NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0682n.06 No. 12-6297 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT DAVID THOMAS COHRON, P laintif f-App ellant,

v. CITY OF LOUISVIL LE, KY. ; LOUISVIL LE M E T R O C O R R E C T I O N S D E PAR T M E N T ; GA RY DIXON; CHRISTOPHER HORNBACK ; DAVID BASHAM; LISA E STE S; NURSE, Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F ROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E WEST E RN DISTRICT OF KENTUCK

Y O P I N I O N

BEFORE: K

EITH and McKEAG UE, Circuit Judges; and WATS ON, District Judge. * McK EAGU E, Circuit Judge. David Cohron plaintiff-a ppellant was arr ested by L ouisvill e Metro Police on Dec ember 21, 2005. Cohron contends that office rs assaulted him as he was being booked at the L ouisvill e Metro Depa rtment of Correc tions (the J ail). On J anuar y 9, 2006, Cohron

was rele ased having failed to file a g rieva nce perta ining to the events of Dec ember 21. L ess than two

wee ks later, Cohron was ag ain arr ested, booked, and incar cer ated. On J anuar y 31, during this stint in the J ail, he filed a formal complaint with the Professional Standards Unit conce rning the alleg ed Dec ember 21 assault. I nvestig ators found Cohron’s complaint to be “unfounde d.” An attorney with

The Honor able Micha el H. Watson, United States District Judge for the Souther n District * of Ohio, sitting by

desig nation.No. 12-6297

Cohron v. City of L ouisville, Ky., et al. the J eff erson County Attorney ’s Of fi ce i nformed Cohron that there was insufficient evidenc e of misconduct for a

criminal prose cution but that Cohron could file a c ivil action for dama g es. Wit hin a few months, Cohron beg an a work-r elea se prog ram. I n late May of 2006, he failed to return from work at the desig nated time. His wher eabouts wer e unknown until a littl e over a wee k later, when he was involved in a high- speed chase , which resulted in his return to incar cer ation. He has bee n incar cer ated e ver since

. He filed the prese nt action in November of 2006 alleg ing sever al claims rela ted to the alleg ed assault. Since 2006, this litigation has taken a winding path. But we are now prese nted with a dispositi ve question—whether, under the P rison L itigation Refor m Act (PL RA), C ohron’s claims

are barr ed bec ause he failed to e x haust his administrative reme dies. The district court found that Cohron’s claims wer e barr ed. Cohron arg ued below that he had filed an administrative g rieva nce on Dec em b er 2 2 , 2 0 0 5. He produce d a document that he had alleg edly filed, and acc ording to him, the J ail’s administrators had lost. The district court conducte d 1

an evidentiar

y hear ing and deter

mined that the document was not authentic. Ba sed upon this finding

an d i ts conclusion that Cohron had otherwise failed to exhaust his administrative reme dies , t h e district court g rante d defe ndants’ motion for summary judgme nt. Cohron appea led. We revie w the district court’s g rant of summary judgme nt de novo . But on appea l, Cohron

as k s us to answe r a differ ent question from that answe red by the district court—whe ther his complaint to the Professional Standards Unit on J anu ary 31, 2006, exhausted his administrative

This document was not produce d until Fe bruar y 2012, afte r defe ndants’ moved for s u mm a ry 1 judgme nt based upon Cohron’s f ailure to e x haust. R. 118-1 at 2, Pag e I D # 861.

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Cohron v. City of L ouisville, Ky., et al.

reme dies. Even proce eding under this a lternative theory , howeve r, we come to the same result as

2 the district court. We must answe r t wo questi ons in coming to that conclusion: (1) Do es the P L RA apply to Cohron? (2) Did Cohron proper ly exhaust his administrative reme dies? We consider eac h in turn. 1. The PL RA provides that: No action shal l b e brought with respe ct t o prison conditions under section 1983 of this title, or any other Fe dera l law, by a prisoner confine d in any jail, prison, or other corr ectional fac ility until such administrative reme dies as are a v a il a b le a r e e xhausted. 42 U.S.C. § 1997e(a ). L ooking at the plai n l an gu age o f the PL RA, it applied to Cohron: Cohron broug ht a n action rela ted to pr ison c onditions while a prisoner confine d in a jail or prison. Napier

v. Laurel Cnty., Ky. , 636 F.3d 218, 222 (6th Cir. 2011). As a result, he was require d to exhaust his administrative re medies. 2. I n W oodford v. Ngo , 548 U.S. 81 (2006), the Court held that a PL RA plaintiff must properly exhaust his available administrativ e reme dies. Id. at 93. I n the prese nt case , to proper ly exhaust Cohron neede d to f

ile a g rieva

nce within thirty day s of the problem occur ring

. R. 112-3 at 8, Pag e I D # 830. He failed to do so. Even assuming that filing a g rieva nce with the Professional Standards

Cohron also arg ues that his rele ase deprive d him of any ability to g rieve his mistreatment. 2 Cohron forf

eit ed thi s arg ument beca

use he never raised the arg ument below; i n fac t, he im plicitly arg ued the opposite—how could he b e d ep ri v ed o f his ability to file a g rieva nce if he had filed a g rieva nce on D ece mber 22, 2005? - 3 -No. 12-6297

Cohron v. City of L ouisville, Ky., et al. Unit could satisfy the exhaustion require ment, the complaint was untimely

. Cohron there fore failed to properly exhaust his admini strative re medies. For t h e fi rst time on appea l, Cohron arg ues that a county attorney waived the formal g rieva nce proce dures when the attorney wrote Cohron a letter stating that no criminal char g es would be broug ht ag ainst Cohron’s alleg ed attacke rs and that Cohron could file a civil action for damag es. I n some instances, we have excused the exhaustion require ment wher e we have deter mined that the defe ndants have waived the rele vant proce dural r e q u ir e me n t. S

e e, e.g. , Ree d-Bey v. Pramstaller , 603 F.3d 322, 324 (6th Cir. 2010). Ho we v er , Cohron failed to raise this arg ument below and it is forf eited for that rea son. United States v. Abdi , 463 F.3d 547, 563 (6th Cir. 2006). We there fore AF F IRM

.

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