Reynolds v. Smith et al
ORDER denying 119 Motion for Reconsideration and in the alternative, Motion to Certify for Interlocutory Review. Signed by Judge Algenon L. Marbley on 8/25. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
ROBERT SMITH, et al.,
Case No. 2:11-CV-277
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson
OPINION & ORDER
Plaintiff Dorothea Reynolds, formerly an inmate at the Ohio Reformatory for Women
(“ORW”), brought suit under 42 U.S.C. § 1983 alleging that Defendant Corrections Officer
Robert W. Smith sexually assaulted her, and that remaining Defendants, Warden Sherri Duffey,
Warden Ginnie Trim, Corrections Officer Luke Meeker, Corrections Officer Owens, Corrections
Officer Calhoun, Sergeant Linda Woods, Warden’s Assistant Dean McCombs, ORW employee
Jennifer Roach, ORW investigator Cynthia Bartlett, and five unnamed Defendants failed to
protect her. (Doc. 1 at 4-6.) This matter is before the Court on Defendants’ Motion for
Reconsideration and, in the alternative, Motion for Interlocutory Review (Doc. 119). For the
following reasons, the Court DENIES the motions.
On May 1, 2015, the Magistrate Judge recommended that Defendants’ motion to dismiss
be denied. (Doc. 109.) On September 8, 2015 the Court overruled Defendants’ objection to the
Magistrate’s recommendation. (Doc. 114.) Both reports fully laid out the facts of this case.
(Docs. 109; 114.) Accordingly, the Court will focus on the specific facts pertinent to the instant
On February 25, 2009, a letter was found in Plaintiff’s cell addressed to Defendant Smith.
(Doc. 114 at 4-5.) Following the discovery, Defendant Cynthia Bartlett, an investigator for
ORW, approached Plaintiff. (Id. at 6.) Plaintiff revealed that Defendant Smith had kissed her and
touched her buttocks. (Id.) Bartlett instructed Plaintiff to contact her if there were any additional
incidents. (Id.) After returning to general population, Plaintiff alleges that Defendant Smith
threatened to tell other inmates falsely that she was in jail for arson if she did not stop speaking
with investigators. (Id.) Smith then proceeded to force Plaintiff to perform oral sex on him. (Id.)
Following the first assault, Plaintiff claims that she met with investigators again and that they
gave her a hotline number, which they told her was the proper and safe way to report a sexual
assault. (Id. at 7.) After both the second and third assaults, Plaintiff called the hotline, and was
told again that the hotline was the correct way to report a sexual assault. (Id.) On April 30, 2009,
Plaintiff was in segregation on an unrelated incident when a friend of Defendant Smith,
Defendant Corrections Officer Calhoun, threatened Plaintiff, telling her to “keep [her] mouth
shut about what Smith was doing.” (Id.) This, according to Plaintiff, caused her to fear that Smith
and Calhoun would retaliate against her if she reported the incidents. (Id.) Plaintiff avers that her
fears prevented her from documenting the incidents in writing. (Id.) On May 1, 2009, Plaintiff
reported the assaults to Sergeant Althouse, who then contacted the Ohio State Highway Patrol.
(Id. at 8.)
The Defendants’ sole objection in their motion to reconsider is that it was clear error to
allow Plaintiff’s action to continue even though the Court found that Plaintiff failed to exhaust
her administrative remedies, which is a mandatory requirement under the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Doc. 119 at 1.)
In the alternative, Defendants move under 28 U.S.C. § 1292(b) for the Court to certify for
interlocutory appeal “the issue of Plaintiff’s exhaustion of her administrative remedies under 42
U.S.C. § 1997e.” (Id. at 15.)
STANDARDS OF REVIEW
The Court will treat Defendants’ motion to reconsider “as a motion to alter or amend a
judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,” Gascho v. Global
Fitness Holdings, LLC, 918 F. Supp. 2d 708, 713-14 (S.D. Ohio 2013) (citing Inge v. Rock Fin.
Corp., 281 F.3d 613, 617-18 (6th Cir. 2002)), which allows a party to file a “motion to alter or
amend a judgment . . . no later than 28 days after the entry of the judgment.” To persuade a
district court to grant a motion to alter a judgment, the movant must demonstrate: “(1) a clear
error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4)
a need to prevent manifest injustice.” Henderson v. Walled Lake Consol. Schs., 469 F.3d 479,
496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).
Such a motion is designed solely to “correct manifest errors of law or fact or to present newly
discovered evidence.” Gascho, 918 F. Supp. 2d at 714 (citing Phelps v. Hamilton, 122 F.3d
1309, 1324 (10th Cir. 1997)). It is not, however, an avenue for an unhappy litigant “to reargue
issues already presented” in an effort to reach a different result. Encompass Indem. Co. v.
Halfhill, No. 5:12-CV-00117-TBR, 2014 WL 1343392, at *1 (W.D.Ky., Apr. 3, 2014) (citing
Whitehead v. Bowen, 301 F. App’x 484, 489 (6th Cir. 2008) (citing Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998))). Due to the importance of
finality in the administration of justice, a motion to reconsider should be granted only in
extraordinary circumstances, such as a complete failure to address an issue or claim. Solly v.
Mausser, No. 2:15-CV-956, 2016 WL 74986, at *1 (S.D. Ohio, Jan. 7, 2016) (citation omitted).
Finally, the decision of whether to grant or deny a motion to reconsider under Rule 59(e) lies
“within the informed discretion of the district court.” Huff v. Metropolitan Life Ins. Co., 675 F.2d
119, 122 (6th Cir. 1982).
B. Interlocutory Appeal
The Court may, in its discretion, grant permission to certify for interlocutory appeal a
matter in an order only when: “(1) the order involves a controlling question of law, (2) a
substantial ground for difference of opinion exists regarding the correctness of the decision, and
(3) an immediate appeal may materially advance the ultimate termination of the litigation.” In re
City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (citing 28 U.S.C. § 1292(b)) (citation
omitted). Requests for such an appeal are granted “sparingly and only in exceptional cases.” Id.
(citing Kraus v. Bd. of Cnty. Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966)).
Defendants request the Court to reconsider because the Court: (1) defied the plain
language of the PLRA; and (2) did not require Plaintiff to demonstrate either the specific
affirmative steps that she took to seek administrative remedies or the specific actions that each
Defendant took to thwart those attempts. (Id. at 2-3.) Most of the Defendant’s argument as to the
former is a resuscitation of their objections to the Magistrate Judge’s R&R, which the Court has
already thoroughly addressed. (See Doc. 114, passim.) Defendants’ assertion of the latter is
procedurally inappropriate, and their argument concerning it is wrong on the merits. The Court
will address each argument in turn.
As to exhaustion, Defendants contend that “the Court found that Plaintiff failed to
exhaust her administrative remedies, yet excused her failings by finding that the Defendants
‘collectively’ – ‘took specific, improper actions which thwarted Plaintiff’s use of the grievance
procedure, thus rendering it functionally unavailable to Plaintiff.’” (Doc. 119 at 4.) Defendants
contend that the Court’s doing so was in violation of controlling Sixth Circuit Court of Appeal
and Supreme Court interpretations of the PLRA. Defendants’ arguments are misplaced and
Defendants first rely on Woodford v. Ngo, 548 U.S. 81 (2006), to argue that the
exhaustion requirement under the PLRA is no longer left to the discretion of the district court,
and that “‘[p]risoners must now exhaust all “available” remedies, not just those that meet federal
standards[,]’even where the relief sought[—]monetary damages[—]cannot be granted by the
administrative process.” (Doc. 119 at 9) (citing Woodford, 548 U.S. at 85 (citing Booth v.
Churner, 532 U.S. 731, 739 (2001))). On this point there is no disagreement, and the Court’s
denial of Defendants’ first motion for summary judgment suggested nothing in contradiction to
Defendants’ understanding of this portion of Woodford. But to the extent that Defendants suggest
that Woodford requires absolute exhaustion with no exceptions, more discussion is in order.
The plaintiff in Woodford was found not to have properly exhausted his remedies
specifically because he purposefully filed an untimely grievance to make unavailable his
administrative remedy, flouting the administrative process by deliberately bypassing procedural
rules. Woodford, 548 U.S. at 82. Although the Supreme Court found that proper exhaustion was
a requirement of the PLRA, Justice Breyer, in his concurrence, noted that “[the Second and Third
Circuits] have interpreted the statute in a manner similar to that which the Court . . . adopt[ed,]
. . . conclud[ing] that the PLRA’s proper exhaustion requirement is not absolute,” and that “[a]
lower court should similarly consider any challenges that respondent may have concerning
whether his case falls into a traditional exception that the statute implicitly incorporates.”
Woodford, 548 U.S. at 104 (Breyer, J., concurring). The Sixth Circuit has since followed Justice
In Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014) (j. aff’d,
136 S.Ct. 1843 (June 6, 2016)), and as discussed at length in prior orders of the Court, the Sixth
Circuit explicitly held that an implicit exception exists when a defendant prevent a plaintiff from
seeking administrative remedies due to intimidation. 766 F.3d at 577 (“There are few exceptions
to [the exhaustion requirement], but we have excused a prisoner’s lack of complete compliance
when the improper actions of prison officials render the administrative remedies functionally
unavailable.”) (citing Brock v. Kenton Cnty., 93 F. App’x 793, 798 (6th Cir. 2004)). The issue at
hand falls squarely into that exception, which the Court has found and explained multiple times,
(see Docs. 109 at 19; 114 at 13), and to which Defendants have failed to respond with any new
argument. Accordingly, the Court committed no clear error in law by allowing Plaintiff’s action
to proceed, relying on the Himmelreich exception.
Defendants make two remaining arguments regarding exhaustion: (1) that Plaintiff’s
allegations fail for lack of specificity; and (2) that Plaintiff may not argue exhaustion simply
because the Highway Patrol took over the investigation of her report of sexual assault. Both are
meritless. As to the former, a prisoner must assert more than “vague and conclusory allegations”
that improper actions of prison officials that “would deter a person of ordinary firmness from
continuing with the grievance process have made administrative remedies functionally
unavailable, Himmelreich, 766 F.3d at 578 (citing Boyd v. Corrections Corp. of America, 380
F.3d 989, 997 (6th Cir. 2004)). Plaintiff has done so. Plaintiff alleged that she was thwarted by,
among other actions, Defendant Smith threatening that he would tell other inmates that she was
an arsonist, and Defendant Calhoun telling her to “keep her mouth shut” about Smith’s sexual
assaults. These allegations are not vague or conclusory. Cf. Boyd, 380 F.3d at 997-98 (upholding
the district court’s finding that a prisoner’s allegation that he did not file a grievance because “he
feared for his safety. . . .” was too vague and conclusory to show exhaustion). As to the latter,
Defendant Bartlett testified in deposition that when the Ohio State Highway Patrol takes over an
investigation, “then pretty much [the prison] administrative process stops.” (Bartlett Depo., Doc.
101-1 at 46.) As noted in the Court’s upholding the Magistrate’s R&R, the Court need only be
satisfied that there is a question of fact regarding non-exhaustion under the PLRA, not that
Plaintiff has definitively exhausted her administrative remedies. Risher v. Lappin, 639 F.3d 236,
239-40 (6th Cir. 2011) (quoting Fed. R. Civ. P. 56(a) (“Summary judgment is appropriate only if
defendants establish the absence of a ‘genuine dispute as to any material fact’ regarding nonexhaustion.”)). Plaintiff’s averments and Bartlett’s testimony give rise to such a question.
Defendants argue that the Court erred by not requiring Plaintiff to demonstrate the
affirmative steps she took to use the grievance procedure and the specific acts that each
Defendant took to thwart her efforts. (Doc. 119 at 4-5.) Defendants argue that “[n]ot only must
the Court make a determination as to each individual Defendant, but it must reference evidence
as to a specific action Defendants Smith and Calhoun engaged in which prevented Plaintiff from
proceeding through the mandatory exhaustion process.” (Doc. 119 at 4.) Defendants’ theory is
both procedurally inappropriate and meritless.
As to procedure, Defendants introduced this theory for the first time in their motion for
reconsideration, which is inappropriate. McConocha v. Blue Cross and Blue Shield Mut. of Ohio,
930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (“It is not the function of a motion to reconsider . . .
to . . . proffer a new legal theory or new evidence to support a prior argument when the legal
theory or argument could, with due diligence, have been discovered and offered during the initial
consideration of the issue.”) (citation and quotation marks omitted). This is, after all, a motion
As to the merits, Defendants rely on Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011), for
the proposition that, in order for Plaintiff to survive summary judgment, the Court must make an
individual determination of which Defendants took which specific actions to thwart Plaintiff.
Defendants’ reliance on Bishop is misplaced. The motions for summary judgment under
consideration in Bishop concerned the defense of qualified immunity as to each defendant, not
the procedural question of whether the plaintiff had exhausted his administrative remedies. This
is meaningful because the issues of qualified immunity in Bishop were whether the plaintiff
could set forth facts which, if true, were enough to overcome the qualified-immunity
presumption afforded prison workers and other state agents. Bishop, 636 F.3d at 764 (“The
district court found that a jury could conclude that the [defendants] were aware of a substantial
risk of harm to [the plaintiff] and chose to ignore it, thereby violating [his] constitutional
rights.”) Here, Defendants’ sole argument is that Plaintiff failed to exhaust her administrative
remedies. Defendants’ interpretation of the PLRA and guiding case law would thus give prison
workers freedom to violate a plaintiff’s rights with abandon so long as the particular defendant
did not personally render administrative remedies unavailable. That result would be
preposterous. Exhaustion of administrative remedies is a mandatory showing, but it does not
concern the merits of either a plaintiff’s claims as to a defendant’s alleged violations or a
defendant’s assertion of qualified immunity. The Court DENIES Defendants’ Motion for
B. Motion to Certify for Interlocutory Appeal
Interlocutory appeals are appropriate only when the district judge believes that: (1) the
issue involves a controlling question of law; (2) there are substantial grounds for difference of
opinion; and (3) the order may materially advance the ultimate termination of the litigation. 28
U.S.C § 1292(b). Here, while prongs one and three lean towards the grant of an interlocutory
appeal, prong two dispositively militates against it.
Defendants’ assertion that the issue of exhaustion is up for debate due to the Sixth
Circuit’s decision in Himmelreich, 766 F.3d 576, is unavailing. According to Defendants, there is
ground for substantial disagreement as to the appropriateness of the Court’s denial of their
motion for summary judgment even though the Court failed to find that Plaintiff had “sustained
her burden of demonstrating the grievance process was made unavailable to her.” (Doc. 119 at
16.) On this point Himmelreich could not be clearer—a plaintiff will survive a motion for
summary judgment so long as the district court is satisfied that there is a genuine issue of
material fact as to whether a prison official improperly thwarted the plaintiff’s exhaustion of
administrative remedies. 766 F.3d at 578 (“Accordingly, we conclude that [the plaintiff] has
demonstrated that a genuine issue of material fact exists as to whether [the defendant’s] actions
improperly prevented [the plaintiff] from exhausting his administrative remedies.”). This is to
say that Plaintiff does not need to demonstrate that she exhausted administrative remedies, but
rather need only give rise to a question of fact as to exhaustion, which is exactly what the Court
has found. (See Docs. 109 at 20-21; 114 at 14-15.) Because there is no substantial, or indeed any,
ground for a difference of opinion on the matter, the Court DENIES Defendants’ Motion to
Certify for Interlocutory Review.
Based on the foregoing, the Court DENIES Defendants’ Motion for Reconsideration and,
in the alternative, Motion to Certify for Interlocutory Review (Doc. 119).
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: August 25, 2016
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