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Brown v. Mohr

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

August 19, 2019

Steven S. Brown, Plaintiff,
v.
Director Mohr, et al., Defendants.

          District Judge George C. Smith Magistrate Judge Sharon L. Ovington

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Steven S. Brown is an inmate presently incarcerated at the Mansfield Correctional Institution in Mansfield, Ohio. He brings this case against many Defendants concerning alleged events that occurred and conditions that existed during his confinement at the Ross Correctional Institution. The case is pending upon Defendants' Motion for Summary Judgment and related documents (Doc. #s 254, 255, 257-59, 261, 262, 273), Plaintiff's Response in which he submits 126 Exhibits (Doc. #283), and the record as a whole. Defendants seek an order granting summary judgment in their favor on each of Plaintiff's remaining claims.

         II. Remaining Claims And Remaining Defendants

         Plaintiff was incarcerated at Ross Correctional Institution (RCI) during two time periods: nearly three months from January 18, 2011 through April 6, 2011 and nearly sixteen months from March 15, 2013 through July 11, 2014.

         Plaintiff's remaining claims focus on individuals employed by the State of Ohio during his two periods of confinement at RCI. Defendants fit into four groups:

1. Attorneys for the Ohio Department of Rehabilitation and Corrections (ODRC), including Austin Stout, Gregory Trout, and Trevor Clark;
2. Medical personnel, including Dr. Gary Krisher, Dr. Andrew Eddy (State Medical Director), and Lynda Smith (licensed practical nurse);
3. RCI administrators, including RCI Warden Rob Jeffries, Deputy Warden Upchurch, and RCI Director of Operations Ed Voorheis; and
4. ODRC Director Gary Mohr.

         The substance of Plaintiff's remaining constitutional claims-which arise under 42 U.S.C. § 1983-will be described in the Discussion below, infra, § IV.

         III. Motions For Summary Judgment

         A party is entitled to summary judgment when there is no genuine dispute over any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Barker v. Goodrich, 649 F.3d 428, 432 (6th Cir. 2011). “A fact is material if it would establish or refute an ‘essential element[ ] of a cause of action or defense asserted by the parties[.]'” Estate of Romain v. City of Grosse Pointe Farms, F.3d, 2019 WL 3808877, at *3 (6th Cir. 2019) (citation omitted); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (1986); see Estate of Romain, F.3d, 2019 WL 3808877, at *3 (citation omitted).

         To resolve whether a genuine issue of material fact exists, the Court draws all reasonable inferences in the light most favorable to the non-moving party. Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 520 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)). With these reasonable inferences in the forefront, “[t]he central issue is ‘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.'” Jones v. Potter, 488 F.3d 397, 402-03 (6th Cir. 2007) (quoting, in part, Anderson, 477 U.S. at 251-52).

         IV. Discussion

         To succeed in proving a cause of action under § 1983, a plaintiff must establish that a person acting under color of state law violated his or her rights under the Constitution or laws of the United States. Winkler v. Madison County, 893 F.3d 877, 890 (6th Cir. 2018).

         A. Exhaustion

         Defendants contend that summary judgment is warranted in their favor on many of Plaintiff's § 1983 claims because he failed to administratively exhaust his claims before pursuing them in this Court.

         An inmate seeking to challenge the “conditions of his confinement under section 1983…, ” must exhaust “such administrative remedies as are available [to him].” 42 U.S.C. § 1997e(a). This statutory command is mandatory. See Ross v. Blake, U.S., 136 S.Ct. 1850, 1856 (2016) (“An inmate ‘shall' bring ‘no action'…, absent exhaustion of available administrative remedies.”); see Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). “A court may not excuse a failure to exhaust ….” Ross, U.S. at, 136 S.Ct. at 1856.

         An “inmate … must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 1858 (discussing § 1997e(a)). Remedies are unavailable when interference occurs: “[E]xhaustion is not required when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Remedies are unavailable when they are illusory: “[A]n administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id. at 1859. Similarly, remedies are unavailable where an “administrative scheme is so opaque that it becomes, practically speaking, incapable of use.” Id.

         In Ohio, remedies are potentially available to inmates through a three-step grievance procedure. See Ohio Admin. Code §§ 5120-9-31(A), (K). This procedure allows inmates to seek administrative relief for grievances concerning “any aspect of institutional life that directly and personally affects the grievant. This may include complaints regarding policies, procedures, conditions of confinement, or the actions of institutional staff.” Ohio Admin. Code § 5120-9-31(A). Boiled down to its core, Ohio's grievance procedure begins with filing an informal complaint, followed by a notification of grievance, and ends with an appeal. Ohio Admin. Code §§ 5120-9-31(K)(1)-(3); see Marshall v. Ohio Dep't of Rehab. & Corrections, No. 17-3569, 2018 WL 2539418, at *2 (6th Cir. 2018).

         The informal complaint must be submitted to the “direct supervisor of the staff member, or department most responsible for the particular subject matter of the complaint….” Ohio Admin. Code § 5120-9-31(K)(1). “If the inmate is dissatisfied with the informal complete response…, the inmate may file a notification of grievance with the inspector of institutional services….” Id. at § 5120-9-31(K)(2). If dissatisfied, “the inmate may file an appeal with the inspector of institutional services. The appeal must then be filed to the office of the chief inspector …. The decision of the chief inspector or designee is final. Grievance appeals concerning medical diagnosis or a specific course of treatment shall be investigated and responded to by a health care professional.” Id. at § 5120-9-31(K)(3).

         Defendants contend that Plaintiff has failed to exhaust his claims against Defendants Stout, Trout, and Clark, attorneys for the ODRC; ODRC Director Mohr and Dr. Eddy; and Warden Jeffries. Although Defendants describe Ohio's administrative exhaustion procedures (Doc. #274, PageID #s 2285-87), they do not tie this description in any meaningful way to their repeated assertions that Plaintiff has failed to exhaust his administrative remedies. They simply provide no explanation of which administrative step or steps Plaintiff failed to exhaust as to his remaining claims against the remaining Defendants. See Doc. #254, PageID #s 2295, 2297, 2300, 2314.

         [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

         Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks and citation omitted); see Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989); see also Fed.R.Civ.P. 56(a). Because Defendants advance no explanation of which administrative step or steps Plaintiff did not take, see Doc. #254, PageID #2295, they have not met their initial burden of informing the court about the basis for its concluding there is no genuine issue of material fact concerning his failure to exhaust his administrative remedies. See Celotex, 477 U.S. at 323; see also Stokes v. Ells, 2:14cv1601, 2017 WL 1091680, at *3 (S.D. Ohio 2017) (Smith, D.J.) (“The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion ….”); cf. Surles v. Andison, 678 F.3d 452, 456 (6th Cir. 2012) (“‘Non-exhaustion is an affirmative defense under the PLRA, with the burden of proof falling on the [defendant.]'” (citation omitted)).

         Despite these shortcomings, Defendants do have many meritorious arguments.

         See infra, §§ IV(B)-(F). Lack of exhaustion as it is presently framed is not one of them.

         B. Eleventh Amendment Immunity

         Defendants maintain that the Eleventh Amendment extends immunity to the state Defendants from Plaintiff's attempts to recover monetary damages against them in their official capacities.

         “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State ….” U.S. Const. amend. XI . When the Eleventh Amendment applies in federal lawsuits, it bars monetary claims against a State or state officials acting in their official capacities. See S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (and cases cited therein). “‘[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a ...


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