UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DANIEL P. HARGROVE,

Plaintiff,

v.

CO HOLLEY, et al.,

Defendants.

Case No. 1:17-cv-560

JUDGE DOUGLAS R. COLE

Magistrate Judge Litkovitz

ORDER

This cause comes before the Court on the Magistrate Judge’s March 4, 2020, 

Report and Recommendation (“R&R”) (Doc. 66). The Magistrate Judge recommends 

that the Court GRANT defendant Holley’s motion for summary judgment in this 

matter as to the claim against him, and that the Court DISMISS Hargrove’s claims 

against the remaining defendant, Heyd, for lack of service. (Id.). The R&R advised all

parties that a failure to object within the 14 days specified by the R&R may result in 

forfeiture of rights on appeal, which includes the right to District Court review. (See 

Doc. 66, #310). See also Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no 

indication that Congress, in enacting § 636(b)(1)(C), intended to require a district 

judge to review a magistrate’s report to which no objections are filed.”); Berkshire v. 

Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (noting “fail[ure] to file an objection to the 

magistrate judge’s R & R ... is forfeiture”); 28 U.S.C. § 636(b)(1)(C). The time for filing 

objections has passed and none have been filed. 

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That could be the end of the matter, but there is one additional wrinkle. 

Although Hargrove did not object to the R&R, he did purport to appeal his case to the 

Sixth Circuit. (See Doc. 67). In his appeal, Hargrove asked that court to address “the 

fact that the district court seems incompetent to judge honorably.” (Id.). Hargrove’s 

appeal also argues that the court “did not consider any injunctive relief” and that the 

court did not provide him proper due process. (Id.). The Sixth Circuit dismissed 

Hargrove’s appeal because this Court had yet to rule on the R&R, and the parties had 

not consented to plenary jurisdiction by a Magistrate Judge (meaning that the 

Magistrate Judge’s ruling in the R&R was not a final appealable judgment until 

adopted by this Court). (Doc. 69).

A related question then arises as to whether this Court should treat Hargrove’s 

appeal to the Sixth Circuit instead as an objection to the R&R for this Court’s 

consideration. Review of the filing suggests that is not the case. The appeal did not 

address any of the grounds in the Magistrate Judge’s R&R. In fact, the appeal does 

not reference the R&R in any way. Because it does not appear that Hargrove intended 

the appeal to be an objection to the R&R, this Court will not construe it as such.

Moreover, even if Hargrove’s appeal were some sort of general objection, this 

Court finds that it fails. This is a 42 U.S.C. § 1983 action, and as the Magistrate Judge

noted in her R&R, a prisoner cannot advance such an action without first exhausting

all available administrative remedies. (R&R at #296).

Hargrove admits that he did not pursue the administrative remedies that the 

prison provides. To be sure, he suggests that none of these remedies were available 

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to him because (1) “there are no computers” in restrictive housing, (2) “the guards 

informed inmates that filing grievances was a security hazard,” and (3) “paper 

grievances are thrown in the trash.” (Pl.’s Resp. to Def.’s Mot. for Summary J. (“Pl.’s 

Resp.), Doc. 57, #255). But the Magistrate Judge properly concluded that Hargrove’s 

bare allegations that placement in restrictive housing makes it inconvenient to follow 

administrative procedures, or that the prison purportedly would ignore such filings,

is not enough to create a genuine issue of material fact as to whether he was unable 

to exhaust his administrative remedies. (R&R at #302). Hargrove’s failure to exhaust 

all available administrative remedies, standing alone, is enough to justify dismissing 

Hargrove’s claims. Spencer v. Bouchard, 449 F.3d 721, 723 (6th Cir. 2006) (concluding 

that it is proper to dismiss claims where the prisoner has failed to satisfy Prison 

Litigation Reform Act's (“PLRA”) administrative exhaustion requirement). And, 

where it is clear that the administrative remedies are no longer available due to the 

passage of time, that dismissal can be with prejudice. See, e.g., Howard v. State of 

Tenn., Dep’t of Corr., No. 1-12-0004, 2013 WL 3353893 (M.D. Tenn. July 2, 2013)

(dismissing cause of action with prejudice for failure to exhaust when administrative 

remedies were no longer available).

Even putting aside Hargrove’s failure to exhaust administrative remedies, he 

also has failed to submit sufficient evidence to convince a reasonable jury that 

defendant Holley was “deliberately indifferent” to Hargrove’s safety. The substance 

of Hargrove’s § 1983 action is that defendant Holley (a corrections officer) failed to 

protect him and was deliberately indifferent to Hargrove’s safety when his cellmate 

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attacked him. (Daniel P. Hargrove’s Compl. against Holley et al. (“Compl.”), Doc. 3, 

#12). That does not set forth a viable claim on the record here for two reasons. First, 

defendant Holley had no reason to know that the cellmate posed any danger to 

Hargrove. Hargrove asserts that Holley knew of his “differences with his cellmate,” 

but this general concern does not suffice to put Holley on notice that Hargrove was in 

danger. (Compl. at #12). Second, once Holley saw the fighting, he reacted immediately 

by calling for a supervisor, instructing the inmates to separate, and followed 

institutional procedures by calling for restraints and a relief officer. (Mot. for 

Summary J. by Def. Holley, Doc. 55, #255–56). Hargrove complains that Holley did

not open the cell door until support arrived, (Compl. at #12), but that alone does not 

make out a claim for deliberate indifference. Thus, the Magistrate Judge properly 

granted Holley’s Motion for Summary Judgment.

Further, the record reflects that Hargrove has not yet served defendant Heyd 

in this case. Hargrove did send a summons and complaint addressed to a Timothy 

Heyd at The Ohio State University Medical Center, but it was served on the Medical 

Center itself, rather than on Heyd. (See Doc. 11). Moreover, the Timothy Heyd at Ohio 

State may not be the same Dr. Heyd who treated Hargrove. (Id.). In any event, no Dr. 

Heyd has yet been served, and Hargrove has not shown good cause for his failure to 

do so. Accordingly, the Magistrate Judge properly recommended that this Court 

dismiss Hargrove’s action against Heyd without prejudice. (R&R at #307–08); see also

Fed. R. Civ. P. 4(m).

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Therefore, the Court ADOPTS the Report and Recommendation (Doc. 66),

GRANTS Defendant Holley’s motion for summary judgment (Doc. 55), and 

DISMISSES WITHOUT PREJUDICE Hargrove’s claims against defendant Heyd 

for lack of service. The Court DIRECTS the Clerk to enter judgment accordingly.

As reasonable jurists could not disagree with this conclusion, Hargrove is 

denied a certificate of appealability and the Court certifies to the Sixth Circuit that 

any appeal would be objectively frivolous.

SO ORDERED.

September 22, 2020 

DATE DOUGLAS R. COLE

 UNITED STATES DISTRICT JUDGE

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