United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge.
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.
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]
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].
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]
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]
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.
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
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, ...