Dearing v. Denny, 1:16-cv-00970

In June 2016 Dearing sent letters urging other inmates to "get all of his guys ready to go on a hunger strike after store day" and to "do this sit down." Officer Denney issued a conduct report for violating Ohio Admin. Code § 5120-9-06(C)(16) (prohibiting engaging in or encouraging a group demonstration or work stoppage).
The Rules Infraction Board found Dearing guilty on June 17, 2016 and imposed discipline (15 days disciplinary control). The warden affirmed the RIB decision on June 21, 2016.
Dearing filed an informal complaint on June 19, 2016 complaining of retaliation and requested a grievance form from the institutional inspector; the inspector replied that conduct reports are not grievable.
Dearing did not complete the formal grievance appeals required by ODRC grievance procedures and filed this § 1983 suit on October 20, 2016 alleging First Amendment retaliation for participating in a hunger strike.
The magistrate judge recommended dismissal without prejudice for failure to exhaust administrative remedies; alternatively, on the merits the court found Dearing’s solicitation of a collective hunger strike constituted encouragement of a group demonstration contrary to Rule 16 and therefore was not protected First Amendment conduct, and granted summary judgment for defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exhaustion of administrative remedies (PLRA)	Dearing says he requested a grievance form from the inspector after his informal complaint and was told conduct reports are not grievable, so exhaustion was thwarted.	Defendants say Dearing only completed the informal step, never filed a formal grievance or appealed, and thus failed to exhaust; burden is on defendants to prove non-exhaustion.	Dismissal without prejudice for failure to exhaust; inspector’s response did not create a genuine factual dispute because Dearing made no further attempts to file without a form.
First Amendment retaliation / protected conduct	Dearing contends hunger strikes and peaceful assembly are protected and he was punished for exercising that right.	Defendants contend soliciting a collective hunger strike is a group demonstration/work stoppage forbidden by Rule 16 and is reasonably related to legitimate penological interests.	Court held soliciting a collective hunger strike is not protected conduct under the First Amendment (prison security and order justify Rule 16); summary judgment for defendants on the retaliation claim.
Motion to file supplemental complaint	N/A — Dearing sought to add similar claims against additional officers for a 2017 incident.	Defendants opposed supplementation.	Motion to supplement denied as futile because the proposed allegations (encouraging a collective hunger strike) would not state a protected First Amendment claim.

Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
Anderson v. Liberty Lobby, 477 U.S. 242 (genuine issue for trial standard)
Woodford v. Ngo, 548 U.S. 81 (PLRA requires proper exhaustion)
Jones v. Bock, 549 U.S. 199 (exhaustion under PLRA is mandatory)
Turner v. Safley, 482 U.S. 78 (prison regulations must be reasonably related to legitimate penological objectives)
Overton v. Bazzetta, 539 U.S. 126 (deference to prison regulations limiting associational rights)
Thaddeus-X v. Blatter, 175 F.3d 378 (Sixth Circuit framework for prison retaliation claims)
Hill v. Lappin, 630 F.3d 468 (retaliation elements applied to inmates)