finding once defendants put forth evidence of a valid administrative process, plaintiff must present evidence to rebut the availability of that remedy to defeat motion for summary judgment
How later courts described this case
- finding once defendants put forth evidence of a valid administrative process, plaintiff must present evidence to rebut the availability of that remedy to defeat motion for summary judgment
- providing that a prisoner “may not exhaust administrative remedies during the pendency of the federal suit.” (citations omitted)
- holding that claims against the TDOC, as an administrative department of the State, are not cognizable under § 1983
- providing that “a State is not a person within the meaning of § 1983”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
ELIJAH GARRISON, )
)
Plaintiff, )
)
v. ) No. 3:24-CV-385-TAV-JEM
)
JASON SWALLOWS, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
This prisoner’s pro se action for violation of 42 U.S.C. § 1983 proceeded as to
Plaintiff’s claim that Jason Swallows used excessive force against him by shooting him in
the back while his hands were in the air on August 22, 2024 [Doc. 4, pp. 1–8; Doc. 11, p.
5]. Now before the Court are Plaintiff’s (1) motion for service of summons and complaint
[Doc. 8]; (2) motion for an injunction requiring prison officials to provide him with a
prisoner inmate trust account document [Doc. 9]; (3) motion for leave to amend his
complaint to add the Tennessee Department of Correction (“TDOC”) as a defendant [Doc.
14]; (4) motion to appoint counsel [Doc. 15]; and (5) motions seeking discovery [Docs. 27,
29]. Also before the Court is Defendant’s motion for summary judgment [Doc. 18].
I. MOTION FOR SERVICE
In his motion for service, Plaintiff requests that the Court send him copies of the
complaint and certain service documents [Doc. 8]. After Plaintiff filed this motion,
however, the Court entered an order in which it, among other things, screened Plaintiff’s
complaint, provided Plaintiff with the relevant service documents, and requested that the
United States Marshal serve the complaint on Defendant [Doc. 11]. Counsel for Defendant
then appeared in this case [Doc. 17]. Accordingly, Plaintiff’s motion regarding service
[Doc. 8] is DENIED as moot.
II. MOTION FOR INJUNCTION
In his motion for injunction, Plaintiff requests that the Court order that prison
officials provide him with a notarized copy of his prison trust fund account certificate [Doc.
9]. But as the Court has now granted Plaintiff leave to proceed in forma pauperis herein
based on the financial documents he provided [Doc. 11, pp. 1–2], Plaintiff’s motion for
injunction [Doc. 9] is DENIED as moot.
III. MOTION TO AMEND
In his motion to amend his complaint, Plaintiff seeks to add the TDOC as a
defendant because he asserts that this entity is liable for the acts of Swallows, whom he
states is a TDOC employee [Doc. 14, p. 1]. In support of this motion, Plaintiff filed his
proposed second amended complaint [Doc. 14-1].1
As Plaintiff filed his motion to amend his complaint [Doc. 14] within the time period
in which he could amend his complaint as a matter of course under Rule 15(a)(1)(A) of the
Federal Rules of Civil Procedure, this motion [Id.] is GRANTED, and the Court will now
screen Plaintiff’s second amended complaint [Doc. 14-1] under the Prison Litigation
1 The Court additionally notes that Plaintiff also sent the Court a separate complaint against
the Northeast Correctional Complex that arises out of a separate incident during his confinement,
which the Clerk initially docketed only as a notice in this case [Doc. 10]. However, the Clerk has
now refiled this complaint as a new action [Id.]. Garrison v. Northeast Corr. Complex, No. 3:24-
MC-59 (E.D. Tenn. filed Oct. 1, 2024).
Reform Act (“PLRA”). Under the PLRA, district courts must screen prisoner complaints
and dismiss claims that are frivolous or malicious, fail to state a claim for relief, or are
against a defendant who is immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Benson
v. O’Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal standard the United States
Supreme Court set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic
Corporation v. Twombly, 550 U.S. 544 (2007) “governs dismissals for failure to state a
claim [at screening] because the relevant statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). Thus, to survive an initial
review, a prisoner complaint “must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570).
Plaintiff’s proposed amended complaint fails to state a claim upon which relief may
be granted under § 1983 against the TDOC, as the TDOC is not an entity subject to suit
under § 1983. See Hix v. Tenn. Dep’t of Corr., 196 F. App’x 350, 355 (6th Cir. 2006)
(holding that claims against the TDOC, as an administrative department of the State, are
not cognizable under § 1983); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989)
(providing that “a State is not a person within the meaning of § 1983”). Thus, the TDOC
will be DISMISSED, and this action still proceed only as to Plaintiff’s excessive force
claim against Swallows.
Accordingly, Plaintiff’s motion to amend his complaint [Doc. 14] is GRANTED,
the Court considers Plaintiff’s proposed amended complaint [Doc. 14-1] as the operative
complaint in this action, and any claims against the TDOC are DISMISSED.
IV. MOTION TO APPOINT COUNSEL
In his motion to appoint counsel, Plaintiff requests appointment of counsel in this
action because he has been in solitary confinement since August 28, 2024, and therefore
has only one hour of recreation on weekdays and limited access to law library materials
[Doc. 15, pp. 1–2]. Plaintiff also asserts that the Court should appoint him counsel because
the incident underlying his complaint is on video [Id. at 2].
Appointment of counsel in a civil proceeding is not a constitutional right, but a
privilege justified only in exceptional circumstances. Lavado v. Keohane, 992 F. 2d 601,
605‒06 (6th Cir. 1993). A district court has discretion to determine whether to appoint
counsel for an indigent plaintiff. Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992). In
exercising that discretion, the district court should consider the nature of the case, whether
the issues are legally or factually complex, and the plaintiff’s ability to present his claims.
Lavado, 992 F.2d at 605–06.
As to the first two factors, as set forth above, this action is proceeding only as to one
excessive force claim against one defendant, which is a standard prisoner § 1983 claim that
is not factually or legally complex. As to the third factor, it is apparent from his filings that
Plaintiff can adequately present his claims. Also, Plaintiff’s allegations regarding his
solitary confinement and limited access to legal materials are not unusual for prisoner
plaintiffs. Moreover, Plaintiff’s assertion that the incident underlying his complaint was
caught on video is not relevant to the Court’s determination of whether to appoint him
counsel.
Thus, Plaintiff has not established that this is an exceptional case where he is entitled
to appointment of counsel, and his motion to appoint counsel [Doc. 15] is DENIED.
V. MOTIONS FOR DISCOVERY
After Defendant filed his motion for summary judgment asserting that Plaintiff
failed to exhaust his administrative remedies prior to filing this action [Docs. 18, 19],
Plaintiff did not file a timely response. But Plaintiff did file two motions seeking discovery
and/or inspection of camera footage and the “log in record” for Defendant’s pepper ball
gun [Docs. 27, 29].
“The general rule is that summary judgment is improper if the non-movant is not
afforded a sufficient opportunity for discovery.” Vance By and Through Hammons v.
United States, 90 F.3d 1145, 1148 (6th Cir. 1996). Where a district court denies a request
for discovery in the face of a motion for summary judgment, the United States Court of
Appeals for the Sixth Circuit will consider the following factors in determining whether
this was an abuse of discretion: (1) when the party seeking discovery learned of the
discovery issue, (2) how further discovery would affect the summary judgment ruling,
(3) the length of the discovery period, (4) whether the moving party was dilatory, and
(5) whether the adverse party was responsive. Dowling v. Cleveland Clinic Found., 593
F.3d 472, 478 (6th Cir. 2010). The primary consideration is whether the moving party
diligently pursued discovery. Id. However, “[a] district court does not abuse its discretion
when, as here, granting a party’s request for additional discovery ‘would not have changed
the ultimate result.’” Health & Wellness Lifestyle Clubs, LLC v. Raintree Golf, LLC, 808
F. App’x 338, 346 (6th Cir. 2020) (quoting Plott v. Gen. Motors Corp., 71 F.3d 1190, 1197
(6th Cir. 1995)).
Given the early stage of this litigation, Plaintiff promptly sought the discovery at
issue. Nevertheless, as the camera footage and log in record have no relevance to the
pending motion for summary judgment asserting that Plaintiff failed to exhaust his
available administrative remedies prior to filing this action [Docs. 18, 19], providing
Plaintiff with the requested discovery items would not change the result of the instant
Memorandum Opinion and Order.
As such, Plaintiff’s motions for discovery [Docs. 27, 29] are DENIED.
VI. SUMMARY JUDGMENT
Defendant filed a motion for summary judgment [Doc. 18]. In support of this
motion, Defendant filed a memorandum [Doc. 19], a statement of undisputed facts [Doc.
20], and various exhibits [Docs. 20-1–20-4]. Plaintiff did not file a timely response to this
motion. See E.D. Tenn. L.R. 7.1(a). Nor did Plaintiff seek an extension of time to file a
response. But Plaintiff did file an untimely response to this motion [Doc. 31], in support
of which he filed a declaration [Doc. 30], a memorandum [Doc. 32], and a statement of
undisputed facts [Doc. 33]. Defendant filed a reply [Doc. 34].
The Court considers Plaintiff’s untimely filings in response to defendant’s motion
summary judgment, mindful of its obligation to “liberally construe” pro se filings.
Simmons v. United States, 142 S. Ct. 23, 24 (2021) (denial of petition for writ of certiorari).
Ultimately, the Court finds that a genuine issue of material fact remains as to whether
Plaintiff exhausted his available administrative remedies prior to filing this action.
Accordingly, Defendant’s motion for summary judgment [Doc. 18] will be DENIED.
A. Legal Standard
A “court shall grant summary judgment 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). In ruling on a motion for summary judgment, the court views the
evidence in the light most favorable to the nonmoving party and makes all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d
900, 907 (6th Cir. 2001). To successfully oppose a motion for summary judgment, “the
non-moving party . . . must present sufficient evidence from which a jury could reasonably
find for him.” Jones v. Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010).
Failure to exhaust is an affirmative defense for which a defendant bears the burden
of proof. Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012). Accordingly, when a
defendant in a prisoner civil rights action moves for summary judgment on exhaustion
grounds, he “must show that the record contains evidence satisfying the burden of
persuasion and that the evidence is so powerful that no reasonable jury would be free to
disbelieve it.” Id. at 455–56 (citations and internal quotation marks omitted). Once a
defendant has demonstrated that there was a generally available administrative remedy that
the plaintiff did not exhaust, “the burden shifts to the prisoner to come forward with
evidence showing that there is something in his particular case that made the existing and
generally available administrative remedies effectively unavailable to him.” Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (citation omitted); see also Napier v. Laurel
Cnty., 636 F.3d 218, 225–26 (6th Cir. 2011) (finding once defendants put forth evidence
of a valid administrative process, plaintiff must present evidence to rebut the availability
of that remedy to defeat motion for summary judgment).
B. Background
On September 4, 2024, Plaintiff initiated this action by filing a complaint [Doc. 1,
p. 3]. Plaintiff later filed an amended complaint, which is the operative complaint herein,
in which he claims that Defendant used excessive force against him by shooting him in the
back 15 times while his hands were raised [Doc. 4, pp. 1–4; Doc. 11, p. 5].
In support of his motion for summary judgment, Defendant filed, among other
things, (1) an affidavit from the grievance chairperson at Plaintiff’s facility indicating that
Plaintiff did not file a grievance regarding any excessive force incident that occurred in
August of 2024 [Doc. 20-1, pp. 1–4], and (2) Plaintiff’s grievance log, which does not list
a grievance for an excessive force incident from August of 2024 [Doc. 20-4, p. 2].
Additionally, in his statement of undisputed facts in support of his motion for summary
judgment, defendant acknowledges that Plaintiff twice attempted to file a grievance
regarding the excessive force claim underlying his complaint [Doc. 20, p. 2]. To support
this statement of fact, Defendant cites grievance documents Plaintiff filed in support of his
previous motion for injunction [Id. (citing Doc. 6-2)].
The grievance documents Defendant cites to support this statement of fact include
a letter from a grievance clerk indicating that (1) Plaintiff submitted two grievances
regarding the excessive force incident underlying his complaint; (2) the prison official who
responded to Plaintiff’s first grievance regarding the excessive force incident underlying
his complaint deemed that grievance inappropriate under the applicable grievance
procedure because it contained a threat and therefore requested that Plaintiff refile the
grievance without the threat; (3) Plaintiff then refiled the grievance with the same
threatening language; and (4) Plaintiff subsequently filed another grievance challenging
the denial of his earlier grievances that also contained threatening language [Doc. 6-2, p.
1]. Notably, in this letter, the grievance clerk (1) notified Plaintiff that he may still file a
grievance for excessive force against defendant if he did so in a manner that complied with
the applicable grievance procedures, including “abstaining from making even veiled threats
against anyone, including staff members”; (2) acknowledged that Plaintiff’s allegation that
Defendant “shot/peppered [him] seven (7) times may rise to the level of ‘excessive force’”;
(3) noted that, without Plaintiff filing a proper grievance, the grievance board could not
help Plaintiff; and (4) specifically stated that “[t]he Grievance Department is more than
willing to process your grievance and see it through the proper channels and procedures if
you will simply observe the rules of filing an appropriate grievance. Until you do that,
there is nothing we can do to assist you” [Id.].
With this letter, Plaintiff also included the second grievance he filed regarding the
excessive force incident underlying his complaint on August 29, 2024, and the rejection
letter for that second grievance [Id. at 3–6]. In this second grievance, Plaintiff admits that
his first grievance about the excessive force incident included a threat, sets forth allegations
about the excessive force incident, and states in relevant part that “staff chose to write me
up for threat[en]ing employee because I stated that I intended to harm Officer Swallow[s]
whenever we come off lockdown for shooting me in the back while my hands w[ere] in the
air even though that is true I did make a threat in the Grievance #1 because I was highly
upset” [Doc. 6-2, pp. 3–4; Doc. 30, p. 5]. In the handwritten portion of the cover letter
rejecting this second grievance because it contained threatening language, the grievance
clerk specifically asked that Plaintiff “please rewrite grievance and exclude all threats”
[Doc. 6-2, p. 2]. Additionally, a typed portion of the form specifically notified Plaintiff he
could appeal the rejection of that second grievance within seven days [Id.].
In the grievance documents attached to his motion for an injunction, Plaintiff also
included a third grievance he filed referencing the excessive force incident underlying this
action on September 10, 2024 [Id. at 5–6].
Additionally, in support of his motion for summary judgment, Defendant filed the
applicable TDOC grievance procedures and policies and inmate grievance handbook,
which state in relevant part (1) that a prisoner may appeal a finding that his grievance is
inappropriate to the grievance process [Doc. 20-3, p. 9]; and (2) under the heading “Abuse
of the Grievance Procedure,” that grievances that include threats may result in disciplinary
action [Doc. 20-2, pp. 4, 5, 6; see also Doc. 20-3].
In his sworn declaration in response to the motion for summary judgment, Plaintiff
asserts, among other things, that (1) the second grievance he filed regarding the excessive
force incident underlying his complaint did not contain any threats or profanity, but the
TDOC official who responded still refused to process it; and (2) he also filed an emergency
grievance regarding the excessive force incident underlying his complaint during the last
week of September 2024 [Doc. 30, pp. 2–3].
C. Analysis
As Defendant has failed to demonstrate that no genuine dispute remains as to
whether Plaintiff failed to exhaust his available administrative remedies for his excessive
force claim proceeding herein prior to filing this action, defendant’s motion for summary
judgment [Doc. 18] will be DENIED. The PLRA provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This
statute requires “proper exhaustion” of administrative remedies. Woodford v. Ngo, 548
U.S. 81, 93 (2006).
To properly exhaust his claims, a prisoner must utilize every step of the prison’s
procedure for resolving his grievance and follow the “critical procedural rules” in a manner
that allows prison officials to review and, where necessary, correct the issues set forth in
the grievance “on the merits.” Troche v. Crabtree, 814 F.3d 795, 798 (6th Cir. 2016)
(quoting Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)). “There is no
uniform federal exhaustion standard [and] [a] prisoner exhausts his remedies when he
complies with the grievance procedures put forward by his correctional institution.”
Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017).
Although the PLRA requires “proper exhaustion,” Woodford, 548 U.S. at 93, the
Supreme Court has recognized that the statute “poses no bar” where “prison administrators
thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016); see Perttu v.
Richards, 605 U.S. ___ (2025), 145 S. Ct. 1793 (slip opinion) (affirming the continued
applicability of Ross). Textually, the Court framed such exceptional circumstances as a
question of whether administrative remedies were actually “available” to an inmate. Ross,
578 U.S. at 648. In an unpublished opinion applying Ross, the Sixth Circuit vacated a
district court’s judgment that overlooked a prisoner’s “assertions that prison officials
prevented him from exhausting his administrative remedies.” Gilmore v. Ormond, No.
19-5237, 2019 WL 8222518, at *2 (6th Cir. Oct. 4, 2019) (unpublished) (citing Ross, 578
U.S. at 644). Such an allegation, the appellate court reasoned, “creates a triable issue as to
whether prison officials impeded [the prisoner’s] ability to exhaust his claims and therefore
made the grievance system unavailable to him.” Id.; see also Reed v. Parsons, No.
6:23-CV-127, 2024 WL 3404607, at *4 (E.D. Ky. July 11, 2024) (citing Gilmore and
denying summary judgment based on allegations that inmate’s access to administrative
remedies was thwarted).
In this case, it is undisputed that, prior to filing this action, Plaintiff filed two
grievances regarding Defendant’s alleged use of excessive force against him, but TDOC
officials rejected those grievances as improper because they contained threatening
language.2 While Plaintiff appears to acknowledge that TDOC officials properly rejected
2 Notably, as set forth above, the documents Plaintiff filed in support of his motion for
injunction also indicate that on September 10, 2024, he filed a third grievance referencing his
excessive force claim against Defendant [Doc. 6-2, pp. 5–6]. And in the declaration he filed in
response to Defendant’s motion for summary judgment, Plaintiff asserts that in the last week of
September 2024, he filed an emergency grievance regarding this excessive force incident, to which
he did not receive a response [Doc. 30, p. 3]. But to the extent that Plaintiff asserts that these third
and fourth grievances referencing Defendant’s use of excessive force demonstrate his exhaustion
of his available administrative remedies for his claim proceeding herein, this assertion is
misplaced, as Plaintiff filed these grievances after he filed his original complaint in this action on
his first grievance due to it containing a threat, he asserts that his second grievance did not
contain a threat and that TDOC officials therefore improperly rejected that grievance.
Accordingly, the Court will now address whether (1) Defendant has set forth sufficient
proof that TDOC officials properly rejected Plaintiff’s second grievance, and (2) if not,
whether a reasonable jury could find that Plaintiff exhausted his available administrative
remedies prior to filing this action.
The Court finds that a reasonable jury could find that TDOC officials improperly
rejected Plaintiff’s second grievance regarding the incident underlying his complaint. As
set forth above, in his second grievance, Plaintiff stated in relevant part that “staff chose to
write me up for threat[en]ing employee because I stated that I intended to harm Officer
Swallow[s] whenever we come off lockdown for shooting me in the back while my hands
w[ere] in the air even though that is true I did make a threat in the Grievance #1 because I
was highly upset” [Doc. 6-2, pp. 3–4; Doc. 30, p. 5]. The letter accompanying TDOC
officials’ rejection of this second grievance indicates that they viewed this portion of the
second grievance as a “veiled threat” that violated the TDOC’s grievance procedures and
policies [Doc. 6-2, p. 1]. However, making all plausible inferences in Plaintiff’s favor, a
reasonable jury could find that Plaintiff’s second grievance merely referenced the earlier
September 4, 2024 [Doc. 1, p. 3]. Accordingly, these September grievances are not relevant to the
issue before the Court, which is whether Plaintiff exhausted his available administrative remedies
prior to filing this action. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (providing that
a prisoner “may not exhaust administrative remedies during the pendency of the federal suit.”
(citations omitted)).
threat he made in his first grievance and did not actually contain a new threat.3 As in
Gilmore, Plaintiff’s allegation “creates a triable issue as to whether prison officials
impeded [the prisoner’s] ability to exhaust his claims and therefore made the grievance
system unavailable to him.” 2019 WL 8222518, at *2; see also Rogers v. Keys, No.
3:23-CV-471, 2025 WL 1508038, at *5 (M.D. Tenn. May 27, 2025) (holding that whether
prison officials impeded defendant’s attempt to file grievances is “directly relevant” to
determining whether a grievance process was “available” for purposes of PLRA
exhaustion); Bailey v. Michigan Dep’t of Corr., No. 19-13442, 2020 WL 4934314, at *5
(E.D. Mich. Aug. 24, 2020) (holding that allegations of “improper rejection” could
constitute exhaustion, thereby denying summary judgment). Thus, the Court finds that a
genuine question of material fact remains as to whether TDOC officials improperly
rejected Plaintiff’s second grievance.
Because Defendant has failed to show “that the evidence is so powerful that no
reasonable jury would be free to disbelieve it,” the burden of proof has not yet shifted to
Plaintiff. Surles, 678 F.3d at 455–56, 58. And given that this triable issue pertains to
Plaintiff’s second grievance filing, this finding is sufficient to defeat summary judgment
without need to address his failure to refile this grievance and/or appeal the second
grievance.
3 The Court further notes that while the TDOC’s grievance policies state that grievances
that include threats may result in disciplinary action, they do not state that grievances that contain
threats are not permitted [Doc. 20-2, p. 4].
As such, Defendant has failed to meet his burden to show that no reasonable jury
could find that Plaintiff exhausted his available administrative remedies prior to filing this
action, and his motion for summary judgment [Doc. 18] is hereby DENIED.
VII. CONCLUSION
For the reasons set forth above:
1. Plaintiff’s motions for service [Doc. 8] and for an injunction [Doc. 9] are
DENIED as moot;
2. Plaintiff’s motion to amend his complaint [Doc. 14] is GRANTED, the Court
considers Plaintiff’s proposed amended complaint [Doc. 14-1] as the operative
complaint in this action, and all claims against the TDOC are DISMISSED;
3. Plaintiff’s motion to appoint counsel [Doc. 15] is DENIED;
4. Defendant’s motion for summary judgment [Doc. 18] is DENIED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE