Reynolds v. Smith et al

Filing 34

ORDER denying 25 Motion to Dismiss for Failure to State a Claim; denying 30 Report and Recommendations.; adopting Report and Recommendations re 14 Motion to Dismiss for Failure to State a Claim. Plaintiffs state law claims and her claims against defendants in their official capacities are DISMISSED. Signed by Judge Algenon L. Marbley on 2/1/2012. (cw)

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

:
Plaintiff

:
:

Robert W. Smith, et al.,
Defendants

Judge Marbley

:

v.

Civil Action 2:11-cv-00277

Magistrate Judge Abel

:
ORDER

This matter before the Court on defendants Ginine Trim, Sheri Duffey, William
Owens, Kenneth Calhoun, Cynthia Bartlett, Jennifer Roach, Dean McCombs, Luke
Meeker, Robert W. Smith, and the State of Ohio on behalf of Linda Woods’ October 5,
2011 objections to the Magistrate Judge’s September 21, 2011 Report and
Recommendation denying defendants’ motion to dismiss plaintiff Dorothea Reynold’s
complaint (doc. 31).
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 DENIES defendants’
motions to dismiss.
I.

Allegations in the Complaint

On November 7, 2008, Reynolds entered the Ohio Reformatory for Women
(“ORW”), a state prison that only houses female prisoners. Compl. at ¶¶ 15, 14.

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Defendant Smith, a corrections officer, was assigned third shift in Reynolds’ cell block.
Id. at ¶¶ 16-18. Smith was aware that Reynolds smoked cigarettes, but cigarettes are
contraband at ORW. Smith encouraged plaintiff to smoke, supplied her with cigarettes,
and eventually demanded and forced sexual contact in return for cigarettes. Id. at ¶¶
20-21. On February 25, 2009, ORW staff searched Reynolds’ cell and found a letter that
she had allegedly written to Smith. Id. at ¶ 22. The letter indicated that Smith had told
plaintiff that he “can’t wait to put his mouth” on her. Id. at ¶ 23. ORW staff completed
an incident report after finding the letter and notified superior officers. Id. at ¶ 24.
On March 2, 2009, ORW Investigating Officer Cynthia Bartlett interviewed
Reynolds. Id. at ¶ 25. At the time of the interview, Bartlett was aware of Smith’s
extensive history of committing sexual offenses. Id. at ¶ 26. Five days prior to the
discovery of the letter in plaintiff’s cell, Bartlett had investigated allegations concerning
Smith and another prisoner. Id. at ¶ 27. On February 20, 2009, Sergeant Woods received
a complaint from another prisoner concerning Smith. The prisoner reported that
defendants Smith and Owens brought a prisoner out of her cell at night and Smith
engaged in inappropriate touching. Id. at ¶ 30. Several inmates have reported that Smith
had touched them and offered them cigarettes. Id. at ¶ 31.
In her interview, plaintiff told Bartlett that she had kissed defendant Smith and
that he “had touched her butt.” Reynolds also reported that they had exchanged a
number of letters and that Smith had given her a bag of tobacco. Id. at ¶ 42. Bartlett told
plaintiff to report any further incidents, but she took no precautions to protect her. Id.
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at ¶ 43. Bartlett also told plaintiff that Smith had been doing things like this for years,
and that plaintiff fit the description of the type of females Smith favored. Id. at ¶ 44.
After the interview, Smith was permitted to continuing working third shift with
unfettered access to Reynolds. Id. at ¶ 47
On March 19, 2009, ORW officials had plaintiff undergo a computerized voice
stress analysis (“CVSA”) to assess whether Reynolds had been telling the truth. The
results indicated that she was being truthful in responses to questions about Smith. Id.
at ¶ 50.
On April 15, 21, and 27, 2009, Smith forced Reynolds to perform oral sex on him
in the staff bathroom. Id. at ¶¶ 53, 56, & 58. Defendant Meeker served as “lookout” for
Smith. Id. at ¶ 60. On April 30, 2009, defendant Calhoun, a corrections officer, told her
“she better keep her mouth closed about Smith.” Id. at ¶¶ 62-63.
On May 1, 2009, during her screening for transfer to a different facility, Reynolds
told Sergeant Althaus that she had performed oral sex on defendant Smith three times.
At this time, plaintiff was allowed to provide a twelve page written statement to the
Ohio State Highway Patrol. Id. at ¶¶ 64-65.
On May 5, 2009, Reynolds took a polygraph test, which confirmed the
truthfulness of her allegations. Id. at ¶ 72. On May 14, 2009, Smith was interviewed for
the first and only time regarding his sexual assaults of women at ORW. Smith denied
the allegations and refused to take a polygraph test. Id. at ¶¶ 73-75.

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II.

Arguments of the Parties
A.

Defendants

Defendants argue that in deciding a motion to dismiss, the Court is permitted to
consider documents “integral” to the complaint and relied upon in it even if not
attached or incorporated by reference in addition to documents or information
contained in defendant’s motion papers if plaintiff has knowledge or possession of the
material and relied on it in framing the complaint. Plaintiff erroneously asserted in her
complaint that she had exhausted her administrative remedies. In doing so, she has
made documents pertaining to the exhaustion issue, such as Linda Coval’s affidavit,
integral to the complaint.
Defendants argue that the Magistrate Judge erred in relying on decisions of the
Second, Third, Seventh and Eleventh Circuits as to when a prisoner’s lack of compliance
with a prison grievance system is excused. The Sixth Circuit only excuses an inmate’s
lack of compliance with the mandatory grievance procedure if prison officials thwart
the inmate’s attempt. Here, plaintiff has made no allegation that prison officials
thwarted her attempts to comply with mandatory grievance procedures. Plaintiff
acknowledged that she was aware of the mandatory grievance procedures set forth in
the inmate handbook that she received upon her admission to ORW. This allegation is
not alleged in her complaint.
Defendants also object to the Magistrate Judge’s Report and Recommendation
concerning plaintiff’s complaints against the supervisory defendants Duffey, Trim,
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Woods, Roach, McCombs and Bartlett. Defendants argue that the Magistrate Judge only
referenced defendant Bartlett. No other supervisory defendants were mentioned.
Defendants maintain that plaintiff failed to set forth specific allegations that each
supervisory defendant encouraged or somehow participated in the actionable events.
B.

Plaintiff1

In response to defendants’ objections, plaintiff incorporated her memorandum in
opposition to defendants’ motions to dismiss by reference. Plaintiff argues that
defendants’ motion to dismiss should be denied because the motion seeks relief
unavailable through Rule 12(b)(6) of the Federal Rules of Civil Procedure. When ruling
on a Rule 12(b)(6) motion, the Court must take as true all facts in the complaint, and
inferences must be taken in a light most favorable to plaintiff. A court may not consider
matters outside the pleadings. Whether plaintiff exhausted the administrative remedies
available to her is an issue of fact. The burden of proving that prisoner has failed to
exhaust administrative remedies falls on defendants. Plaintiff’s complaint affirmatively
states that Reynolds exhausted her administrative remedies. As a result, defendants’
motion must fail.
Plaintiff argues that § 5120-9-26(B) of the Ohio Administrative Code requires
Coval’s own office–the Chief Inspector’s Office–approve the use of truth verification
systems in connection with any administrative investigations at any ODRC facility. As a

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Plaintiff concedes that her state law claims fail based on her failure to obtain a
ruling from the Ohio Court of Claims denying defendants immunity.
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result, plaintiff contends that Coval’s office likely not only possesses records regarding
Reynolds, but actually approved the use of the tests and investigation techniques used
during the investigation of her complaints. Plaintiff further argues that Coval’s affidavit
fails to mention the grievance procedure employed at ORW.
To the extent defendants are attempting to convert their 12(b)(6) motion into a
motion for summary judgment, plaintiff argues that is too early in the litigation for such
a conversion. Reynolds attached a affidavit to protect herself in the event that the Court
treats defendants’ motion as one for summary judgment. Plaintiff’s affidavit states that
although she was provided a prison handbook when she arrived at ORW, it was taken
away from her shortly thereafter. Doc. 23-1 at ¶ 6. The affidavit further states that “[t]he
staff at the prison told me that if I felt I needed to file any complaints against the staff
because of any sexual advances, I should call a specific number and report my
complaint over the phone.” Id. at ¶ 7. She further stated that: “I followed the procedure
I was instructed to follow and reported to prison staff, many times, what Officer Smith
and Officer Meeker were doing to me and that they needed to do something
immediately. I called and reported on the exact telephone number the staff told me to
call the sexual acts that Officer Smith was forcing me to do.” Id. at ¶¶ 10-11. She
maintains that she was never told that she was not following the proper reporting
procedures. Id. at ¶ 14.
Plaintiff also argues that courts have recognized that certain circumstances can
excuse the PLRA’s requirement of exhaustion of administrative remedies. Courts have
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held that the grievance procedure becomes unavailable when prison officials have
thwarted an inmate’s attempt at exhaustion. General threats, threats of retaliation, along
with statements to a prisoner that the current investigation must be completed before
any grievance can be filed can render a grievance procedure unavailable.
Plaintiff further argues that defendants have misconstrued her complaint against
the supervisory defendants. Plaintiff’s claim is not based on respondeat superior.
Rather, plaintiff maintains defendants have been deliberately indifferent to the need to
train employees and have ratified the unconstitutional acts of their inferiors.
III.

Federal Rule of Civil Procedure 12(b)(6)

When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a court must construe the complaint in the light most
favorable to the plaintiff and accept all well-pleaded material allegations in the
complaint as true. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell v.
Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)); Miller v. Currie, 50 F.3d 373, 377 (6th
Cir. 1995); Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1982).
Although the court must apply a liberal construction of the complaint in favor of the
party opposing the motion to dismiss, see Davis H. Elliot Co. v. Caribbean Utilities Co., 513
F.2d 1176, 1182 (6th Cir. 1975), a court will not accept conclusions of law or
unwarranted inferences of fact cast in the form of factual allegations, see Mezibov v.
Allen, 411 F.3d 712, 716 (6th Cir. 2005); Blackburn v. Fisk Univ., 443 F.2d 121, 123-124 (6th
Cir. 1971). In reading a complaint, however, a court will indulge all reasonable
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inferences that might be drawn from the pleading. See Fitzke v. Shappell, 468 F.2d 1072,
1076 n.6 (6th Cir. 1972). Because the motion under Rule 12(b)(6) is directed solely to the
complaint itself, see Roth Steel Prods., 705 F.2d at 155; Sims v. Mercy Hosp. of Monroe, 451
F.2d 171, 173 (6th Cir. 1983), the court must focus on whether the claimant is entitled to
offer evidence to support the claims, rather than whether the plaintiff will ultimately
prevail, see McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio 1981). A federal court
cannot consider extrinsic evidence in determining whether a complaint states a claim
upon which relief can be granted. See Roth Steel Prods., 705 F.2d at 155-56.
IV.

Discussion
A.

Failure to Exhaust Administrative Remedies

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
comply with all procedural rules, including filing deadlines, as a precondition to filing a

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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).
The Magistrate Judge noted that in limited circumstances, however, courts have
excused a prisoner's lack of compliance with a prison's grievance system. Under section
1997e(a), prisoners are only required to exhaust those remedies that are “available.” The
Sixth Circuit has held that the grievance procedures may become unavailable when
prison officials have thwarted the inmate’s attempts at exhaustion. Brock v. Kenton
County, 93 F. App'x 793, 798 (6th Cir. 2004). The Magistrate Judge also considered that
other circuits have allowed similar exceptions on the same grounds. See, e.g. Kaba v.
Stepp, 458 F.3d 678, 684-86 (7th Cir. 2006) (remanding the case to the district court to
determine whether prison officials' threats had effectively prevented the prisoner from
exhausting his administrative remedies); see also Brown v. Croak, 312 F.3d 109, 111-12 (3d
Cir. 2002) (holding that administrative remedies were unavailable where the prison
officials erroneously told the prisoner that he must wait until the investigation was
complete before filing a grievance); Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.
2008) (holding that a prisoner who had been threatened with retaliation by prison
officials if he filed a grievance was excused from complying with the PLRA's exhaustion
requirements).
The Magistrate Judge correctly concluded that defendants have not met their
burden of demonstrating that plaintiff failed to exhaust the administrative remedies
available to her. Plaintiff alleges that she followed the instructions she was given to
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report this type of abuse. She met with prison staff and reported her allegations. She
was given no indication that she had not properly filed a grievance despite repeated
interactions with prison staff regarding her complaints. Whether or not plaintiff’s lack
of compliance with the exhaustion requirement is excused is a question of fact, and it is
premature, at this stage of the proceedings, to make that determination.
B.

Supervisory Defendants

Plaintiff brings claims against defendants Duffey, Woods, Roach, McCombs and
Bartlett in their individual and official capacities. To establish liability under Section
1983 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.
Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir. 1999). A party cannot be held liable under Section 1983 unless the party personally
participated in, or otherwise authorized, approved or knowingly acquiesced in, the
allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th
Cir. 1989). Supervisory liability cannot be based upon the failure to act. Summers v. Leis,
368 F.3d 881, 888 (6th Cir. 2004).
Defendants argue that:
[n]either the Plaintiff’s Memorandum in Opposition nor the R&R [except for
Defendant Bartlett in the R&R] set forth anything other than legal
conclusions couched as factual allegations and/or unwarranted factual
inferences that the Defendants (collectiviely referred to as ‘Supervisory
Defendants’) “failed to take any action to protect” Plaintiff.

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Doc. 31 at 4. Defendants’ emphasis on allegations contained in plaintiff’s memorandum
in opposition and the Report and Recommendation is disingenious. The allegations in
the complaint adequately state a claim that the supervisory defendants knowingly
acquiesced in the unconstitutional conduct of defendants Smith and Meeker. As the
Magistrate Judge stated, the complaint alleges that plaintiff informed defendant Bartlett
that she was being subjected to unwanted advances by defendant Smith. According to
the complaint, defendant Bartlett informed plaintiff that Smith had been doing similar
things for years and that she fit the description of the type of females that Smith
favored. Bartlett allegedly told plaintiff to report further incidences, but she took no
action to prevent further contact with defendant Smith. Plaintiff further alleges that she
was used as “bait” for Smith.
The complaint further alleges that following the discovery of the letter in
Reynolds’ cell, an incident report was completed and the superior officers, including the
Warden, were notified. The supervisory defendants, however, failed to timely notify the
Ohio State Highway Patrol. Compl. at ¶ 24. On February 20, 2009, defendant Woods
received a formal complaint concerning Smith and Owens. Id. at ¶ 30. Defendant
Woods notified defendants Duffey, Roach, and Bartlett about the prisoner’s complaints.
Id. at ¶ 32. The complaint further alleges that each supervisory defendant was aware
that Smith was sexually assaulting plaintiff and knew that Smith had a long history of
committing similar acts against other prisoners. Id. at ¶ 80. Defendant Smith’s history of
sexually assaulting prisoner is documented at least as far back as 2001 and 2002. Id. at
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34. Records reflect that a polygraph given to a prisoner in 2002 confirmed her
statements that she had performed oral sex on Smith three times and that he performed
oral sex on her once. Id. at 37. The supervisory defendants were notified in February
2009, and possibly earlier, of Smith’s sexually suggestive statements, sexual demands,
provision of cigarettes and forcible kissing of Reynolds and other prisoners. Id. at ¶ 86.
After Reynolds notified the supervisory defendants of Smith’s behavior, they
maintained her in the cell and permitted Smith continued access to her as he worked
third shift. Id. at ¶ 87. Records created and retained by ORW clearly indicated that
Smith had forced prisoners to perform oral sex on him in the past, and records of
investigators indicated defendants’ knowledge of his prior oral sex with inmates. Id. at
¶ 89. Defendant McCombs performed a computerized voice stress analysis on plaintiff
and opined that her results indicated that she was being truthful in her answers to
questions concerning Smith. Id. at ¶ 50.
The complaint further alleges that on March 10, 2011, one year after Smith
assaulted Reynolds and other inmates, ORW removed all evidence of Smith’s sexual
assaults from his file with the exception of a single written reprimand. Id. at ¶ 94. The
supervisor defendants failed to investigate complaints about his sexual assaultive
behavior and did not punish him for confirmed incidents of sexual assault. Id. at ¶ 98.
Defendants rely on Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011) to argue that
plaintiff’s allegations concerning the supervisory defendants are not sufficiently specific
against each separate defendant. In Bishop, however, the plaintiff testified in his
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deposition that he could not recall which corrections officers he had complained to, nor
was he able to describe the corrections officers, or identify when or how many times he
complained. The Bishop plaintiff had no evidence that he had complained to certain
individual defendants in the case. On this basis, the Sixth Circuit granted the
defendants’ motion for summary judgment in part as to certain defendants. “[A] prison
official may be held to be deliberately indifferent to a substantial risk to inmate safety if
he is aware that an inmate is vulnerable to assault and fails to protect [her].” Bishop, at
767. Here, plaintiff has adequately stated a claim with respect to the supervisory
defendants.
V.

Conclusion

For the reasons stated above, the Court ADOPTS the Magistrate Judge’s
September 21, 2011 Report and Recommendation. Defendants Ginine Trim, Sheri
Duffey, William Owens, Kenneth Calhoun, Cynthia Bartlett, Jennifer Roach, Dean
McCombs, and the State of Ohio on behalf of Robert Smith, Luke Meeker, and Linda
Woods’ June 7, 2011 motion to dismiss plaintiff Dorothea Reynold’s complaint (doc. 14)
and defendants Luke Meeker and Robert W. Smith’s August 30, 2011 motion to dismiss
(doc. 25) are DENIED in part. Plaintiff’s state law claims and her claims against
defendants in their official capacities are DISMISSED.

s/Algenon L. Marbley
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Algenon L. Marbley
United States District Judge

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