Cooley v. Garrett et al, No. 3:2013cv00529 - Document 20 (W.D. Ky. 2014)
Court Description: MEMORANDUM AND OPINION AND ORDER by Senior Judge John G. Heyburn, II on 6/17/14; by Senior Judge John G. Heyburn, II that Defendants motion for summary judgment is SUSTAINED and Plaintiffs complaint is DISMISSED WITH PREJUDICE. This is a final and appealable order.cc:counsel (TG)
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:13-CV-529-H BARRY E. COOLEY PLAINTIFF v. CORRECTIONS OFFICERS JOSH GARRETT AND JEFFREY HOMMRICH DEFENDANTS MEMORANDUM OPINION AND ORDER This case involves allegations by an inmate at the Louisville Metro Department of Corrections facility that the two Defendants used excessive force against him on or about April 8, 2013. Defendants have now moved for summary judgment on the grounds that Plaintiff has failed to exhaust his required administrative remedies. 42 U.S.C. ยง 1997(e)(a). In response, Plaintiff has filed a form dated April 18, 2013, which contains the substance of his grievance regarding the use of force which occurred ten days earlier. The Louisville Metro Department of Corrections has an established grievance procedure for use by all inmates. That procedure and policy sets forth rules for filing grievances, more specifically that a grievance must be filed within five days of the incident in question. Here, Plaintiff clearly did not comply with that part of the regulation. When Plaintiff s grievance was rejected by Defendants as untimely because it was not filed within the prescribed time period, his claim was not properly exhausted for purpose of filing a Section 1983 claim in federal court. Woodford v. Ngo, 548 U.S. 81 (2006); Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011). This case and others have also upheld grievance deadlines of five to ten days. Plaintiff does not allege a continuing violation of any kind. Consequently, it appears that Defendants are correct and that Plaintiff s failure to properly exhaust his administrative grievance procedures require dismissal of this case. Being otherwise sufficiently advised, IT IS HEREBY ORDERED that Defendants motion for summary judgment is SUSTAINED and Plaintiff s complaint is DISMISSED WITH PREJUDICE. This is a final and appealable order. June 17, 2014 cc: Barry E. Cooley, Pro Se Counsel of Record
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