Carr v. Lavender et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge Gregory L Frost on 11/21/11. (kn)

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

David Lee Carr,
Plaintiff

Case No. 2:10-cv-00673

v.

Judge Gregory L. Frost

Sheriff George Lavender,

Magistrate Judge Abel

Defendant.
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. Plaintiff has failed to file any objections to the Magistrate
Judge's September 26, 2011 Report and Recommendation that Defendants' unopposed
July 29, 2011 motion for summary judgment be granted.
Upon de novo review in accordance with the provisions of 28 U.S.C. §
636(b)(1)(B), the Court ADOPTS the Report and Recommendation and GRANTS
Defendants' July 29, 2011 motion for summary judgment. (ECF No. 30).

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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): See also 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 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 concerned 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,

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grievances, and appeals. All three steps are recorded on the same form, and the inmate
indicates on the form whether he is submitting a request, a grievance, or an appeal.
(ECF No. 30-3 at ¶4.) To properly utilize the grievance procedure, an inmate must first
file a request. (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. Defendants’ unopposed July 29, 2011
motion for summary judgment is GRANTED. (ECF No. 30.)
The Clerk of Court is DIRECTED to enter JUDGMENT for Defendants. This
action is hereby DISMISSED.

/s/ Gregory L. Frost
Gregory L. Frost
United States District Judge

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