Moore v. Warden, Pickaway Correctional Institution et al

Filing 56

ORDER and Report and Recommendation denying the following motions, 38 MOTION to add defendants, 45 Motion for extension of time to file response, 51 Motion for extension of time and 52 Motion to strike. It is Recommended that 54 Motion for default judgment against all defendants be denied and 47 Motion for summary judgment be granted. (Objections to R&R due by 1/17/2012) Signed by Magistrate Judge Norah McCann King on 12/29/11. (rew)

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

GEORGE MOORE,
Plaintiff,
vs.

Civil Action 2:11-CV-132
Judge Watson
Magistrate Judge King

WARDEN, PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.
ORDER and
REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that
defendants deprived him of medication and food in violation of his
rights under the Eighth Amendment to the United States Constitution.
This matter is before the Court on several pending motions.
I.

BACKGROUND
Plaintiff, currently incarcerated at Pickaway Correctional

Institution (“PCI”), is medically and physically handicapped.
Complaint, Doc. No. 9,1 ¶¶ B, C.

Amended

As a result, plaintiff “has very

limited mobility and is wheelchair bound (has been for several
years).”

Id.

On September 8, 2010, a PCI nurse refused to give plaintiff
medicine because there was no prescription for him.
F, attached to Motion for Summary Judgment.

Id. ¶ D; Exhibit

According to plaintiff,

however, a doctor had prescribed him Ultram for back pain and

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The Amended Complaint is verified.

Nitroglycerine.

Id.

Notwithstanding these prescriptions, plaintiff

was denied the two medicines from September 8 through September 16,
2010.

Id.
On January 7, 2011, PCI Sergeant Justice, according to plaintiff,

“took my ID badge as punishment for a minor infraction because he knew
I would not be able to obtain meals unless” plaintiff had this
identification card.
Judgment.

Id.; Exhibit G, attached to Motion for Summary

After plaintiff filed an informal complaint about this

incident, plaintiff “was set up by a cohort of Sgt. Justice’s on a
phony drug charge[.]”

Amended Complaint, ¶ F.

Following a hearing

before the Rules Infraction Board (“RIB”), plaintiff was found guilty
of possession and sale of Ultram.
was discontinued.

Id.

His prescription for Ultram

Id.

On February 7, 2011, plaintiff filed the original complaint,
naming as defendants PCI Warden Cook and Ernie Moore, Director of Ohio
Department of Rehabilitation and Corrections (“ODRC”).

Doc. No. 1.2

On April 19, 2011, before there was any response to his original
complaint, plaintiff filed the Amended Complaint, alleging that
defendants knowingly deprived him of medicine and food in violation of
his rights under the Eighth Amendment.
monetary relief.

II.

Plaintiff seeks injunctive and

Amended Complaint, p. 6.

MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
Defendants Gary Mohr, current Director of the Ohio Department of

2

Plaintiff originally filed this action in the Western Division of the
Southern District. Id. The case was transferred to this Court on February
14, 2011. Order of Transfer, Doc. No. 2.

2

Rehabilitation,3 and Brian Cook, Warden of PCI, have moved for summary
judgment on plaintiff’s claims.

Motion for Summary Judgment of

Defendants Gary Mohr, Director, and Brian Cook, Warden, Doc. No. 47
(“Motion for Summary Judgment”).

Plaintiff opposes the Motion for

Summary Judgment, Response to Defendants [sic] Request for Summary
Judgement [sic] Doc # 47, Doc. No. 48 (“Plaintiff’s Response”), and
defendants have filed a reply memorandum, Defendants’ Reply to
Plaintiff’s Response in Opposition to Defendants’ Motion for Summary
Judgment, Doc. No. 49 (“Reply”).

After the Reply was filed, however,

plaintiff filed an additional brief.

See Plaintiff’s Response to

Defendants [sic] #49, Doc. No. 50 (“Plaintiff’s Surreply”).
Defendants have objected to the filing of Plaintiff’s Surreply and
move to strike the filing, arguing, inter alia, that Fed. R. Civ. P.
12 and S.D. Ohio Civ. R. 7.2 do not contemplate a filing beyond the
reply brief and plaintiff has not sought and obtained leave for this
additional memorandum.

Doc. No. 52.

Although defendants are correct

that those rules do not provide for the filing of a surreply, the
Court, in its discretion, will nevertheless consider this pro se
plaintiff’s additional filing.

Accordingly, defendants’ motion to

strike, Doc. No. 52, is DENIED.

A.

Standard for Motion for Summary Judgment

The standard for summary judgment is well established.

3

This

It is not immediately apparent whether plaintiff has named defendants
in their personal capacity or official capacity or both. To the extent that
plaintiff has brought suit against the defendants in their official
capacities, Gary Mohr is substituted in place of former director Ernie Moore
pursuant to Fed. R. Civ. P. 25(d).

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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

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
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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.”
B.

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

Exhaustion

Defendants first contend that they are entitled to summary
judgment on plaintiff’s claims because, inter alia, plaintiff failed
to exhaust available administrative remedies prior to filing this
action.

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)

(“PLRA”), requires that a prisoner filing a § 1983 claim first exhaust
available administrative remedies.

Porter v. Nussle, 534 U.S. 516,

524 (2002); Booth v. Churner, 532 U.S. 731 (2001).
in pertinent part:
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The PLRA provides,

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).
In order to satisfy the exhaustion requirement, an inmate
plaintiff must “complete the administrative review process in
accordance with the applicable procedural rules . . . as a
precondition to bringing suit in federal court.”
U.S. 81, 88 (2006).

Woodford v. Ngo, 548

“[F]ailure to exhaust is an affirmative defense

under the PLRA, and [] inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”
199, 216 (2007).

Jones v. Bock, 549 U.S.

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.”
Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999).

Hartsfield v.

The United States Court

of Appeals for the Sixth Circuit has noted that failure to exhaust “is
an affirmative defense on which the defendant bears the burden of
proof.”

Vandiver v. Corr. Med. Servs., 326 Fed. Appx. 885, at *888

(6th Cir. May 1, 2009) (citing Jones, 549 U.S. 199, 127 S. Ct. at
922-23).
Ohio employs a three-step grievance procedure for inmate claims.
Ohio Admin. Code § 5120-9-31.
complaint.

First, an inmate must file an informal

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.
Ohio Admin.

Code § 5120-9-31(K)(2).
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If that appeal is found to be

without merit, the inmate can then appeal the decision to the Chief
Inspector. Ohio Admin. Code § 5120-9-31(K)(3).
1.

Claim related to the denial of medication

In support of their Motion for Summary Judgment, defendants
submit documents illustrating that plaintiff was familiar with and had
previously utilized the grievance system, exhausting his
administrative remedies as to a claim concerning an unrelated incident
occurring in March 2009.

Exhibits A, B, C, D, and E, attached to

Motion for Summary Judgment.

See also Affidavit of Mary Lawrence, ¶¶

12-13, attached as Defendants’ Exhibit H to the Motion for Summary
Judgment (“Lawrence Affidavit”).

As to plaintiff’s first claim in the

instant case, i.e., the alleged denial of prescription medication in
September 2010, plaintiff submitted an informal complaint form on or
around September 16, 2010.
Judgment.

Exhibit F, attached to Motion for Summary

Plaintiff received a response to that informal complaint on

or about September 20, 2010, which denied his complaint.

Id.

To support their position that plaintiff did not exhaust his
administrative remedies as to this claim, defendants submit the
affidavit of Mary Lawrence, PCI’s Inspector of Institutional Services.
Lawrence Affidavit, ¶ 3.

Inspector Lawrence avers that plaintiff’s

records and grievance history indicate plaintiff “never sought a
grievance form for this alleged violation [denial of medication in
September 2010] from my office, constituting the second step of the
grievance process.”

Id. at ¶¶ 9-10.

In response, plaintiff contends that when he requested “an appeal
form,” he was told “there were no forms available for me. . . it was
withheld from me.”

Plaintiff’s Response, p. 1, ¶ B, 3-4.
7

See also

Surreply, p. 1.

However, plaintiff’s assertions are neither sworn nor

made under penalty of perjury.

Id.

Under Rule 56, a party must

support factual assertions with admissible evidence.
56(c), (e).

Fed. R. Civ. P.

Plaintiff’s pro se status does not alter this obligation.

See Viergutz v. Lucent Techs., No. 08-3626, 375 Fed. Appx. 482, at
*485 (6th Cir. April 23, 2010).

See also Johnson v. Stewart, No. 08-

1521, 2010 U.S. App. LEXIS 27051, at *6-7 (6th Cir. May 5, 2010)
(stating that “[t]he liberal treatment of pro se pleadings does not
require lenient treatment of substantive law. . . and the liberal
standards that apply at the pleading stage do not apply after a case
has progressed to the summary judgment stage”) (internal citations
omitted); United States v. Brown, 7 Fed. Appx. 353, at *354 (6th Cir.
Mar. 19, 2001) (affirming grant of summary judgment where, inter alia,
pro se litigant offered relevant factual allegations, but “did not
file an affidavit to this effect nor did he sign any pleading under
penalty of perjury”).

Therefore, the Court cannot consider

plaintiff’s unsworn assertions at the summary judgment stage.

Id.

See also Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th
Cir. 2010) (“‘[A] court may not consider unsworn statements when
ruling on a motion for summary judgment.’”) (quoting Dole v. Elliott
Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir. 1991)).

Because

plaintiff has presented no admissible evidence to rebut defendants’
evidence, this Court concludes that plaintiff has failed to exhaust
his administrative remedies as to his claim based on the alleged
denial of medication in September 2010.
2.

Claim related to the seizure of identification card /
denial of meals

8

On January 13, 2011, plaintiff filed an informal complaint
regarding Sergeant Justice’s alleged seizure of plaintiff’s
identification card and alleged denial of meals.

Exhibit G, attached

to Motion for Summary Judgment; Lawrence Affidavit, ¶ 11.

Plaintiff

received a response on or about January 18, 2011, directing him to
address the complaint “to the Unit Manager who is the immediate
supervisor of the sergeant.”
Affidavit, ¶ 11.
to do so.”

Exhibit G.

See also Lawrence

According to Inspector Lawrence, plaintiff “failed

Id.

Plaintiff responds that he exhausted the administrative remedies
that were available to him at the time because there was no unit
manager over Sergeant Justice and therefore no one else to whom
plaintiff could address this complaint.
4, Surreply, p. 1.

Plaintiff’s Response, pp. 1-

However, plaintiff’s assertions are, again,

unsworn and therefore inadmissible at the summary judgment stage.

See

Viergutz, 375 Fed. Appx. 482, at *485; Harris, 627 F.3d at 239 n.1.
Because plaintiff has presented no admissible evidence to rebut the
Lawrence Affidavit or to otherwise establish that the grievance
procedure was unavailable to him, the Court must conclude that
plaintiff has failed to exhaust his administrative remedies as to his
claim based on the seizure of his identification card and alleged
denial of meals in January 2011.4
III. MOTION TO AMEND AND MOTION FOR EXTENSION
Plaintiff has filed a motion seeking leave to further amend his

4

Plaintiff also asserts that defendants have “removed or destroyed much
of the physical evidence in this case[.]” Surreply, p. 2. For the reasons
discussed supra, this Court will not consider this unsworn assertion.

9

complaint.

Request for Leave to Add Additional Defendants to Case No.

2:11cv132, Doc. No. 38 (“Motion to Amend”).

Plaintiff first seeks

leave to dismiss Ernie Moore, former ODRC director and, presumably, to
add the current ODRC director, Gary Mohr.

Id. at 1-2.

As the Court

discussed supra, to the extent that plaintiff asserts claims against
the ODRC director in his official capacity, Gary Mohr has been
automatically substituted in place of former director Ernie Moore
pursuant to Fed. R. Civ. P. 25(d).
Plaintiff also seeks to add as defendants Sergeant Justice, the
PCI officer who allegedly seized plaintiff’s identification card in
January 2011, and Jane Doe, the PCI nurse who allegedly refused to
administer plaintiff’s medication in September 2010.
pp. 1-2.

Motion to Amend,

However, for the reasons discussed supra, plaintiff has

failed to exhaust his administrative remedies as to claims arising
from these events.

Accordingly, these proposed amendments would be

futile and plaintiff’s motion to amend must therefore be denied.

See,

e.g., Harris v. Errkila, No. 02-1370, 48 Fed. Appx. 978, at *979-80
(6th Cir. Oct. 22, 2002) (affirming denial of leave to amend complaint
as futile where plaintiff failed to exhaust administrative remedies).
In light of this denial, defendants’ motion for an extension in which
to respond to plaintiff’s Motion to Amend, Doc. No. 45, is moot.
IV.

REQUEST TO EXTEND CASE SCHEDULE
Plaintiff seeks additional time in order conduct discovery and to

extend the deadline for filing dispositive motions because, inter
alia, of his desire to add additional defendants to this action.
No. 51.

Doc.

However, in light of this Court’s conclusion that plaintiff

has failed to exhaust his administrative remedies and denial of
10

plaintiff’s motion for leave to amend in order to add defendants,
plaintiff’s request for an extension of time, Doc. No. 51, is moot.
V.

MOTION FOR DEFAULT JUDGMENT
Plaintiff has moved for default judgment “for failure of

defendants to proceed by Federal Rules of Civil Procedure which
governs this case and for judicial misconduct of defendants who lost,
stole or misplaced vital evidence in the form of plaintiff’s medical
records which proves plaintiff’s allegations.”

Doc. No. 54, p. 1.

Plaintiff’s request is without merit.
Plaintiff previously moved for default judgment against
defendants.

Doc. No. 16.

In denying plaintiff’s earlier request, the

Court found that defendants’ answer to the Amended Complaint was filed
within forty-five days after service of process was effected on them
by the United States Marshal Service, which was timely in accordance
with the Court’s prior order.

Opinion and Order, Doc. No. 29 (citing

Answer, Doc. No. 15, and Order, Doc. No. 7).

Plaintiff’s unsupported

assertions that defendants “lost, stole or misplaced vital evidence”
does not alter the fact that defendants timely responded to the
Amended Complaint.

Plaintiff’s present request for default judgment,

therefore, is likewise without merit.

WHEREUPON, it is ORDERED that
1.

Plaintiff’s Request for Leave to Add Additional Defendants To

Case No 2:11-cv-132, Doc. No. 38, is DENIED;
2.

Defendants’ Motion Requesting an Extension or Enlargement of Time

to Respond to Plaintiff’s Request for Leave to Add Additional
Defendants, Doc. No. 45, is DENIED as moot;
11

3.

Plaintiff’s Request for Extension of Time, Doc. No. 51, is DENIED

as moot; and
4.

Defendants’ Objection and/or Motion to Strike “Plaintiff’s

Response to Defendants’ #49, Doc. No. 52, is DENIED.
It is RECOMMENDED that
1.

Motion for Summary Judgment of Defendants Gary Mohr, Director,

and Brian Cook, Warden, Doc. No. 47, be GRANTED; and
2.

Plaintiff’s Motion for Default Judgment, Doc. No. 54, be DENIED;

and
3.

That this action be DISMISSED.

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); Fed. R. Civ. P. 72(b).

28

Response to objections must

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

Fed. 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).

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December 29, 2011

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

13