the parties’ cross motions for summary judgment. (Docs. 

17, 23). Upon careful review, the undersigned finds that Defendant Mummert is entitled 

to judgment as a matter of law. 

II. Analysis 

A. 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.” 
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202 

(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, 

106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden of showing an 

absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 

U.S. 317, 325, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). 

Once the moving party has met its burden of production, the nonmoving party 

cannot rest on the pleadings, but must present significant probative evidence in support 

of his case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49. 

The mere 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. 

As Plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United 

States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 

1999). However, his status as a pro se litigant does not alter his burden of supporting his 

factual assertions with admissible evidence when faced with a summary judgment motion. 

Maston v. Montgomery Cnty. Jail Med. Staff Personnel, 832 F. Supp. 2d 846, 851-52 

(S.D. Ohio 2011) (citing Viergutz v. Lucent Techs., Inc., 375 F. App’s 482, 485 (6th Cir. 

2010)). 

B. First Amendment Retaliation Claim 

As noted above, Plaintiff alleges that Defendant violated his First Amendment right 

to be free from retaliation when Defendant issued Plaintiff a conduct report after Plaintiff 

filed an informal complaint relating to reduced recreation time. Defendants contend that 
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they are entitled to judgment as a matter of law because their actions do not constitute 

retaliation. 

Retaliation based upon a prisoner's exercise of his or her constitutional rights 

violates the Constitution. See Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) 

(en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must 

establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken 

against him that would deter a person of ordinary firmness from engaging in that conduct; 

and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. 

With respect to the first prong of this analysis, Defendants contend that Plaintiff’s 

claim cannot proceed beyond the first step of the retaliation analysis because he does 

not possess a constitutional right to lie or give false information to departmental 

employees. However, is undisputed that Plaintiff has a constitutional right to file a prison 

grievance or a civil lawsuit without fear of retaliation. See Smith v. Campbell, 240 F.3d 

1032, 1037 (6th Cir. 2001); Bell v. Johnson, 308 F.3d 594, 607 (6th Cir. 2002). 

Turning to the second prong of the retaliation analysis, Defendant contends that 

the conduct report and coinciding punishment are not sufficient to deter a person of 

ordinary firmness. This conduct report was not a major misconduct report that could result 

in loss of disciplinary credits. Thomas v. Eby, 481 F.3d 434, 441 (6th Cir. 2007). 

Additionally, it was later repealed and removed from his disciplinary record. (Doc. 17, Exs. 

B.2, H). 

When deciding whether the issuance of a disciplinary charge rises to the level of 

an adverse action, the Sixth Circuit instructs trial courts to “look to both the punishment 

[the plaintiff] could have faced and the punishment he ultimately did face.” Maben v. 
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Thelen, 887 F.3d 252, 266 (6th Cir. 2018), reh'g denied (Apr. 19, 2018) (citing Scott v. 

Churchill, 377 F.3d 565, 572 (6th Cir. 2004)). The filing of a disciplinary charge ordinarily 

will demonstrate a sufficiently adverse action to deter “a person of ordinary firmness” from 

protected activity unless the potential punishment is “de minimis” or “inconsequential.” Id., 

at 267. The record here reflects that Plaintiff was denied recreation for 14 days and the 

conduct report was ultimately removed from his disciplinary record. Defendant contends 

that this punishment was “de minimis” and “prisoners are expected to endure more than 

the average citizen.” Siggers–El, 412 F.3d at 701. As such, Defendant argues a short 

period of time without recreation is unlikely to deter an average citizen, let alone a prisoner 

who is expected to endure more. See Gonzales v. Currie, supra, 2014 WL 222353 at * 

14 (rejecting a retaliation claim where the punishment imposed was a verbal reprimand 

and the loss of five days of recreation). 

The undersigned finds that loss of recreation could be seen as a de minimus 

punishment, and as such Plaintiff has failed to establish the existence of an adverse 

action. See also Morris v. Powell, supra, 449 F.3d at 685 (noting that the imposition of a 

“minor sanction” is not sufficient to support a retaliation claim). However, assuming 

arguendo, that Plaintiff’s loss of recreation for 14 days was an adverse action, the third 

prong will be examined. 

 The third and last prong of the First Amendment retaliation claim is causation. In 

this regard, Defendant Mummert challenges Plaintiff’s ability to produce evidence of a 

“causal connection” between the first two elements of his retaliation claim. Under the third 

element, “the subjective motivation of the defendants is at issue.” Id. at 399. “The analysis 

of motive in retaliation claims is well-developed” - “[o]nce the plaintiff has met his burden 
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of establishing that his protected conduct was a motivating factor behind any harm, the 

burden of production shifts to the defendant.” Id. (citing Mount Healthy City Sch. Dist. Bd. 

of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). “If the defendant 

can show that he would have taken the same action in the absence of the protected 

activity, he is entitled to prevail on summary judgment.” Id. A defendant must make this 

showing by a preponderance of the evidence. King v. Zamiara, 680 F.3d 686, 709 (6th 

Cir. 2012). Maben, 887 F.3d at 262 (additional internal citations omitted). Thus, a plaintiff 

must show both (1) that the adverse action was proximately caused by an individual 

defendant's acts, Siggers–El v. Barlow, 412 F.3d 693, 702 (6th Cir. 2005), but also (2) 

that the individual taking those acts was “motivated in substantial part by a desire to 

punish an individual for exercise of a constitutional right.” Thaddeus–X, 175 F.3d at 386. 

Here, Defendant argues that although Plaintiff contends that the conduct report 

was written because he filed a grievance, the language of the conduct report directly 

contradicts his assertion. The conduct report states: “After pulling over a month of 

recreation documentation the inmate has lied about being denied recreation as well as 

not getting to go to inside recreation, these accusations have been proven to be false.” 

(Doc. 17, Ex. E). As previously stated, Rule 27 prohibits inmates from giving false 

information or lying to departmental employees. Ohio Admin. Code 5120-9-06(C)(27). A 

conduct report may be written against an inmate that violates this rule, even if they do so 

in an informal complaint. Ohio Admin. Code 5120-9-31(G). Accordingly, Defendant 

argues that his action was not taken because Plaintiff submitted an informal complaint; 

rather, the issuance of the conduct report was because Plaintiff lied in his informal 

complaint, which is a rule violation. Id. The undersigned agrees and finds that the conduct 
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report was not motivated by the filing of Plaintiff’s grievance, it was motivated by the false 

information contained therein. As such, Defendant is entitled to judgment as a matter of 

law with respect to Plaintiff’s retaliation claim. 

C. Qualified Immunity 

In the alternative, assuming Plaintiff has met his burden of establishing a First 

Amendment retaliation claim, which he has not, Defendant Mummert is entitled to 

qualified immunity. The purpose of qualified immunity is to provide governmental officials 

with the ability “reasonably [to] anticipate when their conduct may give rise to liability for 

damages.” Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012 (1984). Thus, a 

governmental official performing discretionary functions will be entitled to qualified 

immunity unless his actions 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, 2738 (1982). A governmental official is entitled to immunity if the 

facts alleged do not make out a violation of a constitutional right, or if the alleged 

constitutional right was not clearly established at the time of the defendant’s alleged 

misconduct. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808 (2009). Once a defendant 

has raised the defense of qualified immunity, the plaintiff bears the burden of proof to 

show that the defendant is not entitled to that defense. See Garretson v. City of Madison 

Heights, 407 F.3d 789, 798 (6th Cir. 2005). 

Here, as noted above, Plaintiff has failed to establish a violation of his constitutional 

rights. Furthermore, the actions taken by Defendant Mummert would not constitute a 

violation of a “clearly established” right for the purposes of qualified immunity because a 

reasonable officer would have believed Defendant Mummert actions in issuing a conduct 
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report for lying would be a legitimate reason for such conduct report. Furthermore, courts 

have found that writing conduct reports, or ones based on mistaken beliefs, alone, does 

not violate inmate’s constitutional rights for purposes of qualified immunity. See e.g., 

Lindell v. O'Donnell, 2005 U.S. Dist. LEXIS 24767, *87-88 (W.D. Wis. 2005) (holding 

qualified immunity applied to retaliation claims involving an officer who wrote a conduct 

report in response to an inmates threat to sue); Spencer v. Wilson, 2012 U.S. Dist. LEXIS 

79832, at *6 (E.D. Ky. June 8, 2012) ("[t]he act of filing false disciplinary charges does 

not itself violate a prisoner's constitutional rights."); Freeman v. Rideout, 808 F.2d 949, 

952-53 (2nd Cir. 1986) ("the mere filing of [a false] charge itself" does not constitute a 

cognizable claim under § 1983 so long as the inmate "was granted a hearing, and had 

the opportunity to rebut the unfounded or false charges."); see also Lee v. Pauldine, 2013 

U.S. Dist. LEXIS 1497, *21 (S.D. Ohio 2013) (citing to both Spencer and Freeman). 

As such, even if Plaintiff had a shown a constitutional violation, the undersigned 

finds that Defendant would be immune from Plaintiff's claim against him and would 

therefore entitled to judgment as a matter of law. 

IV. Conclusion 

For the foregoing reasons, Plaintiff’s motion for summary judgment (Doc. 17) 

should be DENIED; Defendant’s motion for summary judgment (Doc. 23) should be 

GRANTED; and this matter TERMIANTED from the active docket of the Court. 

 s/Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 
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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

GERALD BULLOCKS, Case No. 1:18-cv-23 

Plaintiff, 

Dlott, J. 

 vs Bowman, M.J. 

AARON MUMMERT, 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).