United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON JUDGE
REPORT AND RECOMMENDATION
Terence P. Kemp United States Magistrate Judge
Don Gossard, an inmate at the Madison Correctional
Institution (“MCI”), filed this action pursuant
to 42 U.S.C. §1983 alleging violations of his
constitutional rights as a result of the conduct of
defendants, Warden of the Madison Correctional Institution,
Mr. Scales and Ms. Ester. Mr. Gossard's claims against
the Warden were dismissed in a Memorandum Opinion and Order
filed on July 24, 2015 (Doc. 18). This matter is now before
the Court on the remaining defendants' motion for summary
judgment and Mr. Gossard's motion for ruling on the
pleadings. For the following reasons, the Court will
recommend that the motion for summary judgment (Doc. 38) be
granted and the motion for ruling on the pleadings (Doc. 41)
judgment is not a substitute for a trial when facts material
to the Court's ultimate resolution of the case are in
dispute. It may be rendered only when appropriate evidentiary
materials, as described in Fed.R.Civ.P. 56(c), demonstrate
the absence of a material factual dispute and the moving
party is entitled to judgment as a matter of law. Poller
v. Columbia Broad. Sys., Inc., 368 U.S. 464
(1962). The moving party bears the burden of demonstrating
that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970). “[I]f the evidence is insufficient
to reasonably support a jury verdict in favor of the
nonmoving party, the motion for summary judgment will be
granted.” Cox v. Kentucky Dept. of Transp., 53
F.3d 146, 150 (6th Cir. 1995) (citation omitted).
Additionally, the Court must draw all reasonable inferences
from that evidence in favor of the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654 (1962).
The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986). Of course, since
“a party seeking summary judgment ... bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact, ” Celotex, 477
U.S. at 323, the responding party is only required to respond
to those issues clearly identified by the moving party as
being subject to the motion. It is with these standards in
mind that the instant motions must be decided.
Gossard alleges in his complaint that in 2014, while an
inmate at MCI, Defendants failed to protect him from an
assault by his cell mate. Defendants argue that Mr.
Gossard's claims should be dismissed because, among other
things, he failed to exhaust his administrative remedies. The
Prison Litigation Reform Act (PLRA) provides that “no
action shall be brought with respect to prison conditions
under §1983 ... by a prisoner ... until such
administrative remedies as are available are
exhausted.” 42 U.S.C. §1997e(a) “[T]he
PLRA's 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 other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002). The boundaries of exhaustion of
remedies are defined by the prison's administrative
procedure, not the PLRA. Jones v. Bock, 549 U.S.
199, 218 (2007). Ohio's administrative grievance
procedure for inmates is codified under the Ohio
Administrative Code at §5120-9-31. To initiate
grievances, inmates must use forms designated by the Ohio
Department of Rehabilitation and Correction
(“ODRC”), which are “reasonably available
to inmates regardless of their disciplinary status or
classification.” (Doc. 38-1, ¶4).
of administrative remedies requires that the process be
adhered to and the grievance be addressed on its merits at
each level. Wright v. Morris, 111 F.3d 414, 417 n. 3
(6th Cir. 1997). This in turn means that each grievance must
be filed within the prescribed time frame. Hartsfield v.
Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (“We have
previously held that an inmate cannot simply fail to file a
grievance or abandon the process before completion and claim
that he has exhausted his remedies or that it is futile for
him to do so because his grievance is now time-barred under
the regulations.”). Where raised by the defendants,
failure to exhaust under the PLRA may serve as a basis for
dismissal. Bruce v. Correctional Medical Services,
Inc., 389 Fed.Appx. 462, 467 (6th Cir. 2010). Because
the defendants in this case have moved for summary judgment
on this basis, it is “their burden to show the absence
of a genuine issue of material fact regarding
non-exhaustion.” Hughes v. Lavender, 2011 WL
1337155, *9 (S.D. Ohio April 6, 2011).
support of their motion, defendants furnish a declaration of
Antonio Lee, an Assistant Chief Inspector for the ODRC, who
provides details of the grievance procedure for Ohio inmates.
(Doc. 38-1). All inmates in ODRC custody are provided with
instructions on how to utilize the institutional grievance
process. The process is made up of three consecutive steps.
First, the inmate must file an informal complaint with the
direct supervisor of the staff member or department
responsible for the subject matter of the complaint within
fourteen calendar days of the date of the event giving rise
to the complaint. If the inmate is not happy with the
resolution of the informal complaint, the inmate may submit a
“kite” requesting a notification of grievance
form from the Institutional Inspector at his institution. The
notification of grievance must be filed within fourteen
calendar days from the date of the informal complaint
response. The Institutional Inspector then investigates the
matter and issues a written disposition. If the inmate is
still dissatisfied with the result, he may request an appeal
form from the Institutional Inspector, and must file the
appeal to the Chief Inspector within fourteen days of the
last disposition. The administrative process is exhausted
upon rendering of the Chief Inspector's decision.
Id. ¶¶5-10; Ohio Admin. Code 5120-9-31(K).
Gossard filed a timely informal complaint resolution on March
25, 2014, which was denied on March 27, 2014. He did not,
however, file his notification of grievance until April 14,
2014, which was outside the fourteen day deadline and which
was denied as being untimely. The Chief Inspector affirmed
the decision, agreeing that the notification of grievance had
been untimely. Id. ¶12. In his response, Mr.
Gossard argues that the Institutional Inspector deliberately
delayed providing him with the notification of grievance
form, which prevented him from making a timely filing. (Doc.
39 at 2). Defendants correctly point out that this assertion
of deliberate delay was first made in Mr. Gossard's
responsive brief. Mr. Gossard did argue in his appeal to the
Chief Inspector that, despite his timely request for the
proper form, he filed it late because he had to wait on
receipt of the form, but he provided no supporting details.
(Doc. 3 at 13-14).
Defendants provide a declaration of Jarrod Robinson, who was
employed as the Institutional Inspector at MCI during the
relevant time period. (Doc. 40-1). Although he does not
specifically recall Mr. Gossard's grievance, Mr. Robinson
describes his normal practices and procedures for processing
grievance forms. Mr. Robinson states that his first task in
the morning was to pick up kites received by the
Institutional Inspector's office and begin processing
them. For the kites received from inmates requesting
notification of grievance forms, he would first verify that
each inmate had completed the first step of the process and,
if so, he would enclose a notification of grievance form with
the kite and log that he had done so. He would then process
the kites and drop them off at the end of each day for pickup
by unit staff for delivery to the inmate. Id.
Gossard asserts that he exhausted his administrative remedies
because he took all the necessary steps in the grievance
procedure. He argues that the defendants' assertion of
failure to exhaust available state remedies “is totally
without merit.” (Doc. 39 at 3). However, the
administrative record here clearly shows that the substantive
merits of his grievance were not addressed by the second and
third steps of the process because he failed to timely file
his notification of grievance. (Doc. 3 at 10-15). Mr. Gossard
asserted in his appeal to the Chief Inspector that “it
was not my fault” that he did not submit the appeal in
time because he had to wait for staff to pick up his form and
deliver it. He does not provide any details of what day he
requested the form or what day he received it, not does he
provide any supporting evidence or sworn statement. His
responsive brief is the first occasion on which he accuses
the Institutional Inspector of deliberately delaying the
delivery of his notification of grievance form. Applying the
summary judgment standard, the Court must view all evidence
in the light most favorable to Mr. Gossard as the non-moving
party. However, it is well settled that “[c]onclusory
statements unadorned with supporting facts are insufficient
to establish a factual dispute that will defeat summary
judgment.” Alexander v. CareSource, 576 F.3d
551, 559 (6th Cir. 2009); see also Lewis v. Philip Morris
Inc., 355 F.3d 515, 533 (6th Cir. 2004) (finding that
“conclusory statements” unsupported by specific
facts will not permit a party to survive summary judgment).
Gossard's assertion that he was not able to timely adhere
to the grievance process because of a delay (deliberate or
not) by the Institutional Inspector is conclusory and
unsupported by the record. The Institutional Inspector
provided a declaration detailing his routine for dealing with
institutional grievances, and there is no evidence to show
that he did not follow this routine with respect to Mr.
Gossard's grievance. Mr. Gossard fails to provide an
affidavit, sworn declarat or any specific facts to support
his argument that the failure to timely file his notification
of grievance was excused, i.e. that he did not receive the
form until after the expiration of the deadline. The Supreme
Court has observed that a party opposing summary “must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,
586-587 (1986). Courts must view the record as a whole and
determine whether a rational trier of fact could find for the
non-moving party. Id. This applies to Mr.
Gossard's assertion that his administrative remedies
should be considered exhausted due to a delay by the
Institutional Inspector or other prison officials. Based on
the record, it is clear to the Court that Mr. Gossard failed
to exhaust his administrative remedies. Consequently, the
Court will recommend that the defendants' motion for
summary judgment be granted.
Motion for ...