NOT RECOMMENDED FOR PUBLICATION File Name: 20a0043n.06
No. 18-4019
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 23, 2020 JEFFREY D. MANN, ) ) DEBORAH S. HUNT, Clerk Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF GARY C. MOHR, et al., ) OHIO ) Defendants-Appellees. )
BEFORE: SILER, GIBBONS, and THAPAR, Circuit Judges.
PER CURIAM. Jeffrey D. Mann, a pro se Ohio prisoner, appeals the district court’s
judgment in favor of the defendants in this civil rights action filed under 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. As
set forth below, we AFFIRM.
Mann, an inmate at Grafton Correctional Institution (GCI), filed this action against thirty-
eight defendants, including the director and other administrators of the Ohio Department of
Rehabilitation and Correction (ODRC), the warden and other employees of GCI, the director of
the Ohio Adult Parole Authority (OAPA), members of the Ohio Parole Board, the executive
director of the Joint Committee on Agency Rule Review (JCARR), and the chair of the Ohio
Legislative Service Commission (LSC). In his amended complaint, Mann asserted six causes of
action: (1) denial of his right to practice his Native American religion and retaliation for attempting
to exercise that right, in violation of RLUIPA and various constitutional amendments;
(2) unconstitutional discrimination against him as a member of a class created by a 1996 change No. 18-4019, Mann v. Mohr
to Ohio’s sentencing laws; (3) abuse of discretion by the Ohio Parole Board; (4) violation of the
Racketeer Influenced and Corrupt Organizations Act by the Ohio Parole Board; (5) intentional
infliction of emotional distress by the Ohio Parole Board; and (6) “deprivation of civil rights
against all defendants.”
Upon the defendants’ motion to dismiss and motion to sever certain claims, the district
court (1) dismissed Claim 2 with prejudice for failure to state a claim and (2) severed and dismissed
without prejudice Claims 3 through 6 (and the defendants against whom those claims were
brought) on the basis that, after the dismissal of Claim 2, there was no longer a common question
of law or fact to warrant joining the various allegations and numerous defendants. Mann filed a
motion to reinstate some of the defendants who had been dismissed, arguing that they were
implicated in the conduct alleged in Claim 1, the only remaining claim. The district court
construed Mann’s motion under Federal Rule of Civil Procedure 59(e) and denied it.
Thereafter, Mann filed (1) praecipes requesting that the clerk enter default pursuant to
Federal Rule of Civil Procedure 55(a) on the basis that several defendants had failed to file an
answer or other responsive pleading after the district court had disposed of all outstanding motions;
(2) a motion to compel the clerk to enter default and default judgment; and (3) a motion to prohibit
the defendants from filing an untimely answer. The district court denied Mann’s motions and
ordered the defendants to answer the amended complaint. That same day, the defendants filed an
answer along with a motion for leave to file their answer instanter, which the district court granted.
Both parties moved for summary judgment as to Claim 1. A magistrate judge issued a
report and recommendation that summary judgment be granted in favor of the defendants and that
all outstanding motions be denied as moot. Over Mann’s objections, the district court adopted the
magistrate judge’s report and recommendation, denied Mann’s motion for summary judgment, and
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granted the defendants’ motion for summary judgment. Mann filed a motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), which the district court denied.
This timely appeal followed. Mann argues on appeal that the district court erred in
(1) dismissing Claim 2, (2) severing Claims 3 through 6, (3) refusing to reinstate the dismissed
defendants, (4) refusing to compel the clerk to enter default and refusing to enter a default
judgment, (5) allowing the defendants to file an untimely answer, (6) denying his motion for
summary judgment, (7) granting the defendants’ motion for summary judgment, and (8) denying
his motion for relief from judgment.
Dismissal of Claim 2
Prior to 1996, Ohio inmates received indeterminate sentences and became eligible for
parole after serving their minimum sentences, with parole decisions delegated to the OAPA. Ohio
enacted a new sentencing system in 1996, abandoning indeterminate sentences in favor of fixed
terms of incarceration determined by the sentencing judge. See Michael v. Ghee, 498 F.3d 372,
373-74 (6th Cir. 2007). Mann alleged in Claim 2 that the new sentencing regime created two
“de facto” classes of prisoners: (1) prisoners like him who are serving indefinite sentences and are
required to attend regularly scheduled parole hearings before the Ohio Parole Board, which has
sole discretion over their release dates (the parole class), and (2) prisoners who are serving definite
sentences and do not appear before the Ohio Parole Board because their release dates are
determined by Ohio statutory law and the sentencing judge (the non-parole class). Mann claimed
that the defendants have created and enforced policies, practices, and procedures that discriminate
against him and other members of the parole class in violation of the Equal Protection Clause,
alleging in particular that these policies, practices, and procedures create the opportunity for the
Ohio Parole Board to extend the incarceration of members of the parole class and not members of
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the non-parole class, even when members of both classes commit the same rule violation at the
same time.
Two of the defendants named in Claim 2, LSC Chair and Senator Keith Faber and JCARR
Executive Director Larry Wolpert, filed a motion to dismiss Mann’s complaint. The magistrate
judge construed Claim 2 as asserting a violation of the Ex Post Facto Clause and recommended
dismissing that claim for failure to state a claim upon which relief may be granted. The district
court adopted the magistrate judge’s recommendation and dismissed Claim 2 with prejudice
against all defendants.
We review de novo the district court’s dismissal for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). Crosby v. Univ. of Ky., 863 F.3d 545, 551 (6th Cir.
2017). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Mann contends that the district court erred in miscasting his equal protection claim as an
ex post facto claim. Even so, dismissal of Claim 2 was warranted. See Abercrombie & Fitch
Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th Cir. 2002) (“[W]e may affirm on
any grounds supported by the record even if different from the reasons of the district court.”).
Mann cannot “make out a violation of his equal protection rights simply by showing that other
inmates were treated differently.” Newell v. Brown, 981 F.2d 880, 887 (6th Cir. 1992). The new
sentencing regime’s creation of two classes did not implicate a fundamental right or target a
suspect class. See Michael, 498 F.3d at 379 (holding that there is no fundamental right to parole
and that prisoners are not considered a suspect class). “[A] classification neither involving
fundamental rights nor proceeding along suspect lines is accorded a strong presumption of
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validity”; that is, “[s]uch a classification cannot run afoul of the Equal Protection Clause if there
is a rational relationship between the disparity of treatment and some legitimate governmental
purpose.” Heller v. Doe by Doe, 509 U.S. 312, 319-20 (1993). Mann cannot overcome the
presumed validity of the new sentencing regime, which this court has previously upheld against
an equal protection challenge. See Michael, 498 F.3d at 379-80. Accordingly, Claim 2 was
properly dismissed.
Severance and Dismissal of Claims 3 Through 6
Mann contends that the district court erred in severing Claims 3 through 6. We review the
severance of joined claims for abuse of discretion. Parchman v. SLM Corp., 896 F.3d 728, 733
(6th Cir. 2018). Federal Rule of Civil Procedure 20 provides that defendants may be joined in one
action if “(A) any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in the action.”
Fed. R. Civ. P. 20(a)(2). Under Rule 18(a), a party asserting a claim may join “as many claims as
it has against an opposing party.” Rule 21 allows the district court, in the event of misjoinder or
nonjoinder, to “add or drop a party” or “sever any claim against a party.” In determining whether
to sever claims, courts consider the following factors:
(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for separate claims.
Parchman, 896 F.3d at 733 (quoting Productive MD, LLC v. Aetna Health, Inc., 969 F. Supp. 2d
901, 940 (M.D. Tenn. 2013)).
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The district court granted the defendants’ motion to sever Claims 3 through 6 and dismissed
those claims without prejudice, leaving Mann’s claim for denial of his religious rights asserted in
Claim 1. In Claims 3 through 5, Mann alleged that the Ohio Parole Board had abused its discretion
since the enactment of the sentencing law in 1996, had engaged in a pattern of racketeering activity
by forcing prisoners to remain incarcerated beyond their lawful sentences, and had intentionally
inflicted emotional distress upon him. Claim 6 raised a general “deprivation of civil rights” claim
against all defendants. The district court determined that, after the dismissal of Claim 2
challenging Ohio’s sentencing structure, no common question of fact or law existed to warrant
joining the various allegations and numerous defendants.
On appeal, Mann argues that the chain of events demonstrates that his claims arose from
the same transaction or occurrence—that the defendants retaliated against him for asserting his
religious rights by issuing him a false misconduct report which led to the extension of his sentence
by the Ohio Parole Board. But Claim 1 raised individualized allegations against GCI employees
about the denial of Mann’s right to practice his Native American religion and retaliation against
him for attempting to exercise that right. Claims 3 through 5 challenged the Ohio Parole Board’s
decision-making process affecting Mann and other members of the parole class. Given the
differences in the allegations and in the named defendants, the district court did not abuse its
discretion in determining that there was no common nexus between Claim 1 and Mann’s other
claims to warrant their joinder.
Denial of Motion to Reinstate Defendants
After the district court dismissed Claims 2 through 6, Mann moved to reinstate the
following defendants as erroneously dismissed: ODRC Director Gary C. Mohr, Assistant ODRC
Director Steve Huffman, ODRC Chief of Staff Linda James, ODRC Northern Regional Director
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Jesse Williams, ODRC Legislative Liaison Scott Neely, ODRC Chief Legal Counsel Stephen
Gray, and ODRC Chief Inspector Gary Croft. Mann asserted that these defendants were
implicated in Claim 1 because they had “an integral and active part in the promulgation and
creation of the Ohio Administrative Code[] and the ODRC Policies” used to deny him the ability
to practice his Native American religion.
The district court construed Mann’s motion as a motion under Federal Rule of Civil
Procedure 59(e) to alter or amend its order dismissing these defendants and denied the motion.
We review the denial of Mann’s motion for abuse of discretion. Intera Corp. v. Henderson, 428
F.3d 605, 619 (6th Cir. 2005). “A Rule 59 motion should only be granted if there was (1) a clear
error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a
need to prevent manifest injustice.” Mich. Flyer LLC v. Wayne Cty. Airport Auth., 860 F.3d 425,
431 (6th Cir. 2017).
With the exception of Croft, these defendants were not named in Claim 1. Generally
referencing “the Defendants”—when there were thirty-eight defendants listed in the complaint—
failed to satisfy basic pleading requirements and failed to place these particular defendants on
notice that Mann sought to hold them responsible for the allegations made in Claim 1. See Wells
v. Brown, 891 F.2d 591, 593-94 (6th Cir. 1989); see also Gilmore v. Corr. Corp. of Am., 92 F.
App’x 188, 190 (6th Cir. 2004) (“Merely listing names in the caption of the complaint and alleging
constitutional violations in the body of the complaint is not enough to sustain recovery under
§ 1983.”). As for Croft, Mann alleged that he filed a grievance against GCI Warden Bennie Kelly
to compel Kelly to answer his appeal and that Croft denied his grievance. The alleged denial of a
grievance or failure to intervene failed to state a claim against Croft. See Grinter v. Knight,
532 F.3d 567, 576 (6th Cir. 2008); Alder v. Corr. Med. Servs., 73 F. App’x 839, 841 (6th Cir.
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2003). For these reasons, the district court did not abuse its discretion in denying Mann’s motion
to reinstate these defendants.
Untimely Answer
Mann argues that the district court erred in denying his motions to compel the clerk to enter
default in accordance with Federal Rule of Civil Procedure 55(a) and to prohibit the defendants
from filing an untimely answer. The district court denied Mann’s motions, stating that courts
disfavor default judgments and that Mann had not shown prejudice, and ordered the defendants to
file an answer to the amended complaint. That same day, the defendants filed an answer along
with a motion for leave to file their answer instanter, which the district court granted. Mann
contends that the district court abused its discretion in allowing the defendants’ untimely answer.
We review the decision to allow a late-filed answer for abuse of discretion. Morgan v.
Gandalf, Ltd., 165 F. App’x 425, 428 (6th Cir. 2006). Federal Rule of Civil Procedure 6(b)(1)(B)
provides that, “[w]hen an act may or must be done within a specified time, the court may, for good
cause, extend the time . . . on motion made after the time has expired if the party failed to act
because of excusable neglect.” Courts balance the following factors in making the excusable-
neglect determination: “(1) the danger of prejudice to the nonmoving party, (2) the length of the
delay and its potential impact on judicial proceedings, (3) the reason for the delay, (4) whether the
delay was within the reasonable control of the moving party, and (5) whether the late-filing party
acted in good faith.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir. 2006).
Mann, who had filed numerous requests for extensions of time, failed to assert any
prejudice resulting from the defendants’ delay in filing an answer. The defendants filed their
answer approximately seven weeks after the deadline. As grounds for the delay, the defendants
asserted that turnover in the Ohio Attorney General’s Office resulted in multiple different attorneys
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being assigned to the case and that the current attorney, who had been assigned that week, promptly
filed an answer upon discovering the missed deadline. Mann’s failure to assert prejudice and the
defendants’ lack of bad faith weighed in favor of finding excusable neglect. “Further, if the district
court had denied leave to file the tardy answer and default had entered instead, defendants almost
certainly would have been entitled to have the default set aside, given their facially meritorious
defense and the strong policy favoring adjudication on the merits.” Morgan, 165 F. App’x at 430
(citing Shepard Claims Serv., Inc. v. William Darrah & Assocs., 796 F.2d 190, 194 (6th Cir.
1986)). Under these circumstances, we can find no abuse of discretion in allowing the defendants’
untimely answer.
Summary Judgment on Claim 1
Mann contends that the district court erred in denying his motion for partial summary
judgment and granting the defendants’ motion for summary judgment on Claim 1. We review the
district court’s decision to grant summary judgment de novo. Hanrahan v. Mohr, 905 F.3d 947,
953 (6th Cir. 2018). Summary judgment is appropriate “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.”
Fed. R. Civ. P. 56(a).
Mann primarily argues on appeal that the defendants relied on unsworn declarations and
therefore failed to support their summary judgment motion with any admissible evidence. The
defendants submitted unsworn declarations made under penalty of perjury pursuant to 28 U.S.C.
§ 1746. Such unsworn declarations may be considered on summary judgment. See Fed. R. Civ.
P. 56(c)(4); see also Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998).
Mann does not raise any other specific objection to the district court’s decision to grant
summary judgment in favor of the defendants. Instead, in support of his argument that the district
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court erred in denying his motion for partial summary judgment, Mann merely restates the
allegations made in Claim 1. Mann’s argument boils down to: The defendants failed to submit
any admissible evidence (which is incorrect); therefore, he should prevail. In his reply brief, Mann
attempts to incorporate by reference the arguments made in his memorandum in opposition to the
defendants’ motion for summary judgment. But we do not allow argument by reference to the
briefing below. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 452-53 (6th Cir.
2003). By failing to address the district court’s analysis in any detail, Mann has abandoned his
appeal from the district court’s decision to grant summary judgment in favor of the defendants.
See Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007).
Denial of Motion for Relief from Judgment
Mann finally argues that the district court erred in denying his motion for relief from
judgment filed under Federal Rule of Civil Procedure 60(b)(6). We review the denial of Mann’s
Rule 60(b)(6) motion for abuse of discretion. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th
Cir. 2006). Under Rule 60(b)(6), the district court may grant relief from a final judgment for “any
other reason that justifies relief.” This provision applies only in “unusual and extreme situations
where principles of equity mandate relief.” Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th
Cir. 1990).
Mann asserted in his Rule 60(b)(6) motion that the timing of the district court’s opinion
adopting the magistrate judge’s report and recommendation (one day after he filed his reply
memorandum in support of his objections) indicated that the district court did not conduct a de
novo review. In its opinion, issued a month after Mann filed his initial objections, the district court
stated that it had reviewed the magistrate judge’s report and recommendation de novo and had
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considered all of Mann’s objections. We can discern no abuse of discretion in the district court’s
denial of Mann’s Rule 60(b)(6) motion.
For these reasons, we AFFIRM the district court’s judgment in favor of the defendants.
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