Fletcher v. Sheets et al

Filing 81

ORDER, REPORT AND RECOMMENDATION : It is Recommended that re 51 Motion to dismiss for failure to state a claim ;for lack of subject matter jurisdiction and for failure to exhaust all administrative remedies be GRANTED. It is ORDERED 63 Motion for Discovery Pursuant to Civ.R. 56(d) and to Lift Stay is granted in part and denied in part. ( Objections to R&R due by 9/16/2011) Signed by Magistrate Judge Norah McCann King on 8/30/11. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KENNETH J. FLETCHER,
Plaintiff,
vs.

Civil Action 2:09-CV-1130
Judge Graham
Magistrate Judge King

WARDEN MICHAEL D. SHEETS,
et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff alleges that, while incarcerated at the Ross
Correctional Institution (“RCI”), defendants –- employees of the Ohio
Department of Rehabilitation and Correction and officers at RCI –subjected plaintiff to conditions that constituted cruel and unusual
punishment, failed to protect plaintiff and failed to provide
prescription medication.

This matter is now before the Court on

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint, Doc. No.
51 (“Motion for Summary Judgment”),1 and Plaintiff’s Motion to Obtain
Facts Pursuant to Civ. R. 56(d) and Request to Lift Stay of Discovery,
Doc. No. 63 (“Plaintiff’s Rule 56(d) Motion”).

For the reasons that

follow, Plaintiff’s Rule 56(d) Motion is GRANTED in part and DENIED in
part and it is RECOMMENDED that the Motion for Summary Judgment be
GRANTED in part and DENIED in part.

1

As noted infra, the Court advised the parties of its intent to treat
the motion to dismiss as one for summary judgment. Order, Doc. No. 60.

I.

BACKGROUND
Plaintiff, an inmate in the custody of the Ohio Department of

Rehabilitation and Correction (“ODRC”), has been incarcerated at RCI
since November 23, 2005.

Affidavit of Kenneth Fletcher, ¶¶ 1-2,

attached to Plaintiff’s Memorandum in Opposition to Motion for Summary
Judgment, Doc. No. 66 (“Plaintiff Affidavit” and “Plaintiff’s
Supplemental Response”).
action.

On December 16, 2009, plaintiff filed this

Complaint, Doc. No. 1.

On January 27, 2011, plaintiff filed

an amended complaint, naming as defendants RCI and six individuals,
including RCI Warden Michael D. Sheets and RCI administrative
assistant Marty Thornsbury.

Amended Complaint, Doc. No. 33, ¶¶ 6-7.

Plaintiff’s claims are based on the events involving, and following,
his placement in isolation with another inmate, Jasen Craven, on
January 4, 2008.

Id. at ¶¶ 3-4.

Specifically, plaintiff alleges that

defendant Corrections Officers David Tumbleson, Grady Warren and/or
Jerry Nichols refused to move plaintiff from the cell after plaintiff
expressed fear of injury from Craven.

Id. at ¶¶ 23-28.

Plaintiff

alleges that Mr. Craven attacked him that night and plaintiff was
hospitalized.

Id. at ¶¶ 29-32.

Following plaintiff’s release from

the hospital on January 16, 2008,2 he further alleges, RCI officials
refused to administer his prescribed pain medication for more than 12
hours.

Id. at ¶¶ 34-35.

On January 27, 2011, defendants Michael D. Sheets and Marty
Thornsbury filed a motion to dismiss the Amended Complaint in part,

2
The Amended Complaint refers to a hospital release date in 2009. Id.
at ¶ 34. Other references to the time-frame in the Amended Complaint suggest
that this reference was in error and that plaintiff’s release was actually in
2008.

2

which was later granted in part.

Opinion and Order, Doc. No. 79

(dismissing Count 4 against defendants Sheets and Thornsbury and
dismissing Count 5).

On May 3, 2011, all of the defendants filed

their Motion for Summary Judgment which addresses the Amended
Complaint.

Shortly thereafter, defendants filed an unopposed motion

to stay discovery pending resolution of the Motion for Summary
Judgment, which was granted on June 1, 2011.

Order, Doc. No. 58.3

After plaintiff opposed defendants’ motion, the Court advised the
parties of its intent to convert the motion to dismiss to one for
summary judgment under Rule 56 and ordered additional briefing.
Order, Doc. No. 60.

Plaintiff’s Rule 56(d) Motion was filed, as was

his supplemented response to the Motion for Summary Judgment.
Plaintiff’s Supplemental Response.

Defendants have opposed

Plaintiff’s Rule 56(d) Motion, Doc. No. 69, and filed a supplemental
reply in support of the Motion for Summary Judgment.

Defendants’

Reply to Plaintiff’s Memorandum in Opposition to Defendants’ Motion to
Dismiss / Converted Motion for Summary Judgment (Doc. #: 66), Doc. No.
71 (“Defendants’ Supplemental Reply”).
III. PLAINTIFF’S RULE 56(D) MOTION
The Motion for Summary Judgment addresses primarily the issue of
exhaustion as to certain claims.

Plaintiff does not seek discovery as

to exhaustion, conceding that he has already conducted discovery
related to that issue.

However, plaintiff does ask the Court to lift

the stay of discovery so that he can conduct additional merits
3
Previously, the Court had extended the pretrial schedule, requiring,
inter alia, that non-damages related discovery be completed by July 31, 2011,
and that motions for summary judgment be filed no later than August 31, 2011.
Order, Doc. No. 45.

3

discovery.

Plaintiff’s Rule 56(d) Motion, p. 3; Affidavit in Support

of Motion to Obtain Facts (“Rule 56(d) Affidavit”), ¶¶ 3-9, attached
thereto.
Rule 56(d) establishes the proper procedure where a party
concludes that additional discovery is necessary in order to respond
to a motion for summary judgment:
When Affidavits Are Unavailable. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition,
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).

The affidavit required by the rule must

“indicate to the district court [the party’s] need for discovery, what
material facts it hopes to uncover, and why it has not previously
discovered the information.”

Cacevic v. City of Hazel Park, 226 F.3d

483, 488 (6th Cir. 2000) (citing Radich v. Goode, 886 F.2d 1391,
1393-94 (3d Cir. 1989)).

A motion under Rule 56(d) may be properly

denied where the requesting party “makes only general and conclusory
statements regarding the need for more discovery and does not show how
an extension of time would have allowed information related to the
truth or falsity of the [document] to be discovered,” Ball v. Union
Carbide Corp., 385 F.3d 713, 720 (6th Cir. 2004) (citing Ironside v.
Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the
affidavit “lacks ‘any details’ or ‘specificity.’”

Id. (quoting Emmons

v. McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)).

See also Cardinal

v. Metrish, 564 F.3d 794, 797-98 (6th Cir. 2009) (“If the plaintiff

4

makes only general and conclusory statements in his affidavit
regarding the needed discovery, lacks any details or specificity, it
is not an abuse of discretion for the district court to deny the
request.”).

Finally, it is within the discretion of the district

court whether or not to permit additional discovery under Rule 56(d).
See, e.g., Egerer v. Woodland Realty, Inc., 556 F.3d 415, 425-26 (6th
Cir. 2009).
In support of plaintiff’s motion under Rule 56(d), his counsel
represents by way of affidavit that none of the parties’ depositions
have been taken and that he requires additional time to depose
defendants.

Rule 56(d) Affidavit, ¶¶ 3, 7.

Plaintiff’s counsel

represents that “[f]urther discovery is needed to avoid prejudice to
Plaintiff.”

Id. at ¶ 9.

This case was filed in December 2009.

On May 20, 2010, the Court

established a discovery deadline of December 1, 2010, Preliminary
Pretrial Order, Doc. No. 17, which was later extended to June 30,
2011.

Doc. No. 29.

After plaintiff sought an extension of time to

disclose experts, the Court granted the requested extension and
modified the discovery deadline accordingly, requiring that discovery
be completed by July 31, 2011.

Order, Doc. No. 45.

The stay of

discovery was entered, without opposition from plaintiff, on June 1,
2011.

Order, Doc. No. 58.

Although plaintiff complains that defense

counsel failed to provide deposition dates for the defendants before
the stay was issued, i.e., approximately two months before the close
of discovery, Rule 56(d) Affidavit, ¶¶ 2-3, the Court notes that
plaintiff had more than one year, from May 2010 to June 1, 2011, in
which to secure deposition dates from defense counsel.

5

Plaintiff

offers no explanation as to why he did not depose, or why he was
unable to depose, defendants during that year.

See Cacevic, 226 F.3d

at 488.
Moreover, the Rule 56(d) Affidavit provides no details as to what
specific, material facts plaintiff hopes to discover in the
depositions.

Cacevic, 226 F.3d at 488.

Instead, plaintiff’s counsel

asserts that defendants’ depositions as they “relate[] to the merits
of Plaintiff’s complaint” are necessary to discover “[f]acts relating
to the events of the dates in question” including “the orders,
conversations, intent, and knowledge of the Defendants[.]”
8.

Id. at ¶

As discussed supra, conclusory statements, devoid of any

specificity, about the need for discovery are usually insufficient to
establish a need for additional discovery under Rule 56(d).

See Ball,

385 F.3d at 720.
Nevertheless, the Court notes that defendants offer no
evidentiary support contradicting plaintiff’s counsel assertion that
defense counsel failed to provide deposition dates for defendants.
See generally, Doc. No. 69.

In addition, defendants do not

specifically oppose the requested extension of time for merits
discovery, focusing instead on the issue of exhaustion.

Id.

Under

these circumstances, and considering the strong policy of deciding
cases on the merits, see, e.g., Shepard Claims Service, Inc. v.
William Darrah & Associates, 796 F.2d 190, 194 (6th Cir. 1986), the
Court concludes that its discretion is better exercised by permitting
a short extension of discovery limited to the surviving claims
addressed infra.

6

III. MOTION FOR SUMMARY JUDGMENT
A.

Standard

The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
The court shall grant summary judgment 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).

In making this determination, the evidence

must be viewed in the light most favorable to the non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

Summary judgment

will not lie if the dispute about a material fact is genuine, “that
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242 (1986).

Anderson v. Liberty Lobby, Inc.,

However, summary judgment is appropriate if the

opposing party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

The mere existence of a scintilla

of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.

Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.

Catrett, 477 U.S. at

Once the moving party has met its initial burden, the burden

7

then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”

Anderson, 477 U.S.

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).

“Once the

burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.

It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’”

Glover v. Speedway

Super Am. LLC, 284 F.Supp.2d 858, 862 (S.D. Ohio 2003) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

Instead, the non-moving party must support the assertion

that a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”
Glover, 284 F.Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)).

Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”

Id. See also Fed. R. Civ. P. 56(c)(3).

8

B.

Exhaustion4

Defendants contend that plaintiff has failed to exhaust his
administrative remedies as to Count 1 (failure to protect) and Court 2
(unconstitutional custom or policy based on refusal to protect
inmates) as against defendants Thornsbury, RCI administrative
assistant, Gordon S. Price, Captain at RCI, David Tumbleson, RCI
Corrections Officer, Grady Warren, RCI Corrections Officer, and Jerry
Nichols, RCI Corrections officer (collectively, “the non-warden
defendants”),5 and as to Count 3 (failure to provide prescription
medication) and 4 (unconstitutional custom or policy based on refusal
to provide prescription medication) as against all of these non-warden
defendants except defendant Thornsbury (“the remaining non-warden
defendants”).

Motion for Summary Judgment, pp. 4-7; Defendants’

Supplemental Reply, pp. 4-8.
1.

Standard for Exhaustion

The Prison Litigation Reform Act (“PLRA”) requires that a
prisoner filing a claim under federal law relating to prison
conditions must first exhaust available administrative remedies.
Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731
(2001).

The statute provides, in pertinent part:

No action shall be brought with respect to prison conditions
under [section 1983 of this title], or any other Federal

4

As noted supra, plaintiff agrees that he has conducted discovery as to
the issue of exhaustion and implicitly concedes that this issue is ripe for
resolution.
5

Defendants also move to dismiss claims against RCI and state law claims
but, as plaintiff notes, RCI was previously dismissed as a party. Doc. No.
54, pp. 2, 4-5; Opinion and Order, Doc. No. 10. Likewise, all state law
claims were previously dismissed. Id. Accordingly, the Court will not
address arguments as they relate to these matters.

9

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).
In order to satisfy this exhaustion requirement, an inmate
plaintiff must “complete the administrative review process in
accordance with the applicable procedural rules[.]”
548 U.S. 81, 88 (2006).

Woodford v. Ngo,

“[F]ailure to exhaust is an affirmative

defense under the PLRA, and [ ] inmates are not required to
specifically plead or demonstrate exhaustion in their complaints.”
Jones v. Bock, 549 U.S. 199, 216 (2007).

Exhaustion is not a

jurisdictional predicate but the requirement is nevertheless
mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999), even
if proceeding through the administrative procedure would appear to the
inmate to be “futile.”

Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th

Cir. 1999).
Ohio has established a procedure for resolving inmate complaints.
Ohio Admin. Code § 5120-9-31.

The procedure is available to an inmate

“regardless of any disciplinary status, or other administrative or
legislative decision to which the inmate may be subject,” §
5120-9-31(D), and is intended to “address inmate complaints related to
any aspect of institutional life that directly and personally affects
the grievant,” including “complaints regarding policies, procedures,
conditions of confinement. . . .” § 5120-9-31(A).
procedure includes three steps.

This administrative

Ohio Admin. Code § 5120-9-31.

First,

an inmate must file an informal complaint with “the direct supervisor
of the staff member, or department most directly responsible for the
particular subject matter of the complaint.”

10

Ohio Admin. Code §

5120-9-31(K)(1).

If that complaint does not result in a decision

satisfactory to the inmate, the inmate can appeal the decision to the
Inspector of Institutional Services.
5120-9-31(K)(2).

Ohio Admin. Code §

If that appeal is found to be without merit, the

inmate can then appeal the decision to the Chief Inspector.
Admin. Code § 5120-9-31(K)(3).

Ohio

Notwithstanding this three-step

procedure, however, “[g]rievances against the warden or inspector of
institutional services must be filed directly to the office of the
chief inspector” and 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.”
Admin. Code § 5120-9-31(M).
designee is final.”
2.

Ohio

“The decision of the chief inspector or

Id.

Evidence Presented

In the case sub judice, defendants refer the Court to the
documents filed in support of the motion to dismiss previously filed
by defendants Warden Sheets and Thornsbury.

Motion to Dismiss, p. 8

n.11 (citing to, inter alia, Defendants’ (Sheets and Thornsberry)
Partial Motion to Dismiss Amended Complaint, Doc. No. 34 (“First
Motion to Dismiss”)).

Specifically, defendants proffer the

declaration of Robert Whitten, RCI’s Institutional Inspector, and the
declaration of Suzanne Evans, a correctional grievance officer with
ODRC’s Central Office.

See Exhibit A, ¶ 2 (“Evans Declaration”) and

Exhibit B, ¶ 2 (“Whitten Declaration”), attached to the First Motion
to Dismiss.

Mr. Whitten avers that plaintiff has never filed any

notifications of grievance with RCI’s Office of the Institutional

11

Inspector.

Whitten Declaration, ¶ 3.

Ms. Evans avers that, from

January 1, 2008 until the present, plaintiff has filed only one
notification of grievance directly with the Chief Inspector
[hereinafter “Grievance 1"].6
1-2, attached thereto.

Evans Declaration, ¶ 8; Exhibit A-1, pp.

Page 1 of Grievance 1 complains that defendant

Thornsbury placed plaintiff, a Muslim, in isolation, at the direction
of Warden Sheets, with an inmate known to dislike Muslims and who
subsequently attacked plaintiff, resulting in plaintiff’s
hospitalization.

Exhibit A-1, p. 1.

Page 2 of Grievance 1 details

plaintiff’s belief that he was placed in isolation for refusing to
participate in a news interview, asserting that Warden Sheets acted
unprofessionally and vindictively.

Id. at 2.

Grievance 1 was denied

on May 21, 2008, and Ms. Evans avers that plaintiff has filed no
grievance appeals.

Exhibit A-1, p. 3; Evans Declaration, ¶ 8.

In supplementing his opposition to the Motion for Summary
Judgment, plaintiff avers that, on January 29, 2008, he “submitted two
different documents as grievances directly to the Chief Inspector.
Both grievances had the same first page; however, the second pages of
the grievances are different because I wished to provide additional
information.

I filed both grievances at the same time.”

Affidavit, ¶ 14.

Plaintiff

These two grievances include Grievance 1 and the

document attached to Plaintiff Affidavit [hereinafter “Grievance 2"]
[collectively, “grievances”].

Plaintiff Affidavit, ¶¶ 14-16.

Unlike

Page 2 of Grievance 1, Page 2 of Grievance 2 specifically complains

6

This grievance is dated January 25, 2008, with a receipt stamp date
January 29, 2008. Exhibit A-1, attached to the First Motion to Dismiss
(“Grievance 1").

12

that, after plaintiff was released from the hospital, a “Dr. Coulter”
told him that plaintiff’s medication may be dispensed only by staff
nurses or doctors.

Grievance 2, p. 2.

After spending a night in

isolation without a mattress, he asked an unidentified nurse for
medication.

Id.

Although she initially declined his request, the

nurse gave plaintiff his prescribed medication the next day.

Id.

Defendants also proffer the Declaration of Linda Coval, Deputy
Chief Inspector, Office of the Chief Inspector of ODRC.
2, attached to Doc. No. 53 (“Coval Declaration”).

Exhibit C, ¶

As Deputy Chief

Inspector, Ms. Coval monitors the application and disposition of the
inmate grievance procedure throughout all ODRC institutions.

Id.

Ms.

Coval avers that her office, “[a]s a matter of course, maintains a
copy of each page of each grievance document it receives” even if a
document appears to be a duplicate grievance.

Id. at ¶ 4.

Therefore,

“[i]f Mr. Fletcher had filed such a document [a grievance that
contained the same first page as Grievance 1, i.e., Grievance 2], Ms.
Coval’s office would maintain a copy of it.”

Id. at ¶ 5.

Her office

has only one two-page grievance (i.e., Grievance 1) from plaintiff.
Id.
3.

Application

Defendants argue that plaintiff failed to exhaust his
administrative remedies as to the non-warden defendants.7

This Court

previously dismissed Counts 3 and 4 as against defendants Warden
Sheets and Thornsbury.

Opinion and Order, Doc. No. 79.

7

These claims

As plaintiff notes, defendants do not argue that plaintiff failed to
exhaust his administrative remedies as to Counts 1 and 2 as against Warden
Sheets.

13

against the remaining non-warden defendants and Count 1 (failure to
protect) and Count 2 (unconstitutional custom or policy based on
refusal to protect inmates) against all of the non-warden defendants
fail for the same reasons previously articulated by the Court.

As to

the claims against the non-warden defendants, plaintiff was required
to follow the three-step grievance procedure outlined in Ohio Admin.
Code § 5120-9-31(K).

Rather than following that procedure, however,

plaintiff bypassed the first two procedural steps and filed his
grievances8 directly with the Chief Inspector.
14-15.

Plaintiff Affidavit, ¶¶

Plaintiff therefore failed to properly exhaust his

administrative remedies as to Counts 3 and 4 as against the remaining
non-warden defendants and as to Counts 1 and 2 as against all of the
non-warden defendants.
Plaintiff, however, argues that the procedure that he actually
followed was proper because the grievances against the non-warden
defendants also concerned Warden Sheets.
Response, pp. 13-16.

Plaintiff’s Supplemental

Stated differently, plaintiff argues that, when

grieving against multiple individuals, including the warden, he need
only file one grievance directly with the Chief Inspector.

Id.

Defendants disagree, contending that plaintiff was required to follow
the three-step procedure outlined in Ohio Admin Code § 5120-9-31(K) as
to claims against the non-warden defendants.

Motion for Summary

Judgment; Defendants’ Supplemental Reply. Defendants’ argument is
well-taken.
In support of his position that he need only file one grievance

8

The Court accepts, for present purposes, that plaintiff submitted two
grievances to the Chief Inspector.

14

directly with the Chief Inspector if a grievance involves the Warden
and other, non-warden, individuals, plaintiff argues that it is “not
clear” whether the Ohio Administrative Code requires one or multiple
grievances “when a grievance involves both the Warden and other
institutional staff.”

Plaintiff’s Supplemental Response, pp. 15-16.

Plaintiff is correct that the Court’s analysis must begin with the
actual language of the Ohio Administrative Code.

Cf.

Brilliance

Audio, Inc. v. Haights Cross Comm’n, Inc., 474 F.3d 365, 371 (6th Cir.
2007) (“As with any question of statutory interpretation, we must
first look to the language of the statute itself.”); Pittsburgh &
Conneaut Dock Co. v. Director, Office of Workers’ Compensation
Programs, 473 F.3d 253, 266 (6th Cir. 2007) (“In all cases of
statutory construction, the starting point is the language employed by
Congress.”) (citing Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791,
801 (6th Cir. 1995) (internal quotation marks omitted)).

However, the

plain language of Ohio Admin Code § 5120-9-31 specifically provides
two different procedures that an inmate must follow when pursuing
grievances against institutional staff or against the warden.
Admin Code § 5120-9-31(K), (M).

Ohio

Neither of these two provisions

provide exceptions to the detailed procedures.

Id.

Stated

differently, nothing in the plain language of Ohio Admin Code § 51209-31(K) permits an inmate pursuing a grievance against a member of the
institutional staff to bypass the first two steps of the three-step
procedure simply by naming the warden in the same grievance.
this language is clear, the Court’s inquiry is complete.

Because

See, e.g.,

Brilliance Audio, Inc., 474 F.3d at 371; Pittsburgh & Conneaut Dock
Co., 473 F.3d at 266 (“Moreover, where the statute’s language is

15

plain, the sole function of the courts is to enforce it according to
its terms.”) (citing Chapman v. Higbee Co., 319 F.3d 825, 829 (6th
Cir.2003) (internal quotation marks omitted)).
Plaintiff nevertheless contends that the relevant statutory
language, that “[w]henever feasible, inmate complaints should be
resolved at the lowest step possible[,]” Ohio Admin Code § 5120-931(K), permits an inmate to bypass the first two steps if an inmate
complains of actions of staff and of the warden in the same grievance.
This Court disagrees.

Accepting plaintiff’s construction would permit

an inmate to circumvent the three-step procedure as to claims against
staff simply by characterizing the grievance as one against the warden
as well.

This result, for which plaintiff cites to no case authority,

renders Ohio Admin Code § 5120-9-31(K) superfluous or insignificant,
which is an unacceptable outcome.

See, e.g., TRW Inc. v. Andrews, 534

U.S. 19, 31 (2001) (“It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed
that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.”) (citations and internal
quotation marks omitted).

Indeed, even plaintiff does not appear to

be persuaded by his own argument.

After asserting that it was proper

to file his grievances against the staff directly with the Chief
Inspector, he later concedes that he only “substantially complied”
with the requirements of Ohio Admin. Code § 5120-9-31 by doing so.
Plaintiff’s Supplemental Response, p. 16.

Plaintiff cites to no

authority that supports the contention that “substantial compliance”
with the Code provisions is sufficient to exhaust his administrative
remedies.

Again, accepting plaintiff’s contention that bypassing the

16

first two steps contained in Ohio Admin. Code § 5120-9-31(K) is
acceptable renders those provisions meaningless, a result that this
Court must avoid.

TRW Inc., 534 U.S. at 31.

Moreover, even assuming, arguendo, that plaintiff’s reading of
Ohio Admin. Code § 5120-9-31(K)is correct, plaintiff has still failed
to exhaust his administrative remedies.

Under plaintiff’s

construction, an inmate does not have an unfettered right to file a
grievance directly with the Chief Inspector.

Plaintiff’s Supplemental

Response, pp. 15-16 (quoting Ohio Admin. Code § 5120-9-31(K)
(“Whenever feasible, inmate complaints should be resolved at the
lowest step possible.”)) (emphasis added).

Instead, plaintiff’s

reliance on this particular provision requires that, first, it not be
feasible to follow step one or step two.

Id.

Here, plaintiff simply

asserts that, because his grievances involved Warden Sheets, he was
automatically permitted to file directly with the Chief Inspector.

He

offers no evidence or argument demonstrating that it was not feasible
for him to follow the first two steps required by subsection (K).
Under any analysis, then, plaintiff has not shown that he exhausted
his administrative remedies as to Counts 3 and 4 as against the
remaining non-warden defendants and as to Counts 1 and 2 as against
all the non-warden defendants.
C.

Claims Against Warden Sheets

Defendants argue that plaintiff has failed to demonstrate that
Warden Sheets violated a constitutional right or that Warden Sheets
was personally responsible for any such violation.

As plaintiff

notes, defendants do not attach any evidence but simply argue, inter

17

alia, that plaintiff has not presented information necessary to
establish his claims.
4-5.

See, e.g., Defendants’ Supplemental Reply, pp.

Defendants’ own argument suggests that additional merits

discovery is necessary as to the remaining claims against Warden
Sheets.

Under these circumstances, summary judgment as to Counts 1

and 2 as against Warden Sheets is premature.

Moreover, the Court

concludes that limited discovery as to these issues is necessary.
WHEREUPON, it is RECOMMENDED that Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint, Doc. No. 51, be GRANTED in part and
DENIED in part and that Plaintiff’s Motion to Obtain Facts Pursuant to
Civ. R. 56(d) and Request to Lift Stay of Discovery, Doc. No. 63, be
GRANTED in part and DENIED in part.

Specifically, plaintiff’s Rule

56(f) Motion is GRANTED as it relates to Count 1 (failure to protect)
and Count 2 (unconstitutional law, custom or policy based on a refusal
to protect inmates) as against defendant Warden Michael D. Sheets, but
DENIED as to claims against the non-warden defendants.

It is

therefore ORDERED that the stay is lifted and that the discovery
deadline is EXTENDED to October 31, 2011, to permit the parties to
conduct limited discovery as it relates to Counts 1 and 2 against
Warden Sheets.

The deadline for filing motions for summary judgment

is EXTENDED to November 30, 2011.
Further, it is RECOMMENDED that
1.

defendants’ motion dismiss, converted into a motion for summary
judgment, Doc. No. 51, be GRANTED as to Counts 1 and 2 as against
defendants Marty Thornsbury, Gordon S. Price, David Tumbleson,
Grady Warren and Jerry Nichols;

18

2.

defendants’ motion be GRANTED as to Counts 3 and 4 as against
defendants Gordon S. Price, David Tumbleson, Grady Warren and
Jerry Nichols; and that

3.

defendants’ motion be DENIED as to Count 1 (failure to protect)
and Count 2 (unconstitutional law, custom or policy based on a
refusal to protect inmates) as against defendant Warden Michael
D. Sheets, but without prejudice to renewal after the limited
discovery period established herein.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

28

Response to objections must be

filed within fourteen (14) days after being served with a copy
thereof.

F.R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation
of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United
States v. Walters,

638 F.2d 947 (6th Cir. 1981).

August 30, 2011

s/Norah McCann King

19

Norah McCann King
United States Magistrate Judge

20