Byerly v. Ross Correctional Inst. et al

Filing 61

REPORT AND RECOMMENDATIONS re 44 MOTION for Summary Judgment. It is RECOMMENDED that Defendants Motion for Summary Judgment, 44 be GRANTED, and that this action be dismissed without prejudice - objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 11/06/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN W. BYERLY,
Plaintiff,
vs.

Civil Action 2:13-cv-411
Judge Sargus
Magistrate Judge King

ROSS CORRECTIONAL INSTITUTION,
et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, an inmate currently incarcerated at Ross Correctional
Institution (“RCI”), brings this civil action under 42 U.S.C. § 1983,
alleging that defendants Bradley and Pence, the only defendants named
in the Second Amended Complaint, ECF 27, denied plaintiff access to
the courts.

This matter is before the Court on Defendants’ Motion for

Summary Judgment, ECF 44 (“Defendants’ Motion”).

For the reasons that

follow, it is RECOMMENDED that Defendants’ Motion be GRANTED.
I.

BACKGROUND
The Ohio Department of Rehabilitation and Correction (“ODRC”) has

promulgated rules and policies to manage and direct its operations,
including Policy 59-LEG-01.

See Exhibit 4, PAGEID#:423 (copy of

Policy 59-LEG-01, “Inmate Access to Court and Counsel,” effective
February 14, 2013).

Under this policy, ODRC permits inmates to keep

legal materials within a 2.4 cubic foot locker box in their cells,
which is known as the “2.4 requirement.”

1

See Policy 59-LEG-

01(VI)(E)(2), at PAGEID#:426; Declaration of Jonathan R. Pence, ¶ 4,
attached as Exhibit 4 to Defendants’ Motion (“Pence Declaration”).1
Inmates may not store in their cell any additional materials that do
not fit within this box.

Pence Declaration, ¶ 4.

Inmates may request

permission to store excess materials in a secure location designated
by the unit’s managing officer.
01(VI)(E)(5).

Id.

See also Policy 59-LEG-

In RCI, excess legal materials are stored in a locker

box in a vault (“C-section vault” or “vault”), which is located in the
center of RCI’s Unit H-1, a general population cellblock.
Declaration, ¶¶ 5, 9, 11.

Pence

However, “[i]nmates requesting additional

space must first make reasonable efforts to reduce the amount of legal
material in their possession.”

Policy 59-LEG-01(VI)(E)(5)(c).

“Additional space granted to an inmate is subject to review every 60
days[.]”

Id. at (VI)(E)(6).

On April 3, 2013, defendant Charles Bradley, then RCI’s Deputy
Warden of Operations, received an informal complaint signed by
plaintiff, who resided in RCI’s Unit H-1.

Exhibit 1 (plaintiff’s

informal complaint dated April 3, 2013, number RCI-04-13-000047
(“first informal complaint”)), attached to Defendant’s Motion; Pence

1

Plaintiff apparently disputes that this version of Policy 59-LEG-01 applies
to him, asserting instead that an earlier version effective September 6,
2010, is applicable. See Contra – to Defendant’s [sic] Motion for Summary
Judgement [sic], ECF 59, PAGEID#:608 (“Memo. Contra.”); “Affidavits” dated
August 28, 2014, PAGEID#:634-PAGEID#:635 (“Plaintiff’s First Affidavit”) and
PAGEID#:636 – PAGEID#:639, PAGEID#:641-PAGEID#:644, which are apparently
duplicates of a second affidavit (“Plaintiff’s Second Affidavit”), attached
thereto. For present purposes only and for ease of reference, the Court
notes that both proffered versions contain the 2.4 requirement. Policy 59LEG-01(VI)(E)(2), at PAGEID#:426; Policy 59-LEG-01(VI)(E)(2), at PAGEID#:652,
attached to Memo. Contra.

2

Declaration, ¶¶ 5, 7; Declaration of Charles Bradley, ¶ 5, attached as
Exhibit 2 to Defendant’s Motion (“Bradley Declaration”).

In his

informal complaint, plaintiff argued that RCI’s enforcement of Policy
59-LEG-01 denied him access to the courts; he insisted that he be
permitted to keep legal papers in excess of the 2.4 requirement in his
cell.

Exhibit 1; Bradley Declaration, ¶ 5.

On the same day,

defendant John Pence, RCI’s Unit Management Chief, advised plaintiff
that his excess legal papers must be stored in the vault or
discarded/mailed out:
Per the discussion you had with Mr. Pence on 4-03-13 RCI
will follow 59-LEG-01. By Monday, April 8th [2013] you will
be required to store all your extra current legal property
in the Unit Vault. Or you can destroy/mail out the extra
property – your choice. Mr. Pence said you elect to have
it stored.
Exhibit 1, at PAGEID#:412 (containing defendant Pence’s handwritten
response to plaintiff’s informal complaint).
Declaration, ¶¶ 2, 7.

See also Pence

Defendant Bradley, defendant Pence’s supervisor

at that time, approved this resolution of plaintiff’s informal
complaint.

Exhibit 1, at PAGEID#:412; Bradley Declaration, ¶¶ 6-7;

Pence Declaration, ¶ 7; April 3, 2013 informal complaint, PAGEID#412.
Plaintiff did not pursue an administrative appeal from this decision.
Declaration of Eugene Hunyadi, ¶¶ 2, 8, attached as Exhibit 9 to
Defendants’ Motion (“Hunyadi Declaration”);2 Exhibit 10, at
PAGEID#:451-PAGEID#:452 (a print-out of plaintiff’s complaints and
grievances) (“grievance history”).
2

Mr. Hunyadi is ODRC’s Assistant Chief Inspector whose duties include
handling appeals and direct grievances filed by inmates. Id. at ¶ 2.

3

In early June 2013, plaintiff verbally complained about RCI’s
enforcement of Policy 59-LEG-01 to Unit Manager, J.R. Byrd, and to
RCI’s former Warden, Mick Oppy.

Declaration of J.R. Byrd, ¶ 5,

(“Byrd Declaration”); Declaration of Mick Oppy, ¶ 4, (“Oppy
Declaration”), attached as Exhibits 5 and 6, to Defendant’s Motion.3
Following plaintiff’s meeting with former Warden Oppy and Manager Byrd
on June 5, 2013, former Warden Oppy exempted plaintiff from the 2.4
requirement and permitted plaintiff to keep excess legal papers in his
cell.

Byrd Declaration, ¶¶ 7-8; Oppy Declaration, ¶ 5; Exhibit 7

(plaintiff’s informal complaint dated August 12, 2013, number RCI-0913-000060 (“second informal complaint”)), attached to Defendant’s
Motion.
On August 12, 2013, plaintiff filed a second informal complaint,
complaining that he had not received a written exemption regarding the
2.4 requirement from former Warden Oppy following their conversation
on June 5, 2013.

Exhibit 7.

Plaintiff submitted this informal

complaint directly to “Warden by Inst. Inspector.”
PAGEID#:437.

Id. at

The institutional inspector notified plaintiff that he,

as institutional inspector, could not respond to an informal complaint
under Ohio Administrative Code 5120-9-31 (addressing the inmate
grievance procedure) and advised plaintiff to re-file his complaint
with the unit manager.

Id.

Thereafter, plaintiff filed a third informal complaint directly

3

Former Warden Oppy served as RCI’s warden from approximately November 2012
until November 2013. Oppy Declaration, ¶ 3.

4

with Manager Byrd, complaining again that he had not received the
written exemption.

Exhibit 8 (plaintiff’s informal complaint dated

August 28, 2013, number RCI-09-13-000041 (“third informal
complaint”)), attached to Defendant’s Motion.

On September 6, 2014,

Manager Byrd advised plaintiff to re-file his informal complaint with
defendant Pence.

Id.; Byrd Declaration, ¶ 9.

Defendant Pence does

“not recall receiving or handling any follow-up complaints regarding
Byerly’s excess materials or the storage of the materials.”

Pence

Declaration, ¶ 13.
In November 2013, former Warden Oppy and defendant Bradley were
assigned to work at a facility other than RCI.
Bradley Declaration, ¶ 2.

New RCI Warden Rod Johnson decided to

enforce the 2.4 requirement against plaintiff.
13; Byrd Declaration, ¶ 8.

Oppy Declaration, ¶ 3;

Pence Declaration, ¶

Accordingly, beginning in late May 2014,

RCI insisted that plaintiff store his excess legal materials outside
his cell in the vault.

Id.

In this civil action under 42 U.S.C. § 1983, plaintiff alleges
that defendants Pence and Bradley have denied him access to the
courts.

Second Amended Complaint, ECF 27.

Defendants have moved for

summary judgment, see Defendants’ Motion, which plaintiff has opposed.
Memo. Contra.4
II.

No reply has been filed.

STANDARD
The standard for summary judgment is well established.

4

This

When plaintiff did not respond to Defendants’ Motion within rule, the Court
warned plaintiff of the consequences of failing to respond and extended the
deadline for filing a response to Defendants’ Motion. Order, ECF 51.

5

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.”
6

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
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.”

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

III. DISCUSSION
Defendants argue that plaintiff’s claims cannot proceed because
he failed to exhaust his administrative remedies before filing this

7

action.

The Prison Litigation Reform Act requires that a prisoner

filing a claim under federal law relating to prison conditions must
first exhaust available administrative remedies.

Porter v. Nussle,

534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).

The

statute provides, in pertinent part:
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 this exhaustion requirement, an inmate
plaintiff must “complete the administrative review process in
accordance with the applicable procedural rules[.]”
548 U.S. 81, 88 (2006).

Woodford v. Ngo,

“Failure to exhaust is an affirmative defense

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

Jones v. Bock, 549

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.”
Hartsfield v. Vidor, 199 F.3d 305, 308-10 (6th Cir. 1999).
Ohio has established a procedure for resolving inmate complaints.
Ohio Admin. Code § 5120-9-31.

The procedure is available to an inmate

“regardless of any disciplinary status, or other administrative or
legislative decision to which the inmate may be subject,” O.A.C. §
5120-9-31(D), and is intended to “address inmate complaints related to
8

any aspect of institutional life that directly and personally affects
the grievant,” including “complaints regarding policies, procedures,
conditions of confinement. . . .”

O.A.C. § 5120-9-31(A).

Certain

matters are not grievable, however, including “complaints unrelated to
institutional life, such as legislative actions, policies and
decisions of the adult parole authority, judicial proceedings and
sentencing or complaints whose subject matter is exclusively within
the jurisdiction of the courts or other agencies.”

O.A.C. § 5120-9-

31(B).
Ohio employs a three-step grievance procedure.

First, an inmate

must file an informal complaint within fourteen days of the event
giving rise to the complaint.

O.A.C. § 5120-9-31(K)(1).

The informal

complaint must be filed “to the direct supervisor of the staff member,
or department most directly responsible for the particular subject
matter of the complaint.” Id.

If the informal complaint is resolved

in a manner that is unsatisfactory to the inmate, he must file a
notification of grievance with the inspector of institutional services
within fourteen days.

O.A.C. § 5120-9-31(K)(2).

If the inmate is

dissatisfied with the disposition of the grievance, he must then
appeal to the office of the chief inspector within fourteen days.
O.A.C. § 5120-9-31(K)(3).
designee is final.”

Id.

“The decision of the chief inspector or
Remedies for valid grievances include

“changes to institutional policies or procedures, the implementation
of new policies or procedures, and/or corrective action specific to
the inmate’s complaint.”

O.A.C. § 5120-9-31(L).

9

Plaintiff’s claim against defendants is subject to the grievance
procedure because it relates to a condition of confinement.
O.A.C. § 5120-9-31(A).

See

The uncontroverted evidence establishes that

plaintiff did not timely appeal the denial of his first informal
complaint and did not properly file or appeal his second and third
informal complaints.

More specifically, the applicable rules required

plaintiff to file a notification of grievance with the institutional
inspector within fourteen days of the denial of his first informal
complain, or by April 17, 2013.

O.A.C. § 5120-9-31(K)(2).

present record establishes that plaintiff did not do so.

The
See Hunyadi

Declaration, ¶ 8; Exhibit 10, at PAGEID#:451-PAGEID#:452; Bradley
Declaration, ¶ 95 (averring that “[a]fter signing off on the April 3rd
informal complaint, I was not involved with further issues concerning
Byerly’s extra legal materials at RCI”); Pence Declaration, ¶¶ 7, 13
(averring that he does not recall receiving or handling any follow-up
complaints regarding plaintiff’s excess legal materials following the
denial of the first informal complaint on April 3, 2013).
Plaintiff has offered a copy of an informal complaint allegedly
submitted on November 8, 2013, ECF 60, at PAGEID#:661, and a “Notice
of Grievance” dated November 8, 2013, ECF 60, at PAGEID#:663PAGEID#:668, both of which apparently address plaintiff’s informal
complaint that was denied on April 3, 2014.

Although these documents

were not filed with the Memo. Contra, the Court presumes that

5

The Bradley Declaration contains two paragraphs numbered 9.
portion refers to the second paragraph 9.

10

The quoted

plaintiff proffers them as evidence of his appeal from the denial of
his first informal complaint.

See also Memo. Contra, at PAGEID#:615

(asserting, not under oath, that plaintiff filed a grievance related
to his informal complaint of April 3, 2013), PAGEID#:618 (arguing that
defendants’ exhibits do not contain the “original” informal complaint,
which plaintiff purportedly sent to the Court).
unavailing for several reasons.

This submission is

First, these documents have not been

authenticated and therefore cannot be considered at the summary
judgment stage.

See Fed. R. Civ. P. 56(c)(2).

See also David A.

Flynn, Inc. v. GMAC, No. 08-3815, 345 Fed. Appx. 974, at *978-79 (6th
Cir. Sept. 24, 2009) (“[U]nauthenticated documents do not meet the
requirements of Rule 56(e).”); Fox v. Mich. State Police Dep’t, No.
04-2078, 173 Fed. Appx. 372, at *375 (6th Cir. 2006) (affirming
decision to disregard documents that “were neither sworn nor
certified, were not properly authenticated and were therefore
inadmissible in evidence”).6

In any event, these documents are dated

November 8, 2013 - months after defendants’ April 3, 2013 denial of
plaintiff’s first informal complaint and long after the deadline for
filing a timely appeal.
5120-9-31(K)(2).

ECF 60, at PAGEID#:661, PAGEID#:663; O.A.C. §

Moreover, plaintiff apparently directed these

documents to the wrong person.

See ECF 60, at PAGEID#:661 (directing

informal complaint to “Chief Inspector – Office Super.”); id. at
PAGEID#:663 (directing “Notice of Grievance” to “Chief [sic] Inspector
6

The Court notes, inter alia, that the grievance history authenticated by My
Hunyadi does not indicate that plaintiff filed a notification of grievance
related to the first informal complaint in November 2013. Exhibit 10, at
PAGEID#:451.

11

Office – Suppervisor [sic]”).

In short, the documents proffered by

plaintiff, ECF 60, do not establish that plaintiff properly appealed
his first informal complaint.

The Court is therefore persuaded that

plaintiff failed to exhaust his administrative remedies as they relate
to his first informal complaint.
Plaintiff filed his second informal complaint on August 12, 2013,
complaining that former Warden Oppy failed to provide a written
exemption following their discussion on June 5, 2013.
This filing was defective for at least two reasons.

Exhibit 7.
First, the

applicable rules require plaintiff to file an informal complaint
within fourteen days of the event complained of, in this instance by
June 19, 2013.

See O.A.C. § 5120-9-31(K)(1).

The uncontroverted

evidence establishes that plaintiff did not file the second informal
complaint by that deadline.
PAGEID#:451.

See Exhibit 7; Exhibit 10, at

Moreover, the second informal complaint was filed with

the wrong person.

Plaintiff filed the second informal complaint

directly with the “Warden by Inst. Inspector. Exhibit 7. However,
under the applicable rules, plaintiff was required to file that
informal complaint with “the direct supervisor of the staff member, or
department most directly responsible for the particular subject matter
of the complaint.”

O.A.C. § 5120-9-31(K)(1).

The institutional

inspector advised plaintiff to re-file this informal complaint with
the unit manager. Exhibit 7. Plaintiff did not, apparently, do so nor
does it appear that plaintiff filed a notification of grievance
appealing that informal complaint.

Exhibit 10, at PAGEID#:751.
12

See

also Bradley Declaration, ¶ 97 (averring that “[a]fter signing off on
the April 3rd informal complaint, I was not involved with further
issues concerning Byerly’s extra legal materials at RCI”); Pence
Declaration, ¶¶ 7, 13 (averring that, other than handling the first
informal complaint on April 2, 2013, he does not recall receiving or
handling any follow-up complaints regarding plaintiff’s excess
materials or storage of those materials).
Plaintiff also filed his third informal complaint on August 28,
2014, with the wrong person.
Declaration, ¶ 9.

Exhibit 8, PAGEID#:439; Byrd

Although Manager Byrd advised plaintiff to re-file

that informal complaint directly with defendant Pence, Byrd
Declaration, ¶ 9, the uncontroverted evidence establishes that
plaintiff did not re-file that informal complaint with defendant Pence
or otherwise attempt to appeal this decision.

Pence Declaration, ¶¶

7, 13; Hunyadi Declaration, ¶ 8; Exhibit 10, at PAGEID#:451.
In short, the Court concludes that plaintiff failed to exhaust
his available administrative remedies prior to filing this action.
See 42 U.S.C. § 1997e(a). Defendants are therefore entitled to summary
judgment on plaintiff’s claims.
WHEREUPON, it is RECOMMENDED that Defendants’ Motion for Summary
Judgment, ECF 44, be GRANTED, and that this action be dismissed
without prejudice for failure to exhaust available administrative

7

The quoted portion above refers to the second paragraph 9 of the Bradley
Declaration.

13

remedies.8
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 Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

November 6, 2014

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

8

Having so concluded, the Court need not, and does not, address defendants’
alternative bases for summary judgment.

14