NOT RECOMMENDED FOR PUBLICATION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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No. 18-4019, Mann v. Mohr


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, 

,

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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No. 18-4019, Mann v. Mohr


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., 

, 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, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 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., 

, 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, 

, 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 

(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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No. 18-4019, Mann v. Mohr


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, 

, 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 

-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., 

, 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.

(quoting Productive MD, LLC v. Aetna Health, Inc., 

, 940 (M.D. Tenn. 2013)).

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No. 18-4019, Mann v. Mohr


       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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No. 18-4019, Mann v. Mohr


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, 

, 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., 

,

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, 

, 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,

, 576 (6th Cir. 2008); Alder v. Corr. Med. Servs., 73 F. App’x 839, 841 (6th Cir.


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No. 18-4019, Mann v. Mohr


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., 

, 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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No. 18-4019, Mann v. Mohr


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., 

, 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, 

,

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, 

, 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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No. 18-4019, Mann v. Mohr


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., 

, 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., 

, 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, 

, 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., 

, 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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No. 18-4019, Mann v. Mohr


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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