United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE
an inmate at the Southern Ohio Correctional Facility
("SOCF") proceeding pro se, brings this prisoner
civil rights action under 42 U.S.C. § 1983 alleging
violations of his constitutional rights by prison employees.
This matter is before the Court on defendant Broughton's
initial motion for summary judgment addressing plaintiffs
failure to exhaust his administrative remedies under the
Prison Litigation Reform Act ("PLRA") (Doc. 23) and
plaintiffs response in opposition (Doc. 28).
was granted leave to proceed in forma pauperis and
filed his complaint on June 18, 2018. That same day, this
Court conducted a sua sponte review under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and concluded
by Report and Recommendation that plaintiff could proceed
with his Eighth Amendment claim against defendant Borough,
based on his allegations that Borough used excessive force against
him on February 9, 2018. (Doc. 5 at 7). The Court determined
that plaintiffs remaining claims should be dismissed.
(Id.), On August 14, 2018, the District Judge
adopted the Report and Recommendation, dismissing plaintiffs
complaint with the exception of his use of force claim
against defendant Broughton. (Doc. 14). On January 25, 2019,
defendant Broughton filed the present motion for summary
judgment. After plaintiff failed to file a response within 21
days, on May 31, 2019, the Court ordered plaintiff to show
cause in writing, within twenty days, why the Court should
not dismiss this case against defendant Broughton. (Doc. 25).
The Court then granted plaintiff an extension of time until
July 28, 2019 to file a response in opposition to defendant
Broughton's motion for summary judgment. (Doc. 27). On
July 31, 2019, the Court received plaintiffs response brief,
which was dated July 17, 2019. (Doc. 28).
Summary Judgment Standard
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A grant of summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Satterfield v. Tennessee, 295 F.3d 611,
615 (6th Cir. 2002). The Court must evaluate the evidence,
and all inferences drawn therefrom, in the light most
favorable to the non-moving party. Satterfield, 295
F.3d at 615; Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio, 475 U.S. 574, 587 (1986); Little Caesar
Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.
trial judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine factual issue for trial.
Anderson, 477 U.S. at 249. The trial court need not
search the entire record for material issues of fact,
Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479-80 (6th Cir. 1989), but must determine "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'"
Anderson, 477 U.S. at 251-52. "Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue
for trial.'" Matsushita, 475 U.S. at 587.
"In response to a properly supported summary judgment
motion, the non-moving party 'is required to present some
significant probative evidence which makes it necessary to
resolve the parties' differing versions of the dispute at
trial."' Maston v. Montgomery Cty. Jail Med.
Staff Pers., 832 F.Supp.2d 846, 849 (S.D. Ohio 2011)
(quoting Sixty Ivy St, Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987)).
plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citingHaines v. Kerner, 404
U.S. 519, 520 (1972) (stating that the Court holds pleadings
of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy
the benefit of a liberal construction of their pleadings and
filings). However, a party's status as a pro se litigant
does not alter his duty to support his factual assertions
with admissible evidence. Maston, 832 F.Supp.2d at
851-52 (citing Viergutz v. Lucent Techs., Inc., 375
F, App'x 482, 485 (6th Cir. 2010)). When opposing a
motion for summary judgment, a pro se party cannot rely on
allegations or denials in unsworn filings. Id.
(citing Viergutz, 375 Fed.Appx. at 485).
Exhaustion of Administrative Remedies
of administrative remedies "is mandatory under the
[Prison Litigation Reform Act ("PLRA")] and .. .
unexhausted claims cannot be brought in court."
Jones v. Bock, 549 U.S. 199, 21 ] (2007) (citing
Porter v. Nussle, 534 U.S. 516, 524 (2002)).
"[A] prisoner confined in any jail, prison, or other
correctional facility" is barred from filing a lawsuit
alleging constitutional violations under 42 U.S.C. §
1983 ''or any other Federal law . . . 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, 534 U.S. at 532.
prisoner's failure to exhaust his intra-prison
administrative remedies prior to filing suit 'is an
affirmative defense under the PLRA.'" Surles v.
Andison, 678 F.3d 452, 455 (6th Cir. 2012) (quoting
Jones, 549 U.S. at 216). "[T]he failure to
exhaust 'must be established by the
defendants.'" Id. (quoting Napier v.
Laurel Cty., Ky., 636 F.3d 218, 225 (6th Cir. 2011)).
Thus, defendants bear the burden of proof on exhaustion.
Id. Because defendants bear the burden of persuasion
on exhaustion, their "initial summary judgement burden
is 'higher in that [they] must show that the record
contains evidence satisfying the burden of persuasion and
that the evidence is so powerful that no reasonable jury
would be free to disbelieve it.'" Id. at
455-56 (quoting Cockrel v. Shelby Cty. Sch. DisL,
270 F.3d 1036, 1056 (6th Cir. 2001) (in turn quoting 11 James
William Moore et al., Moore's Federal Practice §
56.13, at 56-138 (3d ed. 2000))).
PLRA exhaustion requirement means prisoners must carry out
"proper exhaustion" of a grievance. Woodford v.
Ngo,548 U.S. 81, 90 (2006). "To properly exhaust a
claim, prisoners must tak[e] advantage of each step the
prison holds out for resolving the claim internally and by
following the 'critical procedural rules' of the
prison's grievance process to permit prison officials to
review and, if necessary, correct the grievance 'on the
merits' in the first instance." Reed-Bey v.
Pramstaller,603 F.3d 322, 324 (6th Cir. 2010) (quoting
Woodford, 548 U.S. at 90). "Proper exhaustion
[further] demands compliance with an agency's
deadlines... ." Woodford, 548 U.S. at 90.
Proper exhaustion serves the necessary interest of providing
"fair notice of the alleged mistreatment or misconduct
that forms the basis of the constitutional or ...