Evans v. Chambers-Smith

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ADAM EVANS, ) Case No. 1:19-cv-2870

)

Plaintiff, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge Thomas M. Parker

)

ANNETTE CHAMBERS-SMITH, )

et al., )

)

Defendants. )

)

OPINION AND ORDER

In the pending motion for summary judgment (ECF No. 28), Defendants raise

the issue of administrative exhaustion, and the Court ordered the parties to brief only

that threshold issue, holding in abeyance the balance of Defendants’ motion. (ECF

No. 29.) For the reasons below, the Court DENIES Defendants’ motion as to

exhaustion only and ORDERS the parties to complete summary-judgment briefing

on the remaining issues on the schedule set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Adam Evans arrived at Lorain Correctional Institute on April 4, 2019.

(ECF No. 36, PageID #651.) On April 22, 2019, Mr. Evans needed to take a shower.

(ECF No. 35, PageID #643.) When he did so, Plaintiff maintains two corrections

officers gave him a bar of “state soap” that was full of staples. (ECF No. 36, PageID

#652.) Unaware of the staples, Mr. Evans proceeded to wash himself with the soap,

resulting in alleged injuries and damages. (See ECF No. 28-1, PageID #469–73.) This

lawsuit stems from that incident. The discrete issue before the Court, however, is

whether Mr. Evans exhausted his administrative remedies while incarcerated and, if

not, whether he can demonstrate that one of three exemptions from that requirement

applies. (See ECF No. 29.)

A. The Grievance Procedure

At Lorain Correctional, there is an electronic grievance procedure that, when

functioning properly, consists of three steps. (ECF No. 38-1, PageID #723–24.) First,

an inmate files an “Informal Complaint Resolution” through the JPay system that

goes to the appropriate supervisor in the inspector’s office. (Id., PageID #723; ECF

No. 38-1, ¶ 4, PageID #700.) Then, the appropriate supervisor has seven days to

respond, and the inmate receives notification of that response through the electronic

system. (ECF No. 38-1, PageID #723.) If there is no response, the inmate must raise

that issue immediately, and the supervisor has an additional four days to respond;

conversely, if the inmate believes the response “violate[s] policy,” is “incorrect,” or is

insufficient, he may proceed to the second step of the process. (Id.)

Second, the inmate may file a notice of grievance, but must do so within

fourteen days “from the date he has received the answer to the informal

complaint . . . unless the Inspector waives the time limit.” (Id., PageID #724.) After

filing of the notice, the inspector’s office has fourteen days to respond, but may take

an additional fourteen days if the prisoner is notified. (Id.) If the inspector cannot

resolve the issue, he may request an additional fourteen days. (Id.) Essentially, once

an inmate submits a notification of grievance at step two, prison officials have up to

forty-two days to respond, so long as the inspector properly notifies the inmate or

requests additional time. (See id.)

Third, if the matter remains unresolved, an inmate may appeal to the Chief

Inspector. (Id.) He must do so within fourteen days of the response to the notice of

grievance. (Id.) An appeal has one of four outcomes: the resolution of a grievance

can be (1) affirmed, (2) modified, (3) reversed, or (4) result in a request for more

information. (Id.) A response from the Chief Inspector takes “about thirty days,” and

the decision from this third step is final. (Id.)

B. Facts Related to Exhaustion

In an affidavit, Mr. Evans claims that on April 22, 2019, shortly after the soap

incident, he was denied the opportunity to file a grievance because he was put on

JPay restrictions and “could not get on jpay to follow the inmate grievance procedure.”

(ECF No. 36, ¶ 7, PageID #652; see also id., ¶¶ 4 & 5.) On April 25, 2019, Mr. Evans

was barred from using the JPay system and from getting food from the commissary

until May 9, 2019, as punishment for an unrelated incident. (Id., ¶ 7; ECF No. 38-1,

PageID #760.) Mr. Evans maintains that from May 9, 2019 until June 12, 2019,

guards prevented him from accessing JPay to file his step two notice of grievance.

(ECF No. 36, ¶ 8, PageID #652.) By the time he was allowed back on the system,

Mr. Evans asserts that his time to file his appeal had passed. (Id.) He maintains he

made diligent efforts to “effectively complete” the necessary steps of his grievance,

but was denied access to JPay, despite numerous requests to use the system. (Id.,

PageID #653.)

For their part, Defendants submitted Mr. Evans’s grievance history. (ECF

No. 32-1.) It shows that Mr. Evans filed an informal complaint on April 25, 2019;

grievances against the Warden and Inspector on May 25, 2019 and May 30, 2019;

another grievance against the Warden on June 12, 2019; appeals on May 27 and 28,

2020; another informal complaint on May 31, 2020; an appeal on June 9, 2020; and

an informal complaint on June 15, 2020. (Id., PageID #576–77.)

Defendants also submitted Mr. Evans’s step one complaint related to the soap

incident, which he filed on April 25, 2019. (Id., PageID #578.) That grievance

indicates that, on May 6, 2019, at 8:49:30 am, the institutional investigator began

looking into the claim, and thirteen seconds later, closed the complaint. (Id.)

Defendants also provided several other grievances Mr. Evans filed, two of which

occurred around the time of the soap incident: one complaint against the Warden,

filed on May 25, 2019 and denied six days later (id., PageID #579), and another

against the Inspector, filed on May 30, 2019 and denied the next day (id., PageID

#580).

C. Procedural History

While still incarcerated, on December 11, 2019, Mr. Evans filed this pro se

complaint against the Governor of Ohio, the Warden, and several others, including

various prison officials. (ECF No. 1, PageID #1.) He specifically named Annette

Chambers-Smith, Director of the Ohio Department of Rehabilitation and Correction;

Ohio Governor Michael DeWine; Andrew Eddy, Medical Director of the Ohio

Department of Rehabilitation and Correction; Kimberly Clipper, Warden of Lorain

Correctional; and Officer Smith and Officer Corbett. (Id., PageID #5–7.) Plaintiff

asserts six causes of action based on the bar of soap incident: assault mutilation by

guards, inhumane abusive conditions, statewide corruption, unsafe unsanitary

housing environments, ineffective grievance procedure, and falsified inspections.

(Id., PageID #10–52.) On April 8, 2020, the Court granted Plaintiff’s motion to

proceed in forma pauperis and allowed his action to proceed against Officers Corbett

and Smith. (ECF No. 8, PageID #349.) At the same time, the Court dismissed

Plaintiff’s claims against the other Defendants. (Id.)

Following that Order, only the assault and mutilation claim remains. (Id.)

Defendant Officers Corbett and Smith answered the complaint (ECF No. 12) and

moved for judgment on the pleadings (ECF No. 13). The Court granted the motion as

it pertained to the claims against Defendants in their official capacities, but denied

the motion as to the claims against them individually. (ECF No. 21, PageID #411.)

After the case management conference and several extensions, Plaintiff moved to

compel discovery, requesting access to video footage of the incident, a protective order,

and an evidentiary hearing. (ECF No. 27, PageID #436–38.) Defendants moved for

summary judgment, arguing among other things that Plaintiff failed to exhaust his

administrative remedies, barring his claim. (ECF No. 28, PageID #442.)

On December 15, 2020, the Court ordered Plaintiff to respond to the motion for

summary judgment by January 4, 2021, but to limit his response to the threshold

exhaustion issue. (ECF No. 29, PageID #561.) Plaintiff filed a wide-ranging response

on January 6, 2021 (ECF No. 33), which the Court struck because it did not comply

with the previous order (Jan. 7, 2021 Dkt. Entry). Plaintiff then filed a conforming

brief (ECF No. 35), to which Defendants replied, attaching additional evidence not

previously submitted (see ECF No. 38).

ANALYSIS

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

On a motion for summary judgment, the Court must view evidence in the light most

favorable to the non-moving party. Kirilenko-Ison v. Board of Educ. of Danville

Indep. Schs., 974 F.3d 652, 660 (6th Cir. 2020) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

On a motion for summary judgment, the moving party has the initial burden

of establishing that there are no genuine issues of material fact as to an essential

element of the claim or defense at issue. Street v. J.C. Bradford & Co., 886 F.2d 1472,

1479–80 & n.12 (6th Cir. 1989); Chappell v. City of Cleveland, 584 F. Supp. 2d 974,

988 (N.D. Ohio 2008). After discovery, summary judgment is appropriate if the

non-moving party fails to establish “an element essential to that party’s case and

upon which that party will bear the burden of proof at trial.” Tokmenko v.

MetroHealth Sys., 488 F. Supp. 3d 571, 576 (N.D. Ohio 2020) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)).

To determine whether a genuine dispute about material facts exists, it is not

the Court’s duty to search the record; instead, the parties must bring those facts to

the Court’s attention. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th

Cir. 1996). “The party seeking summary judgment has the initial burden of informing

the court of the basis for its motion” and identifying the portions of the record “which

it believes demonstrate the absence of a genuine issue of material fact.” Tokmenko,

488 F. Supp. 3d at 576 (citing Celotex Corp., 477 U.S. at 322). Then, the nonmoving

party must “set forth specific facts showing there is a genuine issue for trial.” Id.

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “When the moving

party has carried its burden under Rule 56(c), its opponent must do more than simply

show there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co., 475 U.S. at 586.

If a genuine dispute exists, meaning “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” summary judgment is not

appropriate. Tokmenko, 488 F. Supp. 3d at 576 (citing Anderson, 477 U.S. at 250). If

“the evidence is merely colorable or is not significantly probative,” however, summary

judgment for the movant is proper. Id. The “mere existence of some factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,

477 U.S. at 247–48).

I. Exhaustion

Under the Prison Litigation Reform Act, a prisoner “may not bring a federal

action related to prison conditions ‘until such administrative procedures as are

available are exhausted.’” Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012)

(quoting 42 U.S.C. § 1997e(a)). Complete exhaustion is a mandatory requirement,

meaning failure to exhaust cannot be excused, even under special circumstances.

Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85

(2006), and Jones v. Bock, 549 U.S. 199, 211 (2007)).

Failure to exhaust is an affirmative defense, meaning “inmates are not

required to specifically plead or demonstrate exhaustion in their complaints.” Jones,

549 U.S. at 216. “Instead, failure to exhaust ‘must be established by the defendants.’”

Surles, 678 F.3d at 455 (quoting Napier v. Laurel Cnty., 636 F.3d 218, 225 (6th Cir.

2011)). Because Defendants bear the burden at trial, they “bear an initial summary

judgment burden that is higher in that they must show the record contains evidence

satisfying their burden of persuasion and that no reasonable jury would be free to

disbelieve it.” Does 8–10 v. Snyder, 945 F.3d 951, 961 (6th Cir. 2019) (cleaned up).

Faced with an exhaustion argument, a “district court should grant summary

judgment only if a defendant establishes that there is no genuine dispute of material

fact that the plaintiff failed to exhaust.” Id. (emphasis added) (citation omitted).

I.A. Available Remedies

Defendants argue that the exhaustion issue is simple because Plaintiff did not

exhaust his remedies, cannot overcome the requirement that he do so, and does not

qualify for an exception. (ECF No. 38, PageID #686.) Plaintiff responds that the

administrative remedies Defendants say he failed to exhaust were not available to

him, so he was not required to exhaust before bringing this action. (ECF No. 35,

PageID #644, 646, 648.)

The Prison Litigation Reform Act contains a “built-in exception to the

exhaustion requirement: A prisoner need not exhaust remedies that are not

‘available.’” Ross, 136 S. Ct. at 1855 (quoting 42 U.S.C. § 1997e(a)). Whether a

grievance procedure is available is assessed based on the “ordinary meaning” of that

word. Ross, 136 S. Ct. at 1858–59 (quotations omitted) (citing Booth v. Churner, 532

U.S. 731, 738 (2001)). Put differently, a prisoner must “exhaust those, but only those,

grievance procedures that are capable of use to obtain some relief for the action

complained of.” Id. at 1859 (cleaned up).

The Supreme Court has recognized three circumstances in which a grievance

procedure necessary for exhaustion is not “available”: (1) where the procedure

operates as a dead end, (2) where the procedure is so opaque it is practically incapable

of use; or (3) where prison officials prevent prisoners from accessing the grievance

procedure. Id. at 1859–60. Demonstrating any one of these exceptions defeats an

exhaustion defense. Id. at 1859.

I.B. Opacity and Accessibility

Plaintiff invokes the second and third exceptions. With respect to opacity,

Plaintiff argues that an ordinary prisoner is incapable of understanding or using the

grievance procedure at Lorain Correctional. (ECF No. 35, PageID #642.) But

Plaintiff goes on to explain the grievance procedure and accurately cite the statute

from which it originated. (Id., PageID #647.) Given that Plaintiff was able to

understand the procedure well enough to explain it, the Court cannot conclude that

it is opaque to the point that it is unavailable. See, e.g., Geter v. Baldwin State Prison,

974 F.3d 1348, 1357 (11th Cir. 2020) (affirming the district court’s decision that a

plaintiff was demonstrably capable of understanding a grievance procedure because

he responded to arguments about it). Moreover, the record on summary judgment

contains a manual, provided to each inmate, that presents the grievance procedure

in simple, easily understood terms. Further, the record establishes that Mr. Evans

received the manual.

As for the third exception, where prison officials “thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation,” the administrative remedy may not be “available.” Ross, 136 S. Ct. at

1860. Even if the prison’s grievance procedure is otherwise proper, it can

nevertheless be unavailable if prison officials intentionally prevent or impede

prisoners from accessing or using the procedure. See, e.g., Snyder, 945 F.3d at 966

(stating that prison officials’ failure to provide grievance forms and intercepting

administrative findings thwarted prisoners’ ability to use the grievance procedure);

Burfitt v. Lawless, No. 1:19-cv-781, 2021 WL 1169071, at *3 (S.D. Ohio Mar. 29, 2021)

(stating that tampering with or ransacking a prisoner’s cell as an apparent

consequence for filing a grievance thwarts a prisoner’s ability to use the grievance

procedure); Brooks v. Dillow, No. 1:15-cv-812, 2016 WL 6493419, at *6 (S.D. Ohio

Nov. 2, 2016) (holding that a custom of refusing to allow appeals for excessive force

complaints frustrates prisoners’ ability to use the grievance procedure).

Plaintiff maintains that prison officials prevented him from accessing the

grievance procedure. (ECF No. 35, PageID #646–47.) After he timely submitted his

complaint (step one), Plaintiff claims that prison officials restricted him from using

the JPay system for two weeks and that, even after that punishment ended, prison

officials continued to prevent him from accessing the system to file an appeal (step

two). (Id., PageID #645–47.) Defendants agree that Plaintiff was formally restricted

from using JPay for two weeks. (ECF No. 38, PageID #691.) Even if a prisoner at

Lorain Correctional is restricted from JPay, he can still use the system in the

grievance process by notifying the guards. (Id., PageID #691–92.) Plaintiff

maintains, however, that he requested access to JPay, but officials did not respond or

ignored the request. (ECF No. 35, PageID #647; ECF No. 36, ¶¶ 10, 11, PageID #653.)

The record establishes that Mr. Evans was not permitted to use JPay until

May 25, 2019. He swears that he made repeated requests for permission to access

JPay specifically relating to his grievance. In contrast, Defendants claim that

Plaintiff was free to use JPay after May 9, asked an official for permission to use the

system, and was allowed to do so. (ECF No. 38, PageID #691–92; ECF No. 38-1, ¶ 15,

PageID #702.) This conflicting evidence presents a genuine dispute of material fact

on the pending motion for summary judgment. Construing the record in favor of

Mr. Evans, a reasonable finder of fact could credit the testimony of Mr. Evans and

find that Plaintiff exercised reasonable diligence in seeking to exhaust his

administrative remedies, but was thwarted or impeded in his ability to do so.

II. Defendants’ Other Arguments

Defendants raise several other procedural arguments in favor of summary

judgment. First, they maintain that because Plaintiff’s initial response did not

comply with the Court’s previous orders, Defendants are entitled to summary

judgment. (ECF No. 38, PageID #684–86.) The Court permitted Plaintiff to refile a

compliant brief, so this argument lacks merit.

Second, Defendants challenge the timeliness of that second response, which is

postmarked the day of the filing deadline—January 25, 2021—and not filed on the

docket for a couple more days, making it, as Defendants correctly point out, late.

(ECF No. 35, PageID #650.) This argument is technically correct. “A paper not filed

electronically is filed by delivering it” to either the Clerk or “a judge who agrees to

accept it”—not by placing it in the mail. Fed. R. Civ. P. 5(e)(A)–(B). And at the time

he submitted his response, Plaintiff was no longer incarcerated; therefore, he does

not benefit from the prison-mailbox rule. See Houston v. Lack, 487 U.S. 266, 274–76

(1988) (discussing the rationale for the rule). The Sixth Circuit has limited the

mailbox rule’s application to pro se incarcerated individuals. See Cretacci v. Call, 988

F.3d 860, 866 (6th Cir. 2021) (declining to apply the prisoner mailbox rule for habeas

petitions counsel drafts and submits), Laird v. Norton Healthcare, Inc., 442 F. App’x

194, 199 n.4 (6th Cir. 2011) (discussing the contexts in which the mailbox rule does

(i.e., for pro se prisoners) and does not (i.e., all others) apply).

Although the pleadings and documents pro se litigants file are liberally

construed and held to less stringent standards than the formal pleadings of lawyers,

Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004), pro se litigants are not exempt

from the requirements of the Federal Rules of Civil Procedure, Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989). On the day of the deadline here, the Court had limited

access to the courthouse due to Covid-19, which interfered with Plaintiff’s ability to

comply with the requirement that he deliver a copy of his opposition to the Clerk.

Accordingly, under these peculiar circumstances, the Court does not consider

Plaintiff’s submission untimely. The Court reminds Plaintiff that he must comply

with the Rules and will be held to the same standard as lawyers in this regard.

Third, Defendants focus on Plaintiff’s statements regarding the lack of forms

with which he could file a grievance or complaint. (ECF No. 38, PageID #690–91.)

Plaintiff did not argue that the grievance procedure was not available to him because

of the lack of forms, he merely mentioned that he requested forms—in addition to

access to JPay—and was denied both. (ECF No. 35, PageID #643—44.) Finally,

Defendants contend that Plaintiff did not sufficiently identify the guards who

allegedly caused his soap-related injuries in his initial complaint. (ECF No. 38,

PageID #686—89.) But as Defendants point out in relation to some of Plaintiffs

arguments, that issue is beyond the scope of this Order.

CONCLUSION

For the reasons above, the Court DENIES IN PART Defendants’ motion for

summary judgment only on the limited ground that Defendants have not carried their

burden to demonstrate Plaintiff failed to exhaust his administrative remedies.

Under Local Rule 72.2(a) and 28 U.S.C. § 636, the Court REFERS this matter

to the assigned United States Magistrate Judge for all remaining pretrial matters,

including issuing a report and recommendation on the balance of Defendants’ motion

for summary judgment. The Magistrate Judge is empowered to set a briefing

schedule and rule on all pending non-dispositive motions as he sees fit.

SO ORDERED.

Dated: July 26, 2021

J.Philip Calabrese”

United States District Judge

Northern District of Ohio

13