WALTER MONROE, 

Plaintiff, 

v. 

K. RUMER, et a/., 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Case No. 2:11-cv-180 

Judge Michael H. Watson 

Magistrate Judge Elizabeth P. Deavers 

Defendants. 

ORDER 

Plaintiff, Walter Monroe, who is 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 Court for consideration of the January 22, 

2013 Report and Recommendation of the United States Magistrate Judge, ECF 

No. 57, and Plaintiff's Objection to the Report and Recommendation, ECF No. 62. 

Plaintiff filed a timely objection to the Report and Recommendation under 

Federal Rule of Civil Procedure 72(b ). 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). 

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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 ). 

In this case, the Magistrate Judge recommended that the Court grant 

Defendants' Motion for Summary Judgment and that Plaintiff's claims be 

dismissed without prejudice for failure to exhaust administrative remedies. Within 

the Report and Recommendation, the Magistrate Judge correctly set forth the 

standards governing summary judgment decisions under Federal Rule of Civil 

Procedure 56; the exhaustion requirements set forth in the Prison Litigation 

Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(a); and Ohio's three-step 

grievance procedure for resolving inmate complaints. See Jan. 22, 2013 Report 

and Rec. 5-7, ECF No. 57. The Court incorporates by reference the Magistrate 

Judge's recitation and discussion of the Rule 56 standards, the PLRA's 

exhaustion requirements, and Ohio's grievance procedure. 

In concluding that Defendants were entitled to summary judgment on 

exhaustion grounds, the Magistrate Judge reasoned as follows: 

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 ReedBey, 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 [Notification of Grievance Form ("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 

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Inspector's Office properly declined 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. 

/d. at 7-8. 

Plaintiff objects on two grounds. First, he asserts that either the grievance 

he sent to the Chief Inspector on December 16, 2010 or the appeal he made of 

Inspector Blackwell's January 31, 2011 denial satisfied his exhaustion 

requirements. Second, Plaintiff posits that the Magistrate Judge, in connection 

with her initial screen of his Complaint, determined that he had sufficiently 

exhausted his claims. 

The Court has reviewed the Report and Recommendation and Plaintiff's 

Objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b) and 

concludes that Plaintiff's objections lack merit. With regard to his first objection, 

the December 16, 2010 appeal to the Chief Inspector was improper because 

Monroe had not first appealed to Inspector Blackwell. In addition, Inspector 

Blackwell stated in his affidavit that Monroe did not appeal Blackwell's January 

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31, 2011 order. Blackwell Aff. mf 13-14, ECF No. 42-17. Accordingly, the 

Magistrate Judge was correct to recommend a dismissal for failure to exhaust 

remedies. 

Plaintiff's second objection is equally unavailing. Contrary to Plaintiff's 

assertion, the Magistrate Judge made no explicit findings concerning whether he 

had sufficiently exhausted his claims as required under the PLRA in connection 

with her initial screen under 28 U.S.C. §§ 1915(e)(2) and 1915A. See AprilS, 

2011 Order 2, ECF No. 8 (simply stating that "[h]aving performed the initial 

screen of the Complaint as required by 28 U.S.C. §§ 1915(e)(2) and 1915A, the 

Court concludes that, at this juncture, the matter can proceed on Plaintiff's Eighth 

Amendment medical indifference claims under 42 U.S.C. § 1983.") Further, 

permitting claims to proceed at the initial screening stage does not constitute an 

implicit finding that the inmate properly exhausted administrative remedies. As 

the Magistrate Judge explained in the Report and Recommendation, Defendants 

bear the burden of proof on the affirmative defense of failure to exhaust prison 

remedies prior to bringing suit. See id at 5-6 (citing Surles v. Andison, 678 F.3d 

452, 455 (6th Cir. 2012); Jones v. Bock, 549 U.S. 199, 216 (2007); and Napier v. 

Laurel County, Ky., 636 F .3d 218, 225 (6th Cir. 2011 )). For this reason, "under 

the Prison Litigation Reform Act, an inmate's § 1983 claim may not be dismissed 

at the screening stage for failure to plead or attach exhibits with proof of 

exhaustion." Luedtke v. Berkebile, 704 F.3d 465,466 (6th Cir. 2013) (internal 

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quotation marks and citation omitted). Put simply, the Magistrate Judge did not 

make any determinations regarding exhaustion in connection with her initial 

screening of Plaintiff's Complaint, either explicitly or implicitly. 

In sum, because the decision and analysis of the Magistrate Judge is 

correct, the January 22, 2013 Report and Recommendation, ECF No. 57, is 

ADOPTED, Plaintiff's Objections, ECF No. 62, are OVERRULED, Defendants' 

Motion for Summary Judgment, ECF No. 42, is GRANTED, and Plaintiff's claims 

are DISMISSED WITHOUT PREJUDICE for failure to properly exhaust his 

administrative remedies. 

IT IS SO ORDERED. 

Case No. 2:11-cv-180 

CHAEL H. ATSON, JUDGE 

UNITED STATES DISTRICT COURT 

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