The opinion of the court was delivered by: Judge Lgenon Marbley
This matter is before the Court on the Defendants' Third Motio Summary Judgment.*fn1 For the reasons set forth herein, the Court DENIES Defendants' Third Motion for Summary Judgment.
Defendant, Ohio Department of Youth Services ("ODYS") serves as that "legal custodian for [Ohio] juvenile offenders, age 10-21 who have been adjudicated delinquent as a result of committing felony violations." Pl.'s Ex. A. ODYS operates by fund or contract institutions including but not limited to: Circleville Juvenile Correctional facility, Mohican Juvenile Correctional facility, Cuyahoga Hills Juvenile Correctional Facility, Scioto Juvenile Correctional Facility, Ohio River Valley Juvenile Correctional Facility, Indian River Juvenile Correctional Facility, Freedom Center, and the Marion Juvenile Correctional Facility. See Pls.' Ex. A.*fn2
ODYS also has six parole offices, and contracts with a private sector provider for services. See id. "At any given time, [Ohio] DYS has approximately 1,800 youth*fn3 in its custody in the correctional facilities [listed above]." Id.
In 1992, the Sixth Circuit Court of Appeals ruled that because juvenile offenders cannot make effective use of legal materials by themselves, they require the assistance of lawyers to allow them meaningful access to the courts. See John L. Adams, 969 F.2d 228, 233 (6th Cir. 1992).*fn4 Nonetheless, this right to assistance of counsel has been narrowly interpreted to mean that juvenile offenders are not entitled to legal assistance on "general civil matters arising solely under state law." Id. Moreover, the right to assistance of counsel is limited to "the preparation and the filing of the complaint." See Knop v. Johnson, 977 F.2d 996, 1005-07 (6th Cir. 1992); see also, Bee v. Utah State Prison, 823 F.2d 397 (10th Cir. 1987); Nordgren v. Milliken, 762 F.2d 851, 855 (10th Cir. 1985); Ward v. Kort, 762 F.2d 856 (10th Cir. 1985).
In July 2004, four youth (J.P., S.J., H.H. and D.B.) filed a proposed class action suit in federal court. See Complaint. Plaintiffs alleged that the Defendants violated the First, Sixth, and Fourteenth Amendments of the United States Constitution and corresponding provisions of the Ohio Constitution by denying access to the courts to juveniles committed to ODYS as juvenile delinquents or serious juvenile offenders. See id.; J.P., et al., 2005 WL 2405993, at *1. Plaintiffs sought declaratory and injunctive relief, asking the Court to declare Defendants' actions unconstitutional and to require Defendants to provide them with access to attorneys. See id.
On January 7, 2005, Defendants filed their First Motion for Summary Judgment in which they argued that the four Plaintiffs named in the Complaint had failed to exhaust their administrative remedies and, therefore, lacked standing to challenge Defendants' legal assistance program. See Defs.' First Motion for Summary Judgment. Plaintiffs responded to Defendants' motion. See Pls.' Opp. to Defs.' First Motion for Summary Judgment.
Taking Plaintiffs' pending claims into account, Defendants made extensive changes to the ODYS legal assistance program,*fn5 and, on January 12, 2005, they filed their Second Motion for Summary Judgment, in which they argued that the four Plaintiffs named in the initial Complaint lacked standing to sue. See Defs.' Second Motion for Summary Judgment.*fn6 Shortly thereafter, on March 7, 2005, Plaintiffs filed their first Amended Complaint, adding M.M. and T.M. as named plaintiffs.*fn7 Plaintiffs also served Defendants with a written discovery request in an effort to "probe the content, scope, and operation of [the Defendants'] new program." See Pls.' Motion at 5; Pls.' Ex. A. Plaintiffs requested that Defendants produce the contract between ODYS and program attorneys, Larry Mathews ("Mathews") and Sharon Hicks ("Hicks"), so that Plaintiffs could "assess the scope of [the attorneys'] duties," as well as a description of any and all legal services the new ODYS legal services program was to provide in order to determine whether it, in fact, met the requirements of the law. Pls.' Motion at 5. In response, Defendants filed a motion to stay all discovery, which the Court subsequently granted. Id.
Defendants filed their Third Motion for Summary Judgment on August 1, 2005 in which they reiterated their previous assertions and insisted that M.M. and T.M., the two additional named plaintiffs, lacked standing. See Pls.' Motion at 5-6; Defs.' Third Motion for Summary Judgment. In response, Plaintiffs, once again, sought to "engage in discovery designed to uncover the content, scope, and operation of Defendants' new legal assistance program, and served Defendants with a second request for production of documents along with a first set of interrogatories." See Pls.' Motion at 6; Pls' Reply to Defs.' Response to Pls.' Motion for Extension of Time. In making their discovery request, Plaintiffs sought both an extension to the period of discovery set in the Court's preliminary pretrial order and an extension of time to respond to Defendants' Third Motion for Summary Judgment. See Pls.' Motion at 6; Pls.' Motion to Extend Discovery; Pls' Motion for Extension.
On February 7, 2005, the Court held a telephonic hearing and ruled, inter alia, that Plaintiffs could not engage in any discovery regarding Defendants' new legal assistance program, issuing a protective order to that effect. See Pls.' Motion at 1. The Court held that before any such discovery could occur, the parties and the Court needed to address the issues of jurisdiction, standing, and the exhaustion of administrative remedies present in Defendants' various motions for summary judgment. Id.
2. The Second Amended Complaint
With the Court's permission, Plaintiffs filed their seconded amended complaint on May 18, 2005. See Pls.' Second Amended Complaint; see supra note 7. Shortly thereafter, Defendants filed a motion requesting disqualification of Plaintiffs' Attorney, Kim Brooks Tandy for causing herself to become a material witness in the case. See Defs.' Motion to Disqualify Plaintiffs' Counsel.
On September 29, 2005, this Court granted Defendants' Second Motion for Summary Judgment based on the Court's lack of subject matter jurisdiction to entertain Plaintiffs' claims. See J.P., 2005 WL 2405993, at *19.*fn8 In so holding, the Court also denied as moot Defendants' First Motion for Summary Judgment,*fn9 and Defendants' Motion to Disqualify Kim Brooks Tandy as Plaintiffs' Counsel. Id. Finally, the Court also dismissed, without prejudice, Plaintiffs' Motion for Class Certification, noting that Plaintiffs may have an opportunity to re-file the motion following the Court's resolution of the Defendants' Third Motion for Summary Judgment. Id.
On March 15, 2006 the Court denied both Plaintiffs' Motion to Table the Court's Preliminary Pretrial Order, and Plaintiffs' Rule 59 Motion to Alter or Amend the Court's September 29, 2005 Opinion and Order. Also, on April 21, 2006, the Court granted Defendant Taft's Motion to Dismiss, dismissing all counts brought against Governor Taft, leaving Defendant Stickrath and Defendant ODYS as the sole defendants. See supra note 1.
On March 17, 2006, the parties engaged in a telephonic status conference before the Court. During the status conference, the Court re-opened discovery limited to the claims of T.M., the sole remaining plaintiff in this case.*fn10
a. T.M.'s Assault Allegations
The following facts regarding T.M. are adopted, in relevant part, from the Court's previous opinion in this case. See J.P., 2005 WL 2405993, at *4-5. At the time the Plaintiffs' filed their Second Amended Complaint, Plaintiff T.M. was an eighteen-year-old youth who had been in ODYS custody for approximately two years. See id. at *5. After a brief stay at the reception center in Scioto, Ohio, T.M. was permanently assigned to Marion Juvenile Correctional Facility ("MJCF") for the duration of his commitment. See Second Amended Complaint ? 11. While at MJCF, T.M. was placed in a number of different units, but he was housed in Building 5 for the majority of his confinement. Id.
On October 14, 2004, T.M. and other inmates in Unit 5B, engaged in a small uprising, banging on their doors in order to get permission to use the bathroom. See J.P., 2005 WL 2405993, at *5.*fn11 During the incident, a Juvenile Corrections Officer ("JCO") entered T.M.'s room and restrained him, "choking him out" until T.M. was rendered unconscious. Id. T.M. also sustained an eye injury when the JCO hit him in the eye. Id. Additionally, T.M. claims that after being assaulted, he received inadequate medical care for his injuries. Id.*fn12 When T.M. was released from the infirmary on October 15, 2004, he was transferred to Unit 2D in Building 2 and never returned to Building 5. See Defs.' Ex. A-1, Youth Injury & Assessment Form (10/15/2004); Defs.' Ex. A-3, Interdisciplinary Progress Notes (10/18/2004); Ex. A, Decl. of Jeffrey Rollins (5/4/2006); Ex. E, Aff. of Doneta Riegsecker (describing the movement for T.M. from the date of the incident to the date he was released from DYS).*fn13 Unlike youth in Building 5, youth in Unit 2D of Building 2 have a toilet and sink in their rooms; thus, they do not have to depend on ODYS staff to gain access to bathroom facilities. See Defs.' Ex. D, Aff. Norm Hills (6/1/2006).
On October 16, 2004, two days after the incident, T.M. filed an ODYS administrative grievance for assault in which he explained his injuries and indicated that he wanted the matter to be resolved "in court." See J.P., 2005 WL 2405993, at *5. T.M.'s grievance included a written statement describing the assault by the JCO and asserting that youth were being forced to urinate in their rooms into rubber gloves rather than being allowed to use the bathroom. Id.
T.M.'s grievance included no language asserting that he had been denied access to adequate medical care, and no specific allegations about unconstitutional conditions of confinement. Id.
The ODYS grievance committee subsequently found merit to T.M.'s complaint and indicated to him that "appropriate actions [would] be taken." See T.M. Dep., Pls.' Ex. B, at 2. The Superintendent agreed with the committee's finding. Id. Nonetheless, because T.M. was never apprised of any action taken in regards to his grievance, he appealed the Superintendent's decision to the Chief Inspector on December 15, 2004. Second Amended Complaint ? 11. On January 4, 2005, after having reviewed T.M.'s grievance, the Chief Inspector informed T.M. that he concurred with the committee's determinations and its decision to grant the grievance. Id. Further, the Chief Inspector informed T.M. that disciplinary action had been taken against the offending employees. See T.M. Dep., Pls.' Ex. B., at 2. Both Plaintiffs and Defendants are in agreement that T.M. exhausted a full round of the grievance process in pursuing his assault claim. See Pls.' Opp. at 16; Defs.' Third Motion for Summary Judgment at 9.
The record reveals that in the course of his stay at MCJF, T.M. filed a total of eight administrative grievances: (1) on October 15, 2004, T.M. claimed he was physically assaulted in Unit 5B;*fn14 (2) on October 16, 2004, T.M. claimed he was placed in Unit 2D without his personal hygiene items; (3) on October 16, 2004, T.M. objected to placement in Unit 2D and sought an explanation for the placement; (4) T.M. objected to placement and retention in Unit 2D; (5) on November 24, 2004, T.M. claimed he was locked in a restroom in Unit 2D; (6) on November 24, 2004, T.M. objected to participation in the GED program; (7) on November 24, 2004, T.M. claimed his positive behavior warranted his removal from Unit 2D; (8) on December 11, 2004, T.M. claimed showers in Unit 2D were cold and complained that worms were coming out of the drain. See Decl. Jeffrey L. Rollins, Human Services Program Administrator for MJCF at 1-2. None of these grievances relates to denial-of-access, and T.M. failed to attach his alleged recorded grievance to his complaint. T.M. asserts that his copies of each of the above grievances as well as any other "legal papers" that he had regarding his case were confiscated by ODYS guards, labeled "gang literature," and not returned to him upon his release. See Defs.' Ex. 5, T.M. Aff. ? 20.
b. T.M.'s Pursuit of Legal Relief
As noted above, in filing his assault grievance on October 16, 2004, T.M. indicated that he wanted his assault charge to be resolved "in court." See Second Amended Complaint ? 11. Thus, in the latter part of October, 2004, T.M. sought representation through ODYS' Legal Assistance Program. See id. Pursuant to T.M.'s request, on November 1, 2004, T.M. met with contract attorney Mathews*fn15 who informed T.M. that he would find him an attorney to provide him with legal assistance. Id.
Initially, Mathews identified six attorneys who handled ODYS cases -- Jillian Davis, John Lawson, David Doughten, Lisa Meeks, Mike Benza, and Benson Wolman -- and sent a referral to those six individuals regarding T.M. See Pls.' Opp. at 6; see Mathews Dep. at 96.
Mathews re-visited T.M. on December 13, 2004, and provided him with a copy of a letter which stated in relevant part:
This letter is to update you on the status of the matter we previously discussed. After our conversation, I prepared a summary of the incident based upon what you told me and other information I had obtained from DYS. On November 27, I sent letters to six attorneys asking them to review the information and consider representing you in this matter.
So far, I have not received a response from any of them, but I plan to follow up with them the week of December 20th if I have not received a response.
When I hear from the attorneys I will let you know.
Shortly thereafter, Mathews, accompanied by Attorney Jillian Davis ("Davis"), met with T.M. to discuss his case. See Pls.' Ex. 2, Mathews Dep. at 32-35. Davis expressed an interest in taking T.M.'s case, and informed T.M. that she would look into the matter. See Defs.' Ex. 5, T.M. Aff. ?? 8-10. Davis did not follow up with Mathews regarding T.M., and when Mathews spoke to her "a couple times" on the phone regarding her interest in taking on T.M. as a client, she told him that she was still contemplating it. Pls.' Ex. 2, Mathews Dep. at 34. Finally, on March 16, 2005, Davis informed Mathews by letter that she had just accepted a new position, and, as a result, would be unable to take on additional cases, including that of T.M. See Pls.' Ex. 4, Letter from Jillian Davis to Larry Mathews.
On March 29, 2005, after Mathews informed T.M. that Davis would not take his case, Hicks asserts that she sent T.M. a letter indicating that Cleveland attorney, Matthew Brownfield ("Brownfield") was willing to look over T.M.'s case. T.M. never responded, and he now claims that he never received the letter. See Pls.' Opp. at 22.
Though the details of what occurred regarding T.M.'s assault claim between December 2004 and March 2005 are in dispute,*fn16 both sides agree that during that time period, neither Mathews nor Hicks, was able to find an attorney willing to represent T.M. See Pls.' Opp. at 7-11; Defs.' Supp. Memo at 5-10.*fn17
On June 1, 2005, ODYS released T.M. from institutional status and placed him under parole supervision. Defs.' Ex. B. Following T.M.'s release on parole, neither Mathews nor Hicks ever heard from T.M. by letter or telephone call. Defs.' Supp. Memo at 11. On January 11, 2006, the Mahoning County Court of Common Pleas, Juvenile Court Division, entered an Order terminating T.M. from parole. Id.
On April 11, 2006, following the Court's decision to re-open discovery as to T.M., the parties deposed T.M. Further, on April 19, 2006, the parties deposed DYS contract attorneys Mathews and Hicks.
Following the depositions, Hicks called T.M. and informed him that Cleveland attorney, David Doughten ("Doughten"), had agreed to represent him in filing a formal legal complaint for his assault charge. T.M. agreed to be represented, and, accordingly, Hicks referred T.M.'s case to Doughten, who subsequently filed suit on T.M.'s behalf in Federal District Court in Toledo, Ohio; the suit seeks damages for T.M.'s October 14, 2006 assault by a Unit 5B JCO (case number 3:06-cv-1127).
In late April, Defendants, citing new information gained in the depositions of T.M., Mathews, and Hicks, requested leave to file a third supplemental memorandum*fn18 in support of their Third Motion for Summary Judgment and brought a motion to alter or amend the Court's briefing schedule. The Court granted both of Defendants' requests. The issues are now fully briefed, and the Court conducted oral argument on June 8, 2006.
Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the non-moving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,12 F.3d 1382, 1388--89 (6th Cir. 1993). In response, the non-moving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos.,8 F.3d 335, 339-40 (6th Cir. 1993) (citations omitted).
In evaluating a motion for summary judgment, 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, 157 (1970). The Court also must interpret all reasonable inferences in the non-movant's favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (stating that the court must draw all reasonable inferences in favor of the non-moving party and must refrain from making credibility determinations or weighing the evidence). The existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient; however, there must be evidence from which the jury reasonably could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (finding summary judgment appropriate when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party").
In analyzing Defendants' Third Motion for Summary Judgment, the Court will first consider the jurisdictional issues of standing and mootness. If the Court finds both that T.M. has standing to bring his claims and that T.M.'s claims are not moot, then it may consider whether T.M. exhausted his administrative remedies before filing suit.
A. Whether T.M. Lacks Standing
Article III, Section 2 of the United States Constitution confines the jurisdiction of federal courts to the resolution of actual "cases" and "controversies." See Raines v. Byrd, 521 U.S. 811, 818 (1997); NRA of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997). The case or controversy limitation of Article III requires that a party invoking federal jurisdiction has standing -- in other words, a "personal stake in the outcome"of the action. See Baker v. Carr, 369 U.S. 186, 294 (1962); Stevenson v. J.C. Bradford & Co., 277 F.3d 838, 852-53 (6th Cir. 2002). To establish a personal stake in the outcome of an action, a plaintiff must allege an "injury in fact" to his pre-existing, legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted). That injury must be "(a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id.; see also, TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 (6th Cir. 2000). A particularized injury is one that "affect[s] the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560, n.1. Further, in cases in which a prisoner alleges he has been denied access to court, an inmate establishes standing by showing that he suffered an actual litigation related injury or legal prejudice because of the actions of the defendant. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996) (requiring "actual prejudice with respect to the contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim").
In addition, the United States Court of Appeals for the Sixth Circuit has held that "standing does not have to be maintained throughout all stages of the litigation." Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir. 2001). "Instead, [standing] is to be determined as of the time the complaint is filed." Id. The Cleveland Branch court exhaustively reviewed United States Supreme Court precedent to conclude that "'jurisdiction is tested by the facts as they existed when the action [was] brought' and 'that after vesting, it cannot be ousted by subsequent events." Id. (quoting Smith v. Sperling, 354 U.S. 91, 93, n.1 (1957)). Consequently, the proper inquiry is whether a plaintiff was suffering or had suffered an actual injury at the time a complaint was filed. Id.; see J.P., 2005 WL 2405993, at *9.
1. Standing for Denial-of-Access Claims
In Christopher v. Harbury, 536 U.S. 403, 412-13 (2002), the Supreme Court held that denial-of-access ...