Pullen v. Combs et al
Filing
91
ORDER adopting Report and Recommendations re 84 Report and Recommendation granting 75 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 3/25/20. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Terry Tyrone Pullen, Jr.,
Plaintiff,
Case No. 1:17cv255
v.
Judge Michael R. Barrett
Combs, et al.,
Defendants.
ORDER
This matter is before the Court upon the Magistrate Judge’s January 27, 2020
Order and Report and Recommendation (“R&R”) (Doc. 84). The R&R recommends
granting Defendants’ Motion for Summary Judgment (Doc. 75).
The parties were given proper notice under Fed. R. Civ. P. 72(b), including notice
that the parties would waive further appeal if they failed to file objections to the R&R in a
timely manner. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Plaintiff filed Objections. (Doc. 88).
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 magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Plaintiff brings four Eighth Amendment claims based on events which occurred on
October 11, 2015, October 30, 2015 and November 10, 2015. The Magistrate Judge
provided a thorough discussion of the facts and procedural background.
(Doc. 84,
PGEID# 956- 960). The same will not be repeated here except to the extent necessary
to address Plaintiff’s objections.
The Magistrate Judge concluded that Plaintiff’s claim based on the October 11,
2015 events was barred by the Learman doctrine. The Magistrate Judge concluded
Plaintiff’s claims based on the October 30, 2015 and November 10, 2015 events should
dismissed for failure to exhaust his administrative remedies. Plaintiff only objects to the
Magistrate Judge’s conclusion regarding the failure to exhaust administrative remedies.
Plaintiff explains that he attempted to exhaust his administrative remedies but he
was on a grievance restriction for a period of ninety days beginning on November 3, 2015.
As the Magistrate Judge pointed out, Plaintiff was notified that he was being placed on a
grievance restriction on October 28, 2015, and his restriction did not begin until November
3, 2015. Under this timeline, the Magistrate Judge noted that Plaintiff would have had the
ability to file a grievance regarding the October 30, 2015 incident before the grievance
restriction began. With regards to the November 10, 2015 events, the Magistrate Judge
explained that Plaintiff was still able to file grievances under a special procedure. (Doc.
84, PAGEID# 971).
Once Defendants put forth evidence of their affirmative defense of failure to
exhaust administrative remedies, Plaintiff was required to present “significant probative
evidence” to defeat the motion for summary judgment on this ground. See Napier v.
Laurel Cty., Ky., 636 F.3d 218, 225 (6th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Plaintiff explains that
he sent kites requesting Notification of Grievance forms, but his requests were denied.
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Plaintiff made the same argument before the Magistrate Judge. The Magistrate Judge
noted that it appeared that Plaintiff was able to file seven grievances during this period of
time using the special grievance procedure; and Plaintiff attached a Notification of
Grievance form dated November 10, 2015 to his Memorandum in Opposition to
Defendants’ Motion for Summary Judgment. (Doc. 84, PAGEID# 971; PAGEID# 974).
The Court finds no error in the Magistrate Judge’s conclusion that Plaintiff has failed to
carry his burden establishing a genuine issue of material fact showing that he was
prevented from accessing the grievance procedure.
Based on the forgoing, the Court OVERRULES Plaintiff’s objections and the
Magistrate Judge’s January 27, 2020 R&R is ADOPTED in its entirety. Accordingly,
Defendants’ Motion for Summary Judgment (Doc. 75) is GRANTED. This Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that for the forgoing reasons an appeal of this Order
would not be taken in good faith. See McGore v Wrigglesworth, 114 F3d 601 (6th Cir.
1997). This matter is CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT
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