UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WALTER MONROE,

Plaintiff,

 Civil Action 2:11-cv-180

v. Judge Michael H. Watson

 Magistrate Judge Elizabeth P. Deavers

K. RUMER, et al.,

Defendants.

REPORT AND RECOMMENDATION

C Plaintiff, Walter Monroe, a state-prison inmate proceeding without the assistance

of counsel, brings this civil rights action under 42 U.S.C. § 1983, alleging that

Defendants have demonstrated deliberate indifference to his serious medical needs in

violation of his rights under the Eighth Amendment to the United States Constitution. 

This matter is before the United States Magistrate Judge for a Report and

Recommendation on Defendants’ unopposed Motion for Summary Judgment (ECF No.

42). For the reasons stated below, it is RECOMMENDED that the Defendants’ Motion

be GRANTED and that Plaintiff’s claims be DISMISSED WITHOUT PREJUDICE. 

I.

According to Plaintiff, upon arriving at London Correctional Institution (“LCI”) in

February 2010, the prison medical team diagnosed him with severe nerve damage to his hand. 

Plaintiff alleges that the nerve damage “[p]revents him from doing such tasks as lifting and

holding onto objects[] and prevents him from performing certain jobs . . . .” (Compl. 5, ECF No.

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10.) He cites handling hot and heavy objects as tasks that he cannot perform safely as a result of

his nerve damage. Plaintiff further alleges that Defendants Kristine Rumer, former Healthcare

Administrator at LCI, and Brian Kesssler, Administrative Assistant at LCI, “knew or reasonably

should have known” of his medical condition, but that they nevertheless placed in him the

kitchen, where he was asked to perform the types of tasks that his injury prevented him from

doing safely. (Id.) He alleges that he sustained a burn to his hand when it came in contact with

hot water. Plaintiff explains that the hot water outlet was not properly marked, and because of

his nerve damage, he could not feel the hot temperature of the water that burned his hand. He

contends that Defendant Warden Timmerman-Cooper is also responsible because she failed to

ensure that the outlets were properly marked. 

On December 5, 2010, Plaintiff filed an Informal Complaint Resolution (“ICR”) with

Institutional Health Services (“IHS”) stating in its entirety as follows: “I was seen several weeks

ago in reference to a severe burn I received on my hand. You were told at such time I had no

feeling in this hand and the treatment given has been inappropriate. I am not any better.” (Dec.

5, 2010 ICR, ECF No. 42-18.) Defendant Kessler responded on December 8, 2010, noting that

Plaintiff had obtained treatment twice for the blister on his finger and was provided antibiotic

ointment and bandaids. He concluded that Plaintiff’s treatment had been reasonable and

instructed him to sign up for sick call if he continued to experience issues. (Id.) 

Plaintiff subsequently obtained a Notification of Grievance Form (“NOG”) for purposes

of appealing his December 5, 2010 ICR. He completed the NOG on December 16, 2010, but

sent it directly to the Chief Inspector’s Office in Columbus, Ohio rather than to LCI’s

Institutional Inspector, DeCarlo Blackwell. The Office of Chief Inspector returned the NOG to

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Plaintiff, attaching correspondence that set forth the deficiencies in his submission and

encouraged him to contact the Inspector at his facility in the event he did not understand the

grievance process. (Jan. 7, 2011 Corres., ECF No. 42-20.) Plaintiff submitted the NOG to

Institutional Inspector Blackwell on January 27, 2011. Institutional Inspector Blackwell

responded to his NOG on January 31, 2011. (Jan. 31, 2011 Disp. of Griev., ECF No. 42-21.) He

dismissed Plaintiff’s complaint, noting that he had failed to properly follow grievance

procedures and that the medical care he had been receiving was adequate. (Id.) He advised

Plaintiff to sign up for Doctor’s Sick Call if he desired to obtain a medical restriction. (Id.) 

Finally, Institutional Inspector Blackwell informed Plaintiff that if he wished to appeal his

decision to the Chief Inspector, he must do so within fourteen days. (Id.) Plaintiff failed to

timely appeal Institutional Inspector Blackwell’s denial of his grievance. (Blackwell Aff. ¶

13–14, ECF No. 42-17.) Plaintiff filed the instant action on February 28, 2011. (ECF No. 1.) 

Defendants filed the subject Motion for Summary Judgment on May 17, 2012. (ECF No.

42.) Defendants assert that they are entitled to summary judgment because Plaintiff failed to

exhaust his administrative remedies. Defendants alternatively posit that summary judgment is

appropriate because Plaintiff cannot demonstrate either the subjective or objective components

of a medical indifference claim. Defendants also submit that Plaintiff’s he cannot demonstrate

the requisite personal involvement of any Defendant. 

In lieu of responding to Defendants’ Motion, Plaintiff moved for a stay of briefing until

such time as the Court could appoint a specialist to examine him. (ECF No. 44.) On November

9, 2012, the Undersigned denied Plaintiff’s Motion and ordered him to respond to Defendants’

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Motion within twenty-one days. (ECF No. 48.) On November 27, 2012, the Court overruled

Plaintiff’s objections to the denial of his request for a stay and adopted and affirmed the

Undersigned’s November 9, 2012 Order. (ECF No. 50.) Thereafter, Plaintiff filed a Notice of

Appeal (ECF No. 51) and a Motion for Leave to Appeal In Forma Pauperis (ECF No. 52). On

January 2, 2013, the Court issued an Order construing Plaintiff’s filing as a motion for

certification under 28 U.S.C. § 1292(b) that he may immediately file an interlocutory appeal

from the Court’s November 27, 2011 Order. (ECF No. 54.) The Court denied Plaintiff’s

requests and advised him that if he intended to respond to Defendants’ Motion for Summary

Judgment, he must do so within seven days. Plaintiff did not timely file a response to

Defendants’ Motion. Instead, on January 14, 2013, he again moved for a certificate of

appealability and for leave to appeal in forma pauperis. (ECF No. 55.) On January 15, 2013,

the Court denied Plaintiff’s Motion and noted that he had forfeited his right to respond to

Defendants’ Motion for Summary Judgment. (ECF No. 56.) Accordingly, Defendants’ Motion

is now ripe for review. 

II.

Under Federal Rule of Civil Procedure 56, “[t]he 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). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

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assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011

WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely

disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,

however, do more than simply show that there is some metaphysical doubt as to the material

facts, . . . there must be evidence upon which a reasonable jury could return a verdict in favor of

the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson

Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). 

“When a motion for summary judgment is properly made and supported and the nonmoving

party fails to respond with a showing sufficient to establish an essential element of its case,

summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at

322–23).

III. 

The Undersigned concludes that Defendants are entitled to summary judgment on the

grounds that Plaintiff failed to properly satisfy the exhaustion requirements set forth in the Prison

Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e(a). 

“A prisoner’s failure to exhaust his intra-prison administrative remedies prior to filing

suit ‘is an affirmative defense under the PLRA . . . .’” Surles v. Andison, 678 F.3d 452, 455 (6th

Cir. 2012) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). Defendants bear the burden of

proof on the affirmative defense of exhaustion. Napier v. Laurel County, Ky., 636 F.3d 218, 225

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(6th Cir. 2011) (citations omitted) (“[F]ailure to exhaust administrative remedies under the

PLRA is an affirmative defense that must be established by the defendants.”). “Summary

judgment is appropriate only if defendants establish the absence of a genuine dispute as to any

material fact regarding non-exhaustion.” Surles, 678 F.3d at 455. “When a prisoner’s complaint

contains a combination of exhausted and unexhausted claims, courts are to dismiss the

unexhausted claims but retain and address the exhausted claims.” Reynolds-Bey v. Harris, 428

F. App’x 493, 500 (6th Cir. 2011) (citing Jones, 549 U.S. at 220–24).

Under 42 U.S.C. § 1997e(a), as amended by the PLRA, “a prisoner confined in any jail,

prison, or other correctional facility” may not bring an action challenging “prison conditions”

under 42 U.S.C. § 1983 “or any other Federal law . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 211 (“There is no question

that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in

court.” (citation omitted)). This mandatory exhaustion requirement applies to all lawsuits

relating to prison conditions, regardless of the nature of the wrong or the relief sought. Porter v.

Nussle, 534 U.S. 516, 524 (2002). “Exhaustion” under the PLRA means “proper exhaustion.” 

Woodford v. Ngo, 548 U.S. 81, 93 (2006). To properly exhaust, prisoners must “tak[e]

advantage of each step the prison holds out for resolving the claim internally and . . . follow the

‘critical procedural rules’ of the prison’s grievance process to permit prison officials to review

and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey v.

Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010); Jones, 549 U.S. at 217–18 (noting that proper

exhaustion requires “[c]ompliance with prison grievance procedures”). 

Ohio has established a procedure for resolving inmate complaints. Ohio Admin. Code §

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5120–9–31. To properly exhaust a claim seeking relief “regarding any aspect of institutional life

that directly and personally affects the [inmate],” an inmate at an ODRC facility must comply

with its three-step grievance system. Id. For the first step, the inmate must submit an informal

complaint to the staff member or to the direct supervisor of the staff member or to the

department most directly responsible over the subject matter with which the inmate is concerned. 

Ohio Admin. Code § 5120–9–31(K)(1). If the inmate is not satisfied with the results at the first

step, he may take the second step by filing a formal grievance with the inspector of institutional

services at the prison where he is confined. Ohio Admin. Code § 5120–9–31(K)(2). That

inspector will investigate the matter and issue a written response to the inmate’s grievance

within fourteen calendar days of receipt. Id. If the inmate is still dissatisfied, he may pursue the

third step, which is an appeal to the office of the Chief Inspector of ODRC. Ohio Admin. Code

§ 5120–9–31(K)(3). An inmate does not exhaust his remedies under § 5120-9-31 until he has

received a decision in an appeal to the office of the Chief Inspector. If an inmate has a grievance

against the warden or inspector of institutional services, he must file it directly to the office of

the Chief Inspector, whose decision is final. Ohio Admin. Code § 5120–9–31(M). 

Defendants have satisfied their burden of proving that Plaintiff failed to exhaust his

administrative remedies. As set forth above, Plaintiff was required to “properly exhaust” his

claims, which required him to follow the “critical procedural rules” of ODRC’s grievance

process. See Reed-Bey, 603 F.3d at 324. ODRC’s rules relating to when an appeal of a

grievance becomes ripe certainly constitute “critical procedural rules.” Plaintiff’s submission of

a NOG with the Chief Inspector on December 16, 2010, was improper because he had not first

submitted it to the Institutional Inspector. Thus, the Chief Inspector’s Office properly declined

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to consider the NOG. Significantly, the Chief Inspector took no affirmative action that could

have misled Plaintiff into believing that he had complied with ODRC’s procedures. Rather, the

Office of Chief Inspector returned the NOG to Plaintiff with correspondence outlining the

deficiencies in his submission. Further, Plaintiff did not file an appeal of Institutional Inspector

Blackwell’s January 31, 2011 denial of his NOG within the requisite fourteen days. Thus, the

Undersigned RECOMMENDS DISMISSAL of Plaintiff’s claims WITHOUT PREJUDICE

for failure to properly exhaust his administrative remedies. See Boyd v. Corrs. Corp. of Am., 380

F.3d 989, 994 (6th Cir. 2006) (citing Knuckles El v. Toombs, 215 F.3d 640 (6th Cir. 2000)) (“A

dismissal under § 1997e should be without prejudice.”) The conclusion that Plaintiff failed to

exhaust his administrative remedies obviates the need for consideration of Defendants’ alterative

bases for summary judgment. 

IV.

For all of the reasons set forth above, it is RECOMMENDED that the Defendants’

Motion for Summary Judgment be GRANTED and that Plaintiff’s claims be DISMISSED

WITHOUT PREJUDICE for failure to properly exhaust his administrative remedies. (ECF

No. 42.) 

 PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

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Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

DATE: January 22, 2013 /s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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