Potee v. Cook

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Andrew Potee,

Plaintiff,

v. Case No. 2:19-cv-5058

Thomas Cook, et al.,

Defendants.

ORDER

This is an action filed pursuant to 42 U.S.C. §1983 by Andrew

Potee against defendants Thomas Cook and Timothy R. Nungester, Ohio

corrections officers, who are named in their official and

individual capacities. Plaintiff alleged in his complaint (Doc. 1)

that on March 23, 2019, while he was being held at the Correctional

Reception Center (“CRC”) in Orient, Ohio, he approached Cook to ask

him to turn the fan down in the shower room. Cook refused, and

plaintiff started to return to the bed area. Plaintiff further

alleged that Cook directed him to return to the desk, then slammed

his head into a door. Plaintiff asserted that the defendants then

handcuffed him, forced him to the ground, and hit him in the head

and face. Plaintiff was later transported to The Ohio State

University Medical Center for treatment of his injuries. In his

first cause of action, plaintiff asserted a §1983 claim for the

excessive use of force and cruel and unusual punishment in

violation of the Fourth and Eighth Amendments. In the second cause

of action, plaintiff asserted an Ohio state law claim of assault

and battery.

On March 15, 2021, defendants filed a motion for summary

judgment. Doc. 19. Defendants argued that plaintiff’s §1983 claim

was barred due to his failure to exhaust his prison administrative

remedies, and that plaintiff’s assault and battery claim was barred

by sovereign immunity and the Eleventh Amendment.

On May 25, 2021, the magistrate judge issued a report and

recommendation concerning the motion for summary judgment. Doc.

31. The magistrate judge concluded that because the evidence did

not show that the grievance process was reasonably available to

plaintiff, he was not required to exhaust his administrative

remedies. The magistrate judge recommended denying summary

judgment on the first cause of action. The magistrate judge

further found that defendants were entitled to immunity on the

assault and battery claim, and recommended dismissing that claim

without prejudice to re-filing it in the Ohio Court of Claims.

This matter is now before the court for consideration of the report

and recommendations and defendants’ objections regarding the denial

of their motion for summary judgment on the first cause of action

(Doc. 32). Plaintiff has filed a response to defendants’

objections. Doc. 33.

I. Standards of Review

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

“The court shall grant summary judgment if the movant shows

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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). The 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.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The

moving party has the burden of proving the absence of a genuine

dispute and its entitlement to summary judgment as a matter of law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In

considering a motion for summary judgment, this court must draw all

reasonable inferences and view all evidence in favor of the

nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Am. Express Travel Related Servs.

Co. v. Kentucky, 641 F.3d 685, 688 (6th Cir. 2011).

In moving for summary judgment on an affirmative defense, the

defendant must produce sufficient evidence to prove that there is

no genuine dispute of material fact as to whether the defense

applies. Brown v. Earthboard Sports USA, Inc., 481 F.3d 901, 913

(6th Cir. 2007). The burden then shifts fo the plaintiff to show

that summary judgment on the affirmative defense should be denied.

Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 775 (6th Cir.

2001). Where a defendant seeks summary judgment on an affirmative

defense on which he will bear the ultimate burden of proof at

trial, summary judgment is proper “‘only if the record shows that

[the defendant] established the defense so clearly that no rational

jury could have found to the contrary.’” Beck-Wilson v. Principi,

441 F.3d 353, 365 (6t Cir. 2006)(quoting Buntin v. Breathitt Cty.

Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998)).

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II. Defendants’ Objections

Defendants object to the conclusion of the magistrate judge

that their motion for summary judgment on the ground that plaintiff

failed to exhaust his administrative remedies should be denied. As

the magistrate judge noted, the Prison Litigation Reform Act of

1996 (“PLRA”) imposes a jurisdictional threshold of exhaustion of

administrative remedies. In Ohio, the inmate grievance procedures

are described in Ohio Admin. Code 5120-9-31. Under Ohio Admin.

Code 5121-9-31(I), “[o]nly the grievance process designated by the

chief inspector may be used to file informal complaints, grievances

and grievance appeals” and that process “shall be reasonably

available to inmates regardless of their disciplinary status or

classification.” The regulations set forth a three-part procedure

for filing grievances, including the filing of an informal

complaint, known as an informal complaint resolution, see Ohio

Admin. Code 5120-9-31(J)(1); the filing of a notification of

grievance with the inspector of institutional services, see Ohio

Admin. Code 5120-9-31(J)(2); and the filing of an appeal with the

inspector of institutional services, see Ohio Admin. Code 5120-9-

31(J)(3).

Exhaustion of administrative remedies is mandatory. Woodford

v. Ngo, 548 U.S. 81, 85 (2006). However, a prisoner is only

required to exhaust administrative remedies that are available to

him. Ross v. Blake, 136 S. Ct. 1850, 1858 (2016); Napier v. Laurel

County, Ky., 636 F.3d 218, 222-23 (6th Cir. 2011). A grievance

procedure is unavailable when prison authorities have somehow

thwarted an inmate’s attempts at exhaustion, although the prisoner

must still make some affirmative effort to comply with the

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administrative procedure. Brock v. Kanton County, 93 F. App’x

793, 798 (6th Cir. 2004). Non-exhaustion is an affirmative

defense under the PLRA, with the burden falling on the defendant,

and summary judgment is appropriate only if the defendant shows the

absence of a genuine dispute as to any material fact regarding non-

exhaustion. Troche v. Crabtree, 814 F.3d 795, 798 (6th Cir. 2016).

As the magistrate judge noted, there is no dispute that

plaintiff did not file an informal complaint concerning the alleged

assault. Rather, the issue, as the magistrate judge noted, was

whether the administrative remedies were reasonably available.

Plaintiff testified at his deposition that when he returned to CRC

after obtaining medical treatment, he was placed in segregated

housing for four days. Plaintiff made some effort to comply with

the administrative procedure. He testified that he asked a

corrections officer several times for a paper form to use in filing

an informal grievance against the defendants, but the corrections

officer informed him that he would have to use the JPay kiosk

during his recreation time. Plaintiff did not receive recreation

time during his first day in segregation. He received recreation

time on the second through fourth days, and used the JPay kiosk to

send an email to his girlfriend. However, plaintiff testified that

he did not have access to an inmate handbook while in segregation.

He stated that he was not trained on using the computerized

grievance process at the kiosk during his intake into the

institution, and that inmates were only allowed fifteen minutes at

a time for kiosk use. On March 28, 2019, plaintiff was transferred

to the Clermont County Jail, which did not have a JPay kiosk. In

light of plaintiff’s belief that a grievance could only be filed

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using a JPay kiosk, the Clermont County facility was unable to

provide him with access to the grievance process.

This court agrees with the reasoning of the magistrate judge.

After discussing and distinguishing the cases cited by defendants,

the magistrate judge noted that under Ohio Admin. Code §5120-9-

31(J)(1), an inmate has fourteen days from the date of the incident

to submit an informal complaint. Doc. 31, pp. 6-7. The magistrate

judge reasoned that there is no language in that rule which

requires an inmate to file an informal complaint as quickly as

possible or practicable, and that the rule contemplates that an

inmate will have the full fourteen days in which to initiate the

grievance process. Doc. 31, pp. 7-8. Defendants have offered no

authority to the contrary. The cases relied on by defendants which

award summary judgment on the exhaustion issue are distinguishable,

as none involved inmates who reasonably believed that a paper

grievance form could not be filed, or who did not have the full

fourteen days to file a grievance. Here, the magistrate judge

noted evidence showing that the grievance procedure was not

available to plaintiff on his first day in segregation and after

the fourth day. Doc. 31, p. 6 (citing King v. McCarty, 781 F.3d

889, 892 (7th Cir. 2015), overruled on other grounds by Henry v.

Hullett, 969 F.3d 769 (7th Cir. 2020)(transfer to new facility

where there is no access to the old facility’s grievance system

means there are no remedies to exhaust)). The magistrate judge

correctly concluded that because plaintiff only had three days in

which he had an opportunity to initiate an informal complaint, it

could not be said that the grievance process was reasonably

available to him; therefore, he was not required to exhaust his

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administrative remedies. Doc. 31, p. 8.

Defendants claim in their objections that they were not

notified of plaintiff’s allegations until they were served with the

complaint in this case. Granted, the administrative remedies

required by the PLRA serve the function of timely alerting

potential defendants to claims of wrongdoing made by inmates and

presenting prison authorities with the opportunity to investigate

and mediate those claims before litigation is commenced. However,

the PLRA exhaustion requirement hinges on the availability of

administrative remedies; an inmate is not required to exhaust

unavailable ones. Ross, 136 S. Ct. at 1858. When the defendants

received notice of plaintiff’s claims has no bearing on whether

administrative remedies were available to plaintiff during the

applicable fourteen-day period, which is the critical issue here.

In any event, plaintiff argues in response that defendants were

aware of plaintiff’s allegations prior to the commencement of this

action. Plaintiff cites evidence that shortly after the incident,

the institution conducted an investigation concerning the alleged

use of excessive force by defendants, that defendants were

interviewed during the investigation and were asked about

plaintiff’s allegations, and that the investigator recommended

disciplining the defendants.

Defendants assert that plaintiff’s “self-serving” deposition

testimony is not sufficient to defeat summary judgment. However,

it would be expected that evidence submitted by a party in summary

judgment proceedings would be “self-serving.” The sort of “self-

serving” declaration which is not sufficient to defeat summary

judgment is a declaration which is conclusory or ambiguous, or

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which does not allege specific facts which, if proven, would

support or defeat a claim or defense. See, e.g., N.L.R.B. v.

Shawnee Plastics, Inc., 492 F.2d 869, 871 (6th Cir. 1974); see also

Patterson v. City of Akron, Ohio, 619 F. App’x 462, 473 (6th Cir.

2015)(district court erred in rejecting plaintiff’s declaration

about the voluntariness of the waiver of his right to sue as self-

serving where defendants had the burden of proof on that issue).

Plaintiff’s deposition testimony that he was informed by a

corrections officer that he would have to use the kiosk to submit

a grievance and that he only had three days to access the kiosk

before he was transferred to another institution does not suffer

from these deficiencies. The evidence noted by the magistrate

judge in the report and recommendation is sufficient to create a

genuine dispute on the issue of whether administrative procedures

were reasonably available to plaintiff, and summary judgment on the

first cause of action is not appropriate.

III. Conclusion

For the foregoing reasons, the court agrees with the report

and recommendation. The court adopts the report and recommendation

(Doc. 31). Defendants’ motion for summary judgment (Doc. 19) is

granted in part and denied in part. Summary judgment is denied on

the first cause of action. Summary judgment is granted on the

second cause of action based on sovereign and Eleventh Amendment

immunity, and that claim is dismissed without prejudice to being

re-filed in the Ohio Court of Claims.

Date: July 21, 2021 s/James L. Graham

James L. Graham

United States District Judge

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