Ashdown v. Buchanan et al

Filing 62

REPORT AND RECOMMENDATION: It is RECOMMENDED that the State of Ohio's Motion to Dismiss 48 be GRANTED. It is FURTHER RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any O rder adopting this Report and Recommendation would not be taken in good faith and therefore deny Plaintiff leave to appeal in forma pauperis. Objections to R&R due by 3/7/2019. Signed by Magistrate Judge Elizabeth Preston Deavers on February 21, 2019. (jlk)(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
EASTERN DIVISION

BRANDON J. ASHDOWN,
Plaintiff,
Civil Action 2:17-cv-00495
Judge James L. Graham
Chief Magistrate Judge Elizabeth P. Deavers

v.

TIM BUCHANAN, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court upon review of Interested Party – State of Ohio’s Motion
to Dismiss (ECF No. 48) which also serves as Interested Party State of Ohio’s Discovery Status
Report (Id.), Plaintiff’s Motion for Default Judgment and Objection Response to Interested Party
– Discovery Status Report and Motion to Dismiss for Failure to Exhaust Administrative
Remedies (ECF No. 60) which is construed as Plaintiff’s Response in Opposition to Interested
Party State of Ohio’s Motion, and Putative Defendants’ and Interested Party the State of Ohio’s
Response to Plaintiff’s Motion for Default Judgment and Reply to Plaintiff’s Response to
Motion to Dismiss (ECF No. 61) which serves as State of Ohio’s Reply in Support of its Motion
to Dismiss.
Accordingly, the Court construes the Motion to Dismiss (ECF No. 48) as ripe, while the
Motion for Default Judgment (ECF No. 60) is not yet ripe. Therefore, this Report and
Recommendation makes a recommendation only as to the Motion to Dismiss. (ECF No. 48.)

For the following reasons, the Undersigned RECOMMENDS that State of Ohio’s Motion to
Dismiss be GRANTED.
I. BACKGROUND
Plaintiff initiated this action on June 8, 2017, alleging deliberate medical indifference to
his serious medical needs. (ECF Nos. 1, 4.) On August 7, 2017, Plaintiff filed an Amended
Complaint. (ECF No. 7.) On September 27, 2018, Defendants filed a Motion to Dismiss for
failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 15.) The Court granted Defendants’ Motion to Dismiss on
February 2, 2018, as to Defendants Tim Buchanan, Charles Bradley, and Vanessa Sawyer. (ECF
No. 32.) The Court did not dismiss the case as to the unnamed Defendants “FMC Transport
Staff” and “FMC Doctors and Staff.” (Id.) On February 5, 2018, the Court granted Plaintiff
sixty (60) days to engage in further discovery or to amend his Complaint in order to identify the
unnamed Defendants. (ECF No. 33.) Interested Party, the State of Ohio, made a limited
appearance pertaining to the unnamed Defendants. (ECF No. 36.)
On March 26, 2018, Plaintiff requested an extension of time to file an Amended
Complaint. (ECF No. 35.) The Court granted Plaintiff’s Motion and permitted him leave to file
his Amended Complaint on or before June 8, 2018. (ECF No. 38.) On June 4, 2018, Plaintiff
again requested an extension. (ECF No. 41.) The Court again granted Plaintiff’s Motion and
permitted him to file his Amended Complaint on or before July 28, 2018. (ECF No. 42.) On
June 22, 2018, Plaintiff filed a Motion for an Order Compelling an Answer and Discovery
Response. (ECF No. 43.) Plaintiff alleged that the State of Ohio had failed to respond to a letter
he sent its counsel requesting assistance in naming the unnamed Defendants. (Id.) Plaintiff
therefore moved for an order directing the State of Ohio to produce any and all documents

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pertaining to the event in question. (Id.) The State of Ohio responded on July 6, 2018, opposing
the Motion to compel discovery. (ECF No. 44.) On July 25, 2018, the Court granted Plaintiff’s
Motion, finding that the State of Ohio’s attempts to partially meet Plaintiff’s discovery request
were woefully inadequate. (ECF No. 45.) The Court ordered the State of Ohio to fully comply
with Plaintiff’s discovery request by informing the Court by written notice on the docket of the
results of its compliance within thirty (30) days of the date of the Order. (Id.) The State of Ohio
responded to the Order on August 24, 2018 with the results of its compliance with the discovery
request and a motion to dismiss for lack of jurisdiction (failure to exhaust). (ECF No. 48.) The
State of Ohio asserts that Plaintiff failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (“PLRA” or “the Act”) before
filing the instant action. (Id.)
II. STANDARD OF REVIEW
The PLRA was developed in part to address the large number of prisoner complaints filed
in federal court. Jones v. Bock, 549 U.S. 199, 202 (2007).1 The Act “mandates early judicial
screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures
before filing suit.” Id. (citing 42 U.S.C. § 1997e(a)). The exhaustion provision of the PLRA
provides: “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983],
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
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

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“Prisoner litigation continues to ‘account for an outsized share of filings’ in federal district
courts.” Jones, 549 U.S. at 203 (citing Woodford v. Ngo, 548 U.S. 81, 94 n.4 (2006)).
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other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citing Wilson v. Seiter, 501 U.S. 294,
299 n.1 (1991)). Furthermore, “[t]here is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Jones, 549 U.S. at 204 (citing
Porter, 534 U.S. at 524). Indeed, “[e]xhaustion is no longer left to the discretion of the district
court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner,
532 U.S. 731, 739 (2001)).2
The exhaustion requirement of the PLRA is strict, “not to be harsh on prisoners,” but
rather “to further the important goals behind the law [by allowing] prison officials ‘a fair
opportunity’ to address grievances on the merits, to correct prison errors that can and should be
corrected, and to create an administrative record for those disputes that eventually end up in
court.” Napier v. Laurel County, Ky., 636 F.3d 218, 226 (6th Cir. 2011) (citing Reed–Bey v.
Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)). Indeed, the requirement of exhaustion “allows
prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities
before being haled into court.” Jones, 549 U.S. at 204.
Furthermore, exhaustion under the PLRA “is required even if the prisoner subjectively
believes the remedy is not available . . . , even when the state cannot grant the particular relief
requested . . . , and even where [the prisoner] believe[s] the procedure to be ineffectual or
futile[.]” Napier, 636 F.3d at 222 (citing Brock v. Kenton County, 93 F. App’x 793, 798 (6th Cir.
2004); Booth, 532 U.S. at 741; Pack v. Martin, 174 F. App’x 256, 262 (6th Cir. 2006)).

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“Prisoners must now exhaust all ‘available’ remedies, not just those that meet federal
standards.” Woodford, 548 U.S. at 85; see also Hopkins v. Ohio Dep’t of Corr., 84 F. App’x
526, 527 (6th Cir. 2003) (“When a prisoner fails to exhaust his administrative remedies before
filing a civil rights complaint in federal court, or only partially exhausts administrative
remedies, dismissal of the complaint is appropriate.”) (citing 42 U.S.C. § 1997e(a); White v.
McGinnis, 131 F.3d 593, 595 (6th Cir. 1997)).
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Additionally, exhaustion must occur before a prisoner files a complaint, and a prisoner “may not
exhaust administrative remedies during the pendency of the federal suit.” Freeman v. Francis,
196 F.3d 641, 645 (6th Cir. 1999) (“[E]xhaustion [is] a precondition to filing an action in federal
court . . . .”) (citations omitted). What is necessary to comply with exhausting the administrative
remedies is determined by the “prison’s requirements, and not the PLRA[.]” Jones, 549 U.S. at
218. “An inmate exhausts a claim by taking advantage of each step the prison holds out for
resolving the claim internally and by following the ‘critical procedural rules’ of the prison’s
grievance process to permit prison officials to review and, if necessary, correct the grievance ‘on
the merits’ in the first instance.” Reed–Bey, 603 F.3d 324 (citing Woodford, 548 U.S. at 90).
Because Plaintiff was a prisoner of the state at the time he filed the instant action, he is
subject to the PLRA’s requirements. See 42 U.S.C. § 1997e(a); see also Napier, 636 F.3d at 222
(noting that the PLRA applies to an inmate “in any jail, prison, or other correctional facility”).
III. ANALYSIS
As discussed above, a prisoner only exhausts his administrative remedies by following
the prison requirements. Jones, 549 U.S. at 218; see also Reed–Bey, 603 F.3d 324 (citing
Woodford, 548 U.S. at 90). Ohio Department of Rehabilitation and Correction (“ODRC”)
Assistant Chief Inspector Karen Stanforth provided an Affidavit regarding the prison grievance
procedure at Plaintiff’s institution. (ECF No. 48, Ex. 2, “Stanforth Aff.”.)3 Assistant Chief
Inspector Stanforth explained the following:
ODRC maintains an inmate grievance procedure that is available to all inmates
regardless of their disciplinary status at each of its institution [sic]. See Ohio
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Assistant Chief Inspector Stanforth averred in the affidavit that as part of her job duties she
handles appeals from inmates as set out in Ohio Administrative Code 5120-9-31(K) and directs
grievances to the Office of the Chief Inspector of ODRC as set out in Ohio Administrative
Code 5120-9-31(M). (Stanforth Aff., at ¶ 2.) Furthermore, she represented that she is the
custodian of the records of said appeals and grievances. (Id.)
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Admin. Code 5120-9-31(D). This procedure allows inmates to seek relief regarding
any aspect of institutional life that directly and personally affects the grievant. This
may include complaints regarding policies, procedures, conditions of confinement,
or actions of institutional staff. See Ohio Admin. Code 5120-9-31(A).
The inmate grievance procedure is comprised of three consecutive steps. Ohio
Admin. Code 5120-9-31(K). Under step one of the procedure, the inmate submits
an informal complaint to the direct supervisor of the staff member or the department
most directly responsible over the subject matter concerning the inmate. See Ohio
Admin. Code 5120-9-31(K)(1).
If the inmate is not satisfied with the results, the inmate must proceed to step two
by filing a formal grievance with the inspector of institutional services at the prison
where he is confined. See [sic] Ohio Adm. [sic] Code 5120-9-31(K)(2). That
inspector will investigate the matter and issue a written response to the inmate’s
grievance. Id.
If the inmate is still dissatisfied, the inmate must proceed to the third step, which is
an appeal to the Office of the Chief Inspector of ODRC. See Ohio Admin. Code
5120-9-31(K)(3). In circumstances where the inmate alleges misconduct on the
part of the warden or inspector of institutional services at the prison where the
inmate is confined, the inmate may initiate a grievance directly with the Office of
the Chief Inspector. See Ohio Admin. Code 5120-9-31(M). There is no appeal
from the Chief Inspector’s decision in a direct grievance under Ohio Admin. Code
5120-9-31(M). An inmate does not exhaust his or her remedies under Ohio Admin.
Code 5120-9-31 until the inmate has received a decision in an appeal to the Office
of the Chief Inspector or has received a decision from the Office of the Chief
Inspector as to a direct grievance alleging misconduct against the warden or
inspector of institutional services.
All inmates in the custody of ODRC are given both written and oral instructions on
how to use the inmate grievance procedure including instructions on appeals to the
Office of the Chief Inspector and direct grievance [sic] to that office as required by
Ohio Admin. Code 5120-9-31(C).
(Stanforth Aff., at ¶¶ 6-10.) In Plaintiff’s Amended Complaint, he stated that he took the steps of
“Informal Complaint to the medical staff and then to the grievance committe [sic] in Columbus”
in response to whether he had presented the facts relating to his complaint in the prisoner
grievance procedure provided in his institution. (ECF No. 7, at p. 3.) He also made the
following statement in his Statement of Claims: “[A] formal Grievance was prepared and
submitted through proper channels in accordance with ODRC policies and procedures, and the
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response from the office of the Institutional Inspection committee was that they do not have the
authority to handle institutional problems.” (Id., at p. 8.)4 These actions taken by Plaintiff,
however, do not constitute fulfillment of the prison grievance procedure as outlined in the
Stanforth Affidavit. Accordingly, Plaintiff has failed to exhaust his administrative remedies.
Assistant Chief Inspector Stanforth stated the following regarding Plaintiff’s use of the
grievance procedures:
I have reviewed the grievance records regarding Inmate Brandon Ashdown (inmate
number A705024). Inmate Ashdown filed five informal complaints . . . in 2015.
He did not file any formal grievances nor did he file any appeals to the Chief
Inspector’s Office in 2015.
...
Inmate Ashdown did not pursue any of his institutional complaints in 2015 to the
point of exhausting his administrative remedies.
(Stanforth Aff., at ¶¶ 4, 11.) The five informal complaints that Plaintiff filed in 2015, none of
which he pursued to the point of exhausting his administrative remedies, do not concern the
alleged claims in the instant action. (See ECF No. 48, Ex. 2, “Plt’s Grievance Hist.”.)
Specifically, on July 18, 2015, Plaintiff filed an informal complaint alleging that
correctional officers took one of his possessions (a fan) and that they refused to give it back to
him despite that it was “[titled] in [his] name.” (Id.) In the “action taken” section, the staff
member wrote that “[t]he inspector does not answer Informal Complaints. You already filed a
similar complaint to the shift supervisor.” (Id.) On July 21, 2015, Plaintiff filed an informal
complaint alleging that his fan was again unfairly confiscated. (Id.) In the “action taken”

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Plaintiff attached a copy of a letter from the Correctional Institution Inspection Committee,
dated June 6, 2016, to his initial Complaint. (ECF No. 4, at p. 10.) Within the letter, the writer
notes they do not have decision-making authority, but notes that they can contact institutional
staff on Plaintiff’s behalf and also suggests actions Plaintiff may take regarding his claims.
(Id.)
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section, the staff member wrote that “[a]ccording to Sgt. McKee – your fan has been returned. If
you alter it in any way, it can be taken as contraband.” (Id.) On August 8, 2015, Plaintiff filed
two informal complaints alleging that his mail regarding a legal appeal “sat around here at
[Noble Correctional Institution] for a week before it was [mailed].” (Id.) In the “action taken”
sections, the staff member wrote “see attached cash slip copy” and “[t]he cash slip for the
postage was signed by you and Sgt McKee on 7/14/15, and processed on 7/15/15 and then
mailed out. We have no control over the USPS and how fast they deliver mail.” (Id.) On
August 13, 2015, Plaintiff filed an informal complaint alleging that a correctional officer unfairly
confiscated some of his personal possessions. (Id.) In the “action taken” section, the staff
member wrote that “[Correctional Officer] Brunoni stated he did not take any medical soap, but
did take the contraband ruler and homemade JP4 case, and wrote out a contraband slip. You
received an appropriate conduct report. Part of the informal process is to send copies in a kite, so
he was doing his job by reminding you to do it correctly. It is the [correctional officer’s]
discretion to turn fans on/off.” (Id.) None of these informal complaints by Plaintiff remotely
concern the incident of alleged deliberate medical indifference at issue in the instant action.
Regarding the Motion to Dismiss, in Plaintiff’s Response in Opposition he simply argues
that “the State failed to produce any adequate evidence to support such a claim.” (ECF No. 60,
at p. 3.) He also asserts that “one can only assume that the State must have misplaced, or
destroyed it prior to filing its response when it ‘inadvertently deleted’ the logs that this Court
Order [sic] it to produce.” (Id.) (emphasis in original). The Court understands Plaintiff to be
suggesting that the State “misplaced” or “destroyed” evidence proving that Plaintiff exhausted
his administrative remedies. This bare allegation, for which Plaintiff fails to provide any
support, does not constitute evidence that Plaintiff properly exhausted his administrative

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remedies. Indeed, Plaintiff has failed to proffer any evidence at all that would defeat the State of
Ohio’s Motion to Dismiss. Plaintiff refers to no documentary evidence that he complied with the
exhaustion of administrative remedies prior to commencing the instant action. The State of
Ohio, however, supports its Motion to Dismiss with the Stanforth Affidavit and Plaintiff’s
grievance history as documented in his institutional complaint summary5 as previously described
more fully.
Because Plaintiff has failed to exhaust his administrative remedies as required by the
PLRA, the Court does not find it necessary to address whether the State of Ohio adequately
complied with the Court’s order to fully responded to Plaintiff’s discovery request.
IV. CONCLUSION
For the reasons stated above, the Undersigned finds that Plaintiff has failed to exhaust his
administrative remedies as required by the PLRA. Accordingly, the Undersigned
RECOMMENDS that the State of Ohio’s Motion to Dismiss (ECF No. 48) be GRANTED.6
It is FURTHER RECOMMENDED that the Court certify pursuant to 28 U.S.C. §
1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and
Recommendation would not be taken in good faith and therefore deny Plaintiff leave to appeal in
forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

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The State of Ohio’s attachments to it’s Motion to Dismiss are labeled Exhibit 1 (Affidavit of
Jill Glispie), Exhibit 2, (Affidavit of Assistant Chief Inspector Karen Stanforth, R.N.), and
again Exhibit 2 (Plaintiff’s Grievance History including Informal Complaint Resolutions from
2015), instead of properly being labeled as Exhibit 3.
6
On January 25, 2019, the Court granted Plaintiff’s Motion for Enlargement of Time regarding
the deadline for him to file an Amended Complaint. (ECF Nos. 58 & 59.) Since the Court
now recommends dismissal of the instant action, it will not at this time set a new deadline for
Plaintiff to file an Amended Complaint.
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PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: February 21, 2019

/s/ Elizabeth A. Preston Deavers
.
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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