ADAMS v. MONAHAN

Filing 58

REPORT AND RECOMMENDED DECISION re 6 MOTION Declaratory Judgment filed by JON ROBERT ADAMS, 9 MOTION for Preliminary Injunction filed by JON ROBERT ADAMS, 52 MOTION Regarding Exhaustion Requirement filed by JON ROBERT ADAMS, 33 MOTION for Preliminary Injunction filed by JON ROBERT ADAMS, 18 MOTION for Summary Judgment filed by JON ROBERT ADAMS, 11 Motion to Issue Order for access to Law Library filed by JON ROBERT ADAMS, 4 MOTION for Summary Judgment filed by JON ROBERT ADAMS, 22 MOTION for Summary Judgment filed by LUKE MONAHAN Objections to R&R due by 1/25/2018 By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JON ROBERT ADAMS,
Plaintiff
v.
LUKE MONAHAN, et al.,
Defendants

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2:17-cv-00261-GZS

RECOMMENDED DECISION ON PENDING MOTIONS
In this action, Plaintiff Jon Robert Adams, an inmate in the custody of the
Department of Corrections assigned to the Maine Correctional Center, alleges that
Defendant Luke Monahan denied him access to the courts by imposing unreasonable
restrictions on Plaintiff’s ability to access the prison law library. The matter is before the
Court on the following motions:
1.

Plaintiff’s Motion for Summary Judgment (ECF No. 4);

2.

Plaintiff’s Motion for Declaratory Judgment (ECF No. 6);

3.

Plaintiff’s Motion for Preliminary Injunction (ECF No. 9);

4.

Plaintiff’s Motion to Inform the Court (ECF No. 11);

5.

Plaintiff’s [Second] Motion for Summary Judgment (ECF No. 18);

6.

Defendant Monahan’s Motion for Summary Judgment (ECF No. 22);

7.

Plaintiff’s [Second] Motion for Preliminary Injunction (ECF No. 33); and

8.

Plaintiff’s Motion/Brief Regarding Exhaustion Requirement (ECF No. 52).

1

Following a review of the summary judgment record, and after consideration of the
parties’ arguments, I recommend the Court grant Defendant Monahan’s motion for
summary judgment and dismiss as moot the remaining motions.
PROCEDURAL BACKGROUND
On July 11, 2017, Plaintiff filed his original complaint against Defendant Monahan.
(ECF No. 1.) On the same date, Plaintiff filed his first motion for summary judgment (ECF
No. 4) and a motion for declaratory judgment. (ECF No. 6.) Shortly thereafter, the Court
received Plaintiff’s first motion for preliminary injunction (ECF No. 9) and Plaintiff’s
“motion to inform the court.” (ECF No. 11.) On September 11, 2017, Plaintiff filed a
second motion for summary judgment. (ECF No. 18.) On October 10, 2017, Plaintiff filed
another motion for preliminary injunction. (ECF No. 33.)
On September 15, 2017, Plaintiff filed a motion to amend his complaint to include
a denial of access claim against Defendant Deputy Warden Susan Carr. The Court granted
Plaintiff leave to assert a claim for injunctive relief against Defendant Carr in her official
capacity, but denied Plaintiff leave to proceed against Defendant Carr in her personal
capacity because the record reflected that Plaintiff sought to assert a claim regarding library
access before Defendant Carr had the opportunity to respond to Plaintiff’s related
grievance. (Order Granting Plaintiff’s Motion to Amend and Recommended Decision
After Screening Amended Complaint, ECF No. 25; Order Affirming the Recommended
Decision of the Magistrate Judge, ECF No. 43.)
On September 28, 2017, Defendant Monahan moved for summary judgment based
on Plaintiff’s failure to exhaust the available administrative remedies. (ECF No. 22.) In
2

response, Plaintiff filed an opposition (ECF No. 34) and a “motion/brief” related to the
exhaustion requirement. (ECF No. 52.) Through the “motion/brief,” Plaintiff asked the
Court to excuse him from the exhaustion requirement because he had made four attempts
to exhaust that were not properly resolved by prison administrators. (Id. at 3.)
FACTUAL BACKGROUND
Plaintiff alleges that Defendant Monahan, the unit manager for Plaintiff’s cell block,
has denied him meaningful physical access to the law library, and that the denial of access
has interfered with his ability to conduct litigation.1 Maine Department of Corrections
Policy 24.4, Library Services provides: “It is the policy of the Department of Corrections
to provide prisoners with reasonable opportunities to use library services to conduct legal
research, address educational needs, and pursue recreational interests.” (ECF No. 1-3.)
The policy contemplates “physical access to the facility’s library at least weekly on a
scheduled basis,” and that “a selection of library materials” may be provided in general
population and other housing units “upon approval of the Chief Administrative Officer, or
designee.” (Id. § VI.A.1, 3, 4.) The policy includes a “special accommodation” provision
that permits “additional access to the law library or law library services” for prisoners who
are “under court deadlines” or “need to do more comprehensive research.” (Id. § VI.E.3.)
Requests for special accommodation are to be directed “to the Unit Manager, or other staff
designated by the Chief Administrative Officer.” (Id. § VI.E.4.)

1

When Plaintiff commenced this action, he was a party to a matter pending in state court before a medical
malpractice prelitigation screening panel, in which matter Plaintiff asserted claims against one or more
providers of medical services at the Maine Correctional Center. Additionally, after filing this action,
Plaintiff filed another action in this Court. Specifically, on September 14, 2017, Plaintiff filed a claim
against certain corrections officers based on their alleged failure to protect Plaintiff from harm presented
by other prisoners. Adams v. Landry, No. 2:17-cv-00357-JAW.
3

According to Plaintiff’s submissions, Plaintiff’s unit manager, Defendant Monahan,
with some exceptions, generally permitted Plaintiff one hour each week of physical access
to the library, but refused Plaintiff’s requests for additional access unless and until Plaintiff
demonstrated that he was under a court-imposed deadline.
Department of Corrections Policy 29.1 covers all prisoner grievances, except for
matters expressly excluded from coverage in the policy. (Defendant’s Statement of
Material Facts (DSMF), ECF No. 23, ¶¶ 3 – 4; Policy 29.01, Prisoner Grievance Process,
General, ECF No. 23-2.) The grievance policy specifically covers a prisoner grievance
that seeks administrative review of any policy, procedure, practice, condition of
confinement, action, decision, or event that directly affects the prisoner, that the prisoner
believes is in violation of his or her rights or is in violation of Department policies or
procedures, and for which the prisoner believes a Department employee or a contractor is
responsible. (DSMF ¶ 5.) Plaintiff has not disputed that his claim regarding library access
is subject to the grievance policy.
Pursuant to Policy 29.1, a prisoner must first make an attempt at an informal
resolution with the designated supervisor before filing a formal grievance with the prison’s
grievance review officer (GRO). (Id. ¶ 6.) If the prisoner’s complaint is not resolved
informally, the prisoner must file the grievance with the GRO. (Id. ¶ 7.) The GRO’s
assessment of the grievance is subject to administrative appeal, and the final step of the
appeal process is an appeal to the Commissioner of the Department of Corrections. (Id. ¶
8.)

4

Exhibit G to Plaintiff’s complaint is an administrative grievance form submitted to
Defendant Monahan’s supervisor, Unit Two Manager Penny Bailey. (Id. ¶ 9.) Plaintiff’s
submission of Exhibit G to Unit Manager Bailey would qualify as Plaintiff’s written
attempt at informal resolution. (Id. ¶ 10; Aff. of Dennis Shipman, ECF No. 23-4, ¶ 6.)
According to Mr. Shipman, Plaintiff never filed the grievance with him, and there is no
record of Plaintiff ever submitting any other grievance to him regarding his access to the
law library. (DSMF ¶¶ 11 – 12; Aff. of Dennis Shipman ¶¶ 7 – 9.) The Department of
Corrections has no record of Plaintiff filing a grievance appeal to the Commissioner.
(DSMF ¶ 13; Aff. of Kelene Barrows ¶¶ 4 – 5.)
Plaintiff asserts the prisoner grievance process at the Maine Correctional Center is
“broken,” “misused,” and “abused” by the staff. (Plaintiff’s Opposition at 4, ECF No. 34.)
Plaintiff maintains there is a history of grievances being sent to the GRO that are never
returned. (Id.) Plaintiff argues that a prisoner exhausts available administrative remedies
when the prisoner’s initial grievance is ignored. (Id. at 5.) In further support of his
opposition, Plaintiff filed a number of exhibits, or attachments, including affidavits from
other inmates, in an apparent effort to establish the futility of the grievance process.2
In an affidavit, Plaintiff asserts: “Based on personal experience, I have attempted to
send many of my grievances to the prison’s grievance officer, Dennis Shipman, at my

Zachary Tomaselli states that he has filed grievances with the GRO that have been “ignored and never
answered within the 30 day limit.” (ECF No. 34-6.) Robert Steiner reports that he has filed grievances
with the GRO, and it is “common process” for Maine Correctional Center staff to lose or misplace
grievances, or to let them “run their time limit so that no resolution can be obtained.” (ECF No. 34-8.)
Chad Beal asserts he has filed grievances with the GRO that “have gone ignored and unanswered, and
[were] never returned back to me.” (ECF No. 34-9.) Jon Hall attests that he has filed non-frivolous
grievances with the GRO that have been ignored. (ECF No. 38.)
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2

attempt to properly utilize the grievance process.” (ECF No. 34-7, ¶ 4.) He also contends
that many of his grievances “have gone ignored and unanswered.” (Id. ¶ 5.)
Plaintiff later filed another affidavit regarding his efforts to obtain additional law
library access. (ECF No. 50-1.) Plaintiff represents that he submitted “prisoner requests
to my unit manager, Defendant Monahan.” (Id. ¶ 6.) Plaintiff further contends that he
“took [his] problem to the Warden Scott Landry via the ‘Prisoner Request Slip’ process
(Compl. Ex. J, ECF No. 16-1),” and “Warden Landry denied my request and stated that
my one hour per week was sufficient and if I face a ‘legal deadline’ my request would be
reconsidered.” (Id. ¶ 8.) 3
Plaintiff asserts he “made four (4) separate grievance attempts, at an attempt to
exhaust my problem through the prisoner grievance process in the manner of a complaint.”
(Id. ¶ 9.) Plaintiff states that his four attempts “to file a grievance at my attempt utilize
[sic] the grievance process informal resolution, were unsuccessful and it was a ‘pass-thebuck’ problem causing me the ‘run around,’ which led to me being frustrated, discouraged,
angry and not knowing what to do next.” (Id. ¶ 12.)
According to Plaintiff, two of the four attempts were made just before he filed the
complaint in this matter, and two of the attempts were made after the date on which he filed
the complaint in this matter. The four attempts consist of the following: he submitted his
first informal grievance on June 23, 2017, to Deputy Warden Glean Brown, who instructed
Plaintiff to address the matter to Unit Manager Penny Bailey (Id. ¶ 13); on June 28, 2017,

Plaintiff received the Warden’s response to his “request slip” on or around July 17, 2017. Plaintiff filed
his complaint in this Court on July 11, 2017. (ECF No. 16-1.)
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3

Plaintiff addressed the matter with Unit Manager Bailey, who marked the grievance “not
resolvable,” and informed Plaintiff that he was not being denied law library access (Id. ¶
14); Plaintiff filed what he describes as his third grievance, on August 29, 2017, with
Warden Scott Landry, who marked the grievance “not resolvable,” and instructed Plaintiff
to take the matter to Defendant Monahan or to Defendant Monahan’s supervisor, Deputy
Warden Carr (Defendant Carr) (Id. ¶ 15); and on September 1, 2017, Plaintiff filed what
he describes as his fourth informal grievance with Defendant Carr. Plaintiff states the filing
with Defendant Carr “was still an informal resolution attempt,” but that Defendant Carr
never responded. (Id. ¶ 16.)4 Plaintiff states Defendant Carr had five days under the policy
to respond to his fourth informal attempt to resolve his grievance and that he filed a motion
to join her in this action approximately nine days after the five-day time limit expired.
(ECF No. 50-1, ¶ 21.)
DISCUSSION
A.

Defendant’s Motion for Summary Judgment
Through his motion for summary judgment, Defendant Monahan contends that

Plaintiff’s action must be dismissed because Plaintiff did not exhaust the available
administrative remedies before filing this action.
1.

Summary judgment standard

“The court shall grant summary judgment 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

4

Plaintiff filed another affidavit on October 11, 2017. (Affidavit of Jon Robert Adams, ECF No. 35-3, ¶
7: “In the past, when I’ve submitted grievances to [the GRO], my grievances have gone unanswered &
ignored well beyond the respected [sic] thirty (30) day limit.”)
7

of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If the court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of his claims, a trial-worthy controversy exists and summary judgment must
be denied to the extent there are supported claims. Id. (“The district court’s role is limited
to assessing whether there exists evidence such that a reasonable jury could return a verdict
for the nonmoving party.” (internal quotation marks omitted)). Unsupported claims are
properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the
principal purposes of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses.”).
2.

Analysis

Federal law requires a prisoner to exhaust the available administrative remedies
before initiating a lawsuit pursuant to 42 U.S.C. § 1983. Specifically, “[n]o 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); see
8

also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is
mandatory under the PLRA [Prison Litigation Reform Act] and that unexhausted claims
cannot be brought in court.”).
The Supreme Court has held that § 1997e(a) requires “proper exhaustion” of a
prisoner’s administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper
exhaustion demands 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. “Compliance with prison
grievance procedures … is all that is required … to ‘properly exhaust.’” Jones, 549 U.S.
at 218. “[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” Id.
A defendant may raise the § 1997e exhaustion requirement as an affirmative
defense. Jones v. Bock, 549 U.S. 199, 216 (2007); see also Ramos v. Patnaude, 640 F.3d
485, 488 (1st Cir. 2011) (“The Supreme Court made it plain … that exhaustion under §
1997e(a) is not a jurisdictional condition, and has held it to be an affirmative defense.”
(citing Jones, 549 U.S. at 212)). Because failure to exhaust administrative remedies is an
affirmative defense rather than a jurisdictional issue, initially, the defendant bears the
burden of proof. Jones, 549 U.S. at 216. To satisfy that burden, the defendant must
establish “that there was an available administrative remedy, and that the prisoner did not
exhaust that available remedy.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc),

9

cert. denied sub nom. Scott v. Albino, 135 S. Ct. 403 (2014).5 Thereafter, the plaintiff must
present evidence that demonstrates “that there is something in his particular case that made
the existing and generally available administrative remedies effectively unavailable to
him.” Id.
Here, Defendant has established that an administrative remedy (i.e., a formal
grievance process) was available to Plaintiff regarding his complaint of inadequate library
access, that Plaintiff did not file a formal grievance after he received an adverse response
from Unit Manager Bailey to his informal grievance,6 and that Plaintiff did not file any
other formal grievance on the issue. Defendant thus has satisfied his initial burden;
Plaintiff, therefore, must demonstrate that the administrative remedy was unavailable to
him, or, at a minimum, that a factual issue remains in dispute as to the availability of an
administrative remedy.
Plaintiff has not challenged Defendant’s record assertion that Plaintiff did not
submit to GRO Shipman a grievance regarding his complaints about law library access.
Instead, he contends that grievances are regularly ignored in an apparent attempt to
demonstrate that an administrative remedy was not available and thus excuse his failure to
file a grievance with GRO Shipman. Plaintiff’s argument is unavailing. In Ross v. Blake,

5

To be an available remedy, a grievance procedure must actually apply to the type of claim at issue. Bean
v. Barnhart, No. 1:13-cv-00196-NT, 2015 WL 3935777, at *5 (D. Me. June 26, 2015) (citing Booth v.
Churner, 532 U.S. 731, 736 n.4 (2001), and Malik v. D.C., 574 F.3d 781, 785 (D.C. Cir. 2009)). See also
Davis v. Fernandez, 798 F.3d 290, 294 – 95 (5th Cir. 2015) (“Whenever defendants claim a failure to
exhaust, they have the burden to prove that the plaintiff did not exhaust administrative remedies that were
actually available to him.”).
6

Even if the form submitted to Unit Manager Bailey is construed as a formal grievance, Plaintiff did not
file an appeal from Unit Manager Bailey’s decision.
10

136 S. Ct. 1850, 1856 – 57 (2016), the Supreme Court, while confirming that the
exhaustion of available administrative remedies is mandatory, noted three limited
“circumstances in which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 1859. Plaintiff’s contention potentially implicates
one of the circumstances described by the Court:
[A]n administrative procedure is unavailable when (despite what regulations
or guidance materials may promise) it operates as a simple dead end – with
officers unable or consistently unwilling to provide any relief to aggrieved
inmates. Suppose, for example, that a prison handbook directs inmates to
submit their grievances to a particular administrative office – but in practice
the office disclaims the capacity to consider those petitions. The procedure
is not then “capable of use” for the pertinent purpose. In [the words of Booth
v. Churner, 532 U.S. 731, 736 (2001)]: “[S]ome redresss for a wrong is
presupposed by the statute’s requirement” of an “available” remedy, “where
the relevant administrative procedure lacks authority to provide any relief,”
the inmate has “nothing to exhaust.” So too if administrative officials have
apparent authority, but decline ever to exercise it. Once again: “[T]he
modifier ‘available’ requires the possibility of some relief.” When the facts
on the ground demonstrate that no such potential exists, the inmate has no
obligation to exhaust the remedy.”
Id. at 1859 (citations omitted). 7
In this case, Plaintiff has presented no credible evidence to suggest that GRO
Shipman “decline[s] ever to exercise” his authority to review initial formal grievances, or
that there is no potential for relief in appropriate cases. Id. Not insignificantly, Plaintiff’s
own submissions establish that he received a response when he presented an informal
grievance to the appropriate official, and at least in one instance, direction as to how to

The other circumstances identified by the Ross Court involve administrative schemes “so opaque” they
are “practically speaking, incapable of use,” and acts by prison administrators that “thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross,
136 S. Ct. at 1859 – 60. The record does not support a finding that the Department’s Prisoner Grievance
Process is unclear or too difficult to understand. The record also does not include any evidence of
machination, misrepresentation, or intimidation.
11
7

proceed when he submitted his informal grievance to the incorrect official. (Complaint,
Exhibit G, ECF No. 1-7; Affidavit of Plaintiff, ¶ 13, ECF No. 50-1). Plaintiff concedes
that he did not file a formal grievance after his attempts to resolve the issue informally.
(Id. ¶¶ 18-19.) Rather, on July 6, 2017, eight days after receiving a response to the request
to resolve the grievance informally, Plaintiff signed the complaint in this matter.8 (ECF
No. 1.) Given that Plaintiff never filed a formal grievance with the grievance review
officer, Plaintiff’s general assertions that other grievances have been ignored is insufficient
to generate a factual issue regarding the availability of an administrative remedy. To the
extent Plaintiff attempts to rely on Defendant Carr’s alleged lack of response to a later
grievance to satisfy the exhaustion requirement, Plaintiff’s argument is unpersuasive.
While courts have excused a failure to exhaust where the evidence indicates a proper
grievance was ignored, see, e.g., Andres v. Marshall, 867 F.3d 1076, 1078 – 79 (9th Cir.
2017), Plaintiff cannot be excused from the exhaustion requirement based on the handling
of a grievance that was filed after Plaintiff commenced this action. Pavao v. Sims, 679 F.
App’x 819, 824 – 25 (11th Cir. Feb. 10, 2017) (prisoner’s “efforts to exhaust after filing
his complaint are not relevant to the question of whether he exhausted his administrative
remedies as required by the PLRA”).
On this record, therefore, Plaintiff has not demonstrated that a factual issue remains
in dispute as to whether he exhausted the available administrative remedies prior to filing
suit. Although he initiated the process with the filing of an attempt to resolve the grievance

8

The envelope by which the complaint was forwarded to the Court is post-marked July 7, 2017. (ECF No.
1-9.)
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informally, he did not proceed beyond the informal level. Plaintiff’s alleged frustration
with GRO Shipman’s handling of prior grievances is insufficient to generate an issue
regarding the availability of the grievance process.9 In short, the “facts on the ground” fail
to demonstrate absence of potential relief through the grievance process. Ross, 136 S. Ct.
at 1859. See, e.g., Green v. Haverstick, No. 16-2523, 2017 WL 5171244, at *2 (6th Cir.
Aug. 30, 2017) (affirming grant of summary judgment despite evidence of prior disregard
toward grievance activity where the record demonstrated that grievance concerning the
claim in issue was accepted); Godbey v. Wilson, No. 1:12-cv-01302, 2014 WL 794274, at
*5 (E.D. Va. Feb. 26, 2014) (“prisoner cannot exhaust his administrative remedies by
failing to follow the required procedural steps, and the proper return of an improperly filed
grievance does not serve to exhaust a prisoner’s administrative remedies”).
In sum, the uncontroverted record evidence establishes that an administrative
remedy was available to Plaintiff. The administrative process required Plaintiff to attempt
an informal resolution of any grievance and, if the grievance is unresolved, the submission
of a formal grievance to GRO Shipman to be followed by two levels of appeal, if the
grievance is unsuccessful before GRO Shipman. While the record demonstrates that

The Department’s Prisoner Grievance Process provides for additional levels of review beyond the initial
formal grievance submitted to the Grievance Review Officer. While a prisoner must exhaust all levels of
the administrative process, Johnson v. Thyng, 369 F. App’x 144, 146 – 47 (1st Cir. 2010) (per curiam), the
Department’s Policy states that a prisoner’s access to the second level of review is conditioned on the
“receipt of the response from the Grievance Review Officer.” (Prisoner Grievance Process, Procedure D.1,
ECF No. 23-2.) Therefore, where a prisoner properly pursues informal relief and then files a first level
grievance with the GRO, if the first level grievance is ignored and not returned, the prisoner would have
exhausted available administrative remedies because the process beyond the level one grievance would
have been rendered unavailable to the prisoner. Plaintiff’s concern that GRO Shipman might have ignored
any level one grievance he filed did not excuse Plaintiff from availing himself of the process, where such
conduct on the part of GRO Shipman would have meant that Plaintiff had exhausted the available remedies.
9

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Plaintiff initiated the process with an attempt to resolve the grievance informally, he did
not exhaust the available remedies as he did not proceed beyond the initial stage of the
grievance process.10 Accordingly, Plaintiff’s § 1983 claim for deprivation of his right of
access to the courts is an unexhausted claim barred by 42 U.S.C. § 1997e(a). Defendant
Monahan, therefore, is entitled to summary judgment.
B.

Plaintiff’s Claim Against Defendant Carr
Although Defendant Carr has not yet filed a response to Plaintiff’s complaint, given

that Plaintiff’s claim against Defendant Carr is limited to a claim for injunctive relief in the
event Plaintiff demonstrated that he was deprived of his constitutional right of access to
the courts, and given that Plaintiff cannot proceed on his claim based on his failure to
exhaust the available administrative remedies, Plaintiff cannot prevail on his claim against
Defendant Carr.
C.

Plaintiff’s Motions
Plaintiff has filed the following motions: Plaintiff’s Motion for Summary Judgment

(ECF No. 4), Plaintiff’s Motion for Declaratory Judgment (ECF No. 6), Plaintiff’s Motion
for Preliminary Injunction (ECF No. 9), Plaintiff’s Motion to Inform the Court (ECF No.
11), Plaintiff’s [Second] Motion for Summary Judgment (ECF No. 18), Plaintiff’s [Second]
Motion for Preliminary Injunction (ECF No. 33), and Plaintiff’s Motion/Brief Regarding
Exhaustion Requirement (ECF No. 52). Because Plaintiff cannot proceed on his claim

Even if Plaintiff’s submission to Unit Manager Bailey is construed as a formal grievance, the record lacks
any evidence to suggest that Plaintiff appealed from Ms. Bailey’s determination that the complaint was not
resolved. Because the prison grievance policy includes an administrative appeal process, the record
establishes that Plaintiff did not exhaust the available administrative remedies.

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based on his failure to exhaust the available administrative remedies, Plaintiff’s motions
are moot.11
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendant
Monahan’s Motion for Summary Judgment (ECF No. 22), and enter judgment in favor of
Defendant Monahan and Defendant Carr. I also recommend the Court dismiss as moot
Plaintiff’s Motion for Summary Judgment (ECF No. 4), Plaintiff’s Motion for Declaratory
Judgment (ECF No. 6), Plaintiff’s Motion for Preliminary Injunction (ECF No. 9),
Plaintiff’s Motion to Inform the Court (ECF No. 11), Plaintiff’s [Second] Motion for
Summary Judgment (ECF No. 18), Plaintiff’s [Second] Motion for Preliminary Injunction
(ECF No. 33), and Plaintiff’s Motion / Brief Regarding Exhaustion Requirement (ECF No.
52).
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 11th day of January, 2018.

To the extent Plaintiff’s motions included substantive arguments or record evidence that was relevant to
Defendant’s motion for summary judgment, I considered the arguments and evidence.
15

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