Carr v. Lavender et al

Filing 32

ORDER: The Magistrate Judge RECOMMENDS that defendants' unopposed 30 MOTION for Summary Judgment be GRANTED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 09/26/2011. (sr)

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

David Lee Carr,

:
:

Sheriff George Lavender, Jr. et al.,
Defendants

Judge Frost

:

v.

Civil Action 2:10-cv-00673

:

Plaintiff

Magistrate Judge Abel

:
ORDER
Plaintiff David Carr, a detainee incarcerated at the Ross County Jail, brings this
action alleging that defendants Sheriff George Lavender, R.N. Shawna Ott, Richard
Harrison, T.J. Hollis, Chris Davis, Martin Brooks, Walter Miller, James Bridenbaugh,
Terresa Holman, Tracy Beverly, Diana Lynch, and Katie Tomas violated the Health
Insurance Portability and Accountability Act, Ohio Minimum Jail Standards, Federal
Minimum Standards for Jails, Ohio medical laws and provisions of the Ohio and United
States Constitutions. This matter is before the Court on defendants’ unopposed1 July 29,
2011 motion for summary judgment (doc. 30).
I.

Allegations in the Complaint

The complaint alleges that the conditions in the Ross County jail are in violation
of Health Insurance Portability and Accountability Act, the Ohio Minimum Jail
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When a motion for summary judgment is unopposed, the Court may properly
limit its review to the facts relied on by defendant. It has no duty to search the record.
Guarino v. Brookfield Twp., 980 F.2d 399, 404-05 and 407 (6th Cir. 1992).
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Standards, Federal Minimum Standards for Jails, Ohio’s medical laws, and the
Constitutions of the United States and Ohio. His cell was dirty and smelled of urine. He
did not have a bed, and he had to sleep on the floor. There was a window in the cell,
and female inmates could see him using the toilet when they passed his cell. He was
only permitted to take one shower.
The complaint alleges that the jail has had a rash of staph infections. Plaintiff had
a severe infection on his neck three times and was placed in punitive segregation each
time. Plaintiff was charged $500 for the medication to treat the infections, but he never
saw a doctor.
The complaint also alleges that the jail doctor changed his diabetes medication.
He has had low blood sugar because of the starvation diet he received. When he
reported his low blood sugar, nothing was done. Plaintiff does not receive meals
suitable for someone with diabetes. There are no clocks in the jail, and inmates are not
permitted to wear watches. He suffers from time deprivation, which is a form of torture.
The complaint alleges that inmates are only permitted exercise and fresh air 1-2
times per week. The complaint also alleges that he has been denied access to the court
because he is not permitted paper, pencils, erasers, stamped envelopes, manilla
envelopes, legal postage, a notary for affidavits, ink pens, file folders, and a file box. He
also does not have access to a free phone. Plaintiff’s mail is given to other inmates who
then read his mail.

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The complaint further alleges that $10 was taken from his account at the jail for a
booking fee. The guards impose punishment without any due process. The jail is very
cold, and inmates are not provided with socks, t-shirts or underwear unless they are
purchased from the kiosk at outrageous prices. Inmates only receive one blanket. He is
denied religious services based on his Jewish faith. Plaintiff has been issued a towel and
a uniform, and they are only washed once per week. The jail does not provide adequate
cleaning supplies. He also maintains that there is no tracking system for the grievances.
Pretrial detainees are housed with convicted prisoners. The painted floors are slippery
when wet, making the jail unsafe. Plaintiff has fallen twice on his back after getting out
of the shower.
II.

Arguments of the Parties

Defendants argue that plaintiff failed to comply with the Prison Litigation
Reform Act, which requires an inmate to exhaust the administrative remedies of the jail
or prison prior to filing a lawsuit. Although plaintiff filed several grievances,
defendants maintain that he did not properly file them and that he did not fully exhaust
his appeals. Defendants further argue that the majority of plaintiff’s claims are
unrelated to the grievances he filed.
Defendants also argue that plaintiff did not allege personal involvement by any
defendant except defendants Ott and Harris. To establish liability against an individual
defendant, a plaintiff must plead and prove that the defendant was personally involved
in the conduct that forms the basis of his complaint. Defendants further argue that the
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plaintiff has failed to allege and cannot prove the required elements of each of his
sixteen claims.
Plaintiff failed to file any opposition to defendants’ motion for summary
judgment.
III.

Summary Judgment

Summary judgment shall be granted “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 party asserting the absence or presence of a
genuine dispute must support that assertion by either “(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials”; or “(B)
showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
A party may object that the cited material “cannot be presented in a form that
would be admissible in evidence,” and “[t]he burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that is
anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a
party uses an affidavit or declaration to support or oppose a motion, such affidavit or
declaration “must be made on personal knowledge, set out facts that would be
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admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
While the court must consider the cited materials, it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for
summary judgment, the district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,
279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). “The central issue is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)).
IV.

Discussion

The Prison Litigation Reform Act (“PLRA”) states:
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). The requirement to exhaust administrative remedies is mandatory
and “applies to all prisoners seeking redress for prison circumstances or occurrences.”
Porter v. Nussle, 534 U.S. 516, 520 (2002); Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is
no question that exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court.”). Exhaustion under the PLRA requires that a prisoner

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comply with all procedural rules, including filing deadlines, as a precondition to filing a
civil suit in federal court, regardless of the relief offered through the administrative
process. Woodford v. Ngo, 548 U.S. 81, 93 (2006); Booth v. Churner, 532 U.S. 731 (2001).
Defendants maintain that plaintiff did not exhaust the jail’s grievance process.
Prior to filing his complaint, plaintiff filed ten grievances and one request with the jail.
Seven of the grievances concerned the quality of the food, and the remaining three
grievances plaintiff’s lack of access to books, pencils, and toilet paper. Sergeant Earl
Glenn Detty, III, the acting assistant jail administrator with the Ross County Sheriff’s
Office, submitted an affidavit in which he describes the grievance procedure at the Ross
County jail and plaintiff’s efforts at utilizing the grievance procedure. The grievance
procedure consists of three separate steps: requests, grievances, and appeals. All three
steps are record on the same form, and the inmate indicates on the form whether he is
submitting a request, grievance, or appeal. Doc. 30-3 at ¶4. To properly utilize the
grievance procedure, an inmate must first file a requests. Id. at ¶5. If the request is
denied, an inmate must file a grievance. Id. at ¶6. If the inmate is dissatisfied with the
resolution of his grievance, the inmate must file an appeal. Id. at ¶7. Sgt. Denny stated
that plaintiff filed ten grievances and one request between March 3, 2010 and August
23, 2010; plaintiff did not file any appeals. Id. at ¶8.
The uncontroverted evidence shows that plaintiff failed to exhaust his
administrative remedies prior to filing suit. As a result, the Magistrate Judge
RECOMMENDS that defendants’ motion for summary judgment be GRANTED.
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V.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that
defendants’ unopposed July 29, 2011 motion for summary judgment (doc. 30) be
GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/ Mark R. Abel
United States Magistrate Judge

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