Lee v. Eller, et al.,

Filing 100

ORDER adopting 37 Report and Recommendations; overruling 38 Defendant's Objection; denying 24 Motion for Summary Judgment.. Signed by Judge Algenon L. Marbley on 9/29/2014. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTIONE S. LEE,
Plaintiff,
v.
DR. EDDY,
Defendant.

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Case No. 2:13-CV-87

JUDGE ALGENON L. MARBLEY
Magistrate Judge Abel

ORDER
I. INTRODUCTION
This matter is before the Court of Defendant’s Objection (Doc. 38) to the Magistrate
Judge’s Report and Recommendation (Doc. 37), recommending that the Court deny Defendant’s
Motion for Summary Judgment (Doc. 24). For the reasons stated below, the Court
OVERRULES Defendant’s Objection and ADOPTS the Report and Recommendation in its
entirety. Defendant’s Motion for Summary Judgment is, therefore, DENIED.

II. BACKGROUND
A. Factual Background
Plaintiff, Antione “Whitney” Lee, is an inmate who has been incarcerated in the Ohio
Department of Rehabilitation and Correction (“ODRC”) since January 30, 2012. Lee suffers
from gender dysphoria1, a medical disorder defined as “[a] marked incongruence between one’s
experienced/expressed gender and assigned gender, of at least 6 months duration.” American
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders § 302.85 (5th ed. 2013).

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Here, Lee’s condition is described as gender dysphoria, but may also be referred to in other filings as “gender
identity disorder,” or “GID.”

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Gender dysphoria “is associated with significant distress or impairment in social, occupational,
or other important areas of functioning.” Id. Hormone therapy is an established treatment for
gender dysphoria.
Lee, though biologically male, considers herself to be female. She has been dressing and
grooming herself as a woman since she was a teenager, and began living as a woman at age 18.
Lee started receiving hormone therapy in 1997, but the treatment was disrupted by her
incarceration. In 1999, Lee restarted treatment, and received it consistently for the next 13 years,
including during periods of incarceration. During Lee’s detentions at federal and state facilities
spanning 2005 to 2012, she received estrogen hormone therapy. The hormone therapy resulted
in various changes for Lee, including her skin and voice softening, developing breasts, and
becoming unable to grow facial hair or have an erection. The physical changes allowed Lee to
look like a woman, which she felt was her correct gender.
In January 2012, Lee entered ODRC, and, under the supervision of the medical personnel
at the ODRC Correctional Reception Center, continued undergoing hormone therapy at the same
dosage she received prior to incarceration. At the alleged direction of ODRC’s medical director,
Dr. Andrew Eddy, Lee’s hormone therapy was discontinued in February 2012. The abrupt
withdrawal resulted in physical and emotional changes for Lee, including loss of breast tissue,
voice deepening, coarse skin, facial hair growth, experiencing erections, irritability and anger,
depression and feelings of hopelessness. When Lee brought her Motion for a Temporary
Restraining Order (Doc. 44), she was taking anti-depressants; according to her medical history,
she has contemplated suicide and was placed on suicide watch in 2013.
Lee filed two informal complaints in February 2012 regarding the discontinuation of her
hormone therapy: one with the mental health department; and, one with the medical department.
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On March 12, 2012, Lee was transferred to Belmont Correctional Institution (“BeCI”). Prior to
her transfer, Lee did not receive responses to either informal complaint. She was also unable to
identify the prison staff responsible for discontinuing her hormone therapy. Upon arrival at
BeCI, Lee submitted requests and met with medical staff about her hormone therapy, and was
advised that the staff was working to reinstate her medication. On August 9, 2012, Lee filed an
informal complaint requesting that she receive hormone therapy, and on August 15, 2012, she
received a response that medical issues and medications were handled by the doctor and that the
issue would need to “be resolved by medical for your first complaint.” (Doc. 24-5). On August
15, 2012, Lee filed a “Notification of Grievance” requesting hormone therapy, and on November
31, 2012, received a “Disposition of Grievance” stating that she did not meet the criteria for
hormone therapy, which had been discontinued prior to her transfer to BeCI. During that time,
Lee filed an “Appeal to the Chief Inspector” on September 12, 2012, asking for estrogen therapy.
On November 10, 2012, Chief Inspector Mona Parks issued a decision finding Lee’s grievance
untimely, and stating that the prison medical staff was providing her with proper care pursuant to
the ODRC guidelines.
B. Procedural History
On January 11, 2013, Ms. Lee filed a motion for leave to proceed in forma pauperis.
(Doc. 1). On August 12, 2013, this Court adopted a Report and Recommendation that dismissed
Defendant Eller from the case. (Doc. 19). Plaintiff obtained counsel on September 26, 2013.
(Doc. 22). On October 23, 2013, Defendant Eddy filed a Motion for Summary Judgment. (Doc.
24). The basis of Defendant’s Motion is that the case should be dismissed pursuant to the Prison
Litigation Reform Act, 42 U.S.C. § 1997(e)(a) (“PLRA”), which requires a prisoner properly to

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exhaust all available administrative remedies prior to filing an action in federal court challenging
her conditions of confinement.
On February 12, 2014, Magistrate Judge Abel issued a Report and Recommendation
recommending that Defendant Eddy’s Motion for Summary Judgment be denied. (Doc. 37).
Defendant Eddy has since objected to the R&R (Doc. 38), and Plaintiff has filed a response to
the objection (Doc. 42). Additionally, Plaintiff filed a Motion for a Temporary Restraining
Order or Preliminary Injunction on April 1, 2014 (Doc. 44), which this Court subsequently
granted (Doc. 46). Following a two-day hearing, this Court orally granted Plaintiff’s request for
a preliminary injunction, ordering that she be administered the proper hormone therapy.
The Court shall address the outstanding Report and Recommendation herein.

III. STANDARD OF REVIEW
If a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” Id.
Summary judgment is proper if there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of
that fact would establish one of the elements of a claim and would affect the application of
governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)).

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A movant for summary judgment meets its initial burden “by ‘showing’ – that is,
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific
facts showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to
“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess
the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227,
230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir.
1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and
reasonable inferences must be viewed in the light most favorable to the party opposing the
motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
IV. LAW & ANALYSIS
A. Report and Recommendation
Defendant’s Motion for Summary Judgment sets forth three arguments as to how Plaintiff
allegedly failed to exhaust her available remedies: “1) Plaintiff’s grievance concerning hormonal
treatment was untimely, and the Office of the Chief Inspector clearly notified Plaintiff of this
procedural failing when rejecting [her] appeal; 2) Plaintiff’s grievance failed to comply with
Ohio’s specificity requirement against Dr. Eddy because Plaintiff named only Correctional
Officer Ross and Unit Manager Eberlin in [her] grievance; and 3) Plaintiff’s grievance failed to
provide Dr. Eddy with ‘fair notice’of [her] allegations.” (Doc. 38 at 2; see also Doc. 24 at 4-5).

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Relying on Ellis v. Vadlamudi, 568 F. Supp. 2d 778 (E.D. Mich. 2008), the Magistrate
Judge found that Plaintiff’s complaint was timely filed, because she filed it only after
recognizing that her hormone therapy would not be reinstated, and the hormone therapy was
being used to treat an ongoing condition. The Magistrate Judge further found that Defendant’s
argument that he did not receive fair notice of Plaintiff’s complaints because he was not named
in her grievance was without merit. According to the Magistrate Judge
Beginning with plaintiff’s informal complaint, any review of
plaintiff’s grievance forms would have alerted Dr. Eddy that his
conclusion that Lee did not meet the criteria for receiving hormone
therapy was the subject of Lee’s grievance. Defendant was
provided ample opportunity to address plaintiff’s complaint if he
chose to do so. As a result, I conclude that plaintiff’s properly
exhausted [her] administrative remedies.
(Doc. 37 at 15-16).
In his Objection, Defendant first argues that, because Plaintiff’s informal complaint
concerning hormonal treatment was rejected by the Assistant Chief Inspector as untimely,
Plaintiff did not exhaust all available administrative remedies. According to Defendant, the
Magistrate Judge erred in applying Ellis to the case sub judice. Defendant insists that Plaintiff
alleged a discrete act—Dr. Eddy’s discontinuation of hormone therapy—to which Ellis is
inapplicable. As such, Plaintiff’s failure to timely grieve that discrete act shows that she did not
exhaust her administrative remedies.
Plaintiff counters that Ellis is applicable here. Plaintiff proffers that, as the Magistrate
Judge correctly stated, she filed her informal complaint after realizing that her medication would
not be reinstated. In the months without hormone therapy, Plaintiff underwent various physical
changes, which directly affected her mental health. Plaintiff asserts that such changes, both

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physical and mental, demonstrate that her gender dysphoria is an ongoing medical condition,
thus making the Magistrate Judge’s application of Ellis proper.
This Court agrees with the Magistrate Judge’s analysis pursuant to the exhaustion
requirement, and supports the application of Ellis to the case at bar. The Ellis Court found that
“a grievance that identifies the persistent failure to address that condition must be considered
timely as long as the prison officials retain the power to do something about it.” 568 F. Supp. 2d
at 783-84. Ellis concerned an “ongoing medical condition and the claim that the state stood by
and did nothing in the face of that ongoing condition.” Siggers v. Campbell, 652 F.3d 681, 692
(6th Cir. 2011) (citing Ellis, 568 F. Supp. 2d at 783-85). Ellis is distinguishable from cases in
which there is “one discrete harm-causing act.” Id. Here, Lee suffers from gender dysphoria, an
ongoing medical condition. While the discontinuation of hormone therapy was an individual
event, the continued lack of care for her physical and mental health needs demonstrates
Defendant’s neglect to remedy or attempt to remedy an ongoing medical condition. Thus, the
Magistrate Judge’s application of Ellis, and his conclusion regarding exhaustion, was proper.
Defendant next asserts that the Magistrate Judge did not address his specificity argument.
Defendant claims that the Report and Recommendation contains a discussion of exhaustion and
fair notice, but nothing about Plaintiff’s alleged failure to comply with Ohio’s specificity
requirement. While fair notice and specificity are similar, but distinct legal issues, Defendant
insists that they must be addressed individually, which the Magistrate Judge allegedly neglected
to do. Moreover, Defendant claims that the Magistrate Judge’s legal conclusions regarding the
timeliness of Plaintiff’s grievance and the issue of “fair notice” are both contrary to law.
Plaintiff argues that specificity and fair notice are indistinguishable, particularly given the
case law, and that the Magistrate Judge addressed both issues simultaneously. Plaintiff contends

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that she met both the specificity and fair notice requirements. Regarding specificity, Plaintiff
notes that Defendant conceded that inmates are permitted to file grievances concerning a John or
Jane Doe if the individual’s name is unknown (see Doc. 24 at 6), which is essentially what
Plaintiff did. Plaintiff has further stated that she did not know Dr. Eddy was behind the decision
to withdraw her hormone therapy at the time she filed her grievances. Turning to fair notice,
Plaintiff asserts that the Magistrate Judge accurately determined that Plaintiff’s grievances
contained a sufficient amount of information to provide Defendant fair notice that he was a
subject of her claim. Plaintiff argues that Defendant’s silence during the grievance process
should not absolve him of liability.
The Court agrees with the Magistrate Judge’s findings on the grounds of specificity and
fair notice. The statutory exhaustion requirement incorporates the rules and regulations which
the State has made a part of its grievance system; that is, “[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules....” Woodford v. Ngo,
548 U.S. 81, 90, (2006). Ordinarily, a claim against a particular corrections official is not
properly exhausted if that official is not named in the grievance. See Hall v. Warren, 443 Fed.
Appx. 99, 106 (6th Cir. 2011), citing, inter alia, Jones v. Bock, 549 U.S. 199, 218–19 (2007).
Here, however, the Magistrate Judge found that, based on Plaintiff’s written complaints, any
review of the grievance forms would have informed Dr. Eddy that he was the subject of Lee’s
grievance. (See Doc. 37 at 15). Plaintiff filed her grievance once she realized that her hormone
therapy would not be reinstated, and went through a few rounds of grievance procedures before
receiving a final rejection to her request.
This Court refuses to dismiss her claim simply because she did not specifically name Dr.
Eddy in her complaint. In Reed-Bey v. Pramstaller, 603 F.3d 322, 324-326 (6th Cir. 2010), the

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Court refused to dismiss a prisoner’s claim for failure to exhaust administrative remedies even
though the prisoner had not stated each name of the individual parties involved as required by the
prison’s grievance procedures. Moreover, the Court found that the prisoner properly exhausted
his claim “because he invoked one complete round of the Department’s grievance procedures
and received merits-based responses at each step.” As the Magistrate Judge noted, the record
shows that Plaintiff filed grievances that included as much information as Plaintiff knew. As
such, the Magistrate Judge’s analysis regarding fair notice and specificity was a complete and
proper application of law, rather than contrary to law as Defendant suggests.
B. Summary Judgment
Pursuant to the PLRA, before a prisoner may bring a case in this Court, he must exhaust
his administrative remedies. 42 U.S.C. § 1997e(a). This exhaustion requirement 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.”). The
Ohio Administrative Code sets forth the procedures for exhausting administrative remedies.
O.A.C. 5120-9-31. It is a three step process: (1) the prisoner must first file an informal
complaint with the director or department most directly responsible for the event giving rise to
the claim within 14 days of the event; (2) 14 days after a response to an informal complaint or
waiver by the responsible prison officials the inmate may file a notification of grievance with the
inspector of institutional services to which the inspector will respond; and (3) in the final step,
within 14 days of the inspector's response to the inmate's notification of grievance determination,
“if the inmate is dissatisfied with the disposition of [his] grievance, [he] may request an appeal
from the inspector of institutional services.” O.A.C. 5120-9-31(K). Furthermore, the ODRC

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provides all the proper forms necessary to follow this administrative procedure. Id. Only after
these three steps have been taken, has an inmate exhausted his administrative remedies.
The Ohio Administrative Code does provide a limited waiver of these procedural
requirements when the inspector of institutional services determines that there is a substantial
risk of physical injury to the grievant. See O.A.C. 5120-9-31(K). Otherwise, the inmate must
exhaust all of the claims against all of the defendants identified in his or her complaint.
In order for the prisoner successfully to plead her claim in district court and to satisfy the
exhaustion requirement, she must plead her
claims with specificity and show that [the claims] have been
exhausted by attaching a copy of the applicable administrative
dispositions to the complaint, or in the absence of written
documentation [the inmate must] describe with specificity [in his
complaint] the administrative proceedings and its outcome.
Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). Exhaustion under the PLRA
requires that a prisoner comply with all procedural rules, including filing deadline, 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). Under section 1997e(a), however, 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).
As this Court set forth supra, section IV.A., Plaintiff has properly exhausted her
administrative remedies, and timely filed her complaint. Even if the Court did not agree with the
Magistrate Judge’s analysis, it would still find that Defendant’s Motion for Summary Judgment
must be denied. At the Rule 65.1 Hearing, held pursuant to Plaintiff’s Motion for a Temporary

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Restraining Order (Doc. 44), the Court addressed the issue sub judice, determining that Plaintiff
exhausted her administrative remedies and timely filed her Complaint:
The fact is that Ms. Lee, proceeding pro se, filed a complaint pro
se in January ’13 after engaging the ODRC processes to greive, as
best the Court can tell, from the time that the hormone therapy was
discontinued until present. As counsel noted, at each institution,
she has requested the [hormone] therapy and sought the [hormone]
therapy…. [I]n this circumstance [] we are dealing with an inmate
who doesn’t have the same degree of access [as a business person
in a commercial case], who may not be as lettered in the law as
somebody who is either counsel or someone who has the aid of
counsel. This lady took steps to redress her grievance at each
phase. And so under those circumstances, the Court finds that she
has satisfied the immediacy requirement under 65(b)(1)(A)[.]
(65.1 Hearing Transcript, Doc. 55 at 28-29). The Court’s earlier finding of exhaustion is
supported not only by consideration of the record and the parties’ arguments, but by the
continuation of the litigation in this matter. On May 2, 2014, the Court issued a Preliminary
Injunction ordering that the ODRC continue to provide Plaintiff her hormone therapy.
This Court agrees with the Magistrate Judge’s Report and Recommendation, and finds
that Plaintiff exhausted her administrative remedies and timely filed her Complaint. Thus,
Defendant’s Motion for Summary Judgment is DENIED.

V. CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1), this Court conducted a de novo review of the
Magistrate Judge’s Report and Recommendation. After careful review of the record, this Court
is unpersuaded by Defendant’s arguments. For the foregoing reasons, and for the reasons
detailed in the Magistrate Judge’s Report and Recommendation, the Court OVERRULES
Defendant’s Objections (Doc. 38). The Report and Recommendation (Doc. 37) is ADOPTED

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and AFFIRMED. Accordingly, Defendant’s Motion for Summary Judgment (Doc. 24) is
DENIED.

IT IS SO ORDERED.
s/Algenon L. Marbley_________
Algenon L. Marbley
United States District Court Judge

DATE: September 29, 2014

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