# Potee v. Cook

> District Court, S.D. Ohio · July 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10378223

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378223. Public record. Not legal advice.