Ford v. Alexander et al

Filing 60

Memorandum Opinion and Order For the reasons state above, the Court adopts the R&R's (ECF No. 51 ) finding that Defendant timely asserted the defense of exhaustion. Because the Court finds that a genuine issue of material fact exists as to whether administrative remedies were available to Plaintiff, the Court does not adopt the R&R's conclusion regarding the issue of the exhaustion requirement on the merits, and, as a result, does not adopt the recommendation that Defendants ' Motion for Summary Judgment be granted or that Plaintiff's Motion for Summary Judgment be denied. Therefore, the motions for summary judgment are returned to the docket of the assigned magistrate judge to issue a revised Report and Recommendation on the merits of the issues presented in both parties' motions for summary judgment. Case reopened. Judge Benita Y. Pearson on 1/4/2013. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JARRITT R. FORD,
Plaintiff,
v.
DREW ALEXANDER, et al.,
Defendants.

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CASE NO. 5:11cv575

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 51; 57]

On November 6, 2012, the assigned magistrate judge issued a Report (“R&R”) (ECF No.
51) recommending that pro se Plaintiff’s Motion for Summary Judgment (ECF No. 28) be
denied, and that Defendants’ Motion for Summary Judgment (ECF No. 42) be granted, thereby
dismissing Plaintiff’s Federal claims without prejudice for failure to exhaust administrative
remedies. The R&R also recommended that the Court decline to exercise supplemental
jurisdiction over Plaintiff’s remaining State law claims, dismissing those claims without
prejudice. ECF No. 51 at 1. Plaintiff did not file an objection within fourteen days.
I. Procedural Background
On November 27, 2012, the Court issued a Memorandum of Opinion and Order adopting
the magistrate judge’s R&R and dismissing the claims without prejudice. ECF No. 52.
Thereafter, Plaintiff filed a Motion for Extension of Time to object to the R&R, indicating he had
not received the R&R until November 16, 2012, because it had been sent to his home address
rather than the halfway house in which he currently resides.1 ECF No. 54. The Court granted
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On October 15, Plaintiff filed a document wherein another address was indicated, and
the R&R had apparently been sent to that address.

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Plaintiff’s motion on December 4, 2012, and extended the cutoff for an objection until December
14, 2012. ECF No. 55.
On December 19, 2012, Plaintiff filed a Second Motion for Extension of Time (ECF No.
56) and a Motion to Object to Report and Recommendation (ECF No. 57). Both documents were
handwritten and signed on December 14, 2012. Attached to his motion for an extension of time
was the envelope the Court’s December 4, 2012, Order had allegedly arrived in, stamped
“Received Dec 11 2012.” ECF No. 56-1 at 1. Upon the envelope is a handwritten, signed note
from Matt Williams, Resident Supervisor, stating “Jarritt Ford received this letter on 12/14/12 at
approximately 9:30 p.m. It was given to him by this writer. It had been in his mailbox for an
undetermined time.” ECF No. 56-1 at 1.
On December 26, 2012, the Court granted Plaintiff’s Second Motion for Extension of
Time. ECF No. 58. On December 27, 2012, Defendants filed a Response (ECF No. 59) to
Plaintiff’s Objection (ECF No. 57).
II. Factual Background
On May 27, 2010, Plaintiff pleaded guilty to felonious assault and discharging of a
firearm on or near a prohibited premises and was sentenced to prison. ECF No. 51 at 2. He was
confined at the Summit County Jail pending transfer to the Lorain Correctional Institution. ECF
No. 51 at 2. On June 1, 2010, while in Pod 4A in the Summit County Jail, Plaintiff was involved
in an altercation with another inmate, Defendant John Cook (“Cook”). ECF No. 51 at 2. During
the fight, Plaintiff was beaten by Cook with a broom handle. ECF No. 51 at 2. The total time of
the fight was between 12 and 15 minutes, with a break of unknown duration in the middle of the

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fight when Plaintiff returned to his cell. ECF No. 51 at 2. There is a dispute as to who actually
caused the confrontation between Plaintiff and Cook, how the fight actually played out, and
whom introduced a broom handle into the altercation. ECF No. 51 at 2. In his Amended
Complaint, Plaintiff alleges that Cook attacked him for “snitching” on Cook and that Cook was
the initial aggressor. ECF No. 51 at 2.
Jail staff was alerted to the fight after the altercation had stopped and after both Plaintiff
and Cook had returned to their respective cells. ECF No. 51 at 2. Plaintiff pressed a call button
located in his cell for help. ECF No. 51 at 2. Upon being alerted to Plaintiff’s condition, jail
staff called for medical assistance and Plaintiff was transported to Akron General Medical Center
for evaluation and treatment for several injuries, including multiple head wounds. ECF No. 51 at
2. After spending two days in the hospital. Plaintiff was returned to the Summit County Jail to
await transport to the Lorain Correctional Institution. ECF No. 51 at 2. Plaintiff was transferred
to the Lorain Correctional Institute on June 11, 2010. ECF No. 51 at 2. No further incidents
occurred between Plaintiff and Cook while Plaintiff was being held at the Summit County Jail.
ECF No. 51 at 2. Both Plaintiff and Cook were disciplined for the fight. ECF No. 51 at 2.
On March 21, 2011, Plaintiff brought this action against the County Defendants pursuant
to 42 U.S.C. § 1983.2 ECF No. 51 at 2. Plaintiff asserts numerous claims against Defendants
pursuant to § 1983 alleging a failure to train and supervise; failure to maintain adequate policies

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On July 27, 2011, Plaintiff filed an Amended Complaint, in which he added Cook as a
defendant and asserted State law assault and battery claims against Cook. ECF No. 51 at 2.
Plaintiff filed a Second Amended Complaint on September 12, 2011, which appears to be
duplicative of the amended complaint filed on July 27, 2011. ECF No. 51 at 3.
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and practices, deriliction of duty; and a failure to protect. ECF No. 51 at 3. Plaintiff ultimately
alleges that Defendants left Plaintiff and Cook alone together when they knew or should have
known that Cook would be angry with Plaintiff because Plaintiff allegedly told prison officials
that Cook had a lighter, and based upon this information, prison officials allegedly told Cook
they were going to discipline him. ECF No. 34 at 2.3
III. Standard of Review
When an objection has been made to a magistrate judge’s report and recommendation, the
district court standard of review is de novo. Fed. R. Civ. Pro. 72(b)(3). A district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to. Id. The district judge may: accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions. Id.
Accordingly, the Court has conducted a de novo review of the magistrate judge’s Report
and has considered Petitioner’s arguments raised in objection. The Court adopts in part and
rejects in part the recommendation of the magistrate judge, as explained below.
IV. Analysis
A. Failure to Raise Exhaustion in Answer

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Plaintiff alleges that a prison official told Cook to “gather his belongings so he could be
moved to segregation for possessing contraband,” and then the prison official left without
escorting Cook, leaving the prisoners out together in the “open dorm.” ECF No. 57 at 3.
Plaintiff argues that act caused a dangerous situation that resulted in the fight and Plaintiff’s
injuries. ECF No. 57 at 3. Plaintiff further alleges that it took prison staff half an hour to
respond to his post-fight use of the call button, in further violation of his constitutional rights.
ECF No. 57 at 3.
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Plaintiff objects to the magistrate judge’s recommendation that his claims be dismissed
for failure to exhaust administrative remedies. ECF No. 57 at 1, 6. Plaintiff alleges that
Defendants did not raise the affirmative defense in their pleadings, and are thus precluded from
raising it in their summary judgment motion. ECF No. 57 at 1.
Defendants first asserted the exhaustion defense in their Motion for Summary Judgment.
ECF No. 42 at 16. In his response, Plaintiff argued that Defendants waived the affirmative
defense because they failed to plead it in their answer. ECF No. 50 at 1; 34 at 3.4 Defendants did
not file a reply brief.
The magistrate judge considered the issue and correctly found that the failure to plead an
affirmative defense does not always result in its waiver, especially when the responding party has
an opportunity to respond to the affirmative defense and is not prejudiced by it. Old Line Life
Ins. Co. of America v. Garcia, 418 F.3d 546, 550 (6th Cir. 2005); Smith v. Sushka, 117 F.3d 965,
969 (6th Cir. 1997) (failure to raise an affirmative defense until second motion for summary
judgment did not result in waiver of defense because no unfair surprise or prejudice occurred and
purpose of Rule 8(c) of Federal Rules of Civil Procedure was still met as party given notice of
the defense and had opportunity to respond); Braswell v. Corrections Corp. of America, 2009
WL 2447614, at *11 (M.D. Tenn. Aug.10, 2009) (defendant did not waive affirmative defense of
plaintiff’s failure to exhaust as required under Prison Litigation Reform Act because it was raised
in initial motion to dismiss) (overruled on other grounds).

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Plaintiff appears to argue the waiver defense in his reply brief to his motion for
summary judgment (ECF No. 34), though at that time Defendants had not asserted the exhaustion
of remedies argument.
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The question of whether it is appropriate to consider an affirmative defense not properly
pleaded is within the discretion of the district court in light of applicable jurisprudence and the
facts and circumstances of the case. Garcia, 418 at 550.
The magistrate judge determined that Plaintiff had notice that Defendants intended to
assert the failure to exhaust administrative remedies defense by the summary judgment motion
itself, and had an opportunity to respond to the motion and did so. ECF No. 51 at 8. The
magistrate judge also found there to be no unfair surprise and that Plaintiff suffered no prejudice.
ECF No. 51 at 8. Accordingly, the magistrate judge found that Defendants did not waive the
affirmative defense of failure to exhaust administrative remedies. ECF No. 51 at 8.
Because the magistrate judge properly considered applicable jurisprudence and the facts
and circumstances of the instant case, there was nothing improper about considering Defendants’
affirmative defense. Plaintiff’s objections as to the presentation of Defendants’ affirmative
defense are overruled.
B. Failure to Exhaust Remedies
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust administrative
remedies before bringing a case in court. 42 U.S.C. 1997e(a). Defendants submitted evidence
that there was an internal grievance process at the Summit County Jail, and Lieutenant Grogan
stated that, based upon his investigation, Plaintiff did not submit a grievance with regard to his
fight with Cook or for any other reason. ECF No. 51 at 7. The magistrate judge determined that,
based upon this evidence, Defendants satisfied their burden of demonstrating that Plaintiff failed
to properly exhaust administrative remedies. ECF No. 51 at 7.

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Plaintiff objects to the finding that he failed to exhaust his administrative remedies. ECF
No. 57 at 7. Plaintiff argues that he “was unable to use administrative remedies due to his
injuries and limited use of remedies because of disciplinary action taking against” him. ECF No.
57 at 7. Plaintiff also alleges he “was hinder in Summit County Jail to file any kind of
grievance.” ECF No. 57 at 7.
Plaintiff was transferred to the Lorain Correctional Institute on June 11, 2010, ten days
after the fight on June 1, 2010. ECF No. 51 at 2. Two of those intervening days were spent in
the hospital, where Plaintiff was treated for several injuries, including multiple head wounds.
ECF No. 51 at 2. On June 4, 2010, Plaintiff noted he “was groggy from my head injury and
mental health meds.” ECF No. 28-1 at 3. He was allegedly placed on the list to see a doctor on
the “next Dr. Day.” ECF No. 28-1 at 3. Plaintiff also was subject to “disciplinary action” for the
altercation on June 1. ECF No. 57 at 7.
Section 1997e(a) of the PLRA requires a prisoner to exhaust “such remedies as are
available.” 42 U.S.C. § 1997e(a). “The plain meaning of the term ‘available’ is that a prisoner is
required to exhaust only those procedures that his is reasonably capable of exhausting.” Braswell
v. Corrections Corp. Of America, 419 F. App’x. 622, 625 (6th Cir. Apr. 15, 2011) (citing Hoover
v. West, 93 Fed. App’x. 177, 181 (10th Cir. 2004); Underwood v. Wilson, 151 F.3d 292, 295 (5th
Cir. 1998)). “[O]ne’s personal inability to access the grievance system could render the system
unavailable.” Braswell, 419 F. App’x. at 625 (citing Days v. Johnson, 322 F.3d 863, 867 (5th
Cir. 2003), and noting that the prisoner in Days was unable to exhaust remedies because he had
suffered a broken right hand that prevented him from filling out the prison’s grievance forms,

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precluding a finding he failed to exhaust within the required time period).
Given that Plaintiff in the instant case had ten days to file a grievance before he was
moved to another facility, and that those days were spent in the hospital; with a “head groggy”
from severe injury and presumably attendant medication; and under the cloud of some form of
disciplinary action,5 a genuine issue of material fact exists as to whether Plaintiff was capable of
filing a grievance in that ten day time period.
Furthermore, a prisoner may lack available remedies when prison officials deny him the
necessary grievance forms or fail to provide access to grievance forms. Id. at 626 (citing
Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003)). Defendants in the instant case, like the
defendants in Braswell, do not allege that their grievance process was available to Plaintiff after
he had been transferred to the Lorain Correctional Institute on June 11, 2010. In Braswell, the
defendant was transferred to a special needs facility. Id. at 626. The court noted that the prison’s
grievance policy applied only to “inmate/residents,” and not former prisoners who are no longer
in that prison’s custody. Id. Defendants in the instant case do not allege their grievance policy
permits former inmate/residents to file grievances, or how a former prisoner housed in another
county’s prison would avail himself of this procedure. Defendants only assert, in response to
Plaintiff’s objections to the R&R, that Plaintiff had filled out forms in the past to request medical
assistance, evidencing an awareness of the system. ECF No. 59 at 3. However, an aptitude for
filling out medical request forms does not equate to an understanding of a grievance process.

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It is not clear from the record what disciplinary action Plaintiff received, and the
attendant question of availability of grievance forms or access to the filing location was not
addressed.
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Furthermore, as noted above, Defendants do not broach the availability of the grievance process
nor address Plaintiff’s compromised capacity to utilize it. Thus, like the Braswell court, the
instant Court finds that the existing record does not permit a conclusion that the remedies
Plaintiff failed to exhaust were available to him, precluding summary judgment.
V. Conclusion
For the reasons state above, the Court adopts the R&R’s (ECF No. 51) finding that
Defendant timely asserted the defense of exhaustion. Because the Court finds that a genuine
issue of material fact exists as to whether administrative remedies were available to Plaintiff, the
Court does not adopt the R&R’s conclusion regarding the issue of the exhaustion requirement on
the merits, and, as a result, does not adopt the recommendation that Defendants’ Motion for
Summary Judgment be granted or that Plaintiff’s Motion for Summary Judgment be denied.
Therefore, the motions for summary judgment are returned to the docket of the assigned
magistrate judge to issue a revised Report and Recommendation on the merits of the issues
presented in both parties’ motions for summary judgment.

IT IS SO ORDERED.

January 4, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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