UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RANDY POLLOCK,

Plaintiff,

Civil Action 2:11-cv-00114

v. Judge Algenon L. Marbley

Magistrate Judge E.A. Preston Deavers

SHERIFF GEORGE LAVENDER, 

JR., et al.,

 

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Defendants’ Motion for Summary

Judgment. (ECF No. 11.) All Defendants in this action maintain that they are entitled to

judgment as a matter of law because Plaintiff failed to exhaust his administrative remedies under

the Prison Litigation Reform Act (“PLRA”). The undersigned agrees. Accordingly, it is

RECOMMENDED that the Court GRANT the Motion for Summary Judgment and DISMISS

PLAINTIFF’S CLAIM WITHOUT PREJUDICE.

I. BACKGROUND

Plaintiff was a pretrial detainee at the Ross County Jail when he filed this action.1

Plaintiff brings claims against various Ross County employees under 42 U.S.C. § 1983

concerning the conditions of confinement he experienced at the Ross County Jail. 

Pursuant to 28 U.S.C. § 1915(e)(2), the Court performed an initial screen of Plaintiff’s

Complaint. The Court allowed Plaintiff to proceed on claims for deliberate indifference to his

1

 Plaintiff is currently incarcerated at the Warren Correctional Institution.

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serious medical needs and excessive force claims. In his medical claims, Plaintiff maintains that

Defendants were indifferent in addressing his epileptic condition. Plaintiff also asserts that

prison officials improperly distribute medication and that he was refused a high protein diet

necessary due to his medical condition. With regards to excessive force, Plaintiff alleges that

Defendant Hayburn physically assaulted him. Finally, the Court allowed Plaintiff to proceed on

various 42 U.S.C. § 1983 jail condition claims. These included claims of a lack of recreation;

harsh environmental temperatures; inadequate clothing; a lack of cleanliness and hygiene; the

administration of booking fees; and the denial of religious services.

Within their Motion for Summary Judgment, Defendants maintain that Plaintiff has failed

to exhaust administrative remedies. In support of their Motion, Defendants have submitted the

Affidavit of Sergeant Glenn Detty; the Ross County Jail Rules and Regulations; and the

grievances and requests that Plaintiff filed while at Ross County Jail. Through this evidence,

Defendants contend that the Ross County Jail has an inmate grievance procedure, which Plaintiff

failed to follow. Specifically, the evidence indicates that Plaintiff filed only two grievances

during his time at the Ross County Jail. Neither of these grievances concerned matters raised in

Plaintiff’s Complaint.

On January 12, 2012, well after Plaintiff’s response time to the Motion for Summary

Judgment had run, the Court ordered Plaintiff to show cause for failing to keep the Court

apprised of his current address. In this Order, the Court also directed Plaintiff to submit any

motion for leave to respond to the Motion for Summary Judgment, as well as an attached

response, within ten days. On January 30, 2012, the Court received a letter from Plaintiff

explaining his failure to keep the Court apprised of his address was the result of being

hospitalized and not receiving mail. Although Plaintiff responded to the show cause portion of

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the Court’s Order, Plaintiff failed to respond to or otherwise address Plaintiff’s Motion for

Summary Judgment.

II. STANDARD OF REVIEW

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

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). “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.” Stanberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at 322–23).

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III. ANALYSIS

Failure to exhaust administrative remedies is an affirmative defense under the Prison

Litigation Reform Act (“PLRA”). Jones v. Bock, 549 U.S. 199, 216 (2007). 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 inmate suits about prison life, whether

they involve general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 

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”). Furthermore, exhaustion is required “even where [the prisoners] believe

the procedure to be ineffectual or futile.” Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th

Cir. 2011) (internal quotations omitted).

To satisfy the PLRA exhaustion requirements the United States Court of Appeals for the

Sixth Circuit has held that a prisoner must provide “fair notice of the alleged mistreatment or

misconduct that forms the basis of the constitutional or statutory claim made against a defendant

in a prisoner’s complaint.” LaFountain v. Martin, 334 F. App’x. 738, 740 (6th Cir. 2009). “The

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fair notice standard . . . does not require a prisoner to allege a specific legal theory or facts that

correspond to all the required elements of a particularized legal theory.” Pack v. Martin, 174 F.

App’x 256, 262 (6th Cir. 2006) (internal quotations omitted). To satisfy the fair notice

requirement, however, “a plaintiff must allege specific acts of mistreatment or misconduct. . . .” 

Id.

In this case, Defendants have satisfied their burden of establishing that Plaintiff failed to

exhaust his administrative remedies. The record evidence reflects that Plaintiff has failed to

follow the inmate grievance procedure with respect to his claims. Defendants have submitted

uncontested evidence indicating that Ross County Jail has an inmate grievance procedure and

that Plaintiff was aware of this procedure. The grievance procedure allowed inmates to submit

grievance forms to the Jail Administrator. Additionally, the procedure allowed inmates to appeal

grievance decisions to the Sheriff. Based on Sergeant Glenn Detty’s review of Plaintiff’s inmate

file, Plaintiff only submitted two grievances during his time at Ross County Jail. He did not

appeal either of these grievances. 

Furthermore, to the extent Plaintiff did file grievances, he failed to give fair notice of the

contents of his Complaint. Plaintiff’s two grievances involved a transcript request as well as a

complaint about the dosage and type of sleeping medication Plaintiff was prescribed. His claims

in this case do not involve such matters. Although Plaintiff does plead medical indifference

claims within his Complaint, these claims do not focus on a disagreement regarding Plaintiff’s

sleeping medication. Rather, Plaintiff’s claims center around an overall lack of treatment for his

epileptic condition. Under these circumstances, the grievances were not sufficiently specific to

give jail officials fair notice of the basis for Plaintiff’s claims.

The evidence does demonstrate that, in addition to his two grievances, Plaintiff submitted

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a number of request forms to jail officials. These requests generally involved Plaintiff’s

medications and medical treatment as well as the mailing and handling of legal materials. Some

of the requests do touch on matters related to Plaintiff’s Complaint. Nevertheless, the record

evidence reflects that jail officials responded to these request and that Plaintiff did not choose to

file any subsequent grievances or appeals regarding these issues. Ultimately, these requests are

insufficient to justify Plaintiff’s failure to follow the grievance procedure.

IV. CONCLUSION

For the above reasons, it is RECOMMENDED that the Court GRANT the Motion for

Summary Judgment (ECF No. 11) and DISMISS PLAINTIFF’S CLAIM WITHOUT

PREJUDICE.

Finally, to the extent Plaintiff’s January 30, 2012 letter requests appointment of counsel,

this request is DENIED. The United States Court of Appeals for the Sixth Circuit has held that

“there is no right to counsel in prisoner civil rights cases . . . [and] [t]he appointment of counsel

in a civil proceeding is justified only by exceptional circumstances.” Bennett v. Smith, 110 F.

App'x 633, 635 (6th Cir. 2004). Accordingly, although the Court has the statutory authority to

appoint counsel in civil cases under 28 U.S.C. § 1915(e), the exercise of this authority is limited

to extraordinary situations. Plaintiff essentially maintains that the Court should appoint counsel

because he does not understand legal proceedings. Although the Court sympathizes, a pro se

prisoner litigant’s lack of knowledge regarding legal proceedings does not constitute an

extraordinary situation.

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V. 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.

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: February 1, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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