any attack was already complete, and no punches were being thrown. (/d. at {J 14, 16). Via the
food-cuff port outside the cell door, defendant Holley commanded both inmates to separate,
threatening to use OC spray if they did not comply. (Jd. at 18). The inmates separated upon
defendant Holley’s command. (Jd. at J 19). Consistent with institutional procedures that do not
permit an officer to open a cell door in the R block without another officer present and without
the inmates in restraints, within fifteen seconds, defendant Holley called for restraints, a relief
officer, and a supervisor to respond to the cell. (/d. at {§] 20-21, 27). Relief Officer McNally
responded to the cell within approximately three minutes and noticed the inmates had already
separated. Officer McNally witnessed defendant Holley open the cell door as soon as he and a
supervisor arrived. (/d. at §] 28; McNally Declaration, Doc. 55-2 at 7). Overall, the evidence
establishes that defendant Holley immediately responded to the altercation between plaintiff and
Inmate Pickens, did not witness an attack while standing outside the cell door, successfully
instructed the inmates to separate, and followed institutional procedures by immediately calling
for restraints, a relief officer, and a supervisor, who arrived at the cell within approximately three
minutes. See Farmer, 511 U.S. at 544 (“prison officials ... may be found free from liability if
they responded reasonably to the § 1983 risk, even if the harm ultimately was not averted.”).

Plaintiff's statement—that defendant Holley “was just standing waiting on help to come
instead of getting this guy’s teeth out of the plaintiff's ear and being on the job”’—does not
establish a genuine issue of fact as to whether defendant Holley disregarded the attack. Implicit
in plaintiff's statement is an admission that defendant Holley responded to plaintiff's cell and in
fact called for assistance. In compliance with institutional rules, defendant Holley did not open
the cell door until other correctional officers arrived on the scene. This does not establish

deliberate indifference to plaintiff's safety. Dillard v. Oosterhof, No. 2:19-cv-10089, 2019 WL


2d 846, 849 (S.D. Ohio 2011) (quoting Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435
(6th Cir. 1987)).

Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United
States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)
(stating that the Court holds pleadings of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (pro se
plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings). However, a
party’s status as a pro se litigant does not alter his duty to support his factual assertions with
admissible evidence. Matson, 832 F. Supp. 2d at 851-52 (citing Viergutz v. Lucent Techs., Inc,
375 F. App’x 482, 485 (6th Cir. 2010)). When opposing a motion for summary judgment, a pro
se party cannot rely on allegations or denials in unsworn filings. Jd. (citing Viergutz, 375 F.
App’x at 485).
IV. Exhaustion of Administrative Remedies

A. Legal Standard

Exhaustion of administrative remedies is mandatory under the Prison Litigation Reform
Act (“PLRA”) and unexhausted claims cannot be brought in court. Jones v. Bock, 549 U.S. 199,
211 (2007) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). “[A] prisoner confined in any
jail, prison, or other correctional facility” is barred from filing a lawsuit alleging constitutional
violations 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). “[T]he PLRA’s 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, 534 U.S. at 532.


3. This case be CLOSED on the docket of this Court.
4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Court Order adopting this Report and Recommendation would not be

taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Date: va [ Y¥ [ 2020
Karen L. Pbstn XA

United States Magistrate Judge

18


required to make rounds every day. (/d. at { 10). Thus, if plaintiff experienced problems with
requesting or submitting an informal complaint form from a correctional officer, there were four
other avenues that he could have pursued to obtain the form. (/d. at §§ 10-11). Plaintiff has not
presented evidence to show that he exhausted all available options when attempting to request or
file an informal complaint.

To the extent plaintiff suggests he was thwarted from accessing the grievance process, he
has failed to establish a genuine issue of fact in this regard. Plaintiff has failed to show that
prison officials blocked his efforts to exhaust his administrative remedies by throwing paper
grievances in the trash. Plaintiff has adduced no evidence that he tried to file an informal
complaint in relation to the July 1, 2017 altercation and the informal complaint was actually
thrown in the trash. Any allegation that prison officials generally had a practice of throwing
grievances in the trash such that it would be futile to file one is insufficient to establish that
prison officials thwarted plaintiff's attempts to file an informal complaint in relation to the July
1, 2017 altercation. See Lee v. Freeman, No. 16-14162, 2017 WL 4158794, at *4 (E.D. Mich.
Aug. 25, 2017) (Report and Recommendation) (“An argument that it would have been futile to
file a grievance does not suffice.”) (citing Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999),
adopted, 2017 WL 4150789 (E.D. Mich. Sept. 19, 2017)). In addition, defendant has presented
evidence that plaintiff filed informal complaint resolutions and participated in the grievance
procedures on multiple occasions while in restrictive housing in June 2017. (Austin Declaration
at § 17; Inmate Grievance History for Daniel Hargrove, Doc. 60-2). Plaintiff's own conduct in
prior filings demonstrates that administrative remedies were available to him and that he was
capable of using them. See Blissit v. Fiquris, 345 F. Supp. 3d 931, 940 (S.D. Ohio 2018).

Plaintiff alleges in his supplemental memorandum that he was only able to file grievances in

10


gds., Simmons v. Himmelreich, 136 S. Ct. 1843 (2016). The U.S. Supreme Court has defined the
term “available” as being “capable of use.” Ross v. Blake, 136 S. Ct. 1850, 1859 (2016).
Examples of circumstances where remedies are considered “unavailable” include: when it
operates as a dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates; when the administrative scheme is so difficult to understand that no ordinary
prisoner can navigate it; or when prison administrators thwart inmates from taking advantage of
it through machination, misrepresentation, or intimidation. Id.

The procedure established for resolving inmate complaints in Ohio, codified in Ohio
Admin. Code § 5120-9-31, involves a three-step process. First, the inmate is required to file an
informal complaint with the direct supervisor of the staff member within fourteen days of the
event giving rise to the complaint. Ohio Admin. Code § 5120-9-31(K)(1). Second, if the inmate
is unsatisfied with the response to his informal complaint, he may file a formal grievance with
the inspector of institutional services at his institution of confinement. Ohio Admin. Code §
5120-9-31(K)(2). The inspector of institutional services is required to provide a written response
to the inmate’s grievance within fourteen calendar days of receipt of the grievance. Jd. If the
inmate is dissatisfied with the response, he may undertake the third step of the grievance process
and file an appeal to the office of chief inspector of the Ohio Department of Rehabilitation and
Correction (“ODRC”) within fourteen days of the disposition of the formal grievance. Ohio
Admin. Code § 5120-9-31(K)(3).

B. Resolution

Defendant Holley argues that plaintiff failed to exhaust his administrative remedies by

filing an informal complaint or grievance regarding the July 1, 2017 incident with Inmate

Pickens. (Doc. 55 at 10). In support, defendant Holley provides the affidavit of ODRC Assistant


“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, 549 U.S. at 216). “[T]he failure to exhaust ‘must be established by the
defendants.”” Jd. (quoting Napier v. Laurel Cty., Ky., 636 F.3d 218, 225 (6th Cir. 2011)). Thus,
defendants bear the burden of proof on exhaustion. Jd.

The PLRA exhaustion requirement means prisoners must carry out “proper exhaustion”
ofa grievance. Woodford v. Ngo, 548 U.S. 81, 90 (2006). “To properly exhaust a claim,
prisoners must tak[e] advantage of each step the prison holds out for resolving the claim
internally and by following 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) (quoting Woodford,
548 U.S. at 90). “Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules. . . .”. Woodford, 548 U.S. at 90. Proper exhaustion serves the interest of
providing “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) (citing Bell v. Konteh, 450 F.3d
651, 654 (6th Cir. 2006).

The PLRA specifies that inmates must exhaust all “available” administrative remedies.
Thus, courts may excuse the failure to exhaust if they determine that administrative remedies
were unavailable. Administrative remedies may be unavailable when they would “deter a person
of ordinary firmness from [continuing with the grievance process].” Himmelreich v. Fed.
Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014) (citing Thaddeus-X v. Blatter, 175 F.3d

378, 396 (6th Cir. 1999); Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002)), aff'd on other


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DANIEL P. HARGROVE, Case No. 1:17-cv-560
Plaintiff, Cole, J.
Litkovitz, M.J.
vs.

CO HOLLEY, et al.,
Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

19


administrative remedies.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578 (6th Cir.
2014).

Plaintiff has failed to create a genuine dispute of fact that administrative remedies were
unavailable to him. A prisoner who simply alleges that prison officials did not provide him with
the proper paperwork to follow administrative procedures does not demonstrate a genuine issue
of material fact that he was prevented from exhausting his administrative remedies. Jones v.
Smith, 266 F.3d 399, 400 (6th Cir. 2001). Rather, a prisoner must present evidence “that there
was no other source for obtaining a grievance form or that he made [another] attempt to obtain a
form or to file a grievance without a form.” Jd. Here, plaintiff has presented no evidence that
there was no other source for obtaining a grievance form, that he made more than one attempt to
obtain a form, or that he attempted to file a grievance without a form. Jones, 266 F.3d at 400.
Nor has he demonstrated that he could on/y file a grievance with a computer, which he states
were unavailable in the restrictive housing unit. On the contrary, defendant has presented
evidence that inmates housed in restrictive housing have access to paper copies of informal
complaint resolutions and computer kiosks are not available for grievance filings in the
restrictive housing unit because of the level of inmate turnover and safety concerns. (Declaration
of Lora Austin, Inspector of Inmate Services at LeCI, Doc. 60-1 at §{] 12-13). Moreover, in July
2017, inmates at LeCI had multiple avenues to acquire and complete informal complaint
resolution forms, including (1) requesting an informal complaint form from officers on either
first, second, third, or fourth shift, (2) picking up an informal complaint form from his block
because all blocks possessed informal complaint forms, (3) kiting the institutional inspector to
request an informal complaint form, (4) requesting an inmate porter to retrieve an informal

complaint form, or (5) requesting an informal complaint form from the block Sergeant, who is


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
DANIEL P. HARGROVE, Case No. 1:17-cv-560
Plaintiff, Cole, J.
Litkovitz, M.J.
vs.
C.O. HOLLEY, et al., REPORT AND
Defendants RECOMMENDATION

Plaintiff, a former inmate at Lebanon Correctional Institution (“LeCI”), brings this civil
rights action under 42 U.S.C. § 1983 against defendants alleging violations of his Eighth
Amendment rights for failing to protect him from an attack by a fellow inmate and for deliberate
indifference to his medical needs. This matter is before the Court on defendant Holley’s motion
for summary judgment (Doc. 55), plaintiff's response in opposition (Doc. 57), defendant
Holley’s reply memorandum (Doc. 60), and plaintiffs supplemental memorandum (Doc. 61).!
I. Procedural Background

Plaintiff was granted leave to proceed in forma pauperis and initiated this action on
August 25, 2017. (Docs. 1, 3). On October 31, 2017, the undersigned conducted a sua sponte
review of plaintiff's amended complaint (Doc. 7) under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). The undersigned recommended that plaintiff could proceed with his Eighth
Amendment individual capacity claim for failure to protect against defendants Holley and

Hubbard and his Eighth Amendment individual capacity claim for deliberate indifference to his

' The Court notes that plaintiff's supplemental memorandum was filed in violation of $.D. Ohio Local Civil Rule
7.2(a)(2) because plaintiff neither sought leave of court nor showed good cause for the filing of his supplemental
memorandum in response to defendant’s reply. However, given plaintiff's pro se status and that defendant’s reply
memorandum raises new arguments on the issue of exhaustion of administrative remedies, the Court will consider
plaintiff's supplemental memorandum.


measures to abate it.” Farmer, 511 U.S. at 847. Prison officials must exhibit more than lack of
due care for a prisoner’s safety before an Eighth Amendment violation will be found. Jd. at 835.
“[T]he official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Jd. at 837. It is not
enough that the official “should” have perceived a significant risk but did not. Id.

B. Resolution

Defendant Holley argues that summary judgment should be granted in his favor because
plaintiff cannot satisfy the objective or subjective components of his Eighth Amendment failure
to protect claim. Defendant Holley argues that plaintiff failed to alert him to a specific safety
threat posed by his cellmate. (Doc. 55 at 12). Defendant Holley further argues that plaintiff fails
to meet the subjective component of his failure to protect claim because the evidence shows that
he “acted quickly to evaluate the situation, separate the inmates, call for handcuffs and
assistance, and remove the inmates from the cell as soon as procedure allowed.” (Id. at 15).

After conducting a thorough review of the evidence of record, the Court finds that
summary judgment should be granted to defendant Holley on plaintiff's Eighth Amendment
claims because no genuine dispute exists as to whether defendant Holley failed to protect
plaintiff from an attack by inmate Pickens.

As a matter of law, plaintiff has failed to satisfy the objective component of his Eighth
Amendment failure to protect claim and failed to show that he was exposed to a substantial risk
of serious harm as a result of being housed with Inmate Pickens. In his memorandum in
opposition to defendant Holley’s motion for summary judgment, plaintiff states under penalty of
perjury that he informed defendant Holley before the July 1, 2017 incident that Inmate Pickens

was “ejackulating [sic]” in their shared cell in his presence. (Doc. 57 at 4-5). Plaintiff argues

12


Buildings C and K but not in Buildings L or M, which are the “lock-down,” restrictive housing
buildings. (Doc. 61 at 2). However, plaintiff's unsworn assertions about the lack of grievances
in restrictive housing are insufficient to dispute the evidence presented by defendant that inmates
in restrictive housing had access to paper grievance forms and had five methods of requesting
and submitting such forms. (See Austin Declaration, Doc. 60-1 at §§ 10, 12).

Accordingly, defendant Holley’s motion for summary judgment based on plaintiff's
failure to exhaust his administrative remedies should be granted. However, in the event that the
recommendation on the exhaustion issue is not adopted, the Court will also consider the parties’
arguments on the merits of plaintiff's Eighth Amendment claims.

V. Failure to Protect Claim against Defendant Holley
A. Legal Standard

The Eighth Amendment requires that prison officials “take reasonable measures to
guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To
establish an Eighth Amendment claim against prison officials based on their failure to protect the
plaintiff from harm, a plaintiff must present evidence showing that the defendant’s conduct
amounted to “deliberate indifference” to a known risk of harm. Farmer, 511 U.S. at 837. See
also Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997). Deliberate indifference includes
both objective and subjective elements. Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001);
Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011). The objective element requires the harm to
be “sufficiently serious.” Curry, 249 F.3d at 506 (quoting Farmer, 511 U.S. at 834). Therefore,
“the inmate must show that he is incarcerated under conditions posing a substantial risk of
serious harm.” Jd. The subjective element focuses on whether prison officials know that

inmates face a substantial risk of harm and “disregard[] that risk by failing to take reasonable

11


Chief Inspector Antonio Lee, who is a custodian of grievance records. (Lee Declaration, Doc.
55-6). Mr. Lee attests that he reviewed plaintiff's grievance file to determine if plaintiff had
submitted any grievances related to a complaint of any ODRC employee failing to protect him
during an incident on July 1, 2017 where he was allegedly assaulted by his cellmate. (Id. at
10). Mr. Lee attests that plaintiff filed no grievances, informal complaints, or appeals that
mention being assaulted or that ODRC staff failed to protect him. (/d. at 911). Mr. Lee further
attests that plaintiff filed no grievances, informal complaints, or appeals whatsoever in July or
August 2017. (/d.).

In response, plaintiff contends that inmates in restrictive housing are unable to exhaust
their administrative remedies because there are no computers and the guards informed inmates
that filing grievances “was a security hazard.” (Doc. 57 at 2). Plaintiff also alleges that paper
grievances are thrown in the trash. (/d.).

On this record, defendant has submitted evidence of non-exhaustion that “no reasonable
jury would be free to disbelieve.” Surles, 678 F.3d at 455-56. Based on the Lee declaration and
plaintiff's own admission in response to defendant’s motion for summary judgment that he did
not exhaust his administrative remedies with respect to the July 1, 2017 incident, no reasonable
jury could find in his favor on the issue of exhaustion. Nevertheless, plaintiff contends that LeCI
institutional procedures effectively blocked him from exhausting his administrative remedies
because the restrictive housing unit lacks computers and paper grievances are thrown in the
trash. (Doc. 57 at 2). Even if prison officials meet their burden of establishing non-exhaustion,
summary judgment may be denied if a prisoner “has demonstrated that a genuine issue of

material fact exists as to whether [defendants] improperly prevented [him] from exhausting his


Ill. Summary Judgment Standard

A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of
summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions of file, together with the affidavits, if any, show that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Satterfield v.
Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all
inferences drawn therefrom, in the light most favorable to the non-moving party. Satterfield, 295
F.3d at 615; Matushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little
Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

The trial judge’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
249. The trial court need not search the entire record for material issues of fact, Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-252.
“Where the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.”” Matsushita, 475 U.S. at 587. “In response to
a properly supported summary judgment motion, the non-moving party ‘is required to present
some significant probative evidence which makes it necessary to resolve the parties’ differing

versions of the dispute at trial.’” Matson v. Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp.


414950, at *3 (E.D. Mich. Feb. 1, 2019) (“The allegation that [the defendant correctional officer]
waited for backup indicates that he did not disregard the attack on Plaintiff but took action in
calling for backup to stop the attack when he became aware of it.”). Cf Long v. Sanders, No.
09-11021, 2010 WL 1286313, at *5 (E.D. Mich. Feb. 22, 2010) (Report and Recommendation)
(denying summary judgment to defendants who failed to intervene in inmate-on-inmate attack
before backup arrived, noting that “they have submitted no evidence that they attempted to end
the assault on Plaintiff in any other manner, i.e., issuing a verbal command or convincing
[inmate assailant] otherwise to end the assault.”), adopted, 2010 WL 1286312 (E.D. Mich. Mar.
29, 2010).

To the extent plaintiff argues that defendant Holley was deliberately indifferent by failing
to physically enter the cell to subdue Inmate Pickens, the Court must defer to LeCI procedures
that do not permit an officer to open a cell door in the R block without another officer present
and without the inmates in restraints. (Holley Declaration at § 27). See Bell v. Wolfish, 441 U.S.
520, 547 (1979) (“Prison administrators . . . should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional security.”). Moreover, the evidence
shows that when defendant Holley arrived, he observed plaintiff and Inmate Pickens in a
wrestling-type hold, but the altercation had already ended and no punches were observed.
(Holley Declaration at {§ 14, 16). Defendant Holley effectively prevented any further harm by
ordering the inmates to separate and threatening to use OC spray if they did not comply. (/d. at
4 18-19). Accordingly, because the evidence establishes that defendant Holley was not

deliberately indifferent to a known risk of harm to plaintiff and responded quickly and

15


timely serve the summons and complaint on a defendant. Habib v. General Motors Corp., 15
F.3d 72, 73 (6th Cir. 1994). See also Byrd v. Stone, 94 F.3d 217 (6th Cir. 1996). In the absence
of a showing of good cause justifying the failure to timely serve a defendant, the Court may
either dismiss the complaint without prejudice or direct that service of process be effected within
a specified time. Fed. R. Civ. P. 4(m). See also Henderson v. United States, 517 U.S. 654, 662-
63 (1996).

Plaintiff has not shown good cause for his failure to properly serve Dr. Heyd in this
matter. More than 90 days have passed since the filing of plaintiff's complaint in August 2017.
In addition, in April and August 2018, plaintiff received defendants’ response to his “motion for
monetary judgment” indicating the deficiencies with service on Dr. Heyd, as well as this Court’s
order denying his request to substitute and serve Michael V. Drake as a defendant. (Docs. 44,
48). Plaintiff had notice that defendant Heyd had not been properly served, and he has neither
attempted to perfect service on defendant Heyd nor mentioned his claims against defendant Heyd
in subsequent filings. (See Docs. 57, 61). Accordingly, it is RECOMMENDED that plaintiff's
claims against defendant Heyd be dismissed for lack of service.
VII. Conclusion

Based on the foregoing, it is RECOMMENDED that:

1. Defendant Holley’s motion for summary judgment (Doc. 55) be GRANTED.*

2. Plaintiffs claims against defendant Heyd be DISMISSED for lack of service.

* Defendant Holley also argues that he is entitled to qualified immunity. Qualified immunity protects government
officials performing discretionary functions “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow vy, Fitzgerald, 457 U.S. 800, 818 (1982). The Court need not address whether defendant Holley is entitled to
qualified immunity because the record shows there is no genuine dispute as to whether defendant Holley violated
plaintiff's Eighth Amendment rights, and defendant Holley is therefore entitled to summary judgment.

17


commanded both inmates to separate, threatening to use OC spray if they did not comply. (/d. at
4] 18). Plaintiff released Inmate Pickens from the hold, and Inmate Pickens stepped to the side.
(id. at { 19). Plaintiff disputes the actions taken by defendant Holley. (Doc. 57 at 3).”
According to plaintiff, defendant Holley “was just standing waiting on help to come, instead of
getting this guy’s teeth out of the plaintiff's ear and being on the job.” (Jd.).

About fifteen seconds after arriving at the cell door and assessing the situation, defendant
Holley called for restraints, a relief officer, and a supervisor to respond to his location. (Holley
Declaration at §] 20-21). Plaintiff, however, states that it took “about an hour” for Inmate
Pickens to be subdued. (Doc. 57 at 3). Defendant Holley placed Inmate Pickens in handcuffs
and told him to step back. (Holley Declaration at § 22). He instructed plaintiff to come to the
cuff port, and plaintiff initially refused to put his hands in restraints but eventually complied.
(id. at § 23). Defendant Holley observed that plaintiff had a t-shirt wrapped around his head
covering his ear and noticed that plaintiff's ear had been partially bitten off. (/d. at § 24).
Defendant Holley opened the cell door once both inmates were in handcuffs and a second officer
and supervisor were present. (/d. at §27). According to defendant Holley, “[iJnstitutional
security procedures do not permit an officer to open a cell door in R block without another
officer present and without the inmates in restraints.” (/d.). Relief Officer Justin McNally
responded to defendant Holley’s call for assistance and arrived at the cell within approximately
three minutes. (/d. at 28; McNally Declaration, Doc. 55-2 at 7). Officer McNally observed
that plaintiff and Inmate Pickens were already separated and witnessed defendant Holley open
the cell door as soon as he and a supervisor arrived. (McNally Declaration at J 8). Both inmates

were escorted to the infirmary. (Doc. 55-3 at 1).

? Plaintiff's response in opposition is verified under penalty of perjury and therefore satisfies his burden to respond
to defendant’s motion for summary judgment. (Doc. 57 at 6).

3


serious medical needs against defendant Heyd. (Doc. 10 at 16). On December 27, 2017, the
District Judge adopted the Report and Recommendation. (Doc. 17).

On January 19, 2018, defendants Holley and Hubbard filed a motion to dismiss. (Doc.
24). On August 1, 2018, the Court recommended granting the motion to dismiss as to defendant
Hubbard and denying the motion as to defendant Holley. (Doc. 46). On August 22, 2018, the
District Judge adopted the Report and Recommendation. (Doc. 48). Therefore, the sole
remaining defendants in this case are defendant Holley and defendant Heyd.
II. Facts

This lawsuit arises out of an incident that occurred at LeCI on July 1, 2017. Defendant
Correctional Officer Brian Holley was working in the restrictive housing unit (“R block”) with
another officer at LeCI. (Holley Declaration, Doc. 55-1 at {9 4, 5). As the regular R block
officer, defendant Holley was sitting at his desk when his inmate porter came to tell him that
“there was something going on upstairs.” (/d. at 99). Defendant Holley immediately went
upstairs to cell 2R14 to assess the situation. (/d. at § 10). When he arrived at the cell that housed
plaintiff and his cellmate, Inmate Pickens, defendant Holley observed one inmate on top of the
other on the bottom bunk. (/d, at J 11). The inmate on top had his arms underneath the other
inmate’s body, as if they were in a bear hug or wrestling-type move. (Jd. at § 12). Inmate
Pickens stated that plaintiff would not let him go. (dd. at J 13). According to defendant Holley,
the attack “was completed” when he arrived at the cell front, and he only observed plaintiff and
Inmate Pickens in a wrestling-type hold. (/d. at J 14). Defendant Holley was unsure whether the
inmates were involved in a physical altercation or whether “there was a medical situation such as
one inmate trying to control another’s seizure.” (/d. at §] 15). Defendant Holley never saw

punches being thrown. (Jd. at { 17). Defendant Holley opened the food-cuff port and


that “a reasonable person would have known to move someone who’s ejackulating [sic] on his
cellmate.” (Jd. at 4). However, to establish the objective component of his Eighth Amendment
claim, plaintiff must present evidence of more than a “hypothetical risk of danger to his safety
prior to the attack.” Lewis v. McClennan, 7 F. App'x 373, 375 (6th Cir. 2001). The fact that
plaintiff was housed with an inmate who engaged in unwelcome acts of sexual nature does not
constitute proof of objectively dangerous conditions that would pose a substantial risk of the type
of physical altercation that occurred between plaintiff and inmate Pickens on July 1, 2017.3
Plaintiff has shown no more than a generalized concern for his safety and has not established that
defendant Holley knew of an impending assault on plaintiff by Inmate Pickens by virtue of his
knowledge of the unwelcome sexual acts. See e.g., Drayton v. Cohen, No. CA 2:10-3171, 2012
WL 666839, at *7 (D.S.C. Feb. 29, 2012) (plaintiff who reported to correctional officers that his
cellmate was masturbating in front of him and became verbally abusive when confronted about it
did not establish that his cellmate posed a “substantial risk of serious harm”), aff'd, 474 F. App’x
991 (4th Cir. 2012).

Plaintiff has likewise failed to satisfy the subjective component of his Eighth Amendment
failure to protect claim against defendant Holley. Plaintiff has failed to establish that defendant
Holley consciously disregarded an attack by inmate Pickens by failing to take reasonable
measures to abate it. On the contrary, the evidence establishes that defendant Holley responded
to the situation immediately and went to plaintiff and Inmate Pickens’ cell after being informed
of the situation from an inmate porter. (Holley Declaration, Doc. 55-1 at § 10). When he arrived

at the cell, defendant Holley observed plaintiff and Inmate Pickens in a wrestling-type hold, but

§ Plaintiff also argues that defendants failed to follow procedures under the Prison Rape Elimination Act (“PREA”).
As plaintiff makes no allegations in his complaint regarding PREA and because district courts have found that
PREA “does not create a private cause of action which can be brought by an individual plaintiff,” see Montgomery
v. Harper, No. 5:14CV-P38, 2014 WL 4104163, at *2 (W.D. Ky. Aug. 19, 2014), plaintiff's argument is foreclosed.

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reasonably to the attack, defendant Holley did not violate plaintiff's Eighth Amendment rights
and summary judgment should be granted in his favor.
VI. Claims against Defendant Heyd

Plaintiff also brings Eighth Amendment claims against defendant Timothy Heyd, M.D.,
alleging that he was “grossly negligent by not giving [plaintiff] proper pain medications” after
his eye and ear surgery at the Ohio State University Medical Center. (Doc. 7 at 4). On August 8,
2018, the undersigned recommended that plaintiff's motion to substitute and serve Michael V.
Drake, president of The Ohio State University, be denied as futile. (Doc. 46 at 10). The District
Judge adopted the Report and Recommendation on August 22, 2018. (Doc. 48). To date, the
docket reflects that defendant Heyd has not been properly served in this action. Plaintiff served
the Ohio State University Medical Center on March 25, 2018; however, he did not serve Dr.
Timothy Heyd. In its response to plaintiff's “motion for monetary judgment,” defendants
indicated that there is a Dr. Timothy Heyd employed by ODRC and it is unclear whether plaintiff
attempted to serve the Dr. Heyd employed by ODRC or if he is trying to serve an Ohio State
University physician he incorrectly identified. (Doc. 44).

Fed. R. Civ. P. 4 (c) and (d) require that a defendant be served with a summons and a
copy of the complaint or that defendant waive service thereof. Rule 4 also provides:

If a defendant is not served within 90 days after the complaint is filed, the court—

on motion or on its own after notice to the plaintiff—must dismiss the action

without prejudice against that defendant or order that service be made within a

specified time. But if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period... .
Fed. R. Civ. P. 4(m). Proper service of process is required in order for this Court to obtain in

personam jurisdiction over a defendant. O.J. Distrib., Inc. v. Hornell Brewing Co., Inc., 340

F.3d 345, 353 (6th Cir. 2003). Plaintiff bears the burden to establish good cause for his failure to

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