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Ashdown v. Buchanan

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

August 7, 2019

TIM BUCHANAN, et al., Defendants.

          James L. Graham Judge.



         This matter is before the Court upon review of Interested Party - State of Ohio's Motion to Dismiss (ECF No. 48) which was converted to a Motion for Summary Judgment by the Honorable James L. Graham, the presiding District Judge. (ECF No. 71, “Motion for Summary Judgment.”) In his Order, Judge Graham permitted Plaintiff, Brandon J. Ashdown, a state inmate proceeding without the assistance of counsel, to submit evidentiary materials outside the pleadings in opposition to the State of Ohio's Motion. (Motion for Summary Judgment.) Plaintiff submitted evidentiary materials on July 5, 2019. (ECF No. 73.) State of Ohio filed a Reply.[1] (ECF No. 77.) For the following reasons it is RECOMMENDED that State of Ohio's Motion for Summary Judgment be DENIED. (ECF No. 48.)


         Plaintiff initiated this action on June 8, 2017, alleging deliberate medical indifference to his serious medical needs. (ECF Nos. 1, 4.) On August 7, 2017, Plaintiff filed an Amended Complaint. (ECF No. 7.) On September 27, 2018, Defendants filed a Motion to Dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 15.) The Court granted Defendants' Motion to Dismiss on February 2, 2018, as to Defendants Tim Buchanan, Charles Bradley, and Vanessa Sawyer. (ECF No. 32.) The Court did not dismiss the case as to the unnamed Defendants “FMC Transport Staff” and “FMC Doctors and Staff.” (Id.) On February 5, 2018, the Court granted Plaintiff sixty (60) days to engage in further discovery or to amend his Complaint in order to identify the unnamed Defendants. (ECF No. 33.) Interested Party, the State of Ohio, made a limited appearance pertaining to the unnamed Defendants. (ECF No. 36.)

         On March 26, 2018, Plaintiff requested an extension of time to file an Amended Complaint. (ECF No. 35.) The Court granted Plaintiff's Motion and permitted him leave to file his Amended Complaint on or before June 8, 2018.[2] (ECF No. 38.) On June 22, 2018, Plaintiff filed a Motion for an Order Compelling an Answer and Discovery Response. (ECF No. 43.) Plaintiff alleged that the State of Ohio had failed to respond to a letter he sent its counsel requesting assistance in naming the unnamed Defendants. (Id.) Plaintiff therefore moved for an order directing the State of Ohio to produce any and all documents pertaining to the event in question. (Id.) The State of Ohio responded on July 6, 2018, opposing the Motion to compel discovery. (ECF No. 44.) On July 25, 2018, the Court granted Plaintiff's Motion, finding that the State of Ohio's attempts to partially meet Plaintiff's discovery request were woefully inadequate. (ECF No. 45.) The Court ordered the State of Ohio to fully comply with Plaintiff's discovery request by informing the Court by written notice on the docket of the results of its compliance within thirty (30) days of the date of the Order. (Id.) The State of Ohio responded to the Order on August 24, 2018 with the results of its compliance with the discovery request and a motion to dismiss for lack of jurisdiction. (ECF No. 48.)

         The State of Ohio asserts that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (“PLRA” or “the Act”) before filing the instant action. (Id.)

         On February 21, 2019, the Undersigned issued a Report and Recommendation recommending that State of Ohio's Motion to Dismiss be granted. (ECF No. 62.) On May 8, 2019, Plaintiff filed an Objection to the Report and Recommendation. (ECF No. 68.) On May 21, 2019, State of Ohio filed a Response to Plaintiff's Objection. (ECF No. 69.) On May 30, 2019, the presiding United States District Judge issued an Order converting the Motion to Dismiss to a Motion for Summary Judgment, finding the Report and Recommendation moot, “insofar as it recommended granting the motion to dismiss which has now been converted to a motion for summary judgment.” (Motion for Summary Judgment.)[3] The Court permitted Plaintiff to submit evidentiary materials “relevant to the issue of exhaustion of administrative remedies and allowable under Rule 56” outside the pleadings in opposition to the State of Ohio's motion to dismiss on the ground of failure to exhaust administrative remedies within thirty (30) days of the date of the Order. (Id.) The Court also permitted the State of Ohio to file a Reply to any evidentiary materials submitted by Plaintiff within twenty-one (21) days of Plaintiff's filing. (Id.) On July 5, 2019, Plaintiff filed “Evidentiary Materials Outside the Pleadings in Opposition.” (ECF No. 73.) On July 26, 2019, State of Ohio filed a Reply. (ECF No. 77.)

         II. EVIDENCE

         Ohio Department of Rehabilitation and Correction (“ODRC”) Assistant Chief Inspector Karen Stanforth provided an Affidavit regarding the prison grievance procedure at Plaintiff's institution. (ECF No. 48, Ex. 2, “Stanforth Aff.”.)[4] Assistant Chief Inspector Stanforth explained the following:

ODRC maintains an inmate grievance procedure that is available to all inmates regardless of their disciplinary status at each of its institution [sic]. See Ohio Admin. Code 5120-9-31(D). This procedure allows inmates to seek relief regarding any aspect of institutional life that directly and personally affects the grievant. This may include complaints regarding policies, procedures, conditions of confinement, or actions of institutional staff. See Ohio Admin. Code 5120-9-31(A).
The inmate grievance procedure is comprised of three consecutive steps. Ohio Admin. Code 5120-9-31(K). Under step one of the procedure, the inmate submits an informal complaint to the direct supervisor of the staff member or the department most directly responsible over the subject matter concerning the inmate. See Ohio Admin. Code 5120-9-31(K)(1).
If the inmate is not satisfied with the results, the inmate must proceed to step two by filing a formal grievance with the inspector of institutional services at the prison where he is confined. See Ohio Adm. [sic] Code 5120-9-31(K)(2). That inspector will investigate the matter and issue a written response to the inmate's grievance. Id.
If the inmate is still dissatisfied, the inmate must proceed to the third step, which is an appeal to the Office of the Chief Inspector of ODRC. See Ohio Admin. Code 5120-9-31(K)(3). In circumstances where the inmate alleges misconduct on the part of the warden or inspector of institutional services at the prison where the inmate is confined, the inmate may initiate a grievance directly with the Office of the Chief Inspector. See Ohio Admin. Code 5120-9-31(M). There is no appeal from the Chief Inspector's decision in a direct grievance under Ohio Admin. Code 5120-9-31(M). An inmate does not exhaust his or her remedies under Ohio Admin. Code 5120-9-31 until the inmate has received a decision in an appeal to the Office of the Chief Inspector or has received a decision from the Office of the Chief Inspector as to a direct grievance alleging misconduct against the warden or inspector of institutional services.
All inmates in the custody of ODRC are given both written and oral instructions on how to use the inmate grievance procedure including instructions on appeals to the Office of the Chief Inspector and direct grievance [sic] to that office as required by Ohio Admin. Code 5120-9-31(C).

(Stanforth Aff., at ¶¶ 6-10.) In Plaintiff's Amended Complaint, he alleged that he took the steps of “Informal Complaint to the medical staff and then to the grievance committe [sic] in Columbus” in response to whether he had presented the facts relating to his complaint in the prisoner grievance procedure provided in his institution. (ECF No. 7, at pg. 3.) He also alleged in his Statement of Claims: “[A] formal Grievance was prepared and submitted through proper channels in accordance with ODRC policies and procedures, and the response from the office of the Institutional Inspection committee was that they do not have the authority to handle institutional problems.” (Id., at pg. 8.)[5]

         Assistant Chief Inspector Stanforth averred the following regarding Plaintiff's use of the grievance procedures:

I have reviewed the grievance records regarding Inmate Brandon Ashdown (inmate number A705024). Inmate Ashdown filed five informal complaints . . . in 2015. He did not file any formal grievances nor did he file any appeals to the Chief Inspector's Office in 2015.
Inmate Ashdown did not pursue any of his institutional complaints in 2015 to the point of exhausting his administrative remedies.

(Stanforth Aff., at ¶¶ 4, 11.) The five informal complaints to which State of Ohio refers do not concern the alleged claims in the instant action. (See ECF No. 48-2, “Plt's Grievance Hist.”.)[6]

         Specifically, on July 18, 2015, Plaintiff filed an informal complaint alleging that correctional officers took one of his possessions, specifically a fan, and refused to give it back to him despite that it was “[titled] in [his] name.” (Id.) In the “action taken” section, the staff member wrote that “[t]he inspector does not answer Informal Complaints. You already filed a similar complaint to the shift supervisor.” (Id.) On July 21, 2015, Plaintiff filed an informal complaint alleging that his fan was again unfairly confiscated. (Id.) In the “action taken” section, the staff member wrote that “[a]ccording to Sgt. McKee - your fan has been returned. If you alter it in any way, it can be taken as contraband.” (Id.) On August 8, 2015, Plaintiff filed two informal complaints alleging that his mail regarding a legal appeal “sat around here at [Noble Correctional Institution] for a week before it was [mailed].” (Id.) In the “action taken” sections, the staff member wrote “see attached cash slip copy” and “[t]he cash slip for the postage was signed by you and Sgt McKee on 7/14/15, and processed on 7/15/15 and then mailed out. We have no control over the USPS and how fast they deliver mail.” (Id.) On August 13, 2015, Plaintiff filed an informal complaint alleging that a correctional officer unfairly confiscated some of his personal possessions. (Id.) In the “action taken” section, the staff member wrote that “[Correctional Officer] Brunoni stated he did not take any medical soap, but did take the contraband ruler and homemade JP4 case, and wrote out a contraband slip. You received an appropriate conduct report. Part of the informal process is to send copies in a kite, so he was doing his job by reminding you to do it correctly. It is the [correctional officer's] discretion to turn fans on/off.” (Id.) None of these informal complaints by Plaintiff remotely concern the incident of alleged deliberate medical indifference at issue in the instant action.

         In response, Plaintiff submitted several materials. (ECF No. 73.) Plaintiff asserts that these materials “demonstrate that [he] has in good faith done every thing [sic] that was made readily available to him and therefore when he has attempted to get the appropriate information, records, [e]tc. To submit to the court as evidence he has continuously received negligent responses no matter what the request or complaint was, or when the date of the request/complaint took place.” (Id. at PAGEID # 403.) The Undersigned will address each of Plaintiff's submissions in turn.

         A. Ohio Administrative Code 5120-9-04

         Plaintiff includes Ohio Administrative Code 5120-9-04 regarding “Appropriate supervision, discrimination and racial issues.” (ECF No. 73-1, PAGEID # 410-11.) Plaintiff asserts that this document “was included with the Correctional Institution Inspection Committee (“CIIC”) letter of response that [he] received about his complaint he sent them[.]” (ECF No. 73, at PAGEID # 404.) He further asserts that this “is a description of what staff members are to do when receiving a complaint that alleges inappropriate supervision, along with the correct process of what the Institutional Inspector is to do upon receiving a complaint about inappropriate supervision and not [e]xcluding the finding of merit of an imate['s] complaint.” (Id.) However, this OAC regulation is not related to the allegations in Plaintiff's Amended Complaint. (See ECF No. 7.) The regulation defines “inappropriate supervision” as “any continuous method of annoying or needlessly harassing an inmate or group of inmates, including, but not limited to, abusive language, racial slurs, and the writing of inmate conduct reports strictly as a means of harassment.” O.R.C. § 5120-9-04(B). Nowhere in Plaintiff's Amended Complaint does he allege that he endured abusive language, racial slurs, or the writing of an inmate conduct report strictly as a means of harassment. (See ECF No. 7.)

         B. ODRC Policy Standards

         Plaintiff includes a Noble Correctional Institution copy of the ODRC policy standards for employee conduct. (ECF No. 73-2, PAGEID # 412-15.) The policy indicates that its purpose “is to provide written guidelines and notify all employees regarding the written rules of conduct that specify prohibited behavior and penalties.” (Id. at PAGEID # 412.) Plaintiff asserts that the policy standards are included “to demonstrate how the responses or non-responses that [he] received or did not receive about any of his complaints or requests [were] not sufficient to the (ODRC) standards of employee conduct.” (ECF No. 73, at PAGEID # 404.)

         C. 2014 Correctional Institution Inspection Committee Report

         Plaintiff includes part of a 2014 report by the CIIC regarding an inspection of Noble Correctional Institution. (ECF No. 73-3, at PAGEID #416-19.) Plaintiff asserts that this document is included to demonstrate “that not all appropriate (ODRC) documents/forms are available to inmates at ¶ 100% [sic] of the time, nor do inmates receive an answer/decision to their request or complaints a 100% [sic] of the time[.]” (ECF No. 73, at PAGEID # 404.) Plaintiff alleges in his Amended Complaint that he entered ODRC in April 2014 and that his surgery and transportation occurred in June 2015. (ECF No. 7.)

         The CIIC report appears to have been written in August 2014. (ECF No. 73-3, at PAGEID # 416.) The report, therefore, was written before Plaintiff's alleged incident took place. State of Ohio therefore argues that Plaintiff “wants the trier of fact to engage in speculation and take a leap of faith in believing that somehow his specific case relating to post-surgery transportation complaints from 2015 is documented in the report . . . . There can be no reasonable leap of logic created without engaging in Cirque du Soleil-level acrobatics.” (ECF No. 77, at pg. 13 (emphasis in original).)[7] Here, Plaintiff indicates that this was “the only yearly report that was available” and specifically includes the pages regarding the statistics on informal complaints and grievances. At this juncture, the Court cannot say that the 2014 CIIC report submitted by Plaintiff has no probative value. See Ridenour, 692 F.Supp.2d at 844.

         D. Blank Kite Procedure Forms

         Plaintiff includes a blank Kite form to demonstrate “what a kite looks like before an inmate and the appointed institutional staff correspond with the Kite Procedure.” (ECF No. 73, at PAGEID # 405.) He further includes a second blank Kite form to demonstrate “the changes that have occurred from the past Kite to the new Kite[.]” (Id.) Plaintiff explains the old Kite form:

On Side (A) is the face of the KITE, an Ohio State wide Prison provided, and preprinted for the use of inmates. On two of the ends on the FACE of the pre-printed kite are listed five instructions of the KITE PROCEDURE. Side (B) is a BLANK side for which incarcerated inmates are to write their complaints/issues on. The first Blank kite form is what we used to have with a pre-glue strip on the side (B) and there is a box where the Institution staff must sign before you are allowed to turn the kite in to the proper place.

(Id.) Plaintiff explains the new Kite form:

The glue-strip and the Issued by (staff member signature): box are, no longer on the kites that we use on the current day to day Kite, and you will see the changes that have occurred from the past Kite to the new Kite that we are currently using on day to day. This description of the KITE form that has not been properly filled out “see side A, & side B.” is to demonstrate to all parties as of which side to look at on the rest of the KITE forms that are included with the Appendix attachments, and that has been filled out and used by Plaintiff Ashdown, is so that there are no confusions as of why the rest of the Appendix KITE forms “DO NOT” have side A, OR side B on them. Therefor[e] Appendix D serves as a multi-purpose piece of evidence.


         E. Blank Informal Complaint Resolution Form

         Plaintiff includes a blank Informal Complaint Resolution (“ICR”) form. (ECF No. 73-5, at PAGEID # 424.) He explains that “[t]his form is no longer in use nor is any paper form no-longer in use to file Informal Complaints/Grievances. Do [sic] to the fact that the Informal/Grievance Procedure is to be conducted in a digital manner now on a computer called J-pay/kiosk.” (ECF No. 73, at PAGEID # 405.)

         F. June 2015 Kites

         Plaintiff includes three different Kite forms completed by him in June 2015. (ECF No. 73-6, at PAGEID # 425-30.) Plaintiff's first Kite is dated June 12, 2015 but time stamped June 16 6:41 AM and addressed to “Mrs. Sawyer.”[8] (Id. at PAGEID # 425.) Plaintiff wrote in the Kite:

I was told to Kite you about this issue, I Had Hernia surgery June 5th, since I've Been Back at noble the medical staff refused to give me Ibuprofen cuz I Had money on my account. They only sell 50 milligram tablets!! Why should I Have to take ten pills for when medical should have prescribed me 1000 milligrams for the amount of pain my testicals [sic] are in!! That is cruel unusual treatment, or Human torture. I'm also writing Colombus [sic] the Public defenders office, please send me a copy Back of this Kite!! Thank You

(Id. at PAGEID # 426.) The Kite also has handwriting that differs from Plaintiff's which states the following:

Commissary has Ibuprofen that comes in 200 mg tablets or capsules their [sic] maybe 50 tablets in one bottle. Please check again.
You recently had surgery: left inguinal hernia repair completed on 6/5/15 without complication at OSU sent to FMC on 6/5/15 given Tylenol #3 post-op
(400 mg twice per day = 800 mg)
Ibuprofen 200 mg (10 packs given to start) (stated pain 3-4 out of 10 on return to NCI)
On 6/10/15 returned to NCI seen in medical and evaluated by nurse and ALP.
Medical restrictions No lifting > 10 lbs x 6 wks [Illegible] ¶ 4 months Med. [illegible] ¶ 5 ...

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