Robison v. Coey, Case No. 2:15-cv-944

David A. Robison, Plaintiff, v. Woody Coey, et al., Defendants.

Case No. 2:15-cv-944

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 2, 2017

JUDGE JAMES L. GRAHAM

Magistrate Judge Kemp

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court on a motion for summary judgment filed by defendants Woody Coey and Cody Posey. The motion has been fully briefed and is now ripe for decision. Also before the Court are three discovery-related motions filed by plaintiff David A. Robison. For the following reasons, the Court will recommend that the motion for summary judgment be granted. The Court resolves the remaining motions as follows.

I. Background

Plaintiff David A. Robison, an inmate at the Chillicothe Correctional Institution, filed this action under 42 U.S.C. §1983 alleging violations of his First and Fourteenth Amendment rights as a result of the conduct of defendants Woody Coey, Cody Posey, Brent Cruse, Corby Free, Roger Wilson, and Gary Mohr. Mr. Robison's claims (detailed below) all arise from an incident which took place in October, 2014, when, according to Mr. Robison, Cody Posey, a corrections officer, broke a lock on the locker of Mr. Blakeman, who was Mr. Robison's work supervisor in an OPI paint shop at CCI. Following the Court's order affirming the report and recommendation granting in part and denying in part a motion to dismiss, Mr. Robison asserts a claim against Mr. Coey and Mr. Posey for retaliation in violation of his First Amendment rights. See Robison v. Coey, 2015 WL 5437175 (S.D. Ohio Sept. 14, 2015) adopted and affirmed 2015 WL 6164113 (S.D. Ohio Oct. 21, 2015). Mr. Robison was later granted leave to amend to assert a claim for further retaliation by these defendants. See Robison v. Coey, 2016 WL 3350471 (S.D. Ohio June 16, 2016).

In the previous report and recommendation, the Court explained Mr. Robison's initial retaliation claim as follows:

To summarize, Mr. Robison has stated a claim for retaliation based on the following allegations. He provided statements to his supervisor Mr. Blakeman regarding Mr. Posey's alleged criminal activity in connection with Mr. Blakeman's investigation regarding the break-in to his locker. As a result, Mr. Coey prepared a false conduct report against Mr. Robison in conspiracy with Mr. Posey which then caused Mr. Robison to lose his job and good time credits. Mr. Coey and Mr. Posey conspired to have Mr. Coey write the false conduct report because Mr. Robison had implicated Mr. Posey in Mr. Blakeman's investigation. Beyond these specific allegations and these specific defendants, Mr. Robison has not stated a retaliation claim.

2015 WL 5437175, at *8.

In its order granting leave to amend, the Court described Mr. Robison's additional retaliation claim as follows:

... since Mr. Robison has not proposed any new defendants, he must be asserting that claim against Defendants Coey and Posey. He has alleged a sequence of facts showing that shortly after he served discovery and moved to compel, the false "nexus" was lodged, and he also alleges that this was part of a pattern of retaliation he has been experiencing since 2014. See Proposed Amended Complaint, Doc. 25, at 5.9 ("the Defendants will stop at nothing with their continuous constitutional deprivations and never ending attempts to thwart the forward progress of this case").

2016 WL 3350471, at *1.

II. Factual Background

Mr. Robison's initial claim is that he was retaliated against for giving truthful information to his supervisor, Tim Blakeman, during Mr. Blakeman's investigation of the break-in to Mr. Blakeman's locker. The factual background set forth below is taken from the parties' exhibits submitted in connection with the summary judgment motion.

The incident report form completed by Mr. Blakeman on October 23, 2014, following his discussion with Mr. Robison indicates the subject as "security" and reflects the following discussion with Mr. Robison:

On 10-23-14 Inmate Robison 517-488 E-1 307-B stated to me that he felt uneasy and threatened by Cody Posey PWSI making snitch accusations towards him when Posey worked paint shop on 10-22-14 and that he - Robison was going to take it up front if any more came from it. Robison stated to me that he came into the office of the paint shop to get copies when I (TMB) was on vacation and Posey was trying to piece back a combination lock on the desk and Posey told him he'd better not find out that he told me (TMB) about the lock. Robison asked what are you going to do with it now. Posey stated I'm going to throw it over the fence. Robinson (sic) also stated that Posey stated that he is very well connected with DRC through his family. Robison also stated that Hagwood 180-004 F1 216-T said Posey also told him he was going to throw it over the fence but Hagwood said to Robison that he would not admit to it. Inmate Martin stated that Posey PWSI asked him to pick the lock on the locker in the paint shop tool room. Martin 319-029 E1 311-B told Posey no. Martin was asked to pick the lock sometime when I was on vacation. Reported this to Captain Brown and Woody Coey.

The form further indicates that the action taken was:

- Communicated incident to Mr. Coey.

- Notified Major Camp and DWO Pierce. Electronic communication to DWSS

- Inmates Robison, Martin and Hagwood reassigned to Seg pending further investigation.

The bottom portion of this report indicates that it was reviewed by Warden Charlotte Jenkins on October 24, 2014. Handwriting appearing to be hers states [] Follow up: By OPI Supervisor Woody C to handle. Copies of the report were to be distributed to Operations Major, LRO, Locksmith, and W. Coey.

Based on this incident report, Mr. Robison was interviewed by Mr. Coey on October 23, 2014. According to Mr. Robison, he was called into Mr. Coey's office and questioned for approximately two hours about his knowledge of the missing lock. See Declaration of David A. Robison, ¶2, Doc. 63-1. The conduct report arising from this discussion is dated November 3, 2014 and appears to be signed by Mr. Coey. It identifies two rule violations: (27) giving false information or lying to departmental employees and (49) distruction (sic), alteration or misuse of property, and states:

Be advised through an investigation of interviews and written statements it has been determined that Inmate Robison fabricated a story involving (2) OPI employees to intentionally cause conflict between the employees. On 10/23/2014 Mr. Blakeman (OPI PWS-Paint Shop) reported by incident report (attached) that Inmate Robison was stating that he seen PWS Posey with a missing lock that had been reported the day prior by Mr. Blakeman. He also reported that Inmate Robison was also stating that Mr. Posey was making "snitch accusations" towards him and he felt threatened by Mr. Posey and "he would take it up front if any more came of it." During an interview with Inmate Robison (attached, signed statement) Inmate Robison contradicts himself and states the he has never felt threatened by Mr. Posey and Mr. Posey has never called him any kind of names. Inmate Robison also stated in the interview that he never told anyone staff or inmate that he would "take it up front."

Be advised Inmate Robison also took it upon himself to type up a statement (attached) on an OPI typewriter which is against OPI policy and a misuse of OPI equipment.

Inmate Robison reclassed out of OPI.

This conduct report was based, at least in part, on an interview statement prepared by Mr. Coey and signed by Mr. Robison. Defendants and Mr. Robison have submitted identical copies of that interview statement with their filings. It states as follows:

Inmate Robison 517-488 E-1

States when Mr. Posey was working the Paint shop on a day Tim Blakeman was on Vacation, he went to the office to make copies and seen Mr. Posey sitting at the desk working on a lock. Robison states that lock was a (Master) combination lock silver in color with a blue face. Robison States he asked Mr. Posey, "did you break your lock", Posey replied "I broke Blakeman's lock". Robison States Posey said he was trying to get in the cabinet and the lock broke. Also Mr. Robison states Mr. Posey said if he couldn't get the lock fixed he was going to throw it over the fence.

Robison sates he never visually seen Mr. Posey break the lock or try to get it off the cabinet. He states the days Mr. Posey was working in the Paint shop he never seen Mr. Posey in or around the cabinet at all.

Robison states that Inmate Martin 319-029 told him in the unit (E-1) that Mr. Posey asked him to pick the lock.

Robison states he was present the entire time the locksmith was in the Paint shop due to an issue with a lock on the cage/office door. Robinson (sic) states that he never heard anything mentioned to the locksmith concerning the lock in question on the cabinet. He states the incident with the lock took place after the locksmith was in the shop.

Robison states he has never felt threatened by Mr. Posey nor does he now. He states Mr. Posey has not called him any names or treated him any different today than he had last week or a month ago.

Robison states he never told anyone, inmate or staff that he was going to up front and talk about the incident or to anyone else. He states he never stated he would "take it up front."

Robison states Mr. Posey yesterday (October 22) asked him if he told anyone about the lock and Robison stated his response was "No".

Robison says that he told Mr. Blakeman of the incident concerning the lock on Monday morning October 20^th when asked by Mr. Blakeman.

In his declaration filed in this case, Mr. Robison states that this is not the interview statement he signed in Mr. Coey's office on October 23, 2014. See Declaration, ¶¶5 and 6, Doc. 63-1. He explains that certain information has been added to the statement he signed and other information has been deleted. He identifies this information as follows:

Information Added to the Interview Statement:

I NEVER

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