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Still v. Davis

United States District Court, S.D. Ohio, Western Division

February 2, 2017

BRANDON STILL, Plaintiff,
v.
CYNTHIA DAVIS, etal., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff, an incarcerated individual who proceeds pro se, filed suit against five individuals employed at the Southern Ohio Correctional Facility ("SOCF"). On September 20, 2016, all Defendants jointly moved for dismissal of all claims based upon Plaintiffs alleged failure to exhaust his administrative remedies. Defendants' motion should be denied.

         I. Background

         Plaintiffs complaint seeks relief for alleged violations of his civil rights under 42 U.S.C. § 1983. He alleges that on August 6, 2015, he was placed in a disciplinary housing unit at SOCF that contained a "puddle" or sewage water due to a "busted sewage pipe." He alleges that during his 8-day confinement, he was "sprayed" and subjected to leaked sewage through a back vent whenever a toilet was flushed in one of two cells above him. He asserts that prison officials failed to comply with prison policy intended to ensure that plumbing is working prior to moving him into the cell, and thereafter that they ignored his complaints.[1] He alleges that Defendant Davis, Captain Bell, Correctional Officer Keating and C/O Stringer all were informed of the situation, but failed to move him or provide cleaning supplies, despite all but Davis assuring him on different occasions that they would see what could be done. He alleges that Defendant Lt. Eshum affirmatively denied his request to be moved or for cleaning supplies. On August 14, 2015, he was moved out of the referenced cell at the conclusion of his disciplinary stay. By that time, he alleges that the puddle of standing sewage water had spread across a third of the area of the cell. Plaintiff alleges that he suffered headaches and a loss of appetite due to the noxious smell, and remained at "risk of slipping and falling and to possibly contract a disease" due to the unsanitary conditions. (Doc. 3 at ¶34, PagelD 40). Plaintiff alleges that the failure of all Defendants to rectify the condition of his cell constitutes deliberate indifference to his health and safety in violation of the Eighth Amendment. Plaintiff seeks both monetary damages and injunctive relief.

         In paragraphs 35-37 of his complaint, Plaintiff explicitly alleges that he fully complied with Ohio's 3-step administrative exhaustion process prior to filing his federal lawsuit. Attached to Plaintiffs complaint are copies of his Informal Complaint Resolution ("ICR"), his Notification of Grievance ("NOG") and his final Appeal to the Chief Inspector.

         II. Analysis

         A. Standard of Review

         Defendants' motion to dismiss for failure to exhaust, an affirmative defense, is properly construed under Rule 12(b)(6) as a motion seeking dismissal for failure to state a claim for relief. See generally Jones v. Bock, 549 U.S. 199, 215 (2007)(citations omitted). Because the motion to dismiss was filed in lieu of an Answer, no discovery has yet occurred and review is limited to the pleadings.

         When considering a motion to dismiss under Rule 12(b)(6), the court is required to construe the complaint in the light most favorable to the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business Services, 135 F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept conclusions of law or unwarranted inferences which are presented as factual allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint must contain either direct or reasonable inferential allegations that support all material elements necessary to sustain a recovery under some viable legal theory. Lewis v. ACB, 135 F.3d at 405 (internal citations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). Even though a complaint need not contain "detailed" factual allegations, its "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted).

         B. Exhaustion Under the PLRA

         Defendants argue that Plaintiffs complaint should be dismissed based upon an alleged failure to exhaust his administrative remedies. Pursuant to the PLRA, prisoners are required to fully exhaust available institutional remedies prior to filing suit in federal court. See 42 U.S.C. § 1997e ("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."). It has become well-established that "exhaustion is mandatory under the PLRA and unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. at 204. If a prisoner fails to exhaust available administrative remedies before filing a complaint in federal court, or only partially exhausts them, dismissal of the complaint is appropriate. Hopkins v. Ohio Dep't of Corr., 84 Fed.Appx. 526, 527 (6th Cir. 2003) (citing 42 U.S.C. § 1997e(a)); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997).

         The Ohio Department of Rehabilitation and Correction ("ODRC") offers a three-step grievance system to every inmate at each of its institutions. Defendants do not dispute Plaintiffs assertion that he satisfied the first step of this 3-step grievance procedure by submitting an informal complaint, commonly known as an Informal Complaint Resolution ("ICR"). Plaintiff attached a copy of his ICR to the complaint filed in this Court. See generally OAC § 5120-9-31 (K)(1).

         In his complaint, Plaintiff also alleges that he satisfied steps 2 and 3 of the administrative grievance procedure. Inmates dissatisfied with the results of the ICR may proceed to step two by obtaining a Notification of Grievance form from the Inspector of Institutional Services, and filing a formal grievance at the prison where the inmate is confined. § 5120-9-31 (K)(2). Formal grievances must be submitted within fourteen days from the date an inmate receives a response to his informal complaint at step one. OAC § 5120-9-31 (K)(2). If dissatisfied with the results of step two, the inmate may proceed to step three of the grievance process by requesting an appeal form from the Office of the Inspector of Institutional Services, and submitting an appeal to the Office of the Chief Inspector at ODRC. OAC § 5120-9-31 (K)(3). The step three appeal must be filed within fourteen days ...


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