United States District Court, S.D. Ohio, Eastern Division
Steven S. Brown, Plaintiff,
Director Mohr, et al., Defendants.
District Judge George C. Smith Magistrate Judge Sharon L.
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
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.
Remaining Claims And Remaining Defendants
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.
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
3. RCI administrators, including RCI Warden Rob Jeffries,
Deputy Warden Upchurch, and RCI Director of Operations Ed
4. ODRC Director Gary Mohr.
substance of Plaintiff's remaining constitutional
claims-which arise under 42 U.S.C. § 1983-will be
described in the Discussion below, infra, § IV.
Motions For Summary Judgment
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).
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).
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).
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.
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.
“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
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
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).
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.
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.
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)).
these shortcomings, Defendants do have many meritorious
infra, §§ IV(B)-(F). Lack of exhaustion as it
is presently framed is not one of them.
Eleventh Amendment Immunity
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.
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 ...