Falls-Bey et al v. Cook et al

Filing 28

OPINION AND ORDER granting 24 Defendants' Motion for Summary Judgment, denying 25 Plaintiff's Counter Motion for Summary Judgment, and denying as moot 26 Motion for General Discovery for Trial Preparation and 27 Motion for Extension of Time. Signed by Magistrate Judge Kimberly A. Jolson on 11/1/2018. (ew)(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
ROY FALLS-BEY,
Plaintiff,
v.

Civil Action 2:17-cv-1103
Magistrate Judge Jolson

WARDEN BRIAN COOK, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the following: (1) Defendants’ Motion for Summary
Judgment (Doc. 24); (2) Plaintiff’s Counter Motion for Summary Judgment (Doc. 25); (3)
Plaintiff’s Motion for General Discovery for Trial Preparation (Doc. 26); and (4) Defendants’
Motion for Extension of Time (Doc. 27). For the foregoing reasons, Defendants’ Motion for
Summary Judgment (Doc. 24) is GRANTED and Plaintiff’s Counter Motion for Summary
Judgment (Doc. 25) is DENIED. Accordingly, Plaintiff’s Motion for General Discovery for Trial
Preparation and Defendants’ Motion for Extension of Time (Docs. 26, 27) are DENIED as moot.
I.

BACKGROUND

Plaintiff initiated this action on December 15, 2017, pursuant to 42 U.S.C. § 1983, alleging
civil rights violations concerning his right to practice his Moorish Science Temple of America
religion. (Doc. 1). On March 23, 2018, pursuant to its 28 U.S.C. § 1915(e)(2) initial screening,
the Court dismissed Defendant State of Ohio from this lawsuit and permitted Plaintiff to proceed
on his claims against the remaining defendants. On June 4, 2018, the parties consented to the
jurisdiction of a Magistrate Judge (Doc. 20), and all further proceedings were referred to the

Undersigned. (Doc. 21).
Defendants filed their Motion for Summary Judgment on September 4, 2018 (Doc. 24),
and Plaintiff filed his Counter Motion for Summary Judgment (Doc. 25) on September 18, 2018.
On October 15, 2018, Plaintiff filed a motion seeking general discovery (Doc. 26), and on October
29, 2018, Defendants filed a motion seeking an extension of the discovery and dispositive motion
deadlines (Doc. 27). This matter is fully briefed and ripe for review.
II.

STANDARD

The standard for summary judgment is well established. Under Rule 56 of the Federal
Rules of Civil Procedure, 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, 90 S.
Ct. 1598, 26 L. Ed. 2d 142 (1970). “The standard of review for counter-motions for summary
judgment does not differ from the standard when one party files such a motion.” Przybysz v. City
of Toledo, 302 F. Supp. 3d 915, 926 (N.D. Ohio 2017), aff’d, No. 18-3139, 2018 WL 3993546 (6th
Cir. Aug. 20, 2018) (citing Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.
1991)).
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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary
judgment is appropriate, however, 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2458, 91 L.

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Ed. 2d 265 (1986). “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 bears the initial responsibility of informing the
district court of the basis for its motion and identifying and demonstrating the absence of a genuine
issue of material fact. Catrett, 477 U.S. at 323. 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.” 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). “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.’” Gover v. Speedway Super Am., LLC, 284 F. Supp.
2d 858, 862 (S.D. Ohio 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 547 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). Instead, the non-moving party must
support the assertion that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1).
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.” Gover, 284 F. Supp. 2d at 862. See also Fed. R. Civ. P. 56(c)(3).
III.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Defendants, in their summary judgment motion, assert that Plaintiff’s claims should be
dismissed because Plaintiff has failed to exhaust his administrative remedies. (See generally Doc.
24). The Court agrees.

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The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (the “PLRA”), requires that a
prisoner filing a § 1983 claim first exhaust available administrative remedies. Porter v. Nussle,
534 U.S. 516, 524, 122 S. Ct. 983, a52 L. Ed. 2d 12 (2002); Booth v. Churner, 532 U.S. 731, 121
S. Ct. 1819, 149 L. Ed. 2d 958 (2001). The PLRA 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).
To satisfy the exhaustion requirement, an inmate plaintiff must “complete the
administrative review process in accordance with the applicable procedural rules . . . as a
precondition to bringing suit in federal court.” Woodford v. Ngo, 548 U.S. 81, 88, 126 S. Ct. 2378,
165 L. Ed. 2d 368 (2006). “[F]ailure to exhaust is an affirmative defense under the PLRA, and []
inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones
v. Block, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). See also Vandiver v. Corr.
Med. Servs., 326 F. App’x 885, 888 (6th Cir. May 1, 2009) (noting that failure to exhaust “is an
affirmative defense on which the defendant bears the burden of proof”). While exhaustion is not a
jurisdictional prerequisite, the requirement is 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).
Inmates, like Plaintiff, incarcerated at institutions that are maintained by the Ohio
Department of Rehabilitation and Correction (“ODRC”), are bound to follow the three-step inmate
grievance procedure set forth in Ohio Admin. Code (“O.A.C.”) § 5120-9-31.

(Doc. 24-1

(Declaration of Eugene Hunyadi (“Hunyadi Decl.”) ¶ 3)). The procedure is available to an inmate

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“regardless of any disciplinary status, or other administrative or legislative decision to which the
inmate may be subject,” O.A.C. § 51209-9-31(D), and is intended to “address inmate complaints
related to any aspect of institutional life that directly and personally affects the grievant,” including
“complaints regarding policies, procedures, conditions of confinement, or the actions of
institutional staff.”

O.A.C. § 5120-9-31(A).

Certain matters are not grievable, 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).
The grievance procedure established by O.A.C. § 5120-9-31 involves three steps. 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 addressed “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, the inmate 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, the inmate must then appeal to the office of the chief
inspector within fourteen days. O.A.C. § 5120-9-31(K)(3). “The decision of the chief inspector
or designee is final.” Id. 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). “A prisoner’s lack of compliance may be
excused if the administrative remedies are not available, but [the Sixth Circuit] has required a
prisoner to make ‘affirmative efforts to comply with the administrative procedures before
analyzing whether the facility rendered these remedies unavailable.’” Lee v. Willey, 789 F.3d 673,

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677 (6th Cir. 2015) (quoting Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir. 2011)).
Dismissal without prejudice of a civil rights complaint is appropriate if a prisoner fails to
first exhaust administrative remedies. See, e.g., Harbin-Bey v. Rutter, 420 F.3d 571, 580 (6th Cir.
2005). And, relevant here, “the exhaustion affirmative defense may be raised by a motion for
summary judgment if the defendant successfully demonstrates that no genuine issue of material
fact exists and the defendant is entitled to judgment as a matter of law on that defense.” Anderson
v. Jutzy, 175 F. Supp. 3d 781, 787 (E.D. Mich. 2016) (citing Goad v. Mitchell, 297 F.3d 497, 504–
05 (6th Cir. 2002)).

“The summary judgment motion is especially well suited to pretrial

adjudication of an exhaustion defense, because proof of lack of exhaustion generally requires
resort to matters outside the pleadings, such as affidavits or documentary evidence.” Id.
IV.

DISCUSSION

Here, the Court concludes that Defendants are entitled to summary judgment on the ground
that Plaintiff failed to satisfy the exhaustion requirements set forth in the PLRA. Defendants attach
uncontested evidence, including the Declaration of Assistant Chief Inspector, Eugene Hunyadi
(Doc. 24-1 at 1–4), as well as copies of Plaintiff’s informal complaints regarding his grievances
(id. at 6–9). Mr. Hunyadi addresses grievance appeals from inmates and serves as the custodian
of these records. (Hunyadi Decl., ¶ 2). Mr. Hunyadi reviewed Plaintiff’s grievance file and
concluded that Plaintiff “only submitted informal complaints” related to his claims. (Id. at ¶ 10).
The attached grievance records consist of Plaintiff’s two “Informal Complaint Resolution”
forms. (Doc. 24-1 at 6–9). Plaintiff’s first informal complaint, dated September 19, 2017,
describes an encounter with Officer Salt, in which the two discussed Plaintiff’s religious practices.
(Id. at 6). Specifically, Plaintiff alleges that Officer Salt confronted Plaintiff after Plaintiff greeted
his Moorish brothers, and subsequently demanded “proof that the Moorish Science Temple of

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America is a legal religion.” (Id.). Plaintiff states that Officer Salt “interrogated” him about his
religion and that he “felt belittle [sic] and afraid because I live and breathe Moorish Science
Temple of America, Inc.” (Id. at 7). His complaint further contends that Officer Salt took his
legal papers supporting the existence of his religion. (Id.). The Inspector’s Office responded to
Plaintiff’s informal complaint on September 27, 2017, informing Plaintiff that he is “allowed to
practice [his] religion,” but that he cannot “violate institutional rules and regulations” while doing
so, and further noting that his items were returned to him. (Id. at 6). Pursuant to step two of Ohio’s
grievance procedure, Plaintiff had fourteen days from the Inspector’s response to file his
notification of grievance.

OAC § 5120-9-31(K)(2).

Plaintiff, however, failed to file his

notification of grievance and thus failed to exhaust his administrative remedies with regard to his
first complaint.
Plaintiff’s second informal complaint, dated October 10, 2017, alleges, in part, the
following:
[t]he Moorish Science Temple of America Inc. had a meeting with Sunni Ali Islam
the Imam and he said he would give us his time to oversee our study class he said
it would only last till January 18, 2018 and we can only have the 14 members that
is in the system. We ask if he would say that in a kite, explaining the terms of our
agreement. He then said No! I will have it in writing next week. Then he starts
saying Mr. England has you guys on tape doing what you do. Mr. England and
Mike Davis don’t want you guys to be able to have your study class you people are
like a gang . . .
(Id. at 8).
On October 12, 2017, the Inspector submitted the following response to Plaintiff’s second
informal complaint:
Inmate Falls, the MSTA from what I have researched is a recognized religious sect
[] under the Islamic faith. Since we provide an Islamic Imam they are the ones we
expect to oversee any religious [indecipherable] occurring within the Islamic Faith.
He sets the schedule and determines what is best for the institution . . . Should you

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identify a volunteer Islamic Imam willing to oversee the MSTA it will be
considered. The individual would need to follow any established volunteer rules.
I will talk to Sunni Ali Islam about your allegation of him being disrespectful. I
see no other issue in your ICR. . . . I have not received Part Two [of your ICR].
(Id. at 8). Again, Plaintiff failed to file his notification of grievance within fourteen days of
receiving a response to his informal complaint, and thus failed to exhaust his administrative
remedies with regard to his second claim.
In his counter motion, Plaintiff does not deny that he failed to exhaust; rather, he contends
that he was not required to exhaust, and urges the Court to focus on the allegations in his complaint.
(See generally Doc. 25). For example, Plaintiff broadly alleges that he “filed multiple kites and
then informal complaints to shift supervisors as to the harassment and prevention of his group
religious practices,” but that there was “no action taken, only written responses acknowledging
that they received the kites and complaints[.]” (Id. at 3–4). Plaintiff, however, does not explain
why, after he was dissatisfied with the responses to his step one grievances, he failed to pursue
steps two and three of the grievance process. Nor does Plaintiff allege that his grievances fall
within one of the statutory exceptions to the exhaustion requirement. See O.A.C. § 5120-9-31(B)
(listing exceptions to the exhaustion requirement, 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.”). Moreover, the Court does not find, nor does Plaintiff
provide any supporting evidence, that administrative remedies were unavailable to him.
Indeed, Plaintiff’s motion contains only two responses to Defendants’ exhaustion
challenge: (1) that he was not required to exhaust under federal law; and (2) that he “filed a
grievance through the correct process” at the institution where he was formerly incarcerated. (See

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generally Doc. 25). First, Plaintiff relies on Patsy v. Board of Regents of the State of Florida,
claiming that “federal courts have recognized that a plaintiff does not have to exhaust state
administrative remedies.” (Id. at 4 (citing Patsy v. Board of Regents of the State of Florida, 457
U.S. 496 (1982)). Plaintiff misunderstands the statutory exhaustion requirement at issue here.
Plaintiff is correct that there is no general requirement that a plaintiff must first exhaust
administrative remedies before bringing a § 1983 civil rights action. See Patsy, 457 U.S. at 507.
“However, Congress created an exception to this rule for claims brought by prisoners when it
passed the Prison Litigation Reform Act[.]” Morgan v. Kentucky, No. 3:17-CV-00474-JHM, 2017
WL 5076403, at *2 (W.D. Ky. Nov. 3, 2017), on reconsideration in part, No. 3:17-CV-00474JHM, 2018 WL 715468 (W.D. Ky. Feb. 5, 2018). Under the PLRA, “[n]o action shall be brought
with respect to prison conditions under Section 1983 of this title, or any 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. Accordingly, exhaustion is mandatory under the
PLRA, and Plaintiff’s reliance on Patsy is misplaced.
Plaintiff’s other response to Defendants’ exhaustion argument fares no better. Plaintiff
asserts that he “filed a grievance through the correct process on the kiosk at Lancaster Correctional
Institution, to the Chief Inspector on the date of November 29, 2017, which was omitted from
Eugene Hunyadi’s declaration.” (Doc. 25 at 4). In so arguing, he contends that “[o]mitting crucial
facts and evidence favorable to the Plaintiff is only one of the many important reasons why a jury
trial is needed . . .” (Id.). Plaintiff, however, does not submit any evidence that he similarly
followed the proper grievance procedure at his current prison against the Defendants in this case.
And, unfortunately for Plaintiff, following the proper grievance procedure at a different prison
does not cure his failure to properly exhaust the grievance procedure at the institution where he is

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currently incarcerated.
Accordingly, Defendants’ uncontested evidence establishes that Plaintiff did not exhaust
his available administrative remedies as required under the PLRA. After he was dissatisfied with
the responses to his informal grievances at the first step, Plaintiff did not pursue the next step of
the three-step inmate grievance procedure. The Court therefore finds that it is undisputed that
Plaintiff did not exhaust all of his available administrative remedies as required under the PLRA
before bringing this action. Defendants are therefore entitled to summary judgment as a matter of
law. See Bell v. Konteh, 450 F.3d 651, 653 n.4 (6th Cir. 2006) (“It is well established . . . that the
appropriate disposition of an unexhausted claim under the PLRA is dismissal without prejudice.”
(citing Boyd v. Corr. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2004)). See also Napier v. Laurel
Cty., Ky., 636 F.3d 218, 226 (6th Cir. 2011) (noting that the “PLRA’s exhaustion requirement is a
strict one” and upholding grant of summary judgment where undisputed evidence established that
inmate did not exhaust his administrative remedies prior to filing his lawsuit and where there was
no evidence showing that the administrative remedies were unavailable to him).
V.

CONCLUSION

For the above reasons, Defendants’ Motion for Summary Judgment (Doc. 24) is
GRANTED and Plaintiff’s Counter Motion for Summary Judgment (Doc. 25) is DENIED.
Accordingly, Plaintiff’s Motion for Discovery and Defendants’ Motion for an Extension of Time
(Docs. 26, 27) are both DENIED as moot. The clerk is DIRECTED to TERMINATE this
matter.
IT IS SO ORDERED.
Date: November 1, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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