Thomas v. McDowell et al
Filing
142
ORDER granting 99 Motion for Summary Judgment; denying 100 Motion for Summary Judgment; adopting Report and Recommendations re 137 Report and Recommendations. Signed by Judge James L Graham on 9/12/13. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Shawn Thomas,
Plaintiff,
v.
Case No. 2:10-cv-152
Mr. McDowell, et al.,
Defendants.
ORDER
This is a civil rights action under 42 U.S.C. §1983 brought by
plaintiff Shawn Thomas, an Ohio inmate, against employees and
former employees of the Ohio Department of Rehabilitation and
Correction (“ODRC”), alleging violations of his rights under the
First and Eighth Amendments.
Plaintiff filed an amended complaint
in the instant case on December 12, 2011.
See Doc. 71.
Pursuant
to 28 U.S.C. §1915(e)(2)(B)(ii), this court dismissed plaintiff’s
medical indifference and conspiracy claims and his claims against
defendants Cook, McDowell and Gleen on October 17, 2012. Doc. 110.
The court permitted plaintiff to proceed on his excessive force
claims under 42 U.S.C. §1983 against defendants Spohn, Pennington,
and Eitel, his retaliation claims against defendants Pennington and
Eitel, and his Eighth Amendment cruel and unusual punishment claim
against defendant Young.
This matter is before the court for consideration of the
August 5, 2013, report and recommendation of the magistrate judge,
which recommended denying plaintiff’s September 10, 2012, motion
for summary judgment (Doc. 100) and granting the September 7, 2012,
motion for summary judgment of defendants Brandon Eitel and Virgil
Pennington (Doc. 99).1
Plaintiff filed timely objections to the
report and recommendation on September 5, 2013. If a party objects
within the allotted time to a report and recommendation, the court
“shall make a de novo determination of those portions of the report
or
specified
proposed
objection is made.”
72(b).
findings
or
recommendations
to
which
28 U.S.C. § 636(b)(1); see also Fed R. Civ. P.
Upon review, the court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.”
28 U.S.C. § 636(b)(1).
I. Plaintiff’s Claims
A. Incident on March 16, 2009
Plaintiff’s claims against defendants Spohn and Young stem
from an incident which occurred on March 16, 2009.
Plaintiff
alleges that defendants Spohn and Young harassed and physically
threatened him while he was in the segregation cage, forced him to
stand in the corner of the cage, refused to let him sleep, and
denied him bathroom privileges.
Plaintiff further alleges that
upon his release from segregation, Spohn handcuffed him, forced him
to the wall outside the cage, and pushed into his neck and back.
Plaintiff alleges that as he bent to pick his pants up off the
floor, Spohn slammed him to the floor, and twisted the handcuffs
around plaintiff’s wrists, causing severe bruising.
In statements
given to the institution’s Use of Force Committee, Spohn and Young
denied plaintiff’s allegations and maintained that Spohn used only
minimal force to stabilize plaintiff while uncuffing him. See Doc.
11-3, pp. 19-27, 29-33; Doc. 100-6.
1
Defendant Brian Cook also joined in this motion, but he was subsequently
dismissed as a party on October 17, 2012, and therefore the motion for summary
judgment, insofar as it applies to him, is moot.
2
Plaintiff filed an informal complaint resolution dated March
16, 2009, and notification of grievance dated March 22, 2009,
regarding the March 16, 2009, incident.
Doc. 99-5, pp. 5-6.
On
April 3, 2009, the institutional inspector found that the evidence
was sufficient to support plaintiff’s allegations of force, but
that the evidence was insufficient to establish inappropriate
comments
or
threats.
He
granted
plaintiff’s
grievance
and
forwarded his findings to the warden for review and further action.
Doc. 99-5, p. 8.
On November 14, 2009, plaintiff filed an appeal
to the chief inspector.
Doc. 99-5, p. 9.
On December 15, 2009,
the chief inspector affirmed the institutional inspector’s grant of
plaintiff’s grievance.
Doc. 99-5, p. 9.
Upon review of the
investigation reports, testimony and other evidence, the Use of
Force Committee concluded in a report dated April 29, 2009, that
Spohn’s use of force was unjustified, inappropriate and excessive.
The Committee recommended continuation of the disciplinary process
for Spohn and Young.
Doc. 100-3.
Spohn was ultimately terminated
from his position of corrections officer as a result of this
incident.
B. Incident on April 3, 2009
Plaintiff’s claims against defendants Eitel and Pennington
arise from an incident on April 3, 2009.
Eitel
and
Pennington
delivered
the
Plaintiff alleges that
institutional
inspector’s
disposition of grievance to plaintiff and commented that it was the
first
time
grievance.
they
had
ever
seen
the
granting
of
an
inmate’s
Plaintiff alleges that later that day, Eitel told him
to dump out a cup of hot water that plaintiff had carried from the
restroom.
Plaintiff alleges that Eitel pinned him against the
3
wall, then took him into a room without a video camera, where Eitel
and Pennington ordered him to stand against the wall.
Plaintiff
contends that Eitel then slammed him to the floor, sprayed him with
mace two or three times, then told him to file a grievance, betting
that plaintiff would not win.
Eitel and Pennington have submitted declarations disputing
plaintiff’s version of the incident.
See Docs. 99-2, 99-6.
They
state that they observed plaintiff violating a prison rule which
prohibited inmates from taking cups into restrooms for sanitary
reasons.
Plaintiff shouted obscenities at Eitel and ignored his
orders.
After Eitel ordered plaintiff to go to the day room,
plaintiff pushed off the wall, and struck Eitel’s right leg with
the heel of his boot.
As a result, Eitel sustained a bruise on his
calf and had stiffness in his knee.
Eitel and Pennington then
forced plaintiff to the floor and ordered plaintiff to surrender
his left arm.
Plaintiff refused to comply with this order, and
Eitel then used one short burst of pepper spray, after which
plaintiff surrendered his arm.
Plaintiff filed an informal complaint resolution regarding the
April 3, 2009, incident on April 4, 2009.
Doc. 99-5, p. 11.
On
April 9, 2009, at the bottom of the form under “Action Taken,” the
prison staff member stated that plaintiff was not allowed to have
cups in the restroom and that he should have complied with the
officer’s orders.
Doc. 99-5, p. 11.
That same day, plaintiff was
transferred from the Madison Correctional Facility to the Lebanon
Correctional Facility.
On December 17, 2009, plaintiff filed a
notification of grievance.
Doc. 99-5, p. 12.
On December 28,
2009, the inspector denied the grievance as untimely.
4
Doc. 100-1,
p. 18.
On January 10, 2010, plaintiff filed an appeal from that
decision to the chief inspector.
Doc. 99-5, p. 16.
On February
12, 2010, the chief inspector affirmed the denial of plaintiff’s
grievance.
Doc. 99-5, p. 17.
II. Defendants’ Motion for Summary Judgment
Eitel
and
Pennington
argue
in
their
motion
for
summary
judgment that plaintiff’s claims against them should be dismissed
because no reasonable trier of fact could find that they utilized
excessive force or retaliated against plaintiff, because they are
entitled to qualified immunity, and because plaintiff failed to
exhaust
his
administrative
remedies.
The
magistrate
judge
recommended that plaintiff’s claims against Eitel and Pennington be
dismissed without prejudice based upon plaintiff’s failure to
exhaust his administrative remedies.
This court agrees with the analysis of the magistrate judge.
Under the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C.
§1997e(a), a prisoner may not bring an action challenging prison
conditions
under
administrative
§1983
remedies
or
any
as
other
are
federal
available
law
are
until
such
exhausted.
“Exhaustion” under the PLRA means “proper exhaustion.” Woodford v.
Ngo, 548 U.S. 81, 93 (2006).
to
“tak[e]
resolving
advantage
the
claim
of
Proper exhaustion requires prisoners
each
step
the
and
...
internally
prison
follow
holds
the
out
for
‘critical
procedural rules’ of the prison’s grievance process to permit
prison officials to review and, if necessary, correct the grievance
‘on the merits’ in the first instance.”
Reed-Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010). A prisoner’s failure to exhaust
his intra-prison administrative remedies prior to filing suit is an
5
affirmative defense.
Cir.
2012).
Surles v. Andison, 678 F.3d 452, 455 (6th
Summary
judgment
is
appropriate
if
defendants
establish the absence of a genuine dispute as to any material fact
regarding non-exhaustion.
Id.
As noted by the magistrate judge, Ohio has established a
procedure for resolving inmate complaints.
§5120-9-31.
See Ohio Admin. Code
This process includes a three-step grievance system:
(1) the filing of an informal complaint by the inmate to a staff
member, a direct supervisor of a staff member, or the department
most directly responsible for the subject matter of the complaint,
within fourteen days of the incident, Ohio Admin. Code §5120-931(K)(1); (2) the filing of a formal grievance to the inspector of
institutional services within fourteen days after receipt of the
response to the informal complaint, Ohio Admin. Code §5120-931(K)(2); and the filing of an appeal to the office of the Chief
Inspector of the ODRC within fourteen days of receipt of the
response to the grievance, Ohio Admin. Code §5120-9-31(K)(3).
Doc. 99-5, Declaration of Paul Shoemaker, ¶¶ 4-6.
See
The ODRC rules
relating to the timeliness of a grievance constitute “critical
procedural rules.” Vandiver v. Correctional Med. Servs., Inc., 326
Fed.Appx. 885, 889 (6th Cir. 2009).
Plaintiff timely filed an informal complaint on April 4,
2009, regarding the April 3, 2009, incident, and a staff member
responded to that complaint on April 9, 2009.
Plaintiff did not
file his notification of grievance until December 17, 2009, over
seven months after the fourteen-day deadline for filing a step-two
grievance had passed.
The grievance was denied as untimely.
Plaintiff conceded that his grievance was untimely, but argued in
6
his memorandum in opposition (Doc. 118) that he was “verbally
deterred” from filing the grievance by Pennington and Eitel.
However, the PLRA does not excuse the exhaustion requirement even
for prisoners under imminent danger of serious physical injury.
Arbuckle v. Bouchard, 92 Fed.Appx. 289, 291 (6th Cir. 2004).
Even
if it did, plaintiff has not alleged any facts showing that he had
reason to fear for his safety.
Any vague fears of reprisal are
also contradicted by the fact that plaintiff filed a timely
informal complaint the day after the incident.
Plaintiff was also
transferred to another institution on April 9, 2009, away from
defendants
Pennington
and
Eitel.
He
could
have
filed
a
notification of grievance within the fourteen days without any fear
of reprisal from those defendants.
In his objection to the report and recommendation, plaintiff
alleges for the first time that the institution never informed 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.
He argues that this should
excuse his failure to properly exhaust his administrative remedies.
Plaintiff did not timely make these arguments in response to
defendants’ summary judgment motion, nor did he present these
arguments to the magistrate judge.
time
in
objections
to
the
Matters raised for the first
magistrate
judge’s
report
and
recommendation need not be considered by this court because they
were not first presented to the magistrate judge for consideration.
See Becker v. Clermont County Prosecutor, 450 Fed.Appx. 438, 439
(6th Cir. 2011)(citing Murr v. United States, 200 F.3d 895, 902-3
7
n. 1 (6th Cir. 2000)); see also United States v. Waters, 158 F.3d
933, 936 (6th Cir. 1998)(issues raised for the first time in
objections to the magistrate judge’s report and recommendation are
deemed waived).
In any event, plaintiff’s objection is not well taken.
The
Sixth Circuit requires inmates to make affirmative efforts to
comply with the administrative procedures.
F.3d 236, 240 (6th Cir. 2011).
Risher v. Lappin, 639
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 County, Kentucky, 6336 F.3d 218, 221-222 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
County,
KY,
93
Fed.Appx.
793,
797-798
(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 Albino v. Baca, 697 F.3d 1023, 1035-1037 (9th Cir.
2012)(ignorance of grievance procedure and prison’s failure to
inform inmate of procedure does not make grievance procedure
unavailable); Gonzales-Liranza v. Naranjo, 76 Fed.Appx. 270, 272-73
(10th Cir. 2003)(holding that district court did not err in
rejecting prisoner’s claim that his unawareness of the grievances
procedure excused the PLRA’s exhaustion requirement); cf. Fisher v.
Johnson, 174 F.3d 710, 714 (5th Cir. 1999)(“[I]gnorance of the law,
even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.”).
“Section
1997e(a)
says
As the Eighth Circuit has observed,
nothing
about
a
prisoner’s
subjective
beliefs, logical or otherwise, about the administrative remedies
8
that might be available to him.
The statute’s requirements are
clear: If administrative remedies are available, the prisoner must
exhaust them.”
Chelette v. Harris, 229 F.3d 684, 688 (8th Cir.
2000).
Although
plaintiff
claims
in
his
objection
that
the
institution never showed him how to operate the informal complaint,
grievance and appeal process, the record includes sworn testimony
submitted in support of defendants’ motion for summary judgment
that all inmates in the custody of ODRC are given both written and
oral instructions on how to use the inmate grievance procedure.
See
Doc.
99-5,
Shoemaker
Decl.
¶
7.
Plaintiff
himself
had
previously submitted an informal complaint dated March 16, 2009,
and a notification of grievance dated March 22, 2009, regarding the
March 16, 2009, incident.
See Doc. 99-5, pp. 5-6.
The informal
complaint, Doc. 99-5, p. 5, contains a written comment at the
bottom instructing plaintiff that he needed to file a formal
grievance.
The record also contains a disposition of grievance
form dated April 3, 2009, regarding the March 16, 2009, incident,
which was delivered to plaintiff by Eitel and Pennington.
This
form contains language at the bottom advising plaintiff that he
could appeal the decision within fourteen calendar days, and that
appeal
forms
were
available
Institutional Services.
at
the
office
of
Inspector
of
These documents indicate that plaintiff
knew about the availability of the grievance procedure prior to the
April 3, 2009, incident, that he had been told where to go to
obtain additional information concerning the grievance process, and
that the institution was willing to assist plaintiff in filing a
grievance, yet he waited over seven months before filing his notice
9
of grievance regarding the April 3, 2009, incident.
Plaintiff’s objection to the magistrate judge’s recommendation
concerning the dismissal without prejudice of his claims against
defendants Eitel and Pennington due to his failure to exhaust
administrative remedies is denied.
III. Plaintiff’s Motion for Summary Judgment
The magistrate judge also recommended that plaintiff’s motion
for summary judgment be denied because there are genuine issues of
disputed
fact
regarding
his
claims
against
the
defendants.
Plaintiff offers no reason as to why this recommendation is
unsound, other than to state simply that his motion should be
granted as to defendants Spohn and Young because the magistrate
judge recommended at the initial screening phase of the case that
claims against these defendants remain in the case.
This court
agrees with the assessment of the magistrate judge that material
facts surrounding the March 16, 2009, incident are disputed, and
that summary judgment in favor of the plaintiff on his claims
against defendants Spohn and Young would not be appropriate.
The
court further finds that plaintiff is not entitled to summary
judgement on his claims against defendants Pennington and Eitel, as
the court has determined that those claims must be dismissed
without
prejudice
due
administrative remedies.
to
plaintiff’s
failure
to
exhaust
Even if the claims against defendants
Pennington and Eitel were not subject to dismissal on that ground,
plaintiff would not be entitled to summary judgment on those claims
because the record establishes the existence of genuine disputes of
material fact in regard to the April 3, 2009, incident as well.
10
IV. Conclusion
In accordance with the foregoing, the court adopts the report
and recommendation (Doc. 137).
Defendants’ motion for summary
judgment (Doc. 99) is granted, and plaintiff’s claims against
defendants Eitel and Pennington are dismissed without prejudice for
failure
to
comply
with
the
PLRA’s
exhaustion
requirements.
Plaintiff’s motion for summary judgment (Doc. 100) is denied.
claims
remaining
are
plaintiff’s
§1983
excessive
force
The
claim
against defendant Spohn and his §1983 Eighth Amendment cruel and
unusual punishment claim against defendant Young.
Date: September 12, 2013
S/James L. Graham
James L. Graham
United States District Judge
11
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