Gossard v. Warden Madison Correctional Institution et al
REPORT AND RECOMMENDATION that 38 MOTION for Summary Judgment be granted and that 41 MOTION for Ruling on the Pleadings be denied. Objections to R&R due by 4/24/2017. Signed by Magistrate Judge Terence P. Kemp on 4/10/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:14-cv-1842
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
Warden, Madison Correctional
Institution, et al.
REPORT AND RECOMMENDATION
Plaintiff Don Gossard, an inmate at the Madison Correctional
Institution (“MCI”), filed this action pursuant to 42 U.S.C.
§1983 alleging violations of his constitutional rights as a
result of the conduct of defendants, Warden of the Madison
Correctional Institution, Mr. Scales and Ms. Ester.
Gossard’s claims against the Warden were dismissed in a
Memorandum Opinion and Order filed on July 24, 2015 (Doc. 18).
This matter is now before the Court on the remaining defendants’
motion for summary judgment and Mr. Gossard’s motion for ruling
on the pleadings. For the following reasons, the Court will
recommend that the motion for summary judgment (Doc. 38) be
granted and the motion for ruling on the pleadings (Doc. 41) be
I. Legal Standard
Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
It may be rendered only when appropriate evidentiary
materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Poller v. Columbia
Broad. Sys., Inc., 368 U.S. 464 (1962).
The moving party bears
the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).
Adickes v. S.H. Kress &
“[I]f the evidence is insufficient to
reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”
Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995)
Additionally, the Court must draw all
reasonable inferences from that evidence in favor of the
United States v. Diebold, Inc., 369 U.S. 654
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
See Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
course, since “a party seeking summary judgment ... bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
It is with these standards in mind that the instant motions must
Mr. Gossard alleges in his complaint that in 2014, while an
inmate at MCI, Defendants failed to protect him from an assault
by his cell mate. Defendants argue that Mr. Gossard’s claims
should be dismissed because, among other things, he failed to
exhaust his administrative remedies. The Prison Litigation Reform
Act (PLRA) provides that “no action shall be brought with respect
to prison conditions under §1983 ... by a prisoner ... until such
administrative remedies as are available are exhausted.” 42
U.S.C. §1997e(a) “[T]he PLRA's exhaustion requirement applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S.
516, 532 (2002). The boundaries of exhaustion of remedies are
defined by the prison’s administrative procedure, not the PLRA.
Jones v. Bock, 549 U.S. 199, 218 (2007).
grievance procedure for inmates is codified under the Ohio
Administrative Code at §5120–9–31. To initiate grievances,
inmates must use forms designated by the Ohio Department of
Rehabilitation and Correction (“ODRC”), which are “reasonably
available to inmates regardless of their disciplinary status or
classification.” (Doc. 38-1, ¶4).
Exhaustion of administrative remedies requires that the
process be adhered to and the grievance be addressed on its
merits at each level. Wright v. Morris, 111 F.3d 414, 417 n. 3
(6th Cir. 1997). This in turn means that each grievance must be
filed within the prescribed time frame. Hartsfield v. Vidor, 199
F.3d 305, 309 (6th Cir. 1999) (“We have previously held that an
inmate cannot simply fail to file a grievance or abandon the
process before completion and claim that he has exhausted his
remedies or that it is futile for him to do so because his
grievance is now time-barred under the regulations.”). Where
raised by the defendants, failure to exhaust under the PLRA may
serve as a basis for dismissal. Bruce v. Correctional Medical
Services, Inc., 389 Fed.Appx. 462, 467 (6th Cir. 2010). Because
the defendants in this case have moved for summary judgment on
this basis, it is “their burden to show the absence of a genuine
issue of material fact regarding non-exhaustion.”
Lavender, 2011 WL 1337155, *9 (S.D. Ohio April 6, 2011).
In support of their motion, defendants furnish a declaration
of Antonio Lee, an Assistant Chief Inspector for the ODRC, who
provides details of the grievance procedure for Ohio inmates.
(Doc. 38-1). All inmates in ODRC custody are provided with
instructions on how to utilize the institutional grievance
The process is made up of three consecutive steps.
First, the inmate must file an informal complaint with the direct
supervisor of the staff member or department responsible for the
subject matter of the complaint within fourteen calendar days of
the date of the event giving rise to the complaint. If the inmate
is not happy with the resolution of the informal complaint, the
inmate may submit a “kite” requesting a notification of grievance
form from the Institutional Inspector at his institution.
notification of grievance must be filed within fourteen calendar
days from the date of the informal complaint response. The
Institutional Inspector then investigates the matter and issues a
If the inmate is still dissatisfied with
the result, he may request an appeal form from the Institutional
Inspector, and must file the appeal to the Chief Inspector within
fourteen days of the last disposition. The administrative process
is exhausted upon rendering of the Chief Inspector’s decision.
Id. ¶¶5-10; Ohio Admin. Code 5120-9-31(K).
Mr. Gossard filed a timely informal complaint resolution on
March 25, 2014, which was denied on March 27, 2014.
He did not,
however, file his notification of grievance until April 14, 2014,
which was outside the fourteen day deadline and which was denied
as being untimely.
The Chief Inspector affirmed the decision,
agreeing that the notification of grievance had been untimely.
In his response, Mr. Gossard argues that the
Institutional Inspector deliberately delayed providing him with
the notification of grievance form, which prevented him from
making a timely filing. (Doc. 39 at 2). Defendants correctly
point out that this assertion of deliberate delay was first made
in Mr. Gossard’s responsive brief.
Mr. Gossard did argue in his
appeal to the Chief Inspector that, despite his timely request
for the proper form, he filed it late because he had to wait on
receipt of the form, but he provided no supporting details. (Doc.
3 at 13-14).
The Defendants provide a declaration of Jarrod Robinson, who
was employed as the Institutional Inspector at MCI during the
relevant time period. (Doc. 40-1). Although he does not
specifically recall Mr. Gossard’s grievance, Mr. Robinson
describes his normal practices and procedures for processing
Mr. Robinson states that his first task in the
morning was to pick up kites received by the Institutional
Inspector’s office and begin processing them.
For the kites
received from inmates requesting notification of grievance forms,
he would first verify that each inmate had completed the first
step of the process and, if so, he would enclose a notification
of grievance form with the kite and log that he had done so. He
would then process the kites and drop them off at the end of each
day for pickup by unit staff for delivery to the inmate. Id. ¶12.
Mr. Gossard asserts that he exhausted his administrative
remedies because he took all the necessary steps in the grievance
He argues that the defendants’ assertion of failure
to exhaust available state remedies “is totally without merit.”
(Doc. 39 at 3). However, the administrative record here clearly
shows that the substantive merits of his grievance were not
addressed by the second and third steps of the process because he
failed to timely file his notification of grievance. (Doc. 3 at
10-15). Mr. Gossard asserted in his appeal to the Chief Inspector
that “it was not my fault” that he did not submit the appeal in
time because he had to wait for staff to pick up his form and
He does not provide any details of what day he
requested the form or what day he received it, not does he
provide any supporting evidence or sworn statement. His
responsive brief is the first occasion on which he accuses the
Institutional Inspector of deliberately delaying the delivery of
his notification of grievance form.
Applying the summary
judgment standard, the Court must view all evidence in the light
most favorable to Mr. Gossard as the non-moving party.
it is well settled that “[c]onclusory statements unadorned with
supporting facts are insufficient to establish a factual dispute
that will defeat summary judgment.” Alexander v. CareSource, 576
F.3d 551, 559 (6th Cir. 2009); see also
Lewis v. Philip Morris
Inc., 355 F.3d 515, 533 (6th Cir. 2004) (finding that “conclusory
statements” unsupported by specific facts will not permit a party
to survive summary judgment).
Mr. Gossard’s assertion that he was not able to timely
adhere to the grievance process because of a delay (deliberate or
not) by the Institutional Inspector is conclusory and unsupported
by the record.
The Institutional Inspector provided a
declaration detailing his routine for dealing with institutional
grievances, and there is no evidence to show that he did not
follow this routine with respect to Mr. Gossard’s grievance.
Gossard fails to provide an affidavit, sworn declarat or any
specific facts to support his argument that the failure to timely
file his notification of grievance was excused, i.e. that he did
not receive the form until after the expiration of the deadline.
The Supreme Court has observed that a party opposing summary
“must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986).
view the record as a whole and determine whether a rational trier
of fact could find for the non-moving party. Id.
This applies to
Mr. Gossard’s assertion that his administrative remedies should
be considered exhausted due to a delay by the Institutional
Inspector or other prison officials. Based on the record, it is
clear to the Court that Mr. Gossard failed to exhaust his
administrative remedies. Consequently, the Court will recommend
that the defendants’ motion for summary judgment be granted.
III. Motion for Ruling on the Pleadings
Mr. Gossard filed a “motion for ruling on the pleadings”
asking the Court to deny the defendants’ motion for summary
In support of his motion, Mr. Gossard objects to the
fact that the declaration of Jarrod Robinson submitted in the
defendants’ reply brief “was not attested to by a public notary,
or before any witnesses” and is “nothing more than a ‘boiler
plate’ summary more than 2 years after the fact.”
also objects to the defendants’ failure to discuss their
obligations to prevent violence between inmates and oversee the
psychological well being of inmates.
While an affidavit is required to be sworn to by the affiant
before an “officer authorized to administer oaths,” 28 U.S.C.
§1746 allows for “unsworn declarations under penalty of perjury”
to be used as evidence in court proceedings.
Peters v. Lincoln
Elec. Co., 285 F.3d 456, 474 (6th Cir. 2002) (The district court
did not err in relying on an undated, un-notarized declaration in
granting summary judgment because the declarant had signed “under
penalty of perjury.”); Finch v. Xavier University, 689 F.Supp.2d
955, 961 (S.D. Ohio 2010) (To be considered in summary judgment,
a declaration must be signed under oath or under penalty of
In this case, while neither of the declarations
submitted by the defendants in support of their motion for
summary judgment were notarized, they were both signed under
penalty of perjury.
Mr. Gossard also complains that Mr.
Robinson’s declaration was “boilerplate,” and two years after the
However, Mr. Robinson states that while he does not
remember Mr. Gossard’s grievance specifically, his declaration
only serves to describe his procedure for processing grievances
while he served as the Institutional Inspector at MCI. The
declarations submitted by the defendants are acceptable evidence
in the Court’s consideration of the defendants’ motion for
Mr. Gossard’s objection to the defendants’ failure to raise
certain specific topics in their motion is also misplaced.
burden on the defendants in their motion was to show that there
exists no genuine issue of material fact that they are entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c).
effectively done so here by showing that Mr. Gossard failed to
exhaust his administrative remedies as required.
Mr. Gossard also requests that the Court revisit his
previously denied request for appointment of counsel. Because the
Court recommends that summary judgment be granted in favor of the
defendants, this request will be denied as moot.
For the foregoing reasons, it is recommended that the
defendants’ motion for summary judgment (Doc. 38) be granted and
Mr. Gossard’s motion for ruling on the pleadings (Doc. 41) be
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?