Lee v. Eller, et al.,

Filing 37

REPORT AND RECOMMENDATIONS re 24 First MOTION for Summary Judgment filed by Dr. Eddy. It is RECOMMENDED that defendant's first motion for summary judgment 24 be DENIED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 02/12/2014. (sr1)

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

Antione S. Lee,

:
:

v.
Brad Eller and Dr. Eddy,
Defendants

Civil Action 2:13-cv-00087

:

Plaintiff

Judge Marbley

:

Magistrate Judge Abel

:
Report and Recommendation
This matter is before the Magistrate Judge on defendant Dr. Eddy’s October 23,
2013 first motion for summary judgment (doc. 24).
The complaint alleges that Dr. Eddy, ODRC’s Chief Medical Officer, denied
Antione Lee1 hormonal treatment despite that fact that the treatment is medically
necessary and that she was receiving that treatment before her transfer to the Belmont
Correctional Institution. Because she has been denied the treatment, Lee is depressed
and has suffered adverse physical side effects.
I.

Arguments of the Parties
A.

Defendant Dr. Eddy’s Motion for Summary Judgment

Defendant Dr. Eddy argues that this case should be dismissed pursuant to the
Prison Litigation Reform Act, 42 U.S.C. § 1997(e)(a) (“PLRA”), which requires a prisoner

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Antione Lee identifies as a female.
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to properly exhaust all available administrative remedies prior to filing an action in
federal court challenging her conditions of confinement.
According to defendant, plaintiff did not exhaust the inmate grievance procedure
against Dr. Eddy prior to filing her complaint. Defendant maintains that Lee’s grievance
was untimely, and the Office of the Chief Inspector clearly notified plaintiff of this
procedural failing. Additionally, plaintiff only named Correctional Officer Ross and
Unit Manager Eberlin in her grievance. Plaintiff did not exhaust her administrative
remedies against Dr. Eddy because she failed to give Dr. Eddy “fair notice” of the
allegations that form the basis of her claim against him.
Dr. Lee maintains that plaintiff filed two informal complaints in February 2012
concerning her hormonal treatment, but she did not appeal either of these informal
complaints through the second and thirds steps of the grievance procedure. Simply
filing an informal complaint is not enough to exhaust an inmate’s administrative
remedies. Five months later, plaintiff filed two more informal complaints, one of which
concerned hormonal treatment. Plaintiff appealed this complaint through all three steps
of the inmate grievance procedure. In the informal complaint, plaintiff complained that
she was not receiving hormone medication. She noted that she spoke to the mental
health department and Health Care Administrator Eller, but she did not mention Dr.
Eddy. In response, plaintiff was informed that her complaints about medications
needed to be addressed to the medical department.

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In her August 15, 2012 grievance, plaintiff did not mention Dr. Eddy or any other
ODRC employee in connection with her statement that she had not been receiving her
hormone medication. On August 31, 2012, Inspector Riehle responded to plaintiff’s
grievance and stated that according to her medical file, Lee did not meet the medical
criteria for hormonal treatment pursuant to ODRC Policy 68-MED-01. Plaintiff appealed
this disposition of her grievance to the Chief Inspector on September 12, 2012. She also
included with her appeal a three page letter on the same issues, but defendant
maintains that the letter is not part of the grievance procedure because only forms
designated by the Office of the Chief Inspector may be used to file informal complaints,
grievances, and appeals.
Assistant Chief Inspector Parks, R.N. responded to plaintiff’s appeal. She denied
the portion of Lee’s appeal concerning hormonal treatment as untimely. She also
concluded that the medical staff was providing plaintiff with the proper medical care.
Defendant argues that because plaintiff’s complaint was rejected as untimely, she
did not exhaust her administrative remedies. Defendant maintains that a prison may
properly preserve its right to subsequently seek dismissal of a prisoner’s federal lawsuit
for failure to exhaust where it both denies the grievance on its merits and denies it for
failure to comply with administrative procedures.
Defendant also argues that plaintiff’s complaint failed to comply with the
requirement of specificity. Plaintiff failed to exhaust her claim by not complying with
Ohio’s procedural rules that require inmate grievances to contain specific information,
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including the names and actions of the personnel involved. Dr. Eddy was not named in
any informal complaint, grievance or appeal. Plaintiff also failed to mention any actions
by Dr. Eddy concerning the allegations in this case. Because plaintiff failed to provide
Dr. Eddy with “fair notice” of her claim against him, her claim must be dismissed. Lee’s
blanket statement that she was being denied hormonal treatment did not give enough
factual context to put Dr. Eddy on notice that plaintiff would claim he is responsible for
plaintiff receiving hormonal treatment.
Defendant further argues that because Lee cannot retroactively comply with the
timeliness requirement of Ohio’s inmate grievance procedure, this case should be
dismissed with prejudice.
B.

Plaintiff Antione S. Lee’s Response in Opposition

Plaintiff argues that Dr. Eddy’s motion for summary judgment should be denied
because she properly exhausted this matter or, in the alternative, there are genuine
issues of material fact in dispute precluding summary judgment. Plaintiff also
maintains that defendant’s motion is premature because no discovery has been
conducted in this case.
In her declaration, Lee states that she was first diagnosed as transsexual in 1997
by the chief doctor at the Hamilton County Justice Center. She has been taking estrogen
hormones continuously since 1997. In February 2012, Lee’s hormone therapy was
abruptly discontinued. From March 2012 through the present time, Lee’s body has

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undergone the masculinization process causing her to experience severe psychological
and physical effects of estrogen hormone withdrawal.
In February 2012, Lee filed two informal complaints regarding the
discontinuation of her estrogen hormone therapy on February 27, 2012. She sent one to
the mental health department and one to the medical department. On March 9, 2012,
Lee was transferred to the Belmont Correctional Institution. She did not receive
responses to her informal complaints prior to being transferred. At that time, Lee could
not identify the prison staff responsible for discontinuing her medication. When she
arrived at BeCI, Lee submitted requests and met with medical and mental health staff
regarding hormone therapy. She was advised that medical staff were working to
reinstate her hormone therapy.
On August 9, 2013, plaintiff filed an informal complaint requesting that she
receive estrogen therapy. An August 15, 2012 response stated that medical issues and
medications were handled by the doctor and that this would have to be “resolved by
medical for your first complaint.” Doc. 24-5. On August 15, 2012, Lee filed a
“Notification of Grievance” requesting estrogen hormone therapy. The November 31,
2012 “Disposition of Grievance” stated that plaintiff did not meet the criteria for
hormone therapy, which was discontinued prior to her arrival at BeCI. Doc. 24-8. On
September 12, 2012, Lee filed an “Appeal to the Chief Inspector” requesting estrogen
therapy. On November 10, 2012, Mona Parks issued a decision and stated that the Lee’s

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grievance was untimely. Ms. Parks also stated that the medical staff at the facility was
providing her with proper care within ODRC guidelines.
Plaintiff argues that her grievances were timely filed. Section 5120-9-31(K)(1) of
the Ohio Administrative Code provides that an inmate shall file an informal complaint
within fourteen calendar days of the date of the event giving rise to the complaint.
Plaintiff maintains that ODRC’s refusal to provide estrogen hormone therapy is an
ongoing deprivation of medical care. The discontinuation of Lee’s estrogen therapy in
February 2012 is not the only event triggering the grievance process. Plaintiff argues
that when an inmate complains about a prison’s failure to treat a chronic medical
condition, a grievance that identifies the persistent failure to address that condition is
timely as long as the prison officials retain the power to do something about it.
In addition to concluding that plaintiff’s grievance was not timely filed, the Chief
Inspector also used a decision on the merits by concluding that the medical staff was
properly providing her with medical care. Plaintiff maintains that the fact that a final
decision on the merits was issued is important because under Sixth Circuit law, an
inmate met the PLRA exhaustion requirement when the prisoner chose to address his
grievance on the merits despite the determination that the grievance was untimely.
When prison officials fail to enforce their own procedural requirements and opt to
consider otherwise defaulted claims on the merits, so will the court.
Plaintiff also argues that Lee was not required to name individual defendants in
her grievance prior to filing suit. According to plaintiff, Ohio’s grievance procedure
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only requires an inmate to provide individual names if the inmate is aware of the
persons involved. In Jones v. Bock, 549 U.S. 199, 219 (2007), the Supreme Court
concluded “exhaustion is not per se inadequate simply because an individual later sued
was not named in the grievances.” The primary purpose of the grievance process is to
alert prison officials to a problem rather than to provide notice to a particular official
that he may be sued. Lee maintains that she was not aware that Dr. Eddy was
responsible for the ongoing deprivation of estrogen hormone therapy when she filed
her grievances. The purpose of the PLRA exhaustion requirement is to allow a prison to
address complaints about the program it administers before being subjected to suit.
Plaintiff maintains that Dr. Eddy was given fair notice of Lee’s complaints. The final
grievance decision indicated that Dr. Eddy was copied on the decision. Plaintiff
contends that Dr. Eddy was aware of her complaints and chose not to address them.
Plaintiff maintains that there are genuine issues of material fact in dispute
precluding summary judgment on the issue of exhaustion. In the alternative, plaintiff
maintains that the Court should defer ruling on Dr. Eddy’s motion until discovery is
completed on this issue. Finally, plaintiff contends that her case should not be dismissed
with prejudice.
C.

Defendant Dr. Eddy’s Reply in Support

Defendant argues that because plaintiff’s complaint was rejected as untimely, it
did not exhaust her administrative remedies. According to defendant, Lee’s complaint
concerned a discrete act–Dr. Eddy allegedly discontinued her hormonal
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treatment–rather than an ongoing medical condition making it immediately grievable.
Dr. Eddy’s discontinuation of the prescription of estrogen did not require the passage of
time or the aggregation of events before becoming grievable.
Defendant also argues that because plaintiff’s complaint was rejected as
untimely, and alternatively on the merits, it did not exhaust her administrative
remedies. Here, the prison officials enforced their own procedural rules unlike the cases
upon which plaintiff relies.
Defendants contend that plaintiff’s complaint failed to comply with Ohio’s
requirement of specificity. Plaintiff incorrectly argues that Ohio’s inmate grievance
procedure only “advises,” rather than requires inmates to provide the names of the
personnel involved. Defendants argue that plaintiff cites no authority supporting her
assertion that the procedure only requires an inmate to provide the individual name if
the inmate is aware of the persons involved. Defendants argue that this Court has
dismissed claims against defendants who were not named or referenced in an inmate’s
grievance for failure to comply with the PLRA’s exhaustion requirements. Dr. Eddy was
not named in any complaint, nor did Lee include any description of Dr. Eddy or his title
or position. Plaintiff did not even file a John/Jane Doe complaint. Defendant maintains
that the Jones Court found that the level of detail necessary in a grievance depends on
the state’s procedure. Defendant argues that Ohio’s inmate grievance procedure
requires specific details including the names of personnel involved. Because plaintiff

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failed to meet this standard, he did not comply with the procedural rules as required by
the PLRA.
Dr. Eddy maintains that he was not provided with “fair notice” of the claim
against him. Although Inspector Parks copied Dr. Eddy on her decision “for
informational purposes,” it is the prisoner who must give prison officials fair notice of
the alleged mistreatment. Plaintiff was not relieved of this burden based on Inspector
Parks copying other prison officials on her decision. Defendant argues that the general
assertions in Lee’s complaint cannot be reasonably construed to have put him on notice
that Lee would claim he is responsible for Lee not receiving hormonal treatment.
Defendant further argues that no additional discovery is necessary for the Court
to rule on his motion for summary judgment because he has attached plaintiff’s entire
grievance file from the time of his present incarceration to the filing of her complaint.
II.

Summary Judgment

Summary judgment shall be granted “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). A party asserting the absence or presence of a
genuine dispute must support that assertion by either “(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials”; or “(B)
showing that the materials cited do not establish the absence or presence of a genuine
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dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
A party may object that the cited material “cannot be presented in a form that
would be admissible in evidence,” and “[t]he burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that is
anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a
party uses an affidavit or declaration to support or oppose a motion, such affidavit or
declaration “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
While the court must consider the cited materials, it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for
summary judgment, the district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,
279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). “The central issue is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)).

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III.

Discussion

Under 42 U.S.C. §1997e(a), a prisoner challenging “prison conditions” under
§1983 must first exhaust his administrative remedies. This exhaustion requirement
applies to “all prisoners seeking redress for prison circumstances or occurrences.” Porter
v. Nussle, 534 U.S. 516, 520 (2002). Ohio provides an inmate grievance procedure by
which inmate grievances are investigated and resolved by an inspector of institutional
services. Ohio Admin. Code §5120-9-31(H). It is a three step process: (1) the prisoner
must first file an informal complaint within 14 days of the event giving rise to the claim,
the complaint must be filed with the director or department most directly responsible
for the event; (2) 14 days after a response to an informal complaint or waiver by the
responsible prison officials, the inmate may, if he so chooses, 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(J). Furthermore, the ODRC 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.
To satisfy the exhaustion requirement, a prisoner must timely file a grievance.
Failing to file a grievance by the deadlines established in Ohio Admin. Code §5120-9-

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31(H) bars a prisoner from filing a § 1983 claim. Woodford v. Ngo, 548 U.S. 81, 83 (2006);
Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009).
Further, just filing a timely initial grievance is not enough to exhaust remedies
under §1997e(a). The exhaustion requirement means that all administrative remedies
must be exhausted. Booth v. Churner, 532 U.S. 731, 740-41 (2001). If the grievance is
denied initially, the prisoner must, within the time frame required by the administrative
regulations, proceed on to the next step of the prison grievance procedure. Hartsfield v.
Vidor, 199 F.3d 305, 309 (6th Cir. 1999). An Ohio prisoner using the grievance remedies
available under O.A.C. §5120-9-31 must, within five working days of the disposition of
his grievance, appeal to the Chief Inspector. Freeman v. Francis, 196 F.3d 641, 645 (6th
Cir. 1999); O.A.C. §5120-9-31(H)(8). If he fails to do so, the prisoner has not exhausted
his prison administrative remedies as required by §1997e(a). Freeman, 196 F.3d at 645.
Defendants argue that plaintiff’s complaint was not timely filed. Under
circumstances where an inmate alleges an ongoing failure to treat a medical condition,
courts have concluded that a grievance may be timely even if the time for doing so has
lapsed after the first instance that the inmates request for medical care had been
refused:
For an acute medical condition, like a heart attack or a diabetic coma, the
time of the failure to treat (and therefore the time of the Eighth
Amendment violation) can be determined with some precision, and
therefore the time limit for filing a grievance can be readily established.
Such is not the case for a chronic medical condition that is ignored, or for
which treatment is delayed or inadequate. The seriousness of a chronic
condition may not become obvious to prison officials until some time
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passes, and the indifference to that condition-and the resulting pain
suffered by the prisoner that equates to the infliction of punishment-may
not become manifest until then as well. Such a condition is properly
identified as “ongoing,” and 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.

Ellis v. Vadlamudi, 568 F. Supp. 2d 778, 783 -784 (E.D. Mich.,2008). Here, plaintiff
contends that she was under the belief that prison staff were attempting to have her
hormone therapy reinstated. Only after the passage of several months did plaintiff
recognize that her medication would not be reinstated. At that point, Lee filed her
informal complaint. Because she had continued to be denied hormone therapy for an
ongoing condition, I conclude that her complaint was timely.
Dr. Eddy’s assertion that he did not receive “fair notice” of plaintiff Lee’s
complaints because he was not named in her grievance is also without merit. Section
5120-9-31(K) of the Ohio Administrative Code states that “[i]nformal complaints and
grievances must contain specific information; dates, times, places, the event giving rise
to the complaint and, if applicable, the name or names of personnel involved . . . .” In her
August 9, 2012 Informal Complaint Resolution, plaintiff wrote:
Briefly I am a transgender inmate with breast who have been taking
hormone medication since I was 18 years old. My complaint is I was
receiving estrogen when I arrived in the D.O.C. and at C.R.C. Now I am
not receiving my hormone medication. I have spoke to mental health and
sent Mr. Eller who is the supervisor of medical a kite per D.O.C. policy. A
inmate who enter the D.O.C. on estrogen should still receive it. I am a
transsexual with breast implants.

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Doc. 24-5 at PageID 272. In response, plaintiff was told “[m]edical and medications are
handled by our physician/Doctor. This will need resolved by medical for your first
complaint.” Id.
Plaintiff’s August 15, 2012 Notification of Grievance stated “per D.O.C. policy any
inmate who enters the D.O.C. on estrogen shouldn’t be cut off. Since arriving at Belmont
I haven’t received my estrogen.” Doc. 24-6 at PageID 273. The August 31, 2012
Disposition of Grievance completed by Kelly S. Riehle stated:
Per 68-MED-01:3. Hormone therapy for the purpose of gender change will
not be initiated while the inmate is incarcerated.
4. Hormone therapy prescribed for inmates in preparation for gender
change surgery or for the purpose of gender modification will be
evaluated and requires authorization by joint consultation between the
institutional Chief Medical Office, the highest level mental health
prescriber at the institution, the State Medical Director, and the Bureau of
Mental Health Services Director of Clinical Services.
5. The institutional Chief Medical Officer, in consultation with the highest
level mental health prescriber at the institution, the State Medical Director,
and the Bureau of Mental Health Services Director of Clinical Services will
evaluate any individual with definitive sexual gender surgery done prior
to incarceration to determine the need for continuation of hormonal
therapy on a case-by-case basis. Factors that will be considered in
determining the need of such therapy may include:
a. Length of sentence;
b. Psychiatric profile; and
c. Associated medical conditions.
7. Inmates with gender confusion will have access to mental health
services and should be encouraged to seek such counseling.
Per your medical file you did not meet the criteria for hormone therapy
and it was discontinued prior to you coming to BeCI.
Doc. 24-8 at PageID 275. On September 12, 2012, plaintiff filed an Appeal to the Chief
Inspector, stating:

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I was receiving estrogen in CRC and in the county jail, please note my
hormone therapy was discontinued which is against D.O.C. policy. The
inspector Kelly S. Riehle isn’t for the right thing and didn’t properly
investigate my claim because if she would have reviewed my medical
charts she would see in 2009/2010 I received estrogen hormone therapy
while I was in London Correctional Institution. . . .
Doc. 24-9 at PageID 278. The November 10, 2012 Decision of the Chief Inspector on a
Grievance Appeal stated:
My investigation of your Appeal included review of the above
information. I also reviewed the FMC MOSS database that provides the
details of dates for any scheduled medical trips to FMC and OSU
hospitals. It also provides the results of lab work or testing ordered by
physicians and schedule for chronic care clinic appointments. In addition,
I reviewed your electronic health records, copies of your medical file
provided by the HCA at your facility and commissary records. I find that
you are being followed in CCC related to pulmonary concerns; last being
seen on 5-31-12. Your complaint about Estrogen is something that was
discontinued prior to your arrival at BECI. It expired on 2-12-12 and you
transferred to BECI on 3-9-12. On your arrival to ODRC a PA was sent for
authorization of the estrogen order, which wasn’t continued, thus, this
part of your grievance is extremely outside the time constraints. (You filed
an ICR at CRC-03-12-000016. From that ICR there is a note that “Dr.
Shamin & Dr. Farooqui (MH) conducted assessments & you did not meet
the criteria for Trans Gender Identity Disorder. Dr. Eddy, State Chief
Medical Officer denied hormonal treatment.”) . . .
My response, after review of the above information, is that the medical
staff at your facility is giving you the proper care within the ODRC
guidelines.
Doc. 24-11 at PageID 284.
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

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provided ample opportunity to address plaintiff’s complaint if he chose to do so. As a
result, I conclude that plaintiff properly exhausted his administrative remedies.
IV.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS defendant Dr.
Eddy’s October 23, 2013 first motion for summary judgment (doc. 24) be DENIED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,
specifically designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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