Abdulraman v. Burke et al

Filing 45

ORDER that plaintiff's 37 MOTION to Appoint Counsel is Denied. REPORT AND RECOMMENDATION that plaintiff's 14 32 MOTIONS for Default Judgment be Denied. The State of Ohio's 21 MOTION to Strike plaintiff's motion for def ault judgment be Denied as Moot. Defendant's 40 MOTION for Summary Judgment be Granted and plaintiff's claims be dismissed without prejudice for failure to exhaust administrative remedies. Any appeal of this matter would not be taken in good faith. ( Objections to R&R due by 2/22/2013). Signed by Magistrate Judge Karen L. Litkovitz on 2/4/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ABDUL ABDULRAMAN,
Plaintiff,

Case No. 1:12-cv-209
Spiegel, J.
Litkovitz, M.J.

vs.

DR. BURKE, et al.,
Defendants.

ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, an inmate currently incarcerated at the Southern Ohio Correctional Facility
(SOCF), brings this prose action pursuant to 42 U.S.C. § 1983 for violations ofhis civil rights.
He names as defendants SOCF officers and staff members Dr. Burke, Dirk Prise, Gary Mohr,
Edwin Voorhies, Cynthia Davis, Ms. Holsinger, Lt. Dillon, Lt. Workman, Correctional Officer
Southworth, Warden Wanza Jackson, Chaplain York, Deputy Warden Oppy, Mathew
Stunnabeck, and Captain Harold Bell. 1 This matter is before the Court on plaintiffs motion for
default judgment (Doc. 14); the State of Ohio's motion to strike plaintiffs motion for default
judgment (Doc. 21); plaintiffs second motion for default judgment (Doc. 32), defendants'
response in opposition to plaintiffs motion for default judgment (Doc. 34), and plaintiffs reply
in support ofhis motion for default judgment (Doc. 36); plaintiffs motion for appointment of
counsel (Doc. 37) and defendants' opposing memorandum (Doc. 38); and defendants' motion for
summary judgment (Doc. 40), plaintiffs opposing memorandum (Doc. 43), and defendants'
reply in support of their motion (Doc. 44).

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Plaintiff also named as defendants the State of Ohio, the Rules Infraction Board (RIB), Warden Donnie Morgan
and Larry Greene, but these defendants were dismissed from the case by Order dated June 14, 2012. (Doc. 23).

I. Background
Plaintiff filed two separate lawsuits based on the incidents giving rise to his § 1983
complaint: Abdulraman v. Davis, Case No. 1:12-cv-220, which plaintiff instituted on March 16,
2012, and the above-captioned case, which plaintiff filed on March 13, 2012. (Doc. 1). The two
cases were consolidated by Order of the Court under Case No. 1:12-cv-209 on April23, 2012.
(Doc. 11). The facts giving rise to plaintiffs claims are set forth in the Court's Order and Report
and Recommendation issued on May 17, 2012 (Doc. 19), and are incorporated herein by
reference. To summarize, plaintiff alleges that he is a Sunni Muslim who, prior to being
transferred from another institution (Toledo Correctional Institution) to SOCF, obtained a
religious accommodation approval for his hair, which he grew long according to his religious
beliefs. Plaintiff alleges that following his transfer to SOCF, he was removed from the general
population on multiple occasions in December 2011 based on purported hair grooming
infractions. Plaintiff further alleges that in January 2012, the RIB conspired to increase his
security grade in response to his hair-related infractions. Plaintiff contends that on January 30,
2012, defendant Davis filed a false conduct report stating that plaintiff did not have a religious
exemption to grow his hair long. Plaintiff asserts that on February 1, 2012, a number of
defendants participated in forcibly cutting his hair. Plaintiff also claims that he was
discriminated against by being denied halal meals and being separated from other Muslims
during prayer. In addition, plaintiff alleges that a number of defendants exhibited deliberate
indifference to his serious medical needs by denying him mental health treatment and isolating
him in lieu of providing such treatment. Plaintiff also appears to allege that defendant Mohr
instituted a lockdown process that amounted to deliberate indifference to his safety. In its Report
and Recommendation, the Court liberally construed plaintiffs complaint as stating a claim for

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relief under the First Amendment; a claim for deliberate indifference to serious medical needs;
and a claim for deliberate indifference to safety against defendant Mohr only. (Doc. 19). The
Court recommended dismissal of plaintiffs remaining claims for failure to state a claim upon
which relief could be granted. The Report and Recommendation was adopted by Order of the
Court dated June 14, 2012. (Doc. 23).
II. Motion for appointment of counsel (Doc. 37)

Plaintiff, who has been granted leave to proceed in forma pauperis, moves the Court to
appoint counsel to represent him in this matter.

Plaintiff alleges that his incarceration will

severely limit his ability to litigate this case, particularly because he is a Somalian immigrant
who is unable to read or write and is dependent upon other inmates to assist him. Plaintiff
alleges that his efforts to pursue this lawsuit are further hampered by his confinement in virtual
administrative segregation and by his limited access to the law library. Plaintiff contends that his
case is meritorious and counsel should be appointed in the interest of justice.
The law does not require the appointment of counsel for indigent plaintiffs in cases such
as this, see Lavado v. Keohane, 992 F .2d 601, 604-05 (6th Cir. 1993 ), nor has Congress provided
funds with which to compensate lawyers who might agree to represent those plaintiffs. The
appointment of counsel in a civil proceeding is not a constitutional right and is justified only by
exceptional circumstances. Id. at 605-06. See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th
Cir. 2003). Moreover, there are not enough lawyers who can absorb the cpsts of representing
persons on a voluntary basis to permit the Court to appoint counsel for all who file cases on their
own behalf. The Court makes every effort to appoint counsel in those cases that proceed to trial,
and in exceptional circumstances will attempt to appoint counsel at an earlier stage of the

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litigation.

No such circumstances appear m this case.

Therefore, plaintiffs motion for

appointment of counsel is DENIED.
III. Motions for default judgment (Docs. 14, 32) and motion to strike (Doc. 21)
Plaintiff filed a motion for default judgment against all defendants on May 9, 2012,
alleging only that the complaint had been filed on April 3, 2012, and there had been no response
within 20 days. (Doc. 14). The State of Ohio moved on behalf of the individual defendants to
strike plaintiffs motion on the ground that the Court lacked jurisdiction to render a default
judgment against any named defendant because service had not been executed on any defendant
and plaintiff had failed to obtain an entry of default pursuant to Fed. R. Civ. P. 55(a). (Doc. 21).
Plaintiff filed a second motion for default judgment on July 11, 2012. (Doc. 32). Plaintiff
alleges that the United States Marshal returned certificate of service forms with signatures on
May 17 and June 1, 2012, and defendants had not responded even though more than 20 days had
elapsed.

Plaintiff also submitted a document captioned, "Entry of Default."

(Doc. 33).

Defendants oppose plaintiffs second motion for default judgment because they contend that they
timely responded to the complaint. (Doc. 35). Defendants also request that the Court assess
against plaintiff all costs they have incurred in responding to his motions for default judgment
because they allege the motions were not made in good faith and are unfounded. In reply,
plaintiff acknowledges that defendants have answered the complaint, but he contends the
answers are deficient. (Doc. 36).
Plaintiffs motions for default judgment are not well-taken. Service was executed on the
various defendants on May 31, June 1, June 4, and June 6, 2012, making defendants' answers
due on June 21, 2012, at the earliest. (Doc. 25). Defendants filed a motion for extension oftime
to file their answer on June 20, 2012 (Doc. 27), and the Court granted them an extension oftime

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until July 6, 2012. (Doc. 28). Defendants timely filed their answer on July 6, 2012. (Doc. 30).
Accordingly, the entry of a default judgment against defendants for failure "to plead or otherwise
defend" against this lawsuit is not warranted. See Fed. R. Civ. P. 55. Defendants' request that
they be awarded the costs they have incurred in responding to plaintiff's motions for default
judgment should be denied because defendants have not cited any authority for the Court to
assess costs against plaintiff.
IV. Defendants' motion for summary judgment (Doc. 40)
Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground
plaintiff failed to exhaust his available administrative remedies before filing this lawsuit as
required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a).
Fed. R. Civ. P. 56 allows summary judgment to secure a just and efficient determination
of an action. The court may only grant summary judgment as a matter of law when the moving
party has identified, as his basis for the motion, an absence of any genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The party opposing a properly supported
motion for summary judgment "may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that there is a genuine issue .... "

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (quoting First Nat'/ Bank ofArizona v.
Cities Serv. Co., 391 U.S. 253 (1968)). The evidence of the nonmovant is to be believed and all
justifiable inferences are to be drawn in his favor. Id. at 255 (citingAdickes v. S.H Kress & Co.,
398 U.S. 144, 158 (1970)). Moreover, documents filed by a prose litigant are "to be liberally
construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
Under 42 U.S.C. § 1997e, as amended by the PLRA, a prisoner confined in any jail,

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----------------------

prison or other correctional facility may not bring an action challenging "prison conditions"
under 42 U.S.C. § 1983 or any other federal law "until such administrative remedies as are
available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is
mandatory under the PLRA. Booth v. Churner, 532 U.S. 731, 739 (2001); Vandiver v.
Correctional Med. Serv., Inc., 326 F. App'x 885, 888 (6th Cir. 2009). The PLRA mandates

"proper" exhaustion, meaning a prisoner must comply with the deadlines and other critical
procedural rules that govern an internal grievance process as a precondition to bringing suit in
federal court. Woodford v. Ngo, 548 U.S. 81, 90, 93 (2006); Reed-Bey v. Pramstaller, 603 F.3d
322, 324 (6th Cir. 2010) ("An inmate exhausts a claim by taking advantage of each step the
prison holds out for resolving the claim internally and by following the 'critical procedural rules'
ofthe prison's grievance process to permit prison officials to review and, if necessary, correct
the grievance 'on the merits' in the first instance."). The grievance process must be completed
before a federal complaint has been filed, and the prisoner may not exhaust administrative
remedies during the pendency ofhis federal lawsuit. Hopkins v. Ohio Dept. of Corrections, 84
F. App'x 526,527 (6th Cir. 2003) (citing Freeman v. Francis, 196 F.3d 641,645 (6th Cir.
1999)).
Failure to exhaust is an affirmative defense under the PLRA which must be established
by the defendant. Napier v. Laurel County, Ky, 636 F.3d 218, 225 (6th Cir. 2011) (citing Jones
v. Bock, 549 U.S. 199, 204 (2007); Vandiver, 326 F. App'x at 888). "[I]nmates are not required

to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216.
Inmates at SOCF are bound to follow the three-step inmate grievance procedure set forth
in OAC § 5120-9-31(K). (Doc. 43, Exh. C, Decl. of Gary Croft, Chieflnspector of the Ohio
Dept. of Rehabilitation and Correction (ODRC)). Step one requires the inmate to file an

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informal complaint with the direct supervisor of the department or staff member most directly
responsible for the issue that is the subject of the complaint within 14 days of the date of the
event giving rise to the grievance. (OAC § 5120-9-31(K)(1); Croft Decl., ~ 4). Ifthe inmate is
dissatisfied with the response, he may proceed to step two by filing a notification of grievance
with the Institutional Inspector within 14 days from the date of the informal complaint response.
(OAC § 5120-9-31(K)(2); Croft Decl, ~ 5). If the inmate is dissatisfied with the disposition of
grievance, he may proceed to step three of the grievance process by submitting an appeal to the
Office of the Chief Inspector at ODRC within 14 days of the date of the disposition of grievance.
(OAC § 5120-9-31(K)(3); Croft Decl., ~ 6). The Chieflnspector is to provide a written response
within 30 calendar days of receiving an appeal, unless he extends the time frame for good cause
and notifies the inmate. (OAC § 5120-9-31(K)(3); Croft Decl., ~ 6). A decision ofthe Chief
Inspector is final and concludes the grievance process. (OAC § 5120-9-31 (K)(3); Croft Decl., ~
7).
Here, the undisputed evidence demonstrates that plaintiff failed to exhaust his available
administrative remedies prior to filing his federal complaint. The evidence shows that plaintiff
filed a notification of grievance dated February 15, 2012 (Grievance No. SOCF-03-12-000045).
(Doc. 40, Exh. A, p. 2; Doc. 43). Plaintiff alleged in the notification of grievance that his rights
were violated by several staff members at SOCF and he was "physically and emotionally
assaulted" when he was "'tricked' and then physically forced" to get his hair cut. (!d.). A
disposition of grievance was issued on March 6, 2012. (!d.; Case No. 1:12-cv-220, Doc. 1-4). It
stated that defendant Davis had issued a conduct report to plaintiff for failing to comply with the
grooming policy by failing to keep his hair in a ponytail or braided properly; he was found guilty
of rules infractions and the RIB ordered him to get a haircut in order to come into compliance

7

with the policy; plaintiff was informed by defendant Oppy in the informal complaint response
that he had no current hair exemption at SOCF; the institutional inspector had spoken with Davis
and was informed that plaintiff had been unable to produce any documentation to support the
alleged exemption; and Chaplain York found no record of a request for documentation for an
exemption by plaintiff upon his transfer to SOCF. (Doc. 40, Exh. A, p. 2; Doc. 43; Case No.
1:12-cv-220, Doc. 1-4). Plaintiffs grievance was denied and he was informed ofhis right to
appeal the decision. (!d.). Plaintiff appealed the disposition of grievance to the Chief Inspector
on March 7, 2012. (Doc. 40, Exh. A, p. 3; Doc. 43; Case No. 1:12-cv-220, Doc. 1-4). Plaintiff
instituted this lawsuit only days later, prior to receiving the decision of the Chief Inspector on
appeal, which was issued on May 8, 2012. (Doc. 40, Exh. B). Plaintiff filed a supplemental
complaint in this case on May 15, 2012 (Doc. 17), one week after the Chieflnspector issued his
decision on appeal. 2 Plaintiff acknowledged in the supplemental complaint that the grievance
process had been completed upon issuance of the decision of the Chief Inspector on appeal by
noting: "Grievance appeal exhausted and attached. Chief Inspector modified the inspector
grievance decision on appeal number 03-12-000045 .... "
The evidence produced by defendants in support of their motion for summary judgment
and plaintiffs submissions therefore establish that plaintiff did not complete the third step of the
inmate grievance procedure for the grievance pertaining to his alleged religious exemption
(Grievance No. 03-12-000045) until after he had filed his federal complaint. Moreover, plaintiff
does not dispute that Grievance No. 03-12-000045 is the only grievance he filed with respect to
the claims raised in this lawsuit. Accordingly, because plaintiff has not come forward with

2

The Chieflnspector's decision modified the decision of the Institutional Inspector by acknowledging that plaintiff
had been granted a religious exemption in May 2011 at another institution pursuant to which his hair could be worn
"in a ponytail, braids or plaits style" and that he was granted permission to grow his beard to a specific width. (See
Doc. 17).

8

evidence to rebut defendants' showing that he failed to exhaust his administrative remedies as to
any claim prior to bringing suit, defendants are entitled to summary judgment as a matter oflaw.

See Hopkins, 84 F. App'x at 527 ("When a prisoner fails to exhaust his administrative remedies
before filing a civil rights complaint in federal court, or only partially exhausts administrative
remedies, dismissal of the complaint is appropriate.").

IT IS THEREFORE ORDERED THAT:
1. Plaintiffs motion for appointment of counsel (Doc. 37) is DENIED.

IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiffs motions for default judgment (Docs. 14, 32) be DENIED.
2. The State of Ohio's motion to strike plaintiffs motion for default judgment (Doc. 21) be
DENIED as moot.
3. Defendants' motion for summary judgment be GRANTED and plaintiffs claims be dismissed
without prejudice for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e.
4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting the
Report and Recommendation would not be taken in good faith. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).

~K~
Karen L. Litkovitz
United States Magistrate Judge

9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Civil Action No. 1:12-cv-209
Spiegel, J.
Litkovitz, M.J.

ABDUL ABDULRAMAN,
Plaintiff,
vs.
DR. BURKE, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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