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Gilmore v. Ormond

United States District Court, E.D. Kentucky, Southern Division

February 26, 2019

TYGANDA GILMORE, Plaintiff,
v.
J. RAY ORMOND, Warden, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge.

         Defendant Lieutenant Leroy Chaney has filed a motion to dismiss Plaintiff Tyganda Gilmore's Complaint, contending that Gilmore did not exhaust his administrative remedies as required by federal law. [Record No. 27] Gilmore responds that threatening behavior and a refusal to provide him with the necessary forms rendered the inmate grievance system “unavailable” to him. [Record No. 29] The matter is now ripe for the Court's review.

         I.

         Gilmore asserts that, on August 23, 2016, he refused to submit to hand restraints during a cell extraction. As a result, he contends that Lieutenant Chaney intentionally used an excessive amount of pepper spray to compel his compliance. [Record No. 1 at Page ID # 8, 13] Gilmore also contends that, on October 25, 2016, Lieutenant Chaney and another officer threw a pair of handcuffs into his cell. And when he refused to “cuff up, ” Gilmore alleges the officers entered the cell and “rough[ed] [him] up, ” throwing him to the ground, pushing his head into the floor, punching him in the back of the head, and getting in “cheap shots” while he was restrained. Gilmore further alleged that after he was moved into the hallway, Chaney pressed his head hard against the wall and bent his hands against the tightened handcuffs. Gilmore claims that as a result of this incident he suffered bruises, cuts, marks, soreness and “emotional damage.” [Record No. 1 at Page ID # 5, 7-8, 14]

         Gilmore alleges that he told the warden “numerous times” that Lieutenant Chaney was dangerous, was trying to force him to accept a cellmate, and had used an excessive amount of pepper spray to subdue him. [Record No. 1 at Page ID # 4-5] On appeal to the United States Court of Appeals for the Sixth Circuit, Gilmore expanded upon this allegation:

Mr. Ray Ormond, Warden, [knew] of the dangerous, Mr. Chaney ... on mention dates, I brought to the attention of the misconduct of Mr. Chaney to Warden, and after the fact, on numerous request on this matter to warden same outcome, nothing was done.... [The warden] also allowed [Chaney] to not use hand-extraction-camera when he threw cuffs in cell.

Gilmore v. Ormond, No. 16-6839 (6th Cir. 2016) [R. 14 therein at p. 6].[1]

         Gilmore also asserted in his Complaint that he filed inmate grievances at the institutional, regional, and national levels regarding several issues [Record No. 1 at Page ID # 20-22], although he does not clearly indicate whether those grievances encompassed his allegations against Lieutenant Chaney. However, on appeal in this matter, Gilmore affirmatively alleged that he filed inmate grievances regarding Chaney's conduct: “... the warden is in violation [be]cause I warn [the warden] numerous time of the dangerous guards threatening and abuse. Plaintiff explain misconduct, personally to warden and through remedy procedures, to no avail or actions done.”). Gilmore v. Ormond, No. 16-6839 (6th Cir. 2016) [R. 21 therein at p. 7]. Gilmore also stated that, on October 27, 2016, he provided and signed a written statement to a “S.I.A. Investigator” setting forth his allegations of misconduct by Lieutenant Chaney. The internal affairs investigator told Gilmore that his statement would be forwarded to the “O.I.G. or F.B.I.” for investigation, but refused his request to receive a copy. [Record No. 1 at Page ID #19]

         Lieutenant Chaney asserts in his motion to dismiss the Complaint that Gilmore has filed numerous inmate grievances in recent years, but none relate to the incidents described in the Complaint. Therefore, he contends that Gilmore failed to exhaust his administrative remedies as required by federal law. [Record No. 27-1 at Page ID # 273-77] This contention is supported by the declaration of Robin Eads, a paralegal employed by the Bureau of Prisons' Consolidated Legal Center, who confirms that Gilmore filed no inmate grievances regarding the conduct about which he complains. [Record No. 27-2 at Page ID # 278-80] And an attached summary of grievances filed by Gilmore indicates that he has filed several formal grievances regarding alleged staff misconduct and threatening behavior, both before and after the events in question. [Record No. 27-2 at Page ID # 296, 299, 300, 301, 303]

         Gilmore claims for the first time in his response that he was prevented from filing an inmate grievance because BOP staff threatened him. [Record No. 29 at Page ID # 317-18] But at no point does Gilmore identify who allegedly threatened him, with what he was threatened, or when the alleged threat was made. Notwithstanding the alleged threat, Gilmore states that the warden “relieved [Chaney] of his duties” shortly after the October 2016 cell extraction. [Record No. 29 at Page ID # 320] He also repeats his allegation that, presumably in response to Gilmore's complaints, an internal affairs officer took his statement and commenced an investigation just two days after the incident. [Record No. 29 at Page ID # 321] These allegations undermine any suggestion that staff were attempting to dismiss or cover up his claims against Chaney.

         Gilmore also contends that a staff member refused to provide him with the necessary grievance forms. But as before, he does not provide any specifics regarding this interaction. Gilmore then contradicts his own assertion, stating that he actually did file a grievance but that an unnamed officer refused to process it:

Basically after and before, staff denyed (sic) me access [to] remedy forms or when I did get forms and filled them out about the two claims in this matter the BP-8 and BP-9 was not return or even process on these incident in this case. The case-manager plainly stated I'm not turning this in period.

[Record No. 29 at Page ID # 322] This allegation is also at odds with Gilmore's prior statement that he made the warden aware of Lieutenant Chaney's conduct by filing an inmate grievance. Gilmore v. Ormond, ...


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