James Ratliff v. Mandy Graves ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0038n.06
No. 18-5598
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES RATLIFF, ) FILED
) Jan 24, 2019
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
)
ON APPEAL FROM THE
MANDY GRAVES; DONNIE HALL, JR.; JOANN )
UNITED STATES DISTRICT
DEBAUN; Individually and/or in their official )
COURT FOR THE WESTERN
capacities as Ballard County Deputy Jailer; )
DISTRICT OF KENTUCKY
BALLARD COUNTY, KENTUCKY, )
)
Defendants-Appellees. )
)
Before: BOGGS, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. James Ratliff was tased by a jailer while he was an inmate
at Ballard County Jail in Kentucky. Ratliff thereafter sued the County and several current and
former employees of the jail under 42 U.S.C. § 1983. The district court entered summary judgment
for the defendants, holding that Ratliff had failed to exhaust his administrative remedies.
We affirm.
We present the facts in the light most favorable to Ratliff’s claims. See Risher v. Lappin,
639 F.3d 236, 239-40 (6th Cir. 2011). In March 2015, Ratliff was detained at the Ballard County
Jail while he awaited trial for several state charges. On May 29, a deputy jailer, JoAnn DeBaun,
moved Ratliff from one part of the jail to another. During this move, Ratliff noticed that DeBaun
had a taser. Ratliff said that he and his brother used to shock each other with a similar device;
No. 18-5598, Ratliff v. Graves, et al.
DeBaun said that he would not be able to handle the shock of her taser. In response, Ratliff stuck
out his arm and told her to “hit [him] with it.” DeBaun obliged, and Ratliff fell to the floor from
the shock.
The next day, Ratliff asked DeBaun for a form to file a grievance with the jail. DeBaun
said that she would “see what [she] [could] do.” The day passed, and DeBaun failed to bring
Ratliff a form. That evening, while Ratliff was in the shower, another jailer, Adam Carpenter,
shined a laser pointer at him, which Ratliff says “kind of spooked” him. The next day—now two
days after the incident—Ratliff asked DeBaun twice more for a form. Again, she said that she
would bring him one, but failed to do so.
Two or three days after the incident, another jailer, Cody Armstrong, noticed burns on
Ratliff’s arm during an unrelated medical examination. When Ratliff explained that DeBaun had
tased him, Armstrong took photos of Ratliff’s injuries. Ratliff concedes that he could have asked
Armstrong for a grievance form but did not. Sometime later, Ratliff told a third jailer that DeBaun
had tased him. Ratliff again concedes that he could have asked that jailer for a form but did not.
Yet the third jailer promptly reported DeBaun’s actions to his supervisor, Chief Deputy Mandy
Graves. Graves in turn tried to get in touch with the head jailer, Donnie Hall, who was on vacation
in Florida at the time. Upon Hall’s return—five days after DeBaun had tased Ratliff—Hall fired
DeBaun and contacted the Kentucky State Police. DeBaun was later convicted of several state
offenses.
Ratliff thereafter filed this lawsuit, alleging that the jailers and Ballard County had violated
his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments, as well as under Kentucky
law. The defendants moved for summary judgment, arguing that Ratliff had failed to exhaust his
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administrative remedies under the Prison Litigation Reform Act. The district court entered
summary judgment for the defendants. This appeal followed.
We review the district court’s decision de novo. See Risher, 639 F.3d at 239-40. The
Prison Litigation Reform Act requires “a prisoner confined in any jail” to exhaust “such
administrative remedies as are available” before filing a lawsuit. See 42 U.S.C. § 1997e(a). This
provision applies to “all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Ratliff was in jail when he filed his complaint, so he was required to follow the jail’s grievance
policy by filing a form within five days of being tased. See Cox v. Mayer, 332 F.3d 422, 424 (6th
Cir. 2003); R. 35-7, Pg. ID 294. Ratliff never filed a form with the jail, and thus his suit can
proceed only if his failure to exhaust the jail’s process can be excused. See Jones v. Bock, 549
U.S. 199, 211 (2007); Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). And because this case was
resolved not at the motion to dismiss stage but on summary judgment, Ratliff is required to identify
some evidence supporting his claims.
Ratliff argues that his failure to exhaust the jail’s administrative process should be excused,
because the grievance process was “not in fact available” to him. See Ross, 136 S. Ct. at 1856.
The Supreme Court has identified three circumstances in which an administrative process is
rendered “unavailable”: first, when prison “officers [are] unable or consistently unwilling to
provide any relief”; second, when a process is “so opaque” that it is “incapable of use”; or third,
when prison officers “thwart inmates from taking advantage of a grievance process.” Id. at 1859-
60.
Ratliff first argues that the process was unavailable because the jailers were “unable or
consistently unwilling” to help him file a grievance. See id. at 1859. But Ratliff admitted in his
testimony that he asked only DeBaun for a grievance form—even though Ratliff acknowledged
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that other jailers walked by his cell hourly and that “it would make sense” to ask someone other
than his assailant (i.e., DeBaun) for a form. Moreover, Ratliff did not ask Armstrong for a form
even after Armstrong noticed Ratliff’s burn and specifically asked about his injuries. And when
Ratliff was asked during his deposition why he did not ask any jailer other than DeBaun, Ratliff
said simply that he didn’t know. Indeed, Ratliff further admitted that he had obtained grievance
forms and filed other grievances before. Thus, according to Ratliff’s own testimony, he did not
hit a “dead end” in the administrative process; he simply failed to consider other options for
obtaining relief. See id.
Ratliff next argues that Carpenter thwarted his efforts to file a grievance. See id. at 1860.
Specifically, Ratliff says that Carpenter intimidated him on two occasions. Id. The first was when
Carpenter shined a laser pointer on him in the shower. But Ratliff himself testified that he was
only “kind of spooked” by Carpenter’s actions and that Carpenter was “playing around” with the
laser pointer. [R. 35-2, Pg. ID 255.] The second was when Carpenter told him to “think about
what [he was] doing.” But Ratliff never attributed his failure to file a grievance to Carpenter’s
behavior. Instead, when asked why he failed to file one, he merely said, “I don’t know.” Thus,
though the question is somewhat close, Ratliff has not presented evidence that would allow a
factfinder to find that Carpenter’s actions would have deterred a “person of ordinary firmness”
from filing a grievance. See Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578 (6th Cir.
2014) (per curiam).
Ratliff further contends that Chief Deputy Graves thwarted his efforts to file a grievance
when she refused to notarize paperwork for him. But Ratliff does not specify what this paperwork
was or how it prevented him from filing a grievance. Thus, Ratliff has not presented “persuasive
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evidence” that any jailer thwarted his use of the prison’s grievance process. See Ross, 136 S. Ct.
at 1860-62.
Ratliff also argues that the administrative process was “so opaque” that it was “practically
speaking, incapable of use.” See id. at 1859. Yet Ratliff himself testified that the grievance process
was posted in each cell, and that he understood that the process required him to file a grievance in
writing. And Ratliff had previously used the process to file a different grievance at the Ballad
County Jail. Hence the administrative process was not “so opaque” that “no ordinary prisoner
[could] make sense” of it. Id. at 1859.
Ratliff’s last argument—that equitable estoppel should bar the defendants from asserting
the exhaustion defense—fails because he raised this argument for the first time in a Rule 59
motion. See Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010).
The district court’s judgment is affirmed.
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