Willis v. Mohr et al

Filing 33

ORDER withdrawing 25 Order on Report and Recommendation and 26 Clerk's Judgment as to Gregory S. Willis; ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations granting 14 First MOTION for Summary Judgment filed by Anthony Kahn, Warden Lebanon Correctional Institution, Gary Mohr, Robert Green, Jody Sparks, David Hoffman, Dan Hudson; and granting 29 MOTION to Clarify. Signed by Judge Michael R. Barrett on 10/24/13. (Attachments: # 1 Certified Mail Receipt) (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GREGORY S. WILLIS,

CASE NO.: 1:11-cv-808

Plaintiff,

Barrett, J.
Bowman, M.J.

GARY MOHR, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Gregory Willis's Motion to Clarify (Doc.
29), Defendants' response in opposition (Doc. 31), and Plaintiff's reply (Doc. 32), as well
as Plaintiff's May 1, 2013 objections to the Magistrate Judge's March 26, 2013 Report
and Recommendation (Doc. 27).
I.

BACKGROUND
The factual background of the case is adequately set forth in the Magistrate

Judge's Report and Recommendation (Doc. 19) and will not be repeated here.
However, the Court will reference the facts upon which it relies where relevant to the
analysis.
As for the procedural background, Plaintiff initiated this lawsuit on November 15,
2011 against Defendants Robert Green, David Hoffman, Dan Hudson, Anthony Kahn,
Gary Mohr, Jody Sparks, and the Warden of Lebanon Correctional Institution ("LeCI").
(Doc. 1). On November 15, 2012, Defendants filed a motion for summary judgment,
arguing that Plaintiff had failed to exhaust his administrative remedies prior to filing the
lawsuit. (Doc. 14). On March 26, 2013, the Magistrate Judge issued a Report and
1

Recommendation granting Defendants' motion for summary judgment.

(Doc. 19).

Specifically, the Magistrate Judge determined that Plaintiff is not excused from the
exhaustion requirement, that the claims against Mohr, Hoffman, Sparks, Green and
Kahn were not exhausted under the three-step grievance procedure, and that the claims
against Warden Brunsman and Institutional Inspector Hudson were not exhausted
under the single-step process.
The objections to the Report and Recommendation were due on April 12, 2013.
(Doc. 19). Plaintiff, however, filed a motion for extension of time to file objections up to
and including April 29, 2013, which the Court granted (Docs. 22, 23).

Plaintiff's

objections were not entered on the docket on or before April 29, 2013. On May 1, 2013,
the Court entered an Order adopting the Report and Recommendation, and thus,
granting summary judgment to Defendants. (Doc. 25). On the same day, Plaintiff's
objections to the Report were entered on the docket. (Doc. 27).
Subsequently, Plaintiff filed a motion to clarify in which he claims that he placed
the objections into the prison mail system on April 26, 2013 such that his objections
were timely. (Doc. 29). Defendants objected, arguing that Plaintiff's objections were
untimely and should not be considered under Federal Rules of Civil Procedure 59 or 60.
II.

MOTION TO CLARIFY
Given that Plaintiff was incarcerated at LeCI at the time his objections were due,

the prison mailbox rule was applicable.

Under the prison mailbox rule, prisoner

documents are deemed filed in federal court when submitted to prison officials for
mailing. Keeling v. Warden, Leb. Corr. Inst., 673 F.3d 452, 456 (6th Cir. 2012) (citing
Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002) (citing Houston v. Lack, 487 U.S.

2

266, 270-76, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988)). Applying that rule to this case,
Plaintiff's objections must have been submitted to prison officials on or before April 29,
2013 to be deemed timely filed.
Based upon the record, the Court finds that Plaintiff's objections were timely filed.
His affidavit was signed on April 25, 2013. (Doc. 27, p. 21). In his motion, Plaintiff
asserts that he submitted his objections to the prison officials for mailing on April 26,
2013. (Doc. 29, p. 1). The certificate of service attached to Plaintiff's objections reflects
a date of April 28, 2013 for mailing to Defendants. (Doc. 27, pp. 15, 22). The Court
received his objections on May 1, 2013, just two days after the filing deadline. (Doc.
27).

Based on that evidence on the whole, the Court finds that Plaintiff has

demonstrated that his objections were submitted to prison officials for mailing on or
before the April 29, 2013 deadline. Thus, his objections are deemed timely filed, and
the Court withdraws its May 1, 2013 Order adopting the Report and Recommendation
(Doc. 25). The Court now will consider the Report and Recommendation in light of
Plaintiff's objections (Doc. 27).
III.

OBJECTIONS TO REPORT
A. Standards of Review
1. De novo review of objections
When objections to a magistrate judge's report and recommendation are

received on a dispositive matter, the assigned district judge "must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to." Fed.
R. Civ. P. 72(b)(3). After review, the district judge "may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the

3

magistrate judge with instructions."

Id.; see also 28 U.S.C. § 636(b)(1).

General

objections are insufficient to preserve any issues for review: “[a] general objection to the
entirety of the magistrate [judge]’s report has the same effects as would a failure to
object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Nevertheless, Plaintiff's pro se objections will be construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)).
2. Summary judgment
Summary judgment is appropriate "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 of
law." Fed. R. Civ. P. 56(a). A dispute is "genuine" when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 1065 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is
"material" only if its resolution affects the outcome of the suit. Id.
On summary judgment, a court must view the evidence and draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The moving party
has the burden of showing an absence of evidence to support the nonmoving party's
case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986).
Once the moving party has met its burden of production, the nonmoving party
cannot rest on his pleadings, but must present significant probative evidence in support
of his complaint to defeat the motion for summary judgment. Anderson, 477 U.S. at

4

249. "The mere existence of a scintilla of evidence in support of the [nonmoving party's]
position will be insufficient; there must be evidence on which the jury could reasonably
find for the [nonmoving party]." Id. at 252. Entry of summary judgment is appropriate
"against a party who fails to make a showing sufficient to establish the existence of an
element essential of that party's case, and on which that party will bear the burden of
proof at trial." Celotex, 477 U.S. at 322.
B. Analysis
Plaintiff objects to the Magistrate Judge's Report on the bases that she erred in
concluding that (1) he did not exhaust his administrative remedies; (2) he was not
excused from the exhaustion requirement; and (3) November 27, 2011 was the deadline
for the Chief Inspector to resolve the Direct Grievance. (Doc. 27, pp. 1-2). Having
reviewed the Magistrate Judge's Report de novo in light of the objections, the Court
finds the Report to be thorough, well-reasoned and correct.
Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997, et seq., a
prisoner is required to exhaust all available state administrative remedies before filing
suit in federal court to challenge conditions of confinement. Woodford v. Ngo, 548 U.S.
81, 84 (2006). The PLRA 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). As such, exhaustion is a mandatory prerequisite to a prisoner
filing a civil rights lawsuit in federal court. What constitutes proper exhaustion is defined
by the state prison grievance process itself. Jones v. Bock, 549 U.S. 199, 218, 127 S.
Ct. 910, 166 L. Ed. 2d 798 (2007). "Failure to exhaust is an affirmative defense under
5

the PLRA." Id. at 216. Defendants bear the burden of proving the failure of a prisoner
to properly exhaust all administrative remedies. Napier v. Laurel Cnty., 636 F.3d 218,
225 (6th Cir. 2011).
Ohio's procedures for an inmate to file a grievance are set forth in Ohio
Administrative Code 5120-9-31. The inmate grievance procedure for claims against
most prison employees is comprised of three consecutive steps. Ohio Admin. Code
5120-9-31(K). The first step allows an inmate to file an informal complaint to the direct
supervisor of the department or staff member responsible for the subject matter of the
complaint. Ohio Admin. Code 5120-9-31(K)(1). The informal complaint must be filed
within fourteen calendar dates of the events giving rise to the complaint, and the
supervisor has seven days from receipt of the informal complaint to respond in writing to
the complaint. Id. If a response is not provided within a reasonable time, then the
inmate "should immediately contact the inspector of institutional services either in
writing or during regular open office hours" and the inspector of institutional services
"shall take prompt action to ensure that a written response is provided to the informal
complaint within four calendar days." Id. If a response is not provided by the end of
that fourth day, the informal complaint step is automatically waived. Id. The filing of an
informal complaint also may be waived where a complaint is filed pursuant to 5120-9-04
of the Ohio Administrative Code. Id.
If the inmate is dissatisfied with the response to step one, he can proceed to the
second step of the process by obtaining a notification of grievance form from the
inspector of institutional services. Ohio Admin. Code 5120-9-31(K)(2). The form for the
appeal must be filed by the inmate no later than fourteen calendar days from the date of

6

the informal complaint response or the waiver of the informal complaint step. Id. The
inspector of institutional services must provide a written response to the grievance
within fourteen calendar days of receipt of the second-step grievance form. Id.
If the inmate still is dissatisfied, he may proceed to the third and final step by
requesting an appeal form from the inspector of institutional services. Ohio Admin.
Code 5120-9-31(K)(3).

The appeal form must be filed with the office of the chief

inspector within fourteen calendar days of the date of the disposition of the grievance.
Id. The chief inspector must provide a written response within thirty calendar days after
receiving the appeal form. Id. The decision of the chief inspector is final. Id.
Separate from the three-step process is Ohio's procedure for inmates to file
grievances against the warden or inspector of institutional services. Ohio Admin. Code
5120-9-31(M).

Those grievances must be filed directly to the office of the chief

inspector within thirty calendar days of the event giving rise to the complaint, and must
show that the warden or inspector of institutional services was personally and knowingly
involved in a violation of law, rule or policy, or personally and knowingly approved or
condoned such a violation. Id. The chief inspector must respond in writing to a direct
grievance within thirty calendar days of receipt of the grievance. Id.

The chief

inspector's decision is final. Id.
1. First objection
Plaintiff objects to the Magistrate Judge's conclusion that he failed to exhaust his
administrative remedies. His objection is based on three main arguments, which are
individually addressed below.

7

a. Alleged failure of inspector of institutional services to perform
duties does not demonstrate exhaustion under 5120-0-31(K) or
(M)
Plaintiff contends that because the inspector of institutional services, Dan
Hudson, allegedly failed to perform his duties in accordance with Ohio Administrative
Code 5120-9-29, Plaintiff has exhausted his administrative remedies. In particular, he
alleges that Hudson was required to, but did not, respond to inmate grievances or
facilitate the inmate grievance procedure.

As that argument was not raised to the

Magistrate Judge, it is waived because a party may not raise arguments for the first time
in an objection to a magistrate judge's report and recommendation. See Becker v.
Clermont Cnty. Prosecutor, 450 F. App'x 438, 439 (6th Cir 2011) (citing Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).
In any event, Plaintiff's objection is not well taken. Neither the July 1, 2011
informal grievance nor the August 23, 2011 informal grievance was directed to Hudson.
(Docs 14-2, 14-4). Under the plain language of the provision of Ohio Administrative
Code 5120-9-31 governing step one of the three-step grievance procedure, Hudson
was not responsible for responding to that grievance.
As for the July 7, 2011 informal grievance, it was directed to "Major Dann." (Doc.
14-3).

Assuming that it was intended to be directed to Hudson, a response from

Hudson was required within seven days. The record reflects that a response was made
on July 14, 2013 (Doc. 14-3), which is within the allotted time period.
Plaintiff's statement that he does not know whether he received the responses is
not significant probative evidence that defeats summary judgment, as the evidence of
record demonstrates that such responses were made.

(Docs. 14-2, 14-3, 14-4).

However, even assuming Plaintiff did not receive the responses, he has presented no
8

evidence that he made affirmative efforts to comply with the administrative process
beyond filing an informal grievance, as required by the Sixth Circuit. Rishner v. Lappier,
639 F.3d 236, 240 (6th Cir. 2011). In particular, no evidence has been presented that
Plaintiff contacted Hudson regarding an alleged lack of response to his informal
complaints, that he requested or attempted to request the step two forms from Hudson
within the proper timeframe, or that he submitted or attempted to submit a notice of
grievance to Hudson within the proper timeframe. As such, he did not proceed beyond
the first step of the three-step grievance procedure with respect to the July 1, 2011, July
7, 2011 or August 23, 2011 informal complaint in accordance with Ohio Administrative
Code 5120-9-31(K). To the extent Plaintiff claims that he did not know how to grieve
under those circumstances because Hudson did not "facilitate the grievance
procedure," that question is more appropriately addressed later in this Opinion and
Order in regards to whether Plaintiff was excused from exhausting his administrative
remedies.
As for any attempt by Plaintiff to argue that those alleged failures by Hudson
should be considered by the Court as exhausted complaints against Hudson, his
argument is unavailing. None of those complaints were raised against Hudson in the
Direct Grievance filed by Plaintiff with the Chief Inspector as required under 5120-931(M) of the Ohio Administrative Code. Further, even if those complaints had been
raised in the Direct Grievance (which they were not), Plaintiff still would not have
satisfied the exhaustion requirement because Plaintiff had not received a decision from
the Chief Inspector on his Direct Grievance at the time he filed this lawsuit.

See

Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (a plaintiff does not properly

9

exhaust all available administrative remedies when he files a federal complaint "before
allowing the administrative process to be completed").
b. Alleged failure by inspector of institutional services to conduct
an investigation into allegedly "inappropriate supervision" under
Ohio Administrative Code 5120-0-04 does not demonstrate
exhaustion under 5120-9-31(K) or (M)
Plaintiff appears to argue that his informal complaints should have been, but
were not, considered as filed under Ohio Administrative Code 5120-9-04 and that
Hudson failed to conduct the proper investigation under that provision. As with the prior
argument, those arguments were not raised to the Magistrate Judge and, thus, are
waived. See Becker, 450 F. App'x at 439 (citing Murr, 200 F.3d at 902 n.1). However,
even if they were not waived, they must fail.
Plaintiff's arguments appear to be directed to whether he exhausted his
administrative remedies with respect to the informal complaints submitted on July 1,
2011, July 7, 2011 and August 23, 2011. In particular, Plaintiff appears to argue that his
July 1, 2011, July 7, 2011 and/or August 23, 2011 informal grievances should have
been considered notification of grievances submitted under the second step of the
three-step grievance process because they implicated 5120-9-04 of the Ohio
Administrative Code.
Under 5120-9-31(K)(1) of the Ohio Administrative Code, the filing of an informal
complaint "may be waived" if the inspector of institutional services determines that a
complaint is brought under 5120-9-04. 1 The provision thus provides the inspector of
1

Ohio Administrative Code 5120-9-04 relates to complaints of "inappropriate supervision."
"Inappropriate supervision" is defined as "any continuous method of annoying or needlessly harassing an
inmate or group of inmates, including, but not limited to, abusive language, racial slurs, and the writing of
inmate conduct reports strictly as a means of harassment[; however,] [a] single incident may, due to its
severity or egregiousness, be considered inappropriate supervision for purposes of this rule." Ohio
Admin. Code 5120-9-04(B).

10

institutional services with discretion in making that determination. In this case, there is
no evidence that the inspector of institutional services determined that any of the three
informal complaints were brought under 5120-9-04. Plaintiff's argument that the July
13, 2011 meeting was an interview under 5120-9-04 fails to persuade the Court
otherwise. His statements and speculation as to the purpose of that meeting does not
provide significant probative evidence that it constituted an interview concerning a
possible complaint of inappropriate supervision. As such, it does not warrant the denial
of summary judgment and proceeding to trial on the merits.
The evidence also does not demonstrate that the inspector of institutional
services determined that the first step of the three-step procedure should be waived for
any of those complaints. Indeed, responses were provided to each of the three informal
grievances submitted by Plaintiff.

(See Docs. 14-2, 14-3, 14-4).

Although Plaintiff

contends that he may not have received all of those responses, there is no evidence
that shows he took the actions set forth in step one for obtaining a decision when no
response is received.

See Ohio Admin. Code 5120-9-31(K)(1).

Therefore, even if

Plaintiff did not receive a response as he contends, the evidence does not demonstrate
a waiver of step one of the three-step grievance procedure.
While somewhat contradictory to his position that he may not have received
responses to the informal complaints, Plaintiff also appears to complain that he was
dissatisfied with the responses to the informal complaints and/or the alleged failure to
undertake the type of investigation set forth in 5120-9-04 of the Ohio Administrative
Code. However, under 5120-9-31(K) of the Ohio Administrative Code, the remedy for
an inmate that is dissatisfied with the response at step one is to proceed to step two of

11

the three-step grievance procedure. He did not for any of his three grievances. Nor did
he attempt to do so. Thus, this argument does not demonstrate that Plaintiff exhausted
his administrative remedies.
c. Alleged failure by Chief Inspector to perform his duties pursuant
to 5120-9-30 of the Ohio Administrative Code does not
demonstrate exhaustion under 5120-9-31(K) or (M)
Plaintiff appears to contend that the Chief Inspector failed to, among other things,
"[a]dminister all aspects of the grievance procedure for inmates," "[r]ender dispositions
on inmate grievance appeals" and "[r]ender dispositions on grievances against the
wardens and/or inspectors of institutional services." See Ohio Admin. Code 5120-9-30.
Apparently, Plaintiff is arguing that such failures are sufficient to demonstrate
exhaustion.
Plaintiff's argument must relate to the only grievance sent to the Chief Inspector,
which was received by the Chief Inspector's office on October 28, 2011. (See Docs. 145, 14-6, 14-7). Viewing that grievance as an inmate grievance appeal under 5120-931(K)(3) of the Ohio Administrative Code, the Court does not find that Plaintiff
exhausted the three-step grievance procedure.

Regardless of whether the Chief

Inspector rendered a decision on the inmate grievance appeal, Plaintiff, as explained
previously, did not comply or attempt to comply with step two of the three-step
grievance procedure.

He thus did not exhaust his administrative remedies in

accordance with 5120-9-31(K) of the Ohio Administrative Code.
Likewise, Plaintiff's argument does not demonstrate exhaustion of a Direct
Grievance to the Chief Inspector under 5120-9-31(M) of the Ohio Administrative Code.
The Chief Inspector had thirty days from the date of receipt of the Direct Grievance to
respond. The undisputed record evidence shows that the Chief Inspector resolved that
12

Direct Grievance one day after Plaintiff filed this lawsuit, which was well within the thirtyday period.

Therefore, Plaintiff had not exhausted his administrative remedies at the

time he filed this lawsuit. See Freeman, 196 F.3d at 645. 2 That timing is fatal to his
claims.
To the extent Plaintiff also intends to argue that the Chief Inspector's alleged
failures should excuse the exhaustion requirement, that issue is better addressed with
respect to the second objection.
2. Second Objection
Plaintiff's second objection relates to the Magistrate Judge's conclusion that he
was not excused from exhausting his administrative remedies because there were
administrative remedies that remained reasonably available to him. For the reasons
explained below, his objection is overruled.
As the Magistrate Judge correctly noted, a prisoner has no obligation to pursue
administrative remedies that the prison has made unavailable. Brown v. Blackwell, No.
2:10-cv-966, 2011 U.S. Dist. LEXIS 1189, at *5-6 (S.D. Ohio Jan. 6, 2011). However,
"[i]f the inmate who has not exhausted is unable to show, as a matter of fact, that it was
the prison which thwarted the inmate's good faith efforts to exhaust available prison
remedies, the Court will be required to dismiss the case under § 1997e(a)." Id. at *7.
General allegations of futility are insufficient to show remedies are unavailable. Napier
v. Laurel Cnty., 636 F.3d 218, 224 (6th Cir. 2011). The Sixth Circuit requires affirmative
2

Although the issue ultimately was deemed not grievable through the inmate grievance process,
Plaintiff had other properly available administrative remedies for appealing the RIB decision that he did
not exhaust. See Ohio Admin. Code 5120-9-08(O)-(P). No evidence has been presented that Plaintiff
exhausted or attempted to exhaust those administrative remedies. Therefore, the evidence does not
demonstrate exhaustion of that issue under those separate appeal provisions. See Owens v. Keeling,
461 F.3d 763, 770-72 (6th Cir. 2006) (considering whether Plaintiff exhausted administrative remedies
when his complaint was not grievable through the inmate grievance process but instead had to be
addressed under the classifications appeal process).

13

efforts to comply with the applicable grievance procedures. Rishner v. Lappier, 639
F.3d 236, 240 (6th Cir. 2011).
First, Plaintiff asserts that he tried to file a grievance on the proper form to the
Ohio Department of Rehabilitation and Correction's ("ODRC") "Top Dog[]s" such that he
did what he was supposed to do to start the process in motion. He claims that makes
his case similar to Lyons v. Heyd, No. 12-cv-324, 2012 U.S. Dist. LEXIS 155949 (S.D.
Ohio Oct. 31, 2012), where this Court determined that inmate attempted to exhaust his
administrative remedies when he attempted to file an appeal even though it was not on
the proper form.

Here, Plaintiff's argument presumably is directed towards the

grievance he sent to the Chief Inspector of the ODRC, Gary Kroft. However, unlike in
Lyons, there is no dispute over whether Plaintiff submitted his Direct Grievance to the
Chief Inspector on the proper form, nor is there a dispute as to whether that Direct
Grievance was received by the Chief Inspector. 3 Rather, the Magistrate Judge pointed
out was that Plaintiff failed to comply with the second step of the three-step procedure
prior to any appeal to the Chief Inspector, a conclusion with which the undersigned has
agreed. The Magistrate Judge also correctly determined that Plaintiff filed this lawsuit
before receiving a response and before the time period had expired for the response to
that grievance such that his claim was not exhausted at the time he filed this lawsuit.
Pursuant to Ohio Administrative Code 5120-9-31(M), the chief inspector or
designee must "respond in writing within thirty calendar days of receipt of the
grievance." Here, the Chief Inspector received Plaintiff's Direct Grievance on October
3

The majority of Plaintiff's evidence in support of his allegation that he was denied the proper
forms was generated after the filing of the instant lawsuit. While there is evidence that on October 5, 2011
he wrote to request a specific form to file a complaint against the warden, Hudson responded by providing
the correct form and by detailing the separate grievance procedure for filing a complaint against the
warden. (Doc. 17, Ex. 9).

14

28, 2011. (Doc. 14-7). He had thirty days thereafter to respond to Plaintiff's Direct
Grievance. Ohio Admin Code 5120-9-31(M). That means that after Plaintiff had filed
his Direct Grievance with the Chief Inspector, he still had to wait until he received a
response or until the expiration of the response period before his administrative
remedies could be exhausted. Plaintiff, however, initiated this lawsuit on November 15,
2011, prior to the expiration of that time period and prior to receiving a response. It was
not until one day after Plaintiff initiated this lawsuit that the Chief Inspector resolved the
Direct Grievance. As Plaintiff did not allow the administrative process to be completed
before filing his federal lawsuit, he may not now proceed on those unexhausted claims.
Freeman, 196 F.3d at 645.
Second, Plaintiff's arguments that the warden, inspector of institutional services
or the chief inspector thwarted his ability to comply with the procedures by failing to
advise him of the grievance procedures or by failing to volunteer a copy of the grievance
procedures at the July 13, 2011 meeting are unavailing. The Sixth Circuit has rejected
the argument that the failure of a facility to explain the grievance policy or the PLRA
excused the inmate's failure to exhaust. See Napier v. Laurel Cnty., 636 F.3d 218, 22122 n. 2 (6th Cir. 2011) ("A plaintiff's failure to exhaust cannot be excused by his
ignorance of the law or the grievance policy.") (citing Brock v. Kenton Cnty., 93 F. App'x
793, 797-98 (6th Cir. 2004) (rejecting inmate's argument that exhaustion should be
excused because inmates were not aware of the jail's grievance system)); see also
Thomas v. McDowell, No. 2:10-cv-152, 2013 U.S. Dist. LEXIS 130517, at *10-11 (S.D.
Ohio Sept. 12, 2013) (rejecting plaintiff's argument that his failure to properly exhaust
his administrative remedies should be excused because the institution did not inform

15

him how to participate in the informal complaint, grievance and appeal process, and that
he was unaware that the failure to properly exhaust his administrative remedies would
result in the dismissal of his federal claims under the PLRA); Albino v. Baca, 697 F.3d
1023, 1035-37 (9th Cir. 2012) (inmate's ignorance of grievance procedure and prison's
failure to inform inmate of procedure does not make grievance procedure unavailable);
Gonzales-Liranza v. Naranjo, 76 F. App'x 270, 272-73 (10th Cir. 2003) (concluding that
the district court did not err in rejecting prisoner's claim that his unawareness of the
grievance procedure excused the PLRA's exhaustion requirement).

Further, as the

Magistrate Judge noted, Plaintiff had been instructed on the grievance procedure prior
to being transferred to LeCI, and that procedure had not changed during the time
Plaintiff was incarcerated. 4

The Inmate Manual, which sets forth the grievance

procedure and which is substantially identical to 5120-9-31, also was available in every
housing unit of LeCI. Plaintiff's lack of understanding as to the similarity of the two does
not excuse his failure to exhaust his administrative remedies. See Napier, 636 F.3d at
221-22 n.2 ("A plaintiff's failure to exhaust cannot be excused by his ignorance of the
law or the grievance policy.").
Third, Plaintiff cannot succeed on any argument that proceeding to step two of
the three-step grievance procedure would have been futile. As stated above, general
allegations of futility are insufficient. Napier, 636 F.3d at 224. Plaintiff must have made
affirmative efforts to comply with the applicable grievance procedures. See Risher, 639

4

Although Plaintiff notes that he was not instructed on the grievance procedure at LeCI when he
arrived, he does not dispute that he had prior instruction on the grievance procedure before being
transferred to LeCI. The prior instruction provided notice or constructive notice as to the existence of a
grievance system and, at a minimum, provided Plaintiff with some understanding of what efforts he
should attempt to take to exhaust his administrative remedies.

16

F.3d at 240. As previously explained, he did not make such efforts to comply. He thus
was not excused from exhausting his administrative remedies based upon allegations of
futility.
3. Third objection
Plaintiff's third objection concerns the deadline for responding to the Direct
Grievance. Plaintiff claims that because his administrative remedies were unavailable,
he was excused from pursuing the exhaustion requirement as of July 13, 2011, the date
on which Plaintiff contends he was not advised of the grievance process. He states that
at the latest, his remedies were exhausted on August 12, 2011, which is thirty days after
July 13, 2011. He says that “was more than enough time for the institutional inspector
to provide plaintiff with his findings" and is also the amount of time the Chief Inspector
had "to administer all aspects of the grievance procedure for inmates." (Doc. 27, p. 14).
The Court disagrees.

As explained above, Plaintiff was not excused from

exhausting his administrative remedies.

Thus, he did not exhaust the three-step

process for the July 1, 2011, the July 7, 2011 or the August 23, 2011 informal
complaints.

As for the Direct Grievance, the Chief Inspector received that Direct

Grievance on October 28, 2011. Pursuant to 5120-9-31(M), he had thirty days from
receipt of the Direct Grievance to respond. Given that Plaintiff filed the lawsuit one day
prior to the resolution of his Direct Grievance, he had not exhausted his administrative
remedies at the time the lawsuit was filed. That timing is indeed fatal to his claim.
Freeman, 196 F. 3d at 645.
IV.

CONCLUSION
Consistent with the foregoing, it is ORDERED that:

17

1. Plaintiff's Motion to Clarify (Doc. 29) is GRANTED and Plaintiff's objections
(Doc. 27) are deemed timely filed. Accordingly, the Court's May 1, 2013
Order adopting the Report and Recommendation (Doc. 25) and the
concurrently filed judgment (Doc. 26) are hereby WITHDRAWN.
2. Having considered the Report and Recommendation in light of Plaintiff's
objections, the Court orders that Plaintiff's objections (Doc. 27) are
OVERRULED and the Report and Recommendation (Doc. 19) is ADOPTED
in its entirety.
3. Consistent with this Order and the Report and Recommendation, Defendants'
Motion for Summary Judgment (Doc. 14) is GRANTED in its entirety.
4. This matter shall be TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

18