Lamb v. Kendrick

52 F.4th 286

Toby LAMB, II, Plaintiff-Appellant,

v.Brant KENDRICK, Shane Carey, Justin Reece, Brittany Maxwell, Justin Crowder, and Sydney Hensley, Correctional Officers, Defendants-Appellees.

No. 21-3390

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2021

Decided and Filed: October 26, 2022

ARGUED: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Lori H. Duckworth, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, Sarah Gelsomino, FRIEDMAN, GILBERT + GERHARDSTEIN, Cleveland, Ohio, for Appellant. Lori H. Duckworth, Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.

DONALD, J., delivered the opinion of the court in which CLAY, J., joined. NALBANDIAN, J. (pp. 299-303), delivered a separate dissenting opinion.

BERNICE BOUIE DONALD, Circuit Judge.

Inmate Toby Lamb II alleges that several correctional officers at the Warren Correctional Institution in Lebanon, Ohio ("WCI") brutally beat and pepper sprayed him while he was handcuffed, immediately placed him in solitary confinement, and prevented him from accessing the requisite grievance forms to report the incident properly. When Lamb sought judicial intervention by bringing this excessive force action under 42 U.S.C. § 1983, defendants promptly responded with a pre-discovery motion for summary judgment accusing Lamb of failing to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Although we agree that Lamb did not exhaust his administrative remedies properly, we nevertheless reverse the district court's judgment dismissing this case and remand for further proceedings because there remain material disputes of fact about whether prison officials rendered those administrative remedies unavailable.

I.

On April 6, 2018, Lamb was involved in a physical altercation with a nonparty correctional officer at WCI. Lamb alleges that officers Justin Reece, Justin Crowder, Shane Carey, Britany Maxwell, and Sydney Hensley, and Lieutenant Brant Kendrick (collectively, "defendants") retaliated against him later that day by beating him and deploying pepper spray against him while he was handcuffed outside the presence of surveillance cameras. The beating caused Lamb's eyes to swell shut, and he suffered several other serious temporary and permanent injuries. Later that night, Lamb was transferred from WCI to the Lebanon Correctional Institution ("LeCI"), where he was placed in restrictive housing comparable to solitary confinement.

When Lamb first arrived at WCI in the spring of 2017, he received orientation training and written materials about Ohio's inmate grievance procedures. On April 9, 2018, Lamb initiated these procedures at LeCI by filing the following internal informal complaint (also known as an "ICR"):

WCI shift supervisor lied on 4/6/18 stating that I refused my "use of force" statement. The nurse treating me at that time could attest to that. My hands were cuffed behind my back and I couldn't even see after officers kicked me in the eye and maced me on the way to the infirmary.

The "WCI shift supervisor" allegedly referred to Lieutenant Kendrick, who submitted an Inmate Use of Force Statement shortly after the April 6 incident indicating that Lamb refused to provide a written statement and instead orally "stated ‘I can't write y'all seen what happened.’ " On April 17, 2018, WCI Inspector Casey Barr responded to Lamb's informal complaint with a computer entry on the prison's internal JPay Securus System, stating "[y]ou will be able to give your statement during the use of force investigation. I will make sure that your statement is obtained." Lamb asserts that he did not receive this response until March 2020 because he did not have access to the JPay system while in restrictive housing.

Lamb also alleges that he filed a second informal complaint in April 2018, "explain[ing] that force was [applied] against [him] for no reason" and that correctional officers destroyed his property in retaliation. Defendants contend that there is no record of Lamb filing a second informal complaint, which may explain why Lamb never received an associated response.

Having been at LeCI "for some time" and receiving no response to his informal complaints, Lamb alleges that he began asking correctional officers at LeCI for the requisite forms to escalate his grievance, but they repeatedly told him that the prison did not have any. One of those staff members, Inspector Lora Austin, also allegedly told him "that it would be a waste of time" to file an appeal because the appeal deadline had passed. Lamb asserts in his affidavit that because he lacked access to the JPay system or the necessary grievance forms, he did not know how to proceed with his grievance properly and relied exclusively (to his detriment) on prison staff members for assistance. There is no further evidence in the record about how many times he asked for these forms or the dates of his requests.

In November 2018, Lamb was transferred from LeCI to the Southern Ohio Correctional Facility ("SOCF"). There, Lamb allegedly sent an appeal letter directly to the Chief Inspector of the Ohio Department of Rehabilitation and Correction ("ODRC") at his Ohio address, describing the April 6, 2018 incident and his grievance. Again, defendants claim that there is no copy or record of this letter, and Lamb alleges that he never received a response.

Last, Lamb submitted evidence of a third informal complaint that he allegedly sent on November 29, 2018, to the inspector of institutional services at SOCF, Linnea Mahlman, stating as follows:

I was beat in handcuffs at WCI and had most of my property destroyed. I wrote ICR's and never received a response. Would you let me know what's going on? Thank you.

Inspector Mahlman asserted in a sworn affidavit that he never received this correspondence.

On April 4, 2020, Lamb brought his grievance to federal court by filing this § 1983 action in the Southern District of Ohio, alleging that all defendants used excessive force against him, and that Lieutenant Kendrick, in his supervisory role, was deliberately indifferent to his employees’ conduct.¹ Before the parties conducted discovery or had a meaningful opportunity to develop the factual record, defendants filed a motion for summary judgment, arguing that Lamb failed to satisfy the PLRA's requirement that he exhaust his available administrative remedies before filing suit. See 42 U.S.C. § 1997e(a). In support of their motion, defendants submitted a declaration from ODRC Assistant Chief Inspector Antonio Lee, who asserted, in pertinent part, that:

I have reviewed the entire grievance file of inmate Toby Lamb, II, A734-060. On April 9, 2018, Inmate Lamb submitted an informal complaint resolution (ICR) concerning the "WCI shift supervisor lied on 4/6/18 stating that I refused my ‘use of force’ statement" regarding the reported use of force occurring on April 6, 2018. The WCI Institutional Inspector, Cynthia Hill, and then her replacement, Casey Barr responded to Inmate Lamb's grievance via the JPay system on April 17, 2018. Inmate Lamb did not file any other informal complaints, grievances or appeals concerning this April 6, 2018 reported use of force.

In their reply, defendants submitted two additional declarations, one from the correctional grievance officer at WCI, Isaac Bullock, and one from Inspector Mahlman. Bullock explained that "[c]ontrary to Lamb's assertions, ODRC's grievance process was available to all inmates, at all institutions, in the normal course of business, without delay." Inspector Mahlman further asserted that "[t]here does not appear to be a notice of grievance or an appeal to the Chief Inspector regarding" Lamb's April 9, 2018 informal complaint. Lamb submitted a competing affidavit describing his version of events.

The magistrate judge eventually issued a Report and Recommendation ("R&R") recommending that the district court grant defendants’ motion for summary judgment. The magistrate judge concluded that Lamb's April 9, 2018 informal complaint was improper because it did not provide "physical descriptions" of the unnamed officers, and it was undisputed that Lamb failed to comply with the second and third steps of the applicable grievance procedures. The magistrate judge also determined that Lamb's "vague assertions" in his affidavit were insufficient to establish a genuine issue of fact as to whether prison officials rendered his administrative remedies effectively unavailable. Accordingly, the magistrate judge held that "defendants have carried their burden to show that [Lamb] did not exhaust his administrative remedies for his claim based on defendants’ alleged use of force on April 6, 2018."

The district court adopted the magistrate judge's R&R over Lamb's objections and dismissed this case without prejudice. This timely appeal followed.

II.

This Court reviews de novo a district court's dismissal of a prisoner's civil rights claim for failure to exhaust administrative remedies under the PLRA. Risher v. Lappin , 639 F.3d 236, 239 (6th Cir. 2011). This Court also reviews de novo a district court's grant of summary judgment. Siggers v. Campbell , 652 F.3d 681, 691 (6th Cir. 2011). Summary judgment is proper where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "In considering a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party" but may not weigh the evidence or make credibility determinations.

Troche v. Crabtree , 814 F.3d 795, 798 (6th Cir. 2016) (citation omitted). And because an inmate's failure to exhaust his administrative remedies is an affirmative defense (not a...