The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Lawrence R. Burfitt,
Plaintiff, Case No. 1:19cv781
v. Judge Michael R. Barrett
Brion Lawless, et al.,
Defendants.
ORDER
This matter is before the Court on the Magistrate Judge’s January 21, 2021 Report
and Recommendations (“R&R”) (Doc. 28) recommending that Defendants’ Motion for
Summary Judgment (Doc. 24) and Motion to Strike (Doc. 27) be denied. Defendants, CO
Brian Lawless, Lt. Gary Haywood, and Lt. William Bauer filed timely objections to the
Magistrate Judge’s R&R. (Doc. 31).
Also before the Court is Defendants’ Motion to Dismiss, or, In the Alternative,
Motion for Extension of Dispositive Motion Deadline. (Doc. 29). Plaintiff filed a response
opposing the motion. (Doc. 35).
I. STANDARD OF REVIEW
When objections are made to a magistrate judge’s report and recommendation on
a nondispositive matter, this Court “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The
“clearly erroneous” standard applies to the magistrate judge's factual findings and the
“contrary to law” standard applies to the legal conclusions. Sheppard v. Warden,
Chillicothe Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013).
Legal conclusions should be modified or set aside if they “contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992). When objections to a magistrate judge’s
report and recommendation are received on a dispositive matter, the assigned district
judge “must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review, the district judge “may
accept, reject, or modify the recommended decision; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
II. BACKGROUND
Plaintiff Lawrence Burfitt is proceeding in this matter pro se. Plaintiff brings claims
for violations of the First and Eighth Amendments to the United States Constitution
against Defendants Lawless, Mahlman, Parish, Haywood, and Bowers, who are all
employees of Southern Ohio Correctional Facility (“SOCF”). (Doc. 3 at 3). Plaintiff asserts
that while he was incarcerated at SOCF, “Defendants’ use of force, retaliation, and
deliberate indifference violated his First and Eighth Amendment rights under the United
States Constitution.” (Doc. 28 at 1).
This Court previously dismissed Plaintiff’s claims against Defendants Mahlman
and Parish; and dismissed Plaintiff’s official capacity claims against Defendants Lawless,
Haywood, and Bowers. (Doc. 4; Doc. 5 at 1-2). The remaining claims are Plaintiff’s First
Amendment retaliation and Eighth Amendment deliberate indifference claims against
Defendant Lawless in his personal capacity; and Plaintiff’s Eighth Amendment excessive
force claim against Defendants Haywood and Bowers in their individual capacities.
Plaintiff claims that Defendant Brion Lawless retaliated against him in various
ways, including destroying Plaintiff’s legal work (Doc. 4 at 5), sending Plaintiff to “the hole”
(Id.), keeping Plaintiff’s medication from him (Id.), and calling him derogatory names (Doc.
14 at 8). In their Motion for Summary Judgment, Defendants argue that Plaintiff’s claims
should be dismissed because Plaintiff failed to exhaust administrative remedies before
filing this claim in compliance with the Prison Litigation Reform Act of 1995.
As the Magistrate Judge explained, pursuant to Ohio Administrative Code 5120-9-
31, Plaintiff submitted an informal complaint reporting Defendant Lawless’s retaliatory
conduct. (Doc. 28 at 3). Plaintiff initially submitted it to the wrong department, so he then
filed a Use of Force Statement to Defendant’s supervisor. (Id. at 3-4). Plaintiff’s
grievances were denied, but he did not appeal them. (Id. at 4). Plaintiff filed another
grievance for retaliation against the SOFC but “did not name Bryant [sic] Lawless.” (Id.
quoting Doc. 24 at 10). Plaintiff maintains that Defendants and other SOCF officials made
it impossible for him to complete the grievance procedure because he had been (1) forced
to move cells five times, (2) had his legal work taken from the cells, and (3) had been
intimidated and threatened by Defendant Lawless. (Id. at 4-5).
The Magistrate Judge recommends denying Defendants’ Motion for Summary
Judgment. The Magistrate Judge explained that even though the Prison Litigation Reform
Act of 1995 mandates prisoners exhaust their administrative procedures within prisons
before filing suit in federal court, Ross v. Blake, 136 S.Ct. 1850, 1853 (2016) holds that a
prisoner’s obligation to exhaust his administrative procedures hinges upon the availability
of the procedures to the prisoner. The Magistrate Judge concluded that there exists a
genuine issue of material fact whether Defendants’ action would “deter a person of
ordinary firmness from proceeding through the grievance process” which would render
the administrative procedures unavailable under Does 8–10 v. Snyder, 945 F.3d 951, 961
(6th Cir. 2019). (Doc. 28 at 5-9).1
In their Objections, Defendants point out that Plaintiff filed “dozens of grievances
in the weeks and months following the incident central to his complaint.” (Doc. 31 at 4
citing Doc. 24, Ex. C at 13-15). Defendants maintain that this demonstrates that Plaintiff
was not intimidated and threatened by Lawless; and Defendants “object to the conclusion
in the R&R that there is a genuine issue of material fact in dispute as to whether Plaintiff
failed to exhaust his administrative remedies out of fear of retaliation.” (Id. at 5). In
addition, Defendants argue even if Plaintiff is excused from exhausting administrative
against Lawless for fear of further retaliation, Plaintiff has not argued that he was afraid
of retaliation from Defendants Haywood or Bauer.
Defendants have also moved to dismiss the case based on Plaintiff’s wishes, citing
a conversation with Plaintiff and Plaintiff’s filing in another case in the Northern District of
Ohio. (Doc. 29 at 2). In that filing, Plaintiff stated: “I’m enclosing this brief to inform you
that I voluntarily withdrew my case against Brion Lawless that was filed in the Southern
District.” (Doc. 29-1 at 1, grammatical corrections made in quote). However, in this Court,
Plaintiff filed a response to Defendant’s Motion to Dismiss, requesting this case to
1Defendants also moved to strike Plaintiff’s declaration, arguing that it contains “improper
statements and assertions of which [Plaintiff] has no personal knowledge” and “groundless
accusations against Defendant Lawless that have nothing to do with this litigation.” (Doc. 27 at
2-3). The Magistrate Judge recommends denying the motion. The Magistrate Judge explained
that pursuant to Federal Rule of Civil Procedure 12(f), “the court may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter;” but that motions to strike should only be used where the text has “no possible relation
to the controversy.” Anderson v. U.S., 39 F. App'x 132, 135 (6th Cir. 2002). Defendants did not
object to this portion of the Magistrate Judge’s R&R.
proceed. (Doc. 35). Plaintiff explains: “Plaintiff Lawrence Burfitt has come forth to Petition
the Court to allow this case to move forward.” (Id.)
III. ANALYSIS
A. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
“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.” The moving party has the burden of
showing an absence of evidence to support the non-moving party’s case. Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of
production, the non-moving party cannot rest on his pleadings, but must present
significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In
determining whether genuine factual issues exist, this Court must “draw all reasonable
inferences in favor of the nonmoving party” without “mak[ing] credibility determinations or
weigh[ing] the evidence”—indeed, the Court “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
As the Magistrate Judge explained, pursuant to the Prison Litigation Reform Act of
1995, prisoners wishing to bring complaints in federal court must exhaust prison
grievance procedures before filing suit. 42 U.S.C. § 1997e(a). A prisoner’s failure to
exhaust these prison grievance procedures and administrative remedies is an affirmative
defense. Jones v. Bock, 549 U.S. 199, 216 (2007). However, if “a grievance [process] is
rendered unavailable [by] prison administrators thwart[ing] inmates from taking
advantage of it through ‘machination, misrepresentation, or intimidation,’” the prisoner is
not able to exhaust the administrative remedy. Ross, 136 S.Ct. at 1853-854. When prison
officials are accused of harassing, intimidating, and retaliating against the prisoner trying
to file a federal claim, “the question is whether prison officials took an adverse action ‘that
would deter a person of ordinary firmness from’ continuing with the grievance process.”
Snyder, 945 F.3d at 961, citing Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999).
“Thus, unless the claimed retaliatory action is truly ‘inconsequential,’ the plaintiff’s claim
should” survive summary judgment. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002).
In Snyder, cited by the Magistrate Judge, the Sixth Circuit overturned a grant of
summary judgment in favor of prison officials where prison officials “read [plaintiff’s] legal
mail, destroyed [plaintiff’s] personal property, and called [plaintiff] a rape victim over the
loudspeaker (thus exposing [plaintiff] to further threats and harassment from inmates who
would think that [plaintiff] was a ‘rat’ for reporting).” 945 F.3d at 967. The Sixth Circuit in
Snyder relied on its earlier decision in Bell v. Johnson, in which the Sixth Circuit deemed
prison officials leaving the plaintiff’s cell in disarray twice, confiscating plaintiff’s legal work
without returning it to the plaintiff, and stealing the plaintiff’s medical snacks satisfed the
adverse action test. 308 F.3d at 605.
Here, as the Magistrate Judge explained, Plaintiff claims that he “would not have
filed the first ICR if the porter didn’t give [him] one behind the [correction officer]’s back;”
he was “moved eight times in the matter of a week;” and his cell was "subtly tampered
with and other times ra[n]sacked” when he showered or saw the mental health staff. (Doc.
26 at 3). At this stage of the litigation, the Court must assume Plaintiff’s allegations are
true. See Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578 (6th Cir. 2014) (citing
Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011)). The Court finds no error in the
Magistrate Judge’s conclusion that these acts are not truly inconsequential and would
deter a person of ordinary firmness from continuing with the grievance process.
Moreover, as the Magistrate Judge explained, the fact that Plaintiff “was able to file some
grievances does not mean that he was able to file all relevant grievances or that he was
not prevented from timely filing the grievances.” Surles v. Andison, 678 F.3d 452, 458
(6th Cir. 2012). Finally, the Court finds no support for Defendants’ position that Plaintiff
must demonstrate that each of the defendants prevented Plaintiff from filing a grievance
against that specific defendant. At this stage, it is Defendants’ burden to show that they
did not interfere with the plaintiff's ability to exhaust his administrative remedies. Accord
Lawson v. LMDC, No. 3:16cv728, 2019 WL 8953354, at *4 (W.D. Ky. Oct. 10, 2019)
(rejecting the argument that according to Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.
1998) it is the plaintiff's burden to prove exhaustion of administrative remedies with
respect to each claim and each defendant because Brown’s holding on that issue was
explicitly abrogated by the Supreme Court in Jones v. Bock, 549 U.S. 199, 212 (2007)).
Accordingly, there is no error in the Magistrate Judge’s conclusion that summary
judgment is not proper based on the failure to exhaust.
B. Motion to Dismiss
With regard to Defendants’ Motion to Dismiss, pursuant to Federal Rule of Civil
Procedure 41(a)(2) an action may be dismissed at the plaintiff's request by court order,
but it appears that Plaintiff has now decided to continue this litigation. Therefore, to the
extent that it seeks dismissal of this action, Defendants’ Motion to Dismiss is DENIED.
To the extent that Defendants seek an extension of the dispositive motion deadline, the
Motion is GRANTED.
IV. CONCLUSION
Having reviewed this matter de novo in accordance with Rule 72 of the Federal
Rules of Civil Procedure, the Court finds the Magistrate Judge’s January 21, 2021 R&R
(Doc. 28) to be thorough, well-reasoned, and correct. Accordingly, the Magistrate Judge’s
January 21, 2021 R&R (Doc. 28) is ADOPTED in its entirety, and Defendants’ Objections
(Doc. 31) are OVERRULED. It is hereby ORDERED that:
1. The January 21, 2021 R&R (Doc. 28) is adopted in its entirety and, for
the reasons set forth therein, Defendants’ Motion for Summary Judgment
(Doc.
24) and Motion to Strike (Doc. 27) are DENIED;
2. Defendants’ Motion to Dismiss, or, In the Alternative, Motion for Extension
of Dispositive Motion Deadline (Doc. 29) is DENIED in PART and
GRANTED in PART;
a. Defendants’ Motion is DENIED to the extent that it seeks dismissal
of this action;
b. Defendants’ Motion is GRANTED to the extent that Defendants seek
an extension of the dispositive motion deadline;
3. The parties shall submit proposed dates for the dispositive motion deadline
within fourteen (14) days of entry of this order.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Court