OPINION & ORDER
MICHAEL H. WATSON, District Judge.
Don Gossard ("Plaintiff"), an inmate at the Madison Correctional Institution ("MCI") who is proceeding pro se, filed this § 1983 action against the Warden of MCI, Mr. Scales, and Mr. Easter ("Defendants"), claiming that Defendants violated his constitutional rights by failing to protect him from an assault by his cell mate in March, 2014. Compl., ECF No. 3. Plaintiff's claims against the Warden were dismissed on July 24, 2014. ECF No. 18. The remaining Defendants thereafter moved for summary judgment. ECF No. 38. In response, Plaintiff filed a "motion for ruling on the pleadings," ECF No. 41, in which he asked the Court to deny Defendants' motion for summary judgment. On April 10, 2017, Magistrate Judge Kemp issued a report and recommendation ("R&R") recommending that the motion for summary judgment be granted and the motion for ruling on the pleadings be denied. R&R, ECF No. 42. Plaintiff objected, albeit untimely. ECF No. 44. For the following reasons, the Court
Defendants moved for summary judgment on several grounds, including Plaintiff's alleged failure to exhaust his administrative remedies before seeking relief in the district court. ECF No. 38. In support of their motion, Defendants filed a declaration by Antonio Lee, an Assistant Chief Inspector for the Ohio Department of Rehabilitation and Correction ("OCRC"), which outlined the three-step process by which inmates in ODRC custody may file grievances. Lee Decl., ECF No. 38-1. First, inmates file an informal complaint with the direct supervisor of the staff member or department responsible for the complaint's subject matter within fourteen calendar days of the event giving rise to the complaint. Id. at ¶ 5. If the inmate is unhappy with the resolution of the informal complaint, the inmate may then submit a "kite" (inmate correspondence form) requesting a notification of grievance ("NOG") form from the Institutional Inspector. Id. at ¶ 6. The NOG form must be filed within fourteen calendar days of the date of the informal complaint response. Id. The Institutional Inspector investigates the complaint and issues a written disposition. Id. Finally, if the inmate remains dissatisfied with the outcome, the inmate may request an appeal form from the Institutional Inspector and must file the appeal to the Chief Inspector within fourteen days of the Institutional Inspector's disposition. Id. at ¶ 7. Once the Chief Inspector renders a decision, the administrative appeals process is exhausted. Id.
The dates written on the forms Plaintiff submitted to the ODRC per this three-step grievance procedure show that Plaintiff filed a timely informal complaint resolution but filed an untimely NOG. Compl., ECF No. 3, PAGEID ## 42-47. Neither the Institutional Inspector nor the Chief Inspector reviewed the merits of Plaintiff's grievance, because of the untimely filing. See id.
In Plaintiff's response brief to Defendants' motion for summary judgment, Plaintiff asserted that the Chief Inspector deliberately delayed providing him with the NOG form and that the untimely response was therefore not his fault. Id. Plaintiff provided no evidence, however, in support of his contention. Id.
Defendants replied with a declaration from Jarrod Robinson ("Mr. Robinson"), an employee at the MCI, who detailed his normal procedure for processing grievance forms. Robinson Decl., ECF No. 40-1. Mr. Robinson explained that his first morning task was to pick up and begin processing kites received by the Institutional Inspector's office. Id. at ¶ 12. He would then verify that each inmate requesting a NOG form had completed the first step in the grievance process, and, if so, he would enclose a NOG form with the kite and log that he had done so. Id. Mr. Robinson then processed the kites and dropped them off at the end of the day for pickup by unit staff for delivery to the inmate. Id.
Plaintiff thereafter filed a "motion for ruling on the pleadings," in which he asked the Court to deny the Defendants' motion for summary judgment. ECF No. 41. In his motion, Plaintiff objected to Mr. Lee's and Mr. Robinson's declarations because they were not notarized and they simply provided summaries of actions that took place two years prior. Id. 2. He also objected to Defendants' failure to discuss their obligation to prevent violence between inmates. Id.
After considering the record evidence, Magistrate Judge Kemp recommended granting Defendants' motion for summary judgment, finding that there was no genuine dispute of material fact as to Plaintiff's failure to exhaust his administrative remedies within the time period prescribed by the ODRC. R&R 7, ECF No. 42. Magistrate Judge Kemp found that Plaintiff's assertions of deliberate delay on the part of the Institutional Inspector were conclusory and unsupported by the record. Id. at 6. He explained that Plaintiff provided no evidence or sworn statement indicating what day Plaintiff requested or received the NOG form, while Defendants had submitted a declaration from the Institutional Inspector detailing his process for dealing with institutional grievances. Id. Therefore, Magistrate Judge Kemp found it clear that Plaintiff failed to exhaust his administrative remedies and recommended that Defendants' motion for summary judgment be granted. Id. at 7.
Additionally, Magistrate Judge Kemp recommended denying Plaintiff's motion for ruling on the pleadings. Id. at 8. He found that even though the declarations were not notarized, they were signed under penalty of perjury, as permitted by 28 U.S.C. § 1746, and that the statements contained in the declarations summarizing the usual procedure for processing grievances provided acceptable evidence for the Court's summary judgment determination. Id. at 7-8. Magistrate Judge Kemp also found that Plaintiff's objection to Defendants' failure to discuss their obligation to prevent violence between inmates was misplaced and irrelevant to the motion for summary judgment. Id. Therefore, he recommended denying Plaintiff's motion for ruling on the pleadings. Id.
The R&R notified the parties of their right to file objections to the R&R within fourteen days pursuant to 28 U.S.C. § 636(b)(1). Id. at 8-9. Plaintiff filed objections that were apparently untimely.
II. STANDARD OF REVIEW
The Court will review de novo the portions of the R&R that have been properly objected to, pursuant to Federal Rule of Civil Procedure 72(b)(2). On de novo review, the Court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3).
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court must grant summary judgment if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Van Gorder v. Grand Trunk W.R.R., Inc., 509 U.S. 265, 268 (6th Cir. 2007).
In his objections, Plaintiff reiterates that the failure to timely file the NOG form was not his fault but rather was the fault of the Institutional Inspector.
Plaintiff attaches his own declaration
Whether to consider new evidence submitted for the first time on an objection to a magistrate judge's R&R is within the district court's discretion. Muhammad v. Close, No. 08-1944, 2009 WL 8755520, at *2 (6th Cir. Apr. 20, 2009); Thompson v. Richardson, No. 1:12-cv-1332, 2013 WL 4780265, at *1 (Sept. 5, 2013). The discretion to accept new evidence, however, "must be exercised sparingly. . . . [T]he magistrate's role [would be] reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round." Moore v. United States, No. 14-114, 2016 WL 4708947, at *2 (E.D. Ky. Sept. 9, 2016) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 322 (1st Cir. 2008)). Allowing new evidence for the first time on objection is thus disfavored. Id. at *3 (citation omitted).
The Court declines to exercise its discretion in this case to consider the declaration submitted by Plaintiff for the first time on his objection to the R&R. Plaintiff has had ample time before filing objections to bring forth evidence to support his contention that Defendants deliberately delayed supplying Plaintiff with a NOG form. Indeed, Plaintiff was on notice that exhaustion of administrative remedies would be at issue since Defendants raised the issue in their motion to dismiss in May, 2015.
Moreover, despite Plaintiff's pro se status, he is responsible for complying with the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 56 requires a party asserting that a fact is genuinely disputed to support the assertion by citing to admissible evidence or by demonstrating that the opposing party cannot produce admissible evidence to support a contrary fact. Fed. R. Civ. P. 56(c)(1). Nevertheless, only after Magistrate Judge Kemp specifically pointed out in his R&R that Plaintiff failed to present evidence to show that he did not receive the NOG form until after the expiration of the filing deadline did Plaintiff produce a declaration to support his assertion that he timely requested the NOG form but did not receive it until after the filing deadline. Because Plaintiff submitted supporting evidence for the first time on his objection to the R&R, the Court declines to give Plaintiff another bite at the apple by considering the declaration.
Considering the evidence before Magistrate Judge Kemp at the time of his recommendation on the motion to dismiss, the Court finds that Plaintiff failed to establish the existence of a genuine dispute of material fact as to his failure to exhaust his administrative remedies because of his untimely filing. Plaintiff's objections are therefore
For the foregoing reasons, the R&R is