Jackson v. Coyne et al
Filing
33
MEMORANDUM OPINION AND ORDER signed by Senior Judge Thomas B. Russell on 2/28/2018 denying 17 Motion for Summary Judgment; denying as moot 31 Motion for Extension of Time to File Response/Reply; and denying as moot 31 Motion for Court Order Regarding Plaintiff's Legal Mail. The United States has twenty-eight (28) days from the entry of this Order to file a second motion for summary judgment addressing the merits of Jacksons claims. If the United States chooses to file such a motion, Jackson shall file a response within twenty-one (21) days. The United States must then reply within seven (7) days. cc: Plaintiff, pro se; Counsel(MNM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00174-TBR
MARK A. JACKSON,
PLAINTIFF
v.
JAMES COYNE, et. al.,
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants James Coyne and Heather Horn’s motion
for summary judgment, [DN 17.] Plaintiff Mark Johnson responded, [DN 24], and Defendants
replied, [DN 25.] The Court ordered the parties to file supplemental briefing, [DN 28], which
they did, [DN 30; DN 32.] For the reasons discussed in detail below, the Court will deny
Defendants’ motion for summary judgment.
STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “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). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining
whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v. Schebil,
188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
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party must prevail as a matter of law.’ ” Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251–52).
The moving party must shoulder the burden of showing the absence of a genuine dispute
of material fact as to at least one essential element of the nonmovant’s claim or defense. Fed. R.
Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). Assuming the
moving party satisfies its burden of production, the nonmovant “must—by deposition, answers to
interrogatories, affidavits, and admissions on file—show specific facts that reveal a genuine issue
for trial.” Laster, 746 F.3d at 726 (citing Celotex, 477 U.S. at 324). “[N]ot every issue of fact or
conflicting inference presents a genuine issue of material fact.” Street v. Bradford & Co., 886
F.2d 1472, 1477 (6th Cir. 1989). The test is “whether the party bearing the burden of proof has
presented a jury question as to each element in the case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th
Cir. 1996). Nor will mere speculation suffice to defeat a motion for summary judgment: “[t]he
mere existence of a colorable factual dispute will not defeat a properly supported motion for
summary judgment. A genuine dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996).
DISCUSSION
Plaintiff Mark Jackson, a pro se prisoner, brought the instant lawsuit alleging that
Defendants, who are employed at the Kentucky State Reformatory (“KSR”), violated his rights
by improperly denying him access to the courts and legal mail services and by reading his legal
mail, including court documents, outside of his presence. [DN 1.] Defendants filed the instant
motion for summary judgment moving for dismissal of Jackson’s claims on the sole ground that
Jackson failed to exhaust his administrative remedies. [DN 17 at 2–3.]
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The Prison Litigation Reform Act of 1995 requires a prisoner to exhaust all available
administrative remedies before filing any action “with respect to prison conditions” under 42
U.S.C. § 1983 or any other federal law. 42 U.S.C. § 1997e(a). That exhaustion requirement
“applies to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002); accord Freeman v. Francis, 196 F.3d 641, 644 (6th Cir.
1999). Exhaustion is mandatory and the remedies provided “need not meet federal standards, nor
must they be ‘plain, speedy, or effective.’ ” Porter, 534 U.S. at 524, 122 S.Ct. 983 (quoting
Booth v. Churner, 532 U.S. 731, 739 (2001)). “Proper exhaustion demands compliance with [the
prison’s] deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90
(2006). Failure to exhaust administrative remedies is an affirmative defense, which the defendant
has the burden to plead and prove by a preponderance of the evidence. Lee v. Willey, 789 F.3d
673, 677 (6th Cir. 2015) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
In their motion for summary judgment, Defendants contend that Jackson failed to exhaust
his administrative remedies, which, pursuant to the Kentucky Corrections Policies and
Procedures for Inmate Grievance Procedure (“CPPs”), begins with the filing of an inmate
grievance form and ends with an appeal to the Commissioner of the Department of Corrections.
[See DN 17-2.] Defendants argue that, because there was never an “appeal of a grievance to the
Commissioner, Plaintiff did not properly exhaust his administrative remedies.” [DN 17-1 at 3.]
Jackson does not dispute that he never saw the grievance process all the way through to
an appeal to the Commissioner. Jackson argues, however, that he did fill out a grievance form on
January 26, 2017, but that he withdrew the grievance when he was threatened by an inmate
grievance aide, Howard Hawkins, who “stated he would cause harm to plaintiff if he didn’t sign
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grievance and dismiss.” [DN 24 at 1.] Indeed, Defendants attached this grievance form as an
exhibit to their motion for summary judgment. [DN 17-4.] The form, titled “Grievance
Information Form,” was filled out and signed by Jackson on January 26, 2017 in black ink. [Id.]
Therein, Jackson recites his complaints about Defendants’ alleged unauthorized viewing of his
legal mail. [Id.] Below the lines for the grievant’s signature and date are lines to be filled in with
the “Grievance Aide’s Signature” and “Date Received.” [Id.] Howard Hawkins signed on the
signature line and wrote January 27, 2017 as the date received in bright blue ink. [Id.] Below, in
the same bright blue ink, is an unintelligible signature and the words “withdrawn 1-27-18.” [Id.]
Below reads “closed – resolved prior to filing.” [Id.]
According to Jackson, he “was unable to use the grievance procedure or appeal due to
threats and his life [being] in danger.” [DN 24 at 2.] Jackson made this same argument in his
Complaint, in which he stated that he “filed a grievance and was forced to withdraw it due to
threats.” [DN 1 at 5.] Jackson claims that, after he withdrew his grievance, he attempted to
contact the Ombudsman’s office for the Kentucky Department of Corrections, but that he never
received a response. [DN 24 at 2.] Jackson contends that his “understanding [was that] the
Ombudsman office is for continuing resolution of issues, problems or complaints of state
prisoners regard[ing] living conditions and treatment” and that the “Ombudsman investigates
complaint[s] where inmate has failed to get satisfactory results through available institution
channels.” [Id.]
In their reply, Defendants state that, even if Jackson was threatened by Hawkins, a
grievance aide is simply a fellow inmate, not Corrections staff. [DN 25 at 2.] According to
Defendants, “[a] threat from a fellow inmate does not excuse the requirement that Plaintiff
exhaust his administrative remedies.” [Id.] Additionally, Defendants argue that Jackson provided
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insufficient evidence that Hawkins actually threatened him or that the alleged threat was related
to Jackson’s grievance. [Id.]
The Supreme Court of the United States recently identified certain circumstances under
which the exhaustion requirement of “§ 1997e(a) poses no bar” to a prisoner’s lawsuit. Ross v.
Blake, 136 S. Ct. 1850, 1860 (2016). Among these circumstances is when the administrative
procedure becomes effectively “unavailable” to prisoners because “prison administrators
thwart[ed] inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id.
In a Memorandum Opinion and Order dated January 16, 2018, the Court noted that
Defendants essentially argue that an inmate working as a grievance aide does not equate to a
“prison administrator” who could thwart Jackson’s attempt to file a grievance. See Ross, 136 S.
Ct. at 160. After finding that it had insufficient information to make that determination at that
time, however, the Court requested supplemental briefing from Defendants “explaining the
position of ‘grievance aide’ at KSR and the extent to which grievance aides may act as agents of
KSR.” [DN 28 at 3.] Defendants submitted a supplemental brief, [DN 30], and Jackson filed a
response, [DN 32.] Having reviewed the parties’ briefs and the applicable case law, the Court
finds that Defendants have not carried their burden of proving their affirmative defense of failure
to exhaust administrative remedies by a preponderance of the evidence, as is required of them to
prevail at summary judgment. Lee, 789 F.3d at 677 (citing Jones, 549 U.S. at 216).
a) Defendants’ Supplemental Brief
In their supplemental brief, Defendants point to the CPPs, which define “grievance aide”
as “an inmate appointed to assist an inmate with filing a grievance and assist the Grievance
Coordinator with assigned tasks.” [DN 30 at 2; DN 17-2 at 1.] The “grievance coordinator” is
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defined as “a staff person appointed by the Warden to monitor and regulate the operation of the
inmate grievance procedure.” [DN 17-2 at 1.] Defendants attach the affidavit of Everett Thomas,
the grievance coordinator at the Kentucky State Reformatory (“KSR”). [DN 30-1.] Thomas first
recites the above definitions of grievance aide and grievance coordinator, and then states simply
that “grievance aides are inmates, not staff nor agents of the institution.” [Id.]
Next, Defendants argue that “[e]ven if this Court gave some weight to Plaintiff’s
argument, there is nothing to support his assertion that a threat by an inmate grievance aide made
the grievance process ‘unavailable’” as that term is used in Ross. [DN 30 at 3.] Rather,
Defendants argue that “[w]hile CPP 14.6 provides that a grievance aide’s role is to assist and/or
counsel inmates in the grievance process, it does not mandate the participation of the grievance
aide.” [Id.] According to Defendants, “[i]t is the grievance coordinator, not the grievance aide,
who is involved in determining how the grievance proceeds.” [Id.] Defendants contend that, “[i]n
every situation where the grievance aide’s participation in the grievance process is mentioned,
alternative participants in the process such as the grievance coordinator or staff members are also
listed, making it clear that the grievance aide is neither the first nor the last word on inmate
grievances.” [Id.]
b) Jackson’s Response to Defendants’ Supplemental Brief
In his response, Jackson emphasizes the portion of the grievance aide definition which
states that grievance aides “assist the Grievance Coordinator with assigned tasks.” [DN 32 at 1
(emphasis in original).] Other portions of the CPPs, some of which Jackson cites and some of
which he does not, also point to a finding that a grievance aide could be a sort of agent of the
grievance coordinator. For instance, the CPPs provide that one of a grievance aide’s job duties is
to “[f]orward the written grievance to the Grievance Coordinator.” [DN 17-2 at 6.] Further,
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“[a]fter a grievance has been properly filed, an attempt to resolve the problem shall be made
through informal means.” [Id. at 9.] Such “[i]nformal resolution may involve the Grievance
Aide, Grievance Coordinator, department head, or institutional staff.” [Id. (emphasis added).]
“The Grievance Aide, Grievance Coordinator, or other person acting with the Coordinator’s
approval, who is handling the informal resolution step, shall have ten (10) business days within
which to attempt to resolve the grievance informally.” [DN 17-2 at 9.] These excerpts indicate
that a grievance aide has the ability and, by extension, the discretion, to forward a written
grievance to the Grievance Coordinator and to handle the grievance through “informal
resolution.” Moreover, the fact that the grievance aide is included in a list of people who “act[ ]
with the Coordinator’s approval” also suggests that a grievance aide could be staff or an agent of
the Grievance Coordinator.
Jackson also responds to Defendants’ argument that he could have proceeded with the
administrative process without a grievance aide. According to Jackson, it is impossible to
proceed without a grievance aide when confined to a segregation unit, which Jackson has been
for nearly sixteen months. [DN 32 at 2.] Jackson claims that, “per Ky Dept. of corrections policy
you have to use a Grievance Aide in the segregation unit. no matter what. no way around it.”
[Id.] The Court did not request a reply brief in the Order in which it requested a supplemental
brief from Defendants, so Defendants were not able to respond to this assertion. However, the
fact that the grievance form Jackson filled out has blank spaces for the grievance aide to sign and
date certainly lends support to Jackson’s argument that the grievance aide’s participation was
required to submit a grievance form in this case.
Next, Jackson argues that, when inmates such as Hawkins have jobs in the Kentucky
Department of Corrections, they have “access to documents, areas other inmates don’t have and
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can speak to staff whom he chooses with excuse for grievance reasons and does perform same
duty as Grievance Coordinator.” [Id. (emphasis added).] Jackson further alleges that Hawkins
“has [a] closer bond with staff th[a]n other inmates” since he interacts with the staff more than
other inmates. [Id.] Finally, Jackson alleges that grievance aides like Hawkins are paid by the
State of Kentucky for their services. [Id.] The Court notes that “[e]ach of [Jackson]’s pleadings
was signed under penalty of perjury, and is therefore ‘sufficient to qualify as an affidavit for the
purposes of summary judgment.’” Belser v. James, No. 16-2578, 2017 WL 5479595, at *2 (6th
Cir. June 6, 2017), cert. denied, 138 S. Ct. 637 (2018) (quoting Williams v. Browman, 981 F.2d
901, 905 (6th Cir. 1992)).
c) Analysis
“[W]hen prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation . . . such interference with an
inmate’s pursuit of relief renders the administrative process unavailable. And then . . . § 1997e(a)
poses no bar” to an inmate’s suit. Ross, 136 S. Ct. at 1860 (Citing with approval Davis v.
Fernandez, 798 F.3d 290, 296 (5th Cir. 2015) (“Davis testifies that jail staff told him that the
grievance process includes only a single step—that he had no option to appeal—and he, relying
on that misrepresentation, did not file an appeal. Based on the record of this case, we see no
reason that Davis should not be entitled to rely on the representations of his jailers.”); Schultz v.
Pugh, 728 F.3d 619, 620 (7th Cir. 2013) (“A remedy is not available, therefore, to a prisoner
prevented by threats or other intimidation by prison personnel from seeking an administrative
remedy by filing a grievance in the prescribed form and within the prescribed deadline.”); Tuckel
v. Grover, 660 F.3d 1249, 1252–53 (10th Cir. 2011) (“We find it difficult to accept the
proposition that an administrative remedy is available in any meaningful sense if its use will
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result in serious retaliation and bodily harm. We therefore conclude that when a prison official
inhibits an inmate from utilizing an administrative process through threats or intimidation, that
process can no longer be said to be ‘available.’”); Goebert v. Lee Cty., 510 F.3d 1312, 1323
(11th Cir. 2007) (“Having kept Goebert in the dark about the path she was required to follow, the
defendants should not benefit from her inability to find her way.”)).
Ross does not define “prison administrator.” In this case, however, there is at least some
evidence to suggest that a KSR grievance aide’s responsibilities are so involved in the grievance
process that a grievance aide could fall within the definition of prison administrator. Moreover,
there is some evidence to suggest that Hawkins could have been acting as a sort of “agent” of
prison administrators such that his actions could be imputed to those of a prison administrator for
purposes of Ross. The Sixth Circuit has explained certain situations in which a principal may be
liable for the acts of an agent:
First, a principal may be vicariously liable for an agent’s tortious conduct if the
principal expressly or implicitly authorized the conduct . . . Second, a principal
may be vicariously liable for an agent’s torts under a respondeat superior theory.
Under a respondeat superior rule, a principal is only held vicariously liable for
torts committed by an agent when the agent acts for the benefit of his principal
within the scope of his employment. Third, a principal may be vicariously liable
for an agent’s tortious conduct based upon an apparent authority theory, if the
principal cloaked its agent with apparent authority, i.e., held the agent out to third
parties as possessing sufficient authority to commit the particular act in question,
and there was reliance upon the apparent authority.
Jones v. Federated Fin. Reserve Corp., 144 F.3d 961, 965 (6th Cir. 1998) (internal citations
omitted). In the Court’s view, a vicarious liability theory or an apparent agency theory most
closely fit an argument that Hawkins could have been acting as an agent of the Grievance
Coordinator at the time he allegedly threatened Jackson about his grievance. In the context of
vicarious liability, in Kentucky, “in general, ... the master is held liable for any intentional tort
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committed by the servant where its purpose, however misguided, is wholly or in part to further
the master’s business.” Patterson v. Blair, 172 S.W.3d 361, 369 (Ky. 2005) (emphasis added).
Next, in a recent decision, the Kentucky Supreme Court helpfully explained apparent
agency as follows:
“Apparent authority ... is not actual authority but is the authority the agent is held
out by the principal as possessing. It is a matter of appearances on which third
parties comes to rely.” “An agent is said to have apparent authority to enter
transactions on his or her principal's behalf with a third party when the principal
has manifested to the third party that the agent is so authorized, and the third party
reasonably relies on that manifestation.” “That a principal did not approve an
individual transaction does not change the fact that an agent can have apparent
authority.”
Ford v. Baerg, 532 S.W.3d 638, 642 (Ky. 2017). Viewing the record in the light most favorable
to Jackson, the Court finds that genuine disputes of material fact exist as to whether 1) Hawkins
did threaten Jackson in order to get him to withdraw his grievance and, if so, 2) whether
Hawkins qualifies as a “prison administrator” as that term is used in Ross, or 3) whether
Hawkins had the apparent authority to take that action on behalf of a prison administrator, or 4)
whether Hawkins was an agent acting with the intent to further the business of prison
administrators.
Several considerations lead the Court to the conclusion that genuine disputes of fact exist
here. First, Jackson did indeed fill out a grievance form on January 26, 2017, which Hawkins
signed that he received the following day, however the form has a notation stating that the
grievance was also withdrawn that day. [DN 17-4 at 1.] Second, the fact that the grievance form
includes blank spaces for the grievance aide to sign and date tends to indicate that the grievance
aide’s participation was required to submit a grievance. [See id.] Third, the CPPs provide that the
grievance coordinator must advertise the position of grievance aide to inmates, choose grievance
aides, and that such aides shall “[a]ssist the inmate in the informal resolution process as outlined
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by institutional procedure,” “[c]ounsel the inmate concerning the grievance process,” “[a]ssist
the inmate in the preparation of grievance documents as needed,” and “[f]orward the written
grievance to the Grievance Coordinator.” [Id. at 5–6.] Additionally, grievance “aides . . . shall
follow staff instructions concerning providing access or visits to specialized units, such as
segregation,” where Jackson was housed at the time he filled out his grievance form. [Id. at 6.]
This, too, suggests that grievance aides have several responsibilities that may elevate them to the
level of “prison administrator.” Moreover, grievance aides can participate in the “informal
resolution” step. “Informal resolution may involve the Grievance Aide, Grievance Coordinator,
department head, or institutional staff.” [Id. at 9.] The fact that the grievance aide has some of
the same responsibilities as the grievance coordinator and even the department head or
institutional staff with regard to informal resolution also could suggest that grievance aides are
prison administrators or agents of prison administrators. Moreover, “grievance aide” is included
in a list of people who “act[] with the Coordinator’s approval,” which also suggests that the
grievance aide is an arm of the grievance coordinator, who is certainly prison staff.
In Ross, the Supreme Court explained that, “[i]n determining if a remedy is actually
‘available,’ the Court must take into account ‘the real-world workings of prison grievance
systems’ and examine whether the remedy, while ‘officially on the books, is not capable of use
to obtain relief.’” Morgan et. al. v. Commonwealth Of Kentucky, et al., No. 3:17-CV-00474JHM, 2018 WL 715468, at *2 (W.D. Ky. Feb. 5, 2018) (quoting Ross, 136 S. Ct. at 1859). Here,
if Hawkins was acting either as a prison administrator or an agent of a prison administrator, and
Hawkins did in fact threaten Jackson with bodily harm (as Jackson’s sworn testimony asserts), it
is quite possible that the grievance process was “not capable of use to obtain relief.” Id. See
Davis v. Mason, No. 16-2707, 2018 WL 732396, at *4 (7th Cir. Feb. 6, 2018) (“When the record
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is viewed in the light most favorable to Davis, a reasonable fact finder could conclude that he did
all that was required of him yet was prevented from filing his grievance because of the mixed or
improper instructions from the grievance coordinator.”); Stearns v. Inmate Servs. Corp., 2017
WL 3381528, at *3 (E.D. Ark. July 18, 2017), report and recommendation adopted, No.
3:16CV00339-BRW-JJV, 2017 WL 3381365 (E.D. Ark. Aug. 4, 2017) (“Plaintiff has submitted
evidence demonstrating Defendant’s agents thwarted him from taking advantage of the grievance
process, specifically by misrepresentation . . . According to Plaintiff’s Affidavit, despite his
repeated complaints, Defendant’s agents did not inform him that a grievance procedure
existed.”); Carranza v. Brown, 2017 WL 3190567, at *14 (S.D. Cal. July 26, 2017) (“This sworn
testimony, when viewed in the light most favorable to Plaintiff, satisfies Plaintiff’s burden of
production . . . insofar as it shows that administrative remedies—at least with respect to Count 25—were not ‘available’ to him because RJD officials ‘thwarted the effective invocation of the
administrative process through threats, game-playing, or misrepresentations, ... in [his] individual
case.’”).
Furthermore, Defendants have not submitted any evidence to suggest that the threat did
not occur, such as an affidavit from Hawkins stating as much, or to suggest an alternate reason
for why Jackson withdrew the grievance, such as an affidavit from another administrator with
firsthand knowledge as to why the grievance was withdrawn or how it was “resolved.” See
Hammler v. Davis, 2017 WL 735737, at *9 (E.D. Cal. Feb. 23, 2017), report and
recommendation adopted, No. 214CV2073MCEACP, 2017 WL 1093968 (E.D. Cal. Mar. 23,
2017) (“Defendant has failed to produce any evidence conclusively rebutting . . . plaintiff’s
contentions or the credibility of his evidence. Most significantly, defendant has not submitted
declarations from C/O Snyder or Lt. Calhoun regarding the events at issue. This failure is fatal to
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the motion for summary judgment, because the burden to establish non-exhaustion remains
defendant’s.”). True, Thomas states in his affidavit that “grievance aides are inmates, not staff
nor agents of the institution.” [DN 30-1.] However, he does not expand upon that statement or
cite any evidence in support of it. Moreover, when considered along with Jackson’s arguments
and the statements in the CPPs about the job duties of grievance aides, Thomas’s statement at
most creates a dispute of fact as to whether grievance aides are akin to prison administrators or
agents thereof.
As the Court noted above, “the failure to exhaust ‘must be established by the
defendants,’” Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012) (quoting Napier v. Laurel
County, Ky., 636 F.3d 218, 225 (6th Cir. 2011)). For the reasons explained in this Memorandum
Opinion, the Court finds that genuine disputes of material fact exist as to whether the
administrative process was effectively “unavailable” to Jackson within the meaning of Ross.
Therefore, defendants have not carried their “burden of proving that [Jackson] has not exhausted
his administrative remedies” at this stage. Id. at 456. Accordingly, Defendants’ motion for
summary judgment must be denied, and an evidentiary hearing is necessary on the issue of
exhaustion. See Cohron v. City of Louisville, Ky., No. CIV.A. 06-570-C, 2012 WL 1015789, at
*1 (W.D. Ky. Mar. 22, 2012), aff’d, 530 F. App’x 534 (6th Cir. 2013) (“An evidentiary hearing
is necessary to determine whether Cohron exhausted his administrative remedies.”).
However, the Court notes that Defendants moved for summary judgment only on the
affirmative defense that Jackson failed to exhaust his administrative remedies; Defendants did
not move for summary judgment on the merits of Jackson’s claims. [See DN 17.] If Defendants
wish to file a motion for summary judgment addressing the merits of Jackson’s claims, the Court
will allow the United States to do so within twenty-eight days of the entry of this Memorandum
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Opinion and Order. Only after the Court determines whether Jackson’s claims survive summary
judgment on the merits will the Court schedule the evidentiary hearing on the exhaustion issue.
CONCLUSION
For the reasons discussed herein, Defendants’ motion for summary judgment, [DN 17], is
DENIED. Jackson’s motion for extension and court order, [DN 31], is now DENIED AS
MOOT. The United States has twenty-eight (28) days from the entry of this Order to file a
second motion for summary judgment addressing the merits of Jackson’s claims. If the United
States chooses to file such a motion, Jackson shall file a response within twenty-one (21) days.
The United States must then reply within seven (7) days.
IT IS SO ORDERED.
Date:
cc:
February 28, 2018
Counsel
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