“[C]ourts have consistently held . . . that an inmate’s general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”
How later courts described this case
- “[C]ourts have consistently held . . . that an inmate’s general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”
- “To grant Plaintiff an exception to PLRA’s demand for exhaustion based solely on Plaintiff’s self-serving testimony that his grievance was surreptitiously destroyed by prison officials would completely undermine the rule.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KRISTOPHER MCGEE,
Plaintiff, Case No. 2:20-cv-1625
v. Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson
DAVID SUCIU, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court on Defendant Nurse Kimberly Brown’s Motion for
Summary Judgment (Doc. 62). Also before the Court are Plaintiff’s opposition to the Order
granting Nurse Brown leave to file a motion for summary judgment, (Doc. 61), and Plaintiff’s
Motion for Leave for an Amended Pretrial Order, Supplemental Evidence, and Response in
Opposition to Defendant Nurse Brown’s Motion for Summary Judgment (Doc. 63). For the
reasons that follow, the Undersigned RECOMMENDS GRANTING in part Defendant Nurse
Brown’s Motion for Summary Judgment (Doc. 61). Additionally, Plaintiff’s motion (Doc. 63) is
DENIED as moot.
I. BACKGROUND
The Undersigned set forth the factual background of this case in the Report and
Recommendations issued June 7, 2021 (Doc. 42). Around 2:30 a.m. on August 12, 2018, Plaintiff
Kristopher McGee was booked into the Muskingum County Jail. (Complaint, Doc. 3 at PageID #
33). About five hours later, at 7:00 a.m., Deputy Erin Fuller reported for duty (Fuller Decl., Doc.
23-1, ¶ 3, PageID # 133), joining her colleagues Deputy Tyler Finley and Officer Stacey Lynn.
(Id. at ¶ 4, Page ID # 133). Because the previous shift reported that Plaintiff may be withdrawing
from heroin and fentanyl (Id. at ¶ 5, PageID # 133), Defendant Fuller asked the jail nurse to assess
Plaintiff as soon as she completed administering medications to other inmates. (Id. at ¶ 9, PageID
# 133). Defendant Fuller explained to Plaintiff that the nurse would see him as soon as medication
pass was complete. (Id. at ¶ 8, PageID # 133).
At approximately 8:30 a.m., Defendant Brown, the jail nurse, evaluated Plaintiff. (Id. at ¶
10, PageID # 134). Nurse Brown reported to Defendant Fuller that Plaintiff’s vitals were good
and that she was going to consult with the jail physician to determine next steps. (Id. at ¶ 11,
PageID # 134). Meanwhile, Defendant Fuller provided Plaintiff with a cold wet washcloth and
apple juice. (Id. at ¶ 12, PageID # 134). She says she did this to keep Plaintiff comfortable and
hydrated until Nurse Brown received further instructions. (Id.).
A short time later, Plaintiff asked to use the telephone. (Id. at ¶ 13, PageID # 134). Because
Plaintiff seemed calm and polite, Defendant Finley acquiesced. (Id.). At 9:12 a.m., Deputy Finley
let Plaintiff out of his cell to use the phone. (Id. at ¶ 14, PageID # 134). Officer Lynn then arrived
at the booking area with two female inmate kitchen workers. (Id. at ¶ 15, PageID # 134).
Two minutes later, Officer Lynn walked near the phone where Plaintiff was located. (Id.
¶¶ 15, 17, PageID # 134, Video 1 at 4:22, Video 2 at 2:20, Video 3 at 2:22). Plaintiff quickly
dropped the phone and grabbed Officer Lynn around her neck. (Id.). While holding onto Officer
Lynn, Plaintiff demanded to be released from custody. Defendant Fuller told Plaintiff that he
would not be released. (Id. at ¶¶ 17–18, PageID # 134–35). Defendant Fuller yelled for Plaintiff
to release Officer Lynn multiple times, before drawing her taser. (Id. at ¶ 18, PageID # 135).
Plaintiff began backing up while continuing to hold Officer Lynn around the neck. (Id., Video 3
at 2:22– 3:33). Finally, Plaintiff released Officer Lynn, and Defendant Fuller did not have to use
her taser. (Id.). Officer Lynn was injured from the assault and, ultimately, had to be transported
to the hospital. (Id. at ¶¶ 25, 28, PageID # 135–36, Exhibit 2, Report of Injury or Accident).
At this point, Deputy Finley and Officer Lynn handcuffed Plaintiff. (Id. at ¶ 19, PageID #
135, Video 3 at 2:22–3:33). Deputy Finley and Defendant Fuller then escorted Plaintiff to his cell
at 9:15 a.m. (Id. at ¶ 20, PageID # 135). Plaintiff refused and, as the video shows, struggled with
Defendant Fuller. (Id.; see also Video 1 at 5:50 and Video 2 at 3:40–3:50 when Deputy Finley
runs back to try and help Defendant Fuller). At that point, Defendant Fuller asked Deputy Finely
to get the restraint chair while she held onto Plaintiff. (Id. at ¶ 21, PageID # 135).
A minute later, Deputy Yester arrived and assisted Deputy Finley and Defendant Fuller in
securing Plaintiff in the restraint chair. (Id. at ¶ 22, PageID # 135, Video 2 at 4:20). Once in the
chair, Plaintiff began rocking violently and banging his head off the back of the chair. (Id. at ¶ 23,
PageID # 135, Video 1 between 9:00 and 10:20; Video 2 between 7:00 and 8:30). The deputies
attempted to place a helmet on Plaintiff’s head, but, as the video shows, Plaintiff continued to
thrash about, and the helmet would not stay in place. (Id.).
At 10:10 a.m., Defendant Nurse Brown—based on the orders of the jail physician—
administered sedatives to Plaintiff. (Id. at ¶ 29, PageID # 136; Jail Medical Records, Exs. 2,
PageID # 140, 159). The Log shows that Plaintiff was released from the chair at times, given
water, permitted to stretch, received medical care, and allowed to shower. (Id. at PageID # 181–
86).
Subsequently, Plaintiff filed this lawsuit. In brief, he claims his constitutional rights were
violated because Defendants forced him to take sedatives and placed and kept him in a restraint
chair for nearly 24 hours. (Doc. 3, ¶ 13–15, PageID # 34). He also claims that the medical
treatment he received while restrained was inadequate. (Id., ¶ 16). After surviving the initial
screening process under 28 U.S.C. §§ 1915(e) and 1915(A), the case proceeded. Discovery
progressed, and Plaintiff filed a Motion for Summary Judgment (Doc. 18), which was denied.
(Doc. 56). Two Defendants, David Suciu and Erin Fuller, moved for summary judgment, (Doc.
33), which was granted in part and denied in part by the Court. (Doc. 56). Specifically, Plaintiff’s
claims against Defendant Suciu were dismissed with prejudice, Plaintiff’s claims against
Defendant Fuller based on the administration of medication or the initial placement in the restraint
chair were dismissed with prejudice, and Plaintiff’s excessive force claim against Defendant Fuller
for leaving him in the restraint chair was dismissed without prejudice for failure to exhaust
administrative remedies. (Id.) Nurse Brown is the only remaining Defendant.
On October 21, 2021, the Undersigned granted Defendant Brown’s Motion for Leave to
File a Motion for Summary Judgment. (Doc. 60). Plaintiff filed a response opposing that Order
on October 28, 2021. (Doc. 61). Also on October 28, 2021, Defendant Brown filed a Motion for
Summary Judgment. (Doc. 62). Subsequently, Plaintiff filed a response in opposition to
Defendant Brown’s motion for summary judgment, as well as a motion for an amended pretrial
order and for consideration of supplemental evidence. (Doc. 63). The matter is now ripe for
review.
II. DEFENDANT NURSE BROWN’S MOTION FOR SUMMARY JUDGMENT
Defendant Nurse Brown has moved for relief on multiple grounds. (Doc. 62.)
A. Exhaustion
Defendant Brown seeks dispositive relief because she alleges that Plaintiff failed to
exhaust his administrative remedies. (Doc. 62, PageID # 440-41). Under the Prison Litigation
Reform Act of 1995 (“PLRA”), a prisoner wishing to challenge the circumstances or conditions
of his confinement must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a);
Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in court.”); see also Fazzini v. Ne. Ohio
Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006). The “mandatory language [of the PLRA] means a
court may not excuse a failure to exhaust.” Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016). Proper
exhaustion demands that a prisoner “complete the administrative review process in accordance
with the applicable procedural rules.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).
Plaintiff is currently incarcerated, and he was incarcerated when this lawsuit was filed.
(Complaint, Doc. 3, ¶ 3, PageID # 29, 33). So the exhaustion requirements of the PLRA apply.
(Suciu Supp. Decl., Doc. 33-1, ¶¶ 4–6, PageID # 237, Exhibits 1 and 2, PageID # 240–48). In his
response, Plaintiff does not specifically address Defendant Brown’s exhaustion argument. Instead,
Plaintiff attaches a copy of his Amended Pretrial Order, filed October 6, 2021, (Doc. 59), wherein
he posits: “If we look at this matter and ask ourselves, can someone struggling with mental health
issues and addiction properly comply with strict PLRA standards in real time as they are fighting
for their mind body and soul.” (Doc. 61-1, PageID # 432). Plaintiff’s suggestion that he was
unable to comply with the administrate review process is belied by the record. The record shows
that Plaintiff was aware of the grievance process, because he filed a grievance on an unrelated
issue. (Suciu Supp. Decl., Doc. 33-1, ¶11, PageID # 239, Exhibit 3, PageID # 249–50). Yet,
Plaintiff never started or completed the administrative review process regarding any issue in this
case (use of the restraint chair or administration of medication). (Id. at ¶¶ 12–13, PageID # 239).
Previously, and in connection with the Suciu and Fuller Motions for Summary Judgment,
Plaintiff claimed he filled out a single unspecified grievance, but it was never addressed. (Resp.
in Opp., Doc. 37, PageID # 286). Unfortunately for Plaintiff, this representation is not enough.
Plaintiff’s self-serving and vague assertions of exhaustion are not sufficient to create a material
issue of fact. Time and again, courts have come to this conclusion.
For example, in Sumser v. Lykins, the plaintiff claimed he was raped by a jail corrections
officer. Like the Defendants in this case, the defendants in Sumser produced evidence of the jail’s
grievance policy and the absence of any grievance related to the alleged rape. Id. at **9–10. Like
Plaintiff in this case, the plaintiff in Sumser responded with “self-serving statements . . . that he
did file several grievances about the incidents alleged in his complaint and personally gave them
to [the jailer] and that he further personally told [the jailer] about the incidents.” Id. at *4. And
those unsupported assertions were insufficient to create a genuine issue of material fact concerning
PLRA exhaustion. Id. at **10–16.
Other courts have ruled similarly. See, e.g., Scott v. Kastner-Smith, 298 F. Supp. 3d 545,
555 (W.D.N.Y. 2018) (“[C]ourts have consistently held . . . that an inmate’s general claim that his
grievance was lost or destroyed does not excuse the exhaustion requirement.”); Engles v. Jones,
No. 13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (granting summary
judgment to defendants for failure to exhaust where there was no record of plaintiff filing his
grievance, and plaintiff merely alleged, without any documentary support, that his grievance was
lost or destroyed); Jackson v. Baca, No. CV12-10393-JLS JEM, 2018 WL 1916307, at *6 (C.D.
Cal. Feb. 13, 2018), , No. CV12-10393 JLS JEM, 2018 WL 1918497 (C.D. Cal. Apr. 18, 2018)
(“Plaintiff’s assertions that he gave a deputy an inmate complaint form and then never heard
anything again are simply too vague and inconclusive to create a genuine issue regarding
exhaustion or the availability of administrative remedies.”); Rodgers v. Reynaga, No. CV 1-06-
1083-JAT, 2009 WL 2985731, at *3 (E.D. Cal. Sept. 16, 2009), aff’d, 393 F. App’x 447 (9th Cir.
2010) (“To grant Plaintiff an exception to PLRA’s demand for exhaustion based solely on
Plaintiff’s self-serving testimony that his grievance was surreptitiously destroyed by prison
officials would completely undermine the rule.”); Hendon v. Baroya, No.1:05- CV-00838, 2007
WL 3034263, at *3 (E.D. Cal. Oct. 16, 2007), report and recommendation adopted, No. 1:05-CV-
00838-OWW-SMS-PC, 2008 WL 482868 (E.D. Cal. Feb. 20, 2008), aff’d, 320 F. App’x 717 (9th
Cir. 2009) (“The vague assertion that grievances were filed is insufficient to make the requisite
showing that exhaustion either occurred or was excused due to some form of conduct on the part
of prison officials which prevented plaintiff from properly utilizing the appeals process.”).
Because Plaintiff failed to comply with the PLRA’s exhaustion requirement, his Complaint
against Defendant Nurse Brown must be dismissed without prejudice.
B. Merits
Although exhaustion requires dismissal, that dismissal is without prejudice. Seeking
broader relief, Defendant Brown argues that she is entitled to summary judgment on the merits of
Plaintiff’s claim, and the claims against her should be dismissed with prejudice. In the Court’s
prior Order adopting the Report and Recommendations as to Defendants Fuller and Suciu, the
Court declined to reach the merits of Plaintiff’s excessive force claim against Defendant Fuller:
As outlined above, this claim must be dismissed due to Plaintiff’s failure to properly
exhaust administrative remedies. It is not at all clear that Plaintiff will be able to
properly exhaust administrative remedies and re-file suit, especially given the strict
exhaustion requirements of the PLRA. See Woodford v. Ngo, 548 U.S. 81 (2006).
Because it is possible—or even likely—that Plaintiff will be unable to re-file this
claim, it is equally possible, or likely, that resolution of [the merits] is unnecessary.
(Doc. 56 at PageID # 409).
Consistent with this prior determination, the Undersigned does not reach the merits of the
claims against Nurse Brown. Instead, as addressed above, it is recommended that Plaintiff’s claims
against Nurse Brown be dismissed without prejudice for failure to exhaust.
C. Plaintiff’s Leave for Amended Pretrial Order
In Plaintiff’s opposition to Defendant Brown’s motion for summary judgment, Plaintiff
appears to seek leave to amend his complaint against Defendant Brown by “adjusting” the damages
sought. (Doc. 63 at PageID # 445). Because the Undersigned RECOMMENDS that Defendant
Brown’s motion for summary judgment be GRANTED in part based on Plaintiff’s failure to
exhaust, Plaintiff’s motion is MOOT.
III. CONCLUSION
In sum, it is RECOMMENDED that Defendant Brown’s Motion for Summary Judgment
(Doc. 62) be GRANTED in part based on Plaintiff’s failure to exhaust administrative remedies.
It is therefore RECOMMENDED that all claims against Defendant Brown be DISMISSED
without prejudice. Plaintiff’s motion for Leave for Amended Pretrial Order (Doc. 63) is
DENIED as moot.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: December 21, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE