The opinion of the court was delivered by: Judge Smith
This prisoner civil rights case is before the Court on an objection to the Magistrate Judge's Report and Recommendation filed by Phillip Tate, a plaintiff proceeding pro se. On January 10, 2007, the Magistrate Judge issued a Report recommending that the defendants' motion to dismiss be granted in part and denied in part. The Magistrate recommended that all claims be dismissed except for the second and third First Amendment retaliation claims as well as the denial of exercise claim. The Report also recommended dismissal of all defendants except those directly involved with the remaining claims. On January 19, 2007, Mr. Tate filed objections to the Magistrate Judge's Report. The Court has reviewed Mr. Tate's eight objections de novo. For the following reasons, the objections will be overruled and the Magistrate Judge's Report and Recommendation will be adopted in its entirety.
I. Motion to Dismiss Standard
Mr. Tate claims that the Magistrate Judge failed to use the proper legal standard when evaluating the defendants' motion to dismiss pursuant to Rule 12(b)(6). The objection states that "[t]he Magistrate's R&R meticulouly lays out the scope and workings of FRCP 12(b)(6) review, yet, makes no mention or application of the Rule's requirement that all doubts and inferences are to be resolved in the pleader's favor." (Objection (doc. #15) at p. 2 (reproduced verbatim).)
On pages 4-5 of the Report, the Magistrate Judge correctly recites the Rule 12(b)(6) standard. Particularly, the Magistrate Judge states "[w]hen considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true." (Report and Recommendation (doc. #13) at pp. 4-5 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir.1983)).) That standard was then applied to each claim. In any event, this Court's de novo review will apply the correct legal standard. Accordingly, this objection is overruled.
II. Exhaustion of the Denial of Dental Floss Claim
Mr. Tate argues that the Magistrate Judge erred when he recommended dismissal of the denial of dental floss claim for failure to exhaust. Mr. Tate's argument on this point is unpersuasive. As the Magistrate Judge noted, Mr. Tate filed a grievance directly with the chief inspector alleging that "staff" denied Mr. Tate the use of dental floss. There are exhaustion problems depending on who is identified as the "staff" person involved. On the one hand, if the "staff" involves prison officials, not including the warden, then Mr. Tate was required to follow the three-step grievance process outlined in Ohio Admin. Code § 5120-9-31(J). On the other hand, if the "staff" person was the warden, then Mr. Tate was required to file the grievance against the warden directly with the chief inspector and state in the grievance that the "warden ... was personally and knowingly involved in a violation of law, rule or policy, or personally and knowingly approved or condoned such a violation." Ohio Admin. Code § 5120-9-31(L).
Mr. Tate did not follow the three-step grievance procedure in this instance. Consequently, he failed to exhaust properly all administrative remedies if the "staff" injuring him did not include the warden. Moreover, if the "staff" was the warden, a review of the grievance filed directly with the chief inspector reveals that Mr. Tate did not even identify the warden, let alone show that the warden was personally and knowingly involved in a violation of law, rule or policy, or personally and knowingly approved or condoned such a violation. In both instances, Mr. Tate failed to exhaust.
The Court's decision to dismiss the dental floss claim for failure to exhaust is consistent with the recent Supreme Court decision in Jones v. Bock, __U.S.__, 127 S.Ct. 910 (2007). Jones held, inter alia, that the PLRA does not impose a "name all defendants" requirement. Id. at 922. However, the Supreme Court noted that, while the PLRA does not have such a requirement, individual state administrative codes may require inmates to plead grievances with particularity, and an inmate must follow these procedures in order to exhaust all administrative remedies. Id.; see also Woodford v. Ngo, __U.S.__, 126 S.Ct. 2378, 2386 (2006)("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings")(footnote omitted). The Court opined:
Woodford held that "proper exhaustion" was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC's policy required only that prisoners "be as specific as possible" in their grievances, while at the same time the required forms advised them to "[b]e brief and concise." The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different levels. *** Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process.
Nor does the PLRA impose such a requirement. In Woodford, we held that to properly exhaust administrative remedies prisoners must "complete the administrative review process in accordance with the applicable procedural rules," rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.
Id. at 922-23 (internal citations omitted).
As noted above, Mr. Tate failed to exhaust all Ohio administrative remedies because he failed to follow the three-step process if the warden was not involved, Ohio Admin. Code § 5120-9-31(J), and failed to state the warden's involvement with the particularity required by Ohio Admin. Code § 5120-9-31(L) if the warden was involved. The Court's decision is not based on the PLRA itself, but is rooted in the fundamental requirement that Mr. Tate must properly exhaust all administrative remedies in accordance with the procedures created under Ohio law. Whereas in Jones, the MDOC policies did not require such particularity or process, see Jones, __U.S.__, 127 S.Ct. at 922, Ohio ...