IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Jason Jones, :

 Plaintiff, : Case No. 2:11-cv-871

 v. : JUDGE GREGORY L. FROST

 Magistrate Judge Kemp

Warden, Ross Correctional :

Institution, et al., 

:

 Defendants. 

REPORT AND RECOMMENDATION

Plaintiff, Jason Jones, an inmate who was housed at Ross

Correctional Institution at the time relevant to this action,

filed this action against several state employees in their

individual and official capacities pursuant to 42 U.S.C. §1983. 

Defendants have filed a motion for summary judgment, which is now

fully briefed. For the reasons set forth below, the Court

recommends that the motion be granted.

 I. Introduction

 The Court previously ruled on a motion to dismiss which

defendants had filed in response to Mr. Jones’ complaint. The

Report and Recommendation (Doc. 16) which addressed the motion to

dismiss summarized the complaint’s allegations in this way:

From May 8, 2009 to the time of the filing of the

complaint, Defendants Lieutenant Lunsford, Lieutenant

Morison, and Lieutenant Powers, all employees at the

Ross Correctional Institution, conspired “on multiple

occasions” to place Mr. Jones in harm’s way “by

repeatedly moving him to housing units that are

[d]angerous to him[] [i]n a[n] attempt to kill or

seriously injure him and extort plaintiff to work

without proper pay from the state.” In addition,

defendant prison officials “conspired to sexually

[harass], [oppress], extort and place hits on plaintiff

by paying inmates with tobacco and sex.” Mr. Jones

claims to have been brutally assaulted on multiple

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occasions and has received multiple injuries including

partial loss of vision in one eye.

 

Furthermore, Mr. Jones claims that defendant

prison officials Jeffreys and Whitten “demonstrated

deliberate indifference and [dereliction] of duty in

violation of Ohio Revised Code 2941.44 [sic 2921.44].” 

In particular, he asserts that they failed to take

corrective action to address the risk faced by Mr.

Jones when they received a grievance on June 14, 2011. 

As a part of that failure, they disapproved Mr. Jones’s

request for protective custody.

 

Mr. Jones also sought injunctive relief based on the fact that,

when he filed the complaint, he was confined in disciplinary

segregation in lieu of a placement in protective custody. 

However, after the complaint was filed, he was transferred to a

different correctional institution. The Court’s order of May 24,

2012 (Doc. 20) dismissed his claim for injunctive relief. That

order also dismissed all claims against defendant Whitten.

The remaining defendants in the case are three lieutenants

from the Ross Correctional Institution - Lieutenants Lunsford,

Morrison, and Powers - and that institution’s former Warden, Rob

Jeffreys. They have moved for summary judgment on a number of

grounds, including failure to exhaust administrative remedies

with respect to the claims against the three lieutenants; the

Eleventh Amendment’s bar to damage claims brought against all

state officials in their official capacities; the lack of any

specific factual allegations in support of Mr. Jones’ conspiracy

claim; and, as to defendant Jeffreys, the fact that he acted

reasonably based on what he knew when he denied Mr. Jones’

requests for protective custody. The Court will address only

three of these arguments below, finding no need to discuss the

conspiracy claim due to the lack of any evidence of an actionable

constitutional violation.

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II. Legal Standard

 Summary judgment is not a substitute for a trial when facts

material to the Court's ultimate resolution of the case are in

dispute. It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the

absence of a material factual dispute and the moving party is

entitled to judgment as a matter of law. Poller v. Columbia

Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving

party bears the burden of demonstrating that no material facts

are in dispute, and the evidence submitted must be viewed in the

light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970). Additionally, the Court must

draw all reasonable inferences from that evidence in favor of the

nonmoving party. United States v. Diebold, Inc., 369 U.S. 654

(1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support

of any material element of a claim or defense on which that party

would bear the burden of proof at trial, even if the moving party

has not submitted evidence to negate the existence of that

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Of

course, since "a party seeking summary judgment ... bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact," Celotex, 477 U.S. at 323, the

responding party is only required to respond to those issues

clearly identified by the moving party as being subject to the

motion. It is with these standards in mind that the instant

motion must be decided.

 III. The Facts

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The facts which the Court must take as true for purposes a

summary ruling are those which have been properly supported. As

Fed.R.Civ.P. 56(c) states, proper support for facts at this stage

of the case can come from “depositions, documents, electronically

stored information, affidavits or declarations, stipulations ...,

admissions, interrogatory answers, or other materials....” One

common feature of all these types of information is that they be

properly authenticated or sworn to. As the Court of Appeals has

said, “it would [be] improper for the district court to consider

documents that were not admissible in evidence” when ruling on a

summary judgment motion. Alexander v. CareSource, 576 F.3d 551,

561 (6th Cir. 2009). Here, the only documents meeting this

description, and, therefore, which may properly be considered by

the Court, are the ones attached to defendants’ motion. Mr.

Jones has not filed any affidavits, declarations, or

authenticated documents. Consequently, the factual background of

the case recited here is based exclusively on the documents which

defendants have filed.

The affidavits submitted by defendants show the following. 

First, according to the affidavit of Robert Whitten, the

Institutional Inspector at Ross Correctional, Mr. Jones never

filed an “Informal Complaint Resolution,” the first step of the

inmate grievance process, while at RCI. Mr. Jones did ask for a

form, known as “Notification of Grievance,” in April, 2011 - in 

fact, he asked for four of them - but when Mr. Whitten met with

Mr. Jones to discuss why Mr. Jones thought he was allowed to skip

the first step of the grievance process and proceed directly to

the second step (which is what the Notification of Grievance form

is for), he was so vague about the details of his complaint that

Mr. Whitten did not give him the forms. In fact, Mr. Jones

refused to provide details, instead telling Mr. Whitten he would

wait and gather more evidence in his favor before filing a

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grievance. He also denied any need to be transferred to safer

housing.

The following month, Mr. Jones asked for one Notification of

Grievance form. Mr. Whitten sent him the form, first completing

the areas for the inmate’s name, number, housing unit, and

institution. The instructions stated that the form was to be

returned to Mr. Whitten as the Institutional Inspector. Mr.

Jones did not do that, but sent his grievance, which complained

about all three lieutenants who are defendants in this case, to

the Chief Inspector’s Office in Columbus. That is the third step

of the normal grievance process. The Chief Inspector, Gary

Croft, refused to consider the merits of the grievance because

Mr. Jones had not gone through the first two steps of the

process. All of the documents described in Mr. Whitten’s

affidavit are attached to his affidavit and authenticated by him. 

The three lieutenants involved in this case also signed

affidavits, and those are attached to the summary judgment motion

as well. Doc. 42, Exhibits 5, 6 and 7. The affidavits are very

similar. Lieutenant Lunsford recalled one incident in 2010 where

she wrote Mr. Jones a ticket (but only after having her

recollection refreshed with a copy of the ticket), but otherwise

denied any knowledge of him, any responsibility for where he was

housed, and any conspiracy with the other two lieutenants to have

inmates harm Mr. Jones. The other two said basically that they

did not know who Mr. Jones was and, in any event, never made

housing decisions for him or encouraged other inmates to harm

him.

The only other pertinent affidavit is that of former warden

Rob Jeffreys, which is Exhibit 2 to the motion for summary

judgment. Warden Jeffreys, in a very brief statement, says that

his policy as Warden was to insist on “verifiable facts and

circumstances” before granting a request for protective custody. 

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He had granted such requests from RCI inmates when those facts

and circumstances were present. In Mr. Jones’ case, however, due

to the fact that “Inmate Jones was unwilling and/or unable to

establish verifiable facts and/or circumstances to justify his

approved placement in protective control,” Warden Jeffreys denied

the requests. Nevertheless, in what is described at the

“interest of administrative efficiency,” Mr. Jones was

administratively transferred to a different institution. Had he

been approved for protective custody, he would have remained in

security control pending his transfer to a protective custody

unit. 

Taking Mr. Whitten’s and Warden Jeffreys’ affidavits

together, the record shows that Mr. Jones did not file informal

grievances against the three lieutenants involved in this case,

and that Warden Jeffreys denied Mr. Jones’ request for placement

in protective custody because the facts underlying that request

could not be substantiated. The question then becomes whether

the defendants are entitled to summary judgment on the basis of

these facts.

IV. Official Capacity Damage Claims

Defendants argue that any damage claims asserted against

them in their official capacities are, in reality, claims against

the State of Ohio, and are barred by the Eleventh Amendment to

the United States Constitution. Mr. Jones responds to this

argument by referring to principles of municipal liability. His

argument is simply misplaced.

Municipalities are not the equivalent of the State itself

and do not enjoy Eleventh Amendment immunity. The Eleventh

Amendment “does not extend to counties and similar municipal

corporations.” Mt. Healthy City School Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977). On the other hand, it does

apply to state entities such as the Ohio Department of

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Rehabilitation and Correction. While “[t]he eleventh amendment

does not prevent plaintiffs from bringing suits for money damages

against state officials provided that the defendants are sued in

their individual capacities,” Foulks v. Ohio Department of

Rehabilitation and Correction, 713 F.2d 1229, 1233 (6th Cir.

1983), there are numerous cases holding that “the Eleventh

Amendment bars §1983 suits seeking money damages against states

and against state employees sued in their official capacities.” 

Rodgers v. Banks, 344 F.3d 587, 594 (6th Cir. 2003). That rule

has specifically been applied to suits against corrections

officers employed by the ODRC. See, e.g., Dotson v. Wilkinson,

477 F.Supp. 2d 838, 852 (N.D. Ohio 2007); Leonard v. Moore, 2012

WL 5830251, *3 (S.D. Ohio Nov. 16, 2012), adopted and affirmed

2012 WL 6139001 (S.D. Ohio Dec. 11, 2012). To the extent that

Mr. Jones makes such claims, the Court is required to dismiss

them on Eleventh Amendment grounds.

 V. Exhaustion

42 U.S.C. §1997e(a) states 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.” 

Although failure to exhaust administrative remedies is an

affirmative defense, see Jones v. Bock, 549 U.S. 199 (2007), once

that defense is raised in a motion for summary and properly

supported, in order to avoid an adverse judgment, the inmate must

produce evidence that there is a genuine factual dispute about

his failure to exhaust. See, e.g., Napier v. Laurel County, Ky.,

636 F.3d 218, 225 (6th Cir. 2011) (“Once the defendants put forth

evidence [of failure to exhaust], Napier was required to present

‘significant probative evidence’ to defeat the motion for summary

judgment on this ground”).

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As this Court noted in Mays v. Ohio, 2012 WL 423761, *2

(S.D. Ohio Feb. 9, 2012), adopted and affirmed 2012 WL 870858

(S.D. Ohio March 14, 2012), 

Ohio has established a procedure for resolving

inmate complaints. Ohio Admin. Code § 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 ODRC

must comply with its three-step grievance system. Ohio

Admin. Code § 5120–9–31(K). 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). Such action must be

taken “[w]ithin fourteen calendar days of the date of

the event giving rise to the complaint ....” Id. If the

inmate is not satisfied with the results, 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). This appeal

must be filed within fourteen days of the disposition

of the formal grievance. Id.

Defendants, through the Whitten affidavit, have established

that Mr. Jones did not follow these procedures with respect to

his claims against the three lieutenants. Once defendants

submitted this evidence, as the Napier case holds, it became Mr.

Jones’ burden to show that the effort he made to exhaust these

claims was proper. Defendants recognize that, in some instances,

the first step of the grievance process may be bypassed if the

grievance implicates Ohio Administrative Code §5720-9-04, which

is entitled “Appropriate supervision, discrimination and racial

issues.” See §5120-9-31(K)(1). “Inappropriate supervision”

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includes “any continuous method of annoying or needlessly

harassing an inmate ..., including, but not limited to, abusive

language, racial slurs, and the writing of inmate conduct reports

strictly as a means of harassment.” O.A.C. §5720-9-04. Mr.

Whitten made a determination that Mr. Jones’ proposed grievance

did not fit within this definition. The grievance itself makes a

large number of very serious allegations, but defendants have

come forward with evidence that none of these allegations are

true. Mr. Jones has not put forth any evidence to show

otherwise; even if he had, he did not skip just the first step of

the process, as §5120-9-31(K)(1) would authorize, but the first

two. He filed his grievance directly with the Chief Inspector, a

method permitted only for “[g]rievances against the warden or

inspector of institutional services....” O.A.C. §5120-9-31(M). 

It was rejected as having been improperly filed.

Under these circumstances, no genuine factual issue exists

about whether Mr. Jones filed a proper grievance against the

three lieutenants. Clearly, he did not. An inmate who files a

grievance but does not do so properly, that is, as required by

the written grievance process, has not met the PLRA’s exhaustion

requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006)(under the

PLRA, “proper exhaustion of administrative remedies is

necessary”). Consequently, the three lieutenant defendants are

entitled to summary judgment on this ground and to the dismissal

of all of Mr. Jones’ claims against them.

VI. Claims against Warden Jeffreys

Mr. Jones’ claim against Warden Jeffreys is that after the

Warden, though the grievance which Mr. Jones filed, became aware

that the lieutenants were placing Mr. Jones in danger, he failed

to do anything to correct the problem, including placing Mr.

Jones in protective custody. Mr. Jones adds to that allegation

the claim that Warden Jeffreys placed him in disciplinary

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segregation simply because there was no protective custody

placement available at RCI.

In its prior Report and Recommendation, the Court held that

these allegations, if true, supported a claim against Warden

Jeffreys under the Eighth and Fourteenth Amendments. That is

enough for a claim to survive a motion to dismiss. However, in

order for this claim to survive summary judgment, especially in

the face of an affidavit from Warden Jeffreys stating that these

allegations are all false, Mr. Jones had to provide some type of

competent evidence supporting the assertions he made in his

complaint. As the Court has pointed out above, “the nonmoving

party must present affirmative evidence to defeat a properly

supported motion for summary judgment.” Cox v. Kentucky Dept. of

Transp., 53 F.3d 146, 150 (6th Cir. 1995). Again, he has not

done so. 

Contrary to Mr. Jones’ unsupported allegations, Warden

Jeffreys’ affidavit establishes that protective custody, rather

than simply disciplinary control, is available for inmates at

RCI. This negates the claim that Mr. Jones was placed in

disciplinary segregation simply as a means to grant him

protective custody status. Further, the affidavit shows that Mr.

Jones never actually met the criteria for protective custody

because he did not or would not provide specific facts to support

his request for protection. In the absence of any proof that

Warden Jeffreys either knew of, or was recklessly indifferent to

the existence of, facts showing that Mr. Jones was in danger, the

Warden did not violate Mr. Jones’ constitutional rights. As the

Court said in its prior Report and Recommendation, Doc. 16, at 9, 

In the context of an Eighth Amendment failure to

protect claim, in order for a denial of a grievance to

rise to the level of a constitutional violation, there

must be allegations that the defendant had subjective

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knowledge of the threats and that the defendant acted

unreasonably in disregarding the risk. Williams v.

McLemore, 247 Fed. Appx. 1 (6th Cir. June 19, 2007)

(holding that plaintiff failed to state a claim against

several defendants involved in the grievance process

but did state a claim against one defendant involved in

the grievance process). 

The factual record before the Court does not support this

claim. Defendant Jeffreys is therefore entitled to summary

judgment as well. In light of the absence of any evidence of a

constitutional violation, Mr. Jones cannot succeed on any claim

that the defendants conspired to violate his rights. See

Anderson v. County of Hamilton, 780 F.Supp. 2d 635, 652 (S.D.

Ohio 2011)(in order for a conspiracy claim to succeed, “plaintiff

must allege facts showing not only an agreement by defendants to

violate plaintiff's constitutional rights, but also an actual

deprivation of a constitutional right”). Mr. Jones has not shown

the Court that any material factual disputes exist with respect

to his claim of a constitutional violation, so his conspiracy

claims - whatever their basis - fail.

VII. Recommendation

For these reasons, it is recommended that Defendants’ Motion

for Summary Judgment (Doc. 42) be granted and that this case be

dismissed.

 VIII. 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

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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).

/s/ Terence P. Kemp 

United States Magistrate Judge

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