Rivers v. Turner et al

Filing 80

Memorandum Opinion and Order: The Motions for Partial Summary Judgment Instanter (Docs. 65 , 77 ) are granted; Riversequal protection and First Amendment retaliation claims are dismissed. With no other federal claims remaining, this Court declines to exercise supplemental jurisdiction over Rivers' state law deprivation-of-property claim. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726(1966) ([I]f the federal claims are dismissed before trial... the state claims should be dismissed aswell.). Rivers' Motion for Appointment of Counsel (Doc. 79 ) is denied as moot. Judge Jack Zouhary on 7/29/16. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Doylan V. Rivers,

Case No. 3:14 CV 2547
Plaintiff,

MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
Neil Turner, et al.,
Defendants.

INTRODUCTION
Pro se Plaintiff Doylan Rivers, an Ohio inmate, brings this action under 42 U.S.C. § 1983
against Defendants Neil Turner, FNU Hunt, FNU Shaeffer, Kasey Morris, FNU Joyce, and Norm
Hills, all officials at North Central Correctional Institution (“NCCI”), and Debbie Starks, education
administrator at NCCI (Doc. 26 at 1). Rivers alleges Defendants: (1) violated his equal protection
rights by discriminating against black inmates in job assignments and college-scholarship funding;
and (2) retaliated against him for speaking against such discrimination by putting him in
administrative segregation (Doc. 26 at ¶¶ 15–33).
Defendants filed a Statement of Position Concerning Exhaustion of Administrative Remedies
(Doc. 65), which this Court construed as a Motion for Partial Summary Judgment Instanter (Doc. 67).
Rivers opposed the Motion (Doc. 68), and Defendants replied (Doc. 70). Defendant Debbie Starks
joined the Motion and Reply (Doc. 77). Defendants contend Rivers failed to exhaust administrative

remedies before bringing his constitutional claims, as required by the Prison Litigation Reform Act
(“PLRA”). 42 U.S.C. § 1997e(a). This Court agrees.
BACKGROUND
In December 2011, Rivers was housed at NCCI and was the prison’s NAACP president (Doc.
68-1 at 19). That month, he sent a letter (not a grievance) to the Chief Inspector -- the last stop in
Ohio’s Inmate Grievance Procedure (Doc. 68-1 at 19). Ohio Admin. Code § 5120-9-31. In that letter,
Rivers disclosed his plan to allege NCCI officials discriminated against black inmates in job
assignment and college-scholarship funding; he also asked the Chief Inspector for protection against
retaliation by NCCI officials (Doc. 68-1 at 19). A month later, the Chief Inspector responded with
a form letter, directing Rivers to follow Ohio’s Inmate Grievance Procedure (Doc. 65-1 at 24).
Over the next two months, Rivers protested to several NCCI officials -- namely, Warden
Turner, Deputy Wardens Hills and Joyce, Institutional Inspector Morris, and Education Administrator
Starks -- that NCCI’s policies were racially discriminatory (Doc. 68 at ¶ 5).
In March 2012, NCCI officials put Rivers in administrative segregation (Doc. 65-1 at 35).
There, Rivers sent another letter (not a grievance) to the Chief Inspector, calling attention to his first
letter and imploring the Chief Inspector to protect him (id. at 30). A month later, the Chief Inspector
responded with a form letter, identical to the first, again directing Rivers to follow Ohio’s Inmate
Grievance Procedure (id. at 34). Rivers remained in segregation -- save for a brief interlude in April
(id. at 43) -- until December 2012, when NCCI officials transferred him to Allen Oakwood
Correctional Institute (“ACI”) (Doc. 68 at ¶¶ 6–8).
Shortly after his transfer, Rivers met with ACI’s Institutional Inspector, who instructed Rivers
on how to follow Ohio’s Inmate Grievance Procedure and gave him a form (Doc. 68 at ¶ 16). After

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that meeting, Rivers filed a one-step grievance against the “NCC[I] Warden” (Doc. 68-1 at 1). In that
grievance, Rivers alleged: “[he] was . . . put back in segregation without legal cause on 4/26/12 by
. . . Warden Turner . . . in retaliation for using grievance procedure” (id. at 1). To explain why the
Warden was retaliating against him, Rivers recounted meeting with an unnamed NCCI Institutional
Inspector who “acknowledged fact [sic] [NCCI] was out of compliance” with non-discrimination
policies (id.).
Several months later, the Chief Inspector dismissed Rivers’ grievance (id. at 2). The dismissal
began:
Upon my review and communication with staff at NCCI, I find that you were placed
in segregation at NCCI under investigation due to complaints from staff and inmates
that you were acting inappropri-ately as NAACP president. I find that you were
transferred to ACI on 12/10/2012 due to your disruptive behavior within inmate
groups at NCCI.
And concluded: “[Rivers] failed to clearly indicate how Warden Turner was personally and knowingly
involved in a violation of law, rule, or policy and approved it or did nothing to prevent it.
Accordingly this grievance is DENIED” (id.).
STANDARD OF REVIEW
Summary judgment is appropriate if there is “no genuine dispute as to any material fact,” and
the moving party “is entitled to judgment as a matter of law.” Federal Civil Rule 56(a). When
considering a motion for summary judgment, this Court must draw all inferences from the record in
the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). It may not weigh the evidence or make credibility judgments. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). But “[t]he mere existence of a scintilla of evidence
in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury

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could reasonably find for the plaintiff.” Expert Masonry, Inc. v. Boone Cty., 440 F.3d 336, 341 (6th
Cir. 2006) (internal quotation marks omitted).
Non-exhaustion is an affirmative defense under the PLRA, with the burden of proof falling
on Defendants. Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011). Therefore, “[s]ummary
judgment is appropriate only if [D]efendants establish the absence of a ‘genuine dispute as to any
material fact’ regarding non-exhaustion.” Id. (quoting Federal Civil Rule 56(a)).
DISCUSSION
Prison Litigation Reform Act
The PLRA mandates that “[n]o action shall be brought with respect to prison conditions under
section 1983 . . . until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 216 (2007).
An inmate exhausts administrative remedies by “taking advantage of each step the prison
holds out for resolving the claim internally and by following the ‘critical procedural rules’ of the
prison’s grievance procedure to permit prison officials to review and, if necessary, correct the
grievance ‘on the merits.’” Reed Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) (quoting
Woodford v. Ngo, 548 U.S. 81, 95 (2006)).
Ohio’s Inmate Grievance Procedure
In Ohio, an inmate must generally follow a three-step grievance procedure, consisting of: (1)
an informal complaint; (2) a notification of grievance; and (3) an appeal to the Chief Inspector. Ohio
Admin. Code § 5120-9-31(K).

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But, when an inmate files a grievance against a warden or an institutional inspector, the inmate
must follow an alternative one-step grievance procedure, consisting only of a direct grievance to the
Chief Inspector. Id. § 5120-9-31(M). To pursue such a one-step grievance, the inamte “must show
that the warden or [institutional inspector] was personally and knowingly involved in a violation of
law, rule, or policy, or personally and knowingly approved or condoned such a violation.” Id.
An inmate exhausts administrative remedies when the inmate follows the “critical procedural
rules” of Ohio’s Inmate Grievance Procedure, and the Chief Inspector decides the inmate’s grievance
“on the merits.” Reed Bey, 603 F.3d at 324; see also Reynolds Bey v. Harris Spicer, 428 F. App’x
493, 498 (6th Cir. 2011). On the other hand, an inmate fails to exhaust administrative remedies when
the Chief Inspector “clearly and expressly” dismisses the inmate’s grievance “on procedural grounds.”
Reynolds Bey, 428 F. App’x at 502 (citing Reed Bey, 603 F.3d at 325).
Equal Protection Claim
Rivers alleges Defendants discriminated against black inmates in job assignments and
college-scholarship funding (Doc. 26 at 3). He requests injunctive relief, enjoining Defendants from
violating his rights under the Equal Protection Clause (id. at 10).
Defendants contend Rivers never grieved the alleged racial discrimination (Doc. 65 at 4).
“Failure to file an administrative grievance . . . precludes proper exhaustion and thus bars the claim
in federal court.” Woodford, 548 U.S. at 93. Rivers argues he alleged racial discrimination in his
grievance against Warden Turner (Doc. 68 at ¶ 17). Not so. That grievance mentions racial
discrimination only to explain what prompted the alleged retaliatory segregation (see Doc. 68-1 at 1).
Nowhere does Rivers allege Warden Turner, against whom he filed the grievance, personally
discriminated on the basis of race (id. at 1). And, while he did recount that an unnamed Institutional

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Inspector allegedly “acknowledged fact [sic] [NCCI] was out of compliance” with non-discrimination
policies, Rivers never filed a grievance against any Institutional Inspector (id. at 1).
An inmate’s grievance must give “sufficient notice of the matter being grieved . . . ,” so that
“[p]rison officials . . . ha[ve] a chance to provide a remedy for the inmate and to decide whether the
objectives of the review process have been served.” Maxwell v. Corr. Med. Servs., Inc., 538 F. App’x
682, 688 (6th Cir. 2013) (citing Reed Bey, 603 F.3d at 324). Rivers’ purported allegation of racial
discrimination, apparently hidden within the background of his actual allegation, did not give the
Chief Inspector “sufficient notice” of the matter Rivers now argues he had been grieving. Rivers did
not initiate, let alone exhaust, administrative remedies for his equal protection claim. Id.; Woodford,
548 U.S. at 93.
In any event, as Defendants contend, Rivers’ equal protection claim is moot (Doc. 77 at 2).
When an inmate is transferred to another prison, his request for injunctive relief against the transferor
prison, and its officials, becomes moot. Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010). Rivers
was transferred from NCCI (Doc. 68 at ¶ 8), and he requests only injunctive relief against NCCI
officials for his equal protection claim (Doc. 26 at 10).
First Amendment Retaliation Claim
Rivers also alleges Defendants put him in administrative segregation for complaining of racial
discrimination (Doc. 26 at 1). Defendants contend Rivers failed to exhaust this claim because he did
not properly follow Ohio’s Inmate Grievance Procedure (Doc. 65 at 1).
“The level of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA,
that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). In Ohio,

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when an inmate files a grievance against a warden, the inmate “must show that the warden . . . was
personally and knowingly involved in a violation of law, rule, or policy, or personally and knowingly
approved or condoned such a violation.” Ohio Admin. Code § 5120-9-31(M). Here, Rivers did not
show Warden Turner’s personal involvement or knowledge; he merely asserted “[he] was . . . put back
in segregation without legal cause on 4/26/12 by . . . Warden Turner . . . in retaliation for using
grievance procedure” (Doc. 68-1 at 1).
An inmate fails to exhaust administrative remedies when the Chief Inspector “clearly and
expressly” dismisses the inmate’s grievance “on procedural grounds.” Reynolds Bey, 428 F. App’x
at 502 (citing Reed Bey, 603 F.3d at 325). Here, the Chief Inspector “clearly and expressly” dismissed
Rivers’ grievance because of its procedural shortcomings: “[Rivers] failed to clearly indicate how
Warden Turner was personally and knowingly involved in a violation of law, rule, or policy and
approved it or did nothing to prevent it. Accordingly this grievance is DENIED” (Doc. 68-1 at 2).
Rivers, therefore, failed to exhaust administrative remedies for his First Amendment retaliation claim.
Rivers resists this conclusion by arguing the Chief Inspector decided his grievance on the
merits (Doc. 68-2 at 12). To support that argument, Rivers points to the second sentence of the Chief
Inspector’s response: “I find that you were placed in segregation at NCCI under investigation due
to complaints from staff and inmates that you were acting inappropriately as NAACP president” (Doc.
68-1 at 2). In context, however, it is clear that statement is not a decision on the merits but merely
a factual introduction. It is nowhere near the Chief Inspector’s explicit decision to dismiss on
procedural grounds in the closing paragraph.
Furthermore, that statement cannot be a decision on the merits because it does not decide
anything. It is wholly consistent with both Rivers’ allegation and Defendants’ contention: The Chief

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Inspector did not decide whether the complaints that led to Rivers’ segregation were about Rivers
speaking against racial discrimination, as Rivers alleges (Doc. 26 at ¶¶ 15–33), or if they were about
Rivers intimidating other inmates and embezzling NAACP funds, as Defendants contend (Doc. 65
at 7). The crux of the matter is undecided. The Chief Inspector did not decide Rivers’ grievance on
the merits, and, consequently, Rivers failed to exhaust for his First Amendment claim. See Reynolds
Bey, 428 F. App’x at 498; Reed Bey, 603 F.3d at 324.
Availability of Administrative Remedies
Alternatively, Rivers argues “if [he] was required to utilize the 3-step process in grieving his
claim of retaliatory segregation placement . . . against Defendant[ ] Turner . . . ,” then ACI’s
Institutional Inspector rendered administrative remedies unavailable to him (Doc. 68-2 at 10).
Administrative remedies are rendered unavailable “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.”
Ross v. Blake, 136 S. Ct. 1850, 1854 (2016). Rivers claims ACI’s Institutional Inspector gave him
“instruction[s] . . . direction[s] and a form . . . to file only one direct grievance . . .” (Doc. 68-2 at
9–10). But Rivers was entitled to use the one-step grievance procedure if he, in fact, had a grievance
against the Warden. Ohio Admin. Code § 5120-9-31(M). The Institutional Inspector, therefore, did
not thwart Rivers, but helped him (Doc. 68-2 at 9–10). The Inspector cannot be faulted for Rivers’
subsequent failure to use that procedure properly by showing the Warden was personally involved.
In any event, as discussed, the Chief Inspector clearly alerted Rivers to the deficiencies in his
grievance. At that point, Rivers either could have supplemented his one-step grievance with
allegations showing the Warden’s personal involvement, or used the three-step process against
another official that was personally involved. He did neither. That is not the administrators’ fault.

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See Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (“[A]n inmate [must] make affirmative efforts
to comply with the administrative procedures . . . .”).
CONCLUSION
The Motions for Partial Summary Judgment Instanter (Docs. 65, 77) are granted; Rivers’
equal protection and First Amendment retaliation claims are dismissed. With no other federal claims
remaining, this Court declines to exercise supplemental jurisdiction over Rivers’ state law
deprivation-of-property claim. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726
(1966) (“[I]f the federal claims are dismissed before trial . . . the state claims should be dismissed as
well.”). Rivers’ Motion for Appointment of Counsel (Doc. 79) is denied as moot.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
July 29, 2016

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