Bruin v. Meko et al

Filing 23

MEMORANDUM OPINION & ORDER, 1) granting 19 MOTION for Summary Judgment by Adam Bear, C. Bossio, Matthew Fyffe, Justin Leach, Reynolds 2) court will enter appropriate judgment 3) proceedings is DISMISSED AND STRICKEN from active docket. Signed by Judge Henry R. Wilhoit, Jr on 3/10/15.(SMT)cc: COR, Bruin via USMail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND

BRANDON R. BRUIN,

)
)

Plaintiff,

)

Civil Action No. 14-CV-57-HRW

)

v.

)
)

WARDEN JOSEPH P. MEKO, et al.,

)

MEMORANDUM OPINION
AND ORDER

)

Defendants.

)

**** **** **** ****
The Court considers the Motion for Summary Judgment [D. E. No. 19] filed
by Defendants Carl Bossio, Adam Bear, Justin Leach, Matthew Fyffe, and Jackie
Reynolds, all of whom are, or were, officials employed at the Little Sandy
Correctional Complex ("LSCC") located in Sandy Hook, Kentucky; the Response
filed by Plaintiff Brandon R. Bruin [D. E. No. 21]; and the Defendants' Reply [D.
E. No. 22] to Bruin's Response. As explained below, the Court will grant the
Defendants' Motion for Summary Judgment.

BACKGROUND
Bruin is an inmate confined by the Kentucky Department of Corrections
("KDOC") in the Eastern Kentucky Correctional Complex ("EKCC") which is

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located in West Liberty, Kentucky.

In April 2014, Bruin, proceeding without

counsel, filed this 42 U.S.C. § 1983 civil rights action in which he alleged that
between September 2013 and January 2014, he was confined in the LSCC, and
that while confined there, various LSCC officials violated his federal constitutional
rights. [D. E. No. 1; supplemented at D. E. No. 4] On September 8, 2014, the
Court screened Bruin's § 1983 complaint and dismissed several claims which
Bruin had asserted, but directed Defendants Bossio, Bear, Leach, Fyffe, and
Reynolds to respond to Bruin's claim that they had improperly handled his
incoming legal mail in violation of his rights guaranteed under the First
Amendment of the U.S. Constitution. [D. E. No.9]
The Defendants have now filed a motion seeking summary judgment,
asserting therein two arguments.

Their first argument is that Bruin failed to

comply with the grievance process set fmih in the KDOC's Corrections Policies
and Procedure ("CPP") 14.6 § II (J)(1)-(4), 1 which lists the administrative steps
that KDOC inmates must pursue prior to filing a lawsuit. The Defendants assmi
CPP 14.6 § II (J) dictates the procedures which inmates must pursue if they are submitting
grievances related to non-medical issues; CPP 14.6 § II (K) sets forth the procedures which
inmates must pursue if they are submitting grievances concerning medical issues.
Pursuant to CPP 14.6 § II (J), a KDOC inmate must file a written grievance and seek an
Informal Resolution, which may involve the Grievance Aide, Grievance Coordinator,
Department Head, or Institutional Staff[§ II(J)(l )(a) and (b)] ("Step I"). If not satisfied, he must
submit a written request to the Grievance Committee seeking a hearing to consider his grievance
[§ II (J)(2)] ("Step 2"). If not satisfied with the Grievance Committee's disposition, he must
appeal to the Warden[§ II (J)(3)] ("Step 3"). Finally, if dissatisfied with the Warden's decision,
the inmate must file an appeal to the Commissioner of the KDOC [§ II( J)(4) ] ("Step 4"). Time
frames for appeals and responses are established within the regulations.
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that the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), and a long
line of United States Supreme Court decisions that have interpreted the PLRA,
require prisoners to exhaust prison grievance procedures before filing suit, and that
Bruin's documented failure to comply with all of the steps set forth in CPP 14.6 §
II (J) prevents this Court from addressing the merits of his First Amendment claim.
In support of this argument, the Defendants have attached the sworn
Affidavit of John M. Dunn, the Central Office Ombudsman for the KDOC. [D. E.
No. 19-4] Dunn states that he is the custodian of grievances which the KDOC
maintains in its Central Office in its regular course of its business, id., p. 1, ~~ 1-4;
that in his capacity as Ombudsman, he has access to the records of all grievances
which the KDOC Commissioner has received during the inmate appeal process,
id.; and that the KDOC's records contain no grievance appeals filed by Bruin

concerning the handling of his legal mail.

[!d.,~

5]

The defendants assert that Bruin may have initiated the KDOC's grievance
process as to his First Amendment claim, but that based on Dunn's Affidavit,
Bruin did not complete the administrative review process by following all of the
required steps set fmih in CPP 14.6 § II (J); specifically, Bruin did not appeal his
grievance to KDOC Commissioner in compliance with CPP 14.6 § II (J)(1)-(4).
The defendants therefore assert that because Bruin did not properly exhaust his

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First Amendment claims in compliance with the IillOC's applicable regulations,
he did not properly exhaust his claims under the PLRA, and that his claims for
money damages against them should therefore be dismissed.
The Defendants' second argument is that Bruin's request for injunctive relief
regarding the handling of his mail at the LSCC has become moot because Bruin is
now incarcerated in the EKCC. They cite Sixth Circuit cases which they contend
stand for the proposition that an inmate's transfer renders moot his request for
injunctive relief from the institution in which he was previously confined.
Bruin's response [D. E. No. 21-1] is not a model of clarity, but he appears to
be claiming that he was not required to plead in his complaint facts relating to the
issue of exhaustion, and that the exhaustion issue is only an affirmative defense;
(2) that he was transferred to the EKCC " ... to avoid litigation and the exposure of
Official Misconduct of the Defendants acts and Omissions," id. p. 2; that his
subsequent transfer to the EKCC prevented him from complying with the KDOC's
administrative grievance process; and (4) that he filed a grievance and received a
Memorandum dated March 17, 2014 from the LSCC Internal Affairs Department
dated [D. E. No. 21-3] relative to his First Amendment mail-handling claims.
Bruin presumably contends that the March

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17, 2014, Internal Affairs

Memorandum documents that he administratively exhausted his First Amendment
claims challenging the Defendants' handling of his inmate mail.
In their Reply [D. E. No. 22], the Defendants reiterate that Bruin's demand
for injunctive relief was rendered moot by reason of his subsequent transfer to the
EKCC; that the March 17, 2014, Internal Affairs Memorandum which Bruin has
provided is merely the LSCC's written response to a letter which Bruin sent to
Adam Bear; that the Internal Affairs Memorandum does not demonstrate that
Bruin complied with CPP 14.6 § II (J); and that Bruin provided no documentation
substantiating his broad assertion that he properly exhausted his First Amendment
claim. On the latter issue, the Defendants explain that Bruin's actions of merely
initiating the grievance process and/or sending an informal letter of complaint to
Defendant Adam Bear is not same as complying with the specific administrative
exhaustion steps set forth in CPP 14.6 §II (J) (1)-(4).
Finally, the Defendants contend that Bruin's transfer to the EKCC did not
prevent him from exhausting his First Amendment claims, noting that CPP 14.6 §
II (M) specifically addresses transfers, and provides that if an inmate is transferred
from the institution for any reason, he may appoint another inmate to act in his
place by submitting the appointment to the Grievance Coordinator in writing.

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DISCUSSION

The Comi will first address the Defendants' argument that Bruin's request
for injunctive relief as to the handling of his inmate mail became moot by reason of
his subsequent transfer to the EKCC, and Bruin's response that such claims have
not become moot. In short, any request for injunctive and/or declaratory relief
from LSCC officials became moot when Bruin was transferred from the LSCC to
the EKCC. See Nunez v. FCI-Elkton, 32 F. App'x 724, 726 (6111 Cir. 2002) ("To
the extent that Nunez asse1ted a claim for injunctive relief against the defendants
based upon their alleged failure to open his legal mail in his presence, his claim is
moot in light of his transfer from FCI Elkton to MDC Brooklyn."); Hayes v.
Berguis, 40 F. App'x 18, 21 (6th Cir. 2002) (transfer mooted prisoner's demand for
injunctive relief); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) (same).
The second and final issue which the Court must address is whether Bruin
fully and properly exhausted his First Amendment claims against the Defendants.
As an initial matter, Bruin correctly notes that a prisoner is not be required to
specifically plead or demonstrate exhaustion in his complaint, see Jones v. Bock,
549 U.S. 199, 127 8 (2007), and that a prisoner's failure to exhaust under §
1997e(a) is an affirmative defense on which the defendant bears the burden of
proof. !d. However, these undisputed facts do not assist Bruin here, because the

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when Court conducted the initial screening of his § 1983 complaint on September
8, 2014, it did not dismiss any claims sua sponte based on lack of exhaustion;
instead, the Court required the five remaining defendants to respond to Bruin's
First Amendment claims.
Having been duly served with process, the defendants now argue in a motion
for summary judgment (supported by a sworn Affidavit) that Bruin failed to
properly exhaust his constitutional claims according to the KDOC's four-step
administrative remedy process.

Thus, the defendants have utilized the correct

procedural mechanism for asserting their argument that Bruin failed to properly
exhaust his First Amendment claims. See Hood v. Ford Motor Company, No. 1110649, 2011 WL 3651322, at *8 (E.D. Mich. Aug 19, 2011) ("As an affirmative
defense, then, 'a Rule 12(b)(6) motion is generally not the proper vehicle for
asserting lack of exhaustion.' .... The right vehicle is a 'properly supported motion
for summary judgment."' (citation omitted); Baker v. Holder, No. 0:06-CV-91HRW, 2010 WL 1334924, at *2 (E.D. Ky. March 30, 2010) (finding that the
defendants could assert the defense of lack of exhaustion either in a motion to
dismiss filed under Rule 12(b)(6) or by way of a motion for summary judgment
under Rule 56); Aguirre v. Corrections C01p. of America, No. 4:08-CV-02365,
2009 WL 2423702, at *3 (N.D. Ohio Aug. 3, 2009) (recommending that the

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Defendant's Rule 12(b)(6) motion based on failure to exhaust be converted into a
motion for summary judgment under Rule 56).
Further, because the defendants have submitted a sworn affidavit outside of
the pleadings, the Court can properly address their argument in the context of a
motion for summary judgment under Federal Rule of Civil Procedure 56. See
Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993); Smith v. The
Cheesecake Factmy Restaurants, Inc., No. 3:06-00829, 2010 WL 441562, at* * 3-

4 (M.D. Tenn. Feb. 4, 2010) (court converted motion to dismiss to motion for
summary judgment where both parties relied on proof that fell outside pleadings).
Summary judgment is appropriate where "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
pmiy is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). To
prevail on a motion for summary judgment, the non-moving party must show
sufficient evidence to create a genuine issue of material fact. Klepper v. First
American Bank, 916 F.2d 337, 341-42 (6th Cir. 1990). Drawing all reasonable

inferences in favor of the nonmoving pmiy, the Court must determine "whether the
evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one pmiy must prevail as a matter of law."

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The non-moving
patty cannot rely upon allegations in the pleadings, but must point to evidence of
record in affidavits, depositions, and written discovery which demonstrate that
factual questions remain for trial. Hunley v. DuPont Auto, 341 F.3d 491, 496 (6th
Cir. 2003). The Court will thus examine the record to determine if the defendants
have carried their burden of proof on the issue of administrative exhaustion.
The Defendants correctly assert that under the PLRA, a prisoner must
exhaust administrative remedies before he may sue in federal court, whether the
cause of action is based upon prison conditions under 42 U.S.C. § 1983 or any
other federal law.

42 U.S.C. § 1997e(a). 2

They further correctly state that

exhaustion under the PLRA is mandatory. See Booth v. Churner, 532 U.S. 731,
741 (2001); Porterv. Nussle, 534 U.S. 516,520 (2002).
In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court interpreted the
mandatory exhaustion language in 42 U.S.C. § 1997a(a) as requiring "proper
exhaustion," meaning that a prisoner must "make full use of the prison grievance
process" and "compl[y] with the system's critical procedural rules." Id. at 93-95.
2

Section 1997e(a) provides:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.

42 U.S.C. § 1997e(a).
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The Supreme Court explained that the exhaustion serves two purposes, the first of
which is that it gives an agency "'an opportunity to correct its own mistakes with
respect to the program it administers before it is haled into federal court,"' and
discourages "'disregard of [the agency's] procedures."'

!d., at 89 (quoting

McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).

The Supreme Court identified the next purpose of the exhaustion process as
promoting efficiency, because "[c]laims generally can be resolved much more
quickly and economically in proceedings before an agency than in litigation in
federal court." !d. The Court explained that proper exhaustion of administrative
remedies requires "compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings." Id. at 90-91
(footnote omitted). The Court further noted that the purpose of a grievance in the
prison context is "to alert prison officials to a problem." Bock, 549 U.S. at 219,
(citing Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)).
Here, Bruin's actions, or more appropriately, his inactions, with respect to
the administrative exhaustion process did not afford the KDOC a full and fair
opportunity to address his First Amendment claims in accordance with the above
considerations. As noted, the IillOC's four-step administrative remedy process is

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set forth in CPP 14.6 §II (J), but the sworn Affidavit of John M. Dunn establishes
that Bruin did not appeal to the KDOC Commissioner the denial of any grievance
pertaining to his legal mail. [D. E. No. 19-4, p. 1] Even accepting as true Bruin's
unsupported assertion that he began the administrative remedy process while
confined in the LSCC, Bruin has produced nothing to substantiate his claim that he
fully and properly completed all of the IillOC's exhaustion requirements set forth
in CPP 14. 6 § II (J). In other words, Bruin has produced nothing controverting
Dunn's sworn statement that the IillOC's official records contain no records
showing that he appealed any adverse administrative decisions to the
Commissioner of the IillOC, as required by CPP 14.6 § II (J)( 4). This was the
fourth and final step which Bruin was required to take, and unless and until he took
that step, he did not properly comply with the KDOC's four-step administrative
exhaustion process as required by the PLRA and Woodford v. Ngo.
Bruin states that he wrote a letter to Defendant Adam Bear complaining
about the alleged mishandling of his mail, to which he received a reply from the
LSCC Intemal Affairs Department, and he suggest that he submitted informal
memoranda to other prison officials advising of his dissatisfaction with the
handling of his mail.

However, such actions do not suffice as substitutes for

compliance with the specific exhaustion steps set forth in CPP 14.6 §II (J).

II

The Sixth Circuit has repeatedly held that an inmate must strictly follow the
prison's grievance procedures. Letters and petitions are therefore no substitute for
a formal inmate grievance. Shephard v. Wilkinson, 27 F. App'x 526, 527 (6th Cir.
Dec. 5, 2001) ("While Shephard asserts that he has raised his complaints in
numerous letters to prison and public officials, a prisoner must utilize the formal
grievance process provided by the state; he cannot comply with the requirements
of § 1997e(a) by informally presenting his claims."); Hewell v. Leroux, 20 F.
App'x 375, 377 (6th Cir. Sept. 21, 2001) (same); see also Clark v. Beebe, No. 981430, 1999 WL 993979, at *2 (6th Cir. Oct. 21, 1999) (district court erred in
holding that prisoner had substantially complied with exhaustion requirement by
writing a letter to the U.S. Attorney's office that eventually made its way to the
warden of plaintiffs prison). Thus, whatever informal complaints Bruin lodged at
the LSCC did not relieve him of his duty to comply with the specific requirements
steps set forth in CPP 14.6 § II (J).
Further, regardless of whatever grievance steps Bruin may (or may not) have
begun or pursued at the institutional level, the defendants correctly argue that
Bruin's subsequent transfer to the EKCC did not prevent him from either
beginning the administrative grievance process (assuming that he did in fact being
it at the LSCC), or completing any of the steps that he might have begun while

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confined at the LSCC. The Defendants correctly point out that an inmate who is
transferred can invoke the provisions of CPP 14.6 § II (J) by appointing an inmate
proxy to advance his administrative appeal in his name. Bruin, however, alleges
no facts indicating that he took any steps to avail himself of the procedures set
fmih in CPP 14.6 § II (J) and thus protect and perfect his administrative appeal
obligations. This Comi adheres to the general rule that a prisoner's subsequent
transfer to another prison facility does not relieve him of his obligation to
administratively exhaust his claims at the facility where the claims arose. Mora v.

Rios, No. 7:11-CV-68-KKC, 2012 WL 381720, at *3 (E. D. Ky. Feb. 6, 2012)
(citations omitted); Wiley v. Boone County Sheriff's Office, No. 2:09-CV-98-WOB,
2009 WL 2390164, at *3 (E.D. Ky. Aug. 4, 2009)
At the summary judgment stage, Bruin must do more than rely on
conclusory statements. See Automated Solutions Cmp. v. Paragon Data Systems,

Inc., 756 F.3d 504, 521 (6th Cir. 2014); Alexander v. CareSource, 576 F.3d 551,
560 (6th Cir. 2009) ("Conclusory statements unadorned with supporting facts are
insufficient to establish a factual dispute that will defeat summary judgment.").
Because Bruin has provided the Comi with nothing but conclusory statements as to
whether he fully and properly complied with the KDOC's administrative grievance
process, and because no genuine issue of fact exists with respect to the fact that

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Bruin did not properly and fully exhaust his First Amendment claims in
compliance with CPP 14. 6 § II (J)(l)-(4), the Court will grant the Defendants'
motion for summary judgment and enter judgment in their favor.
CONCLUSION

Accordingly, IT IS ORDERED that:
(I) The Motion for Summary Judgment filed by Defendants, Carl Bossio,

Adam Bear, Justin Leach, Matthew Fyffe, and Jackie Reynolds [D. E. No. 19] is
GRANTED.

(2)

The Comi will enter an appropriate Judgment.

(3)

This proceeding is DISMISSED and STRICKEN from the Court's

active docket.
This March 10, 2015.

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