                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0550n.06

                                           No. 10-5141
                                                                                          FILED
                          UNITED STATES COURT OF APPEALS
                                                                                     Aug 08, 2011
                               FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

MICHAEL R. HOLBROOK,                              )
                                                  )
       Plaintiff–Appellant,                       )
                                                  )
v.                                                ) ON APPEAL FROM THE UNITED
                                                  ) STATES DISTRICT COURT FOR THE
BOYD COUNTY, KENTUCKY; JOE                        ) EASTERN DISTRICT OF KENTUCKY
BURCHETT INDIVIDUALLY AND IN                      )
HIS OFFICIAL CAPACITY AS BOYD                     )
COUNTY JAILER; JOHN AND JANE                      )
DOES, NOS. 1, 2, AND 3                            )
INDIVIDUALLY AND IN THEIR                         )
OFFICIAL CAPACITY AS OFFICERS                     )
AND EMPLOYEES OF THE BOYD                         )
COUNTY DETENTION CENTER.                          )
                                                  )
       Defendants–Appellees.                      )
                                                  )


Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. In this 42 U.S.C. § 1983 action for deliberate

indifference to serious medical needs, plaintiff-appellant Michael R. Holbrook appeals the district

court’s grant of summary judgment to defendants-appellees Boyd County, Kentucky, Joe Burchett

individually and in his official capacity as Boyd County Jailer, and unnamed officers and employees

of the Boyd County Detention Center in their individual and official capacities. The district court

found that Holbrook failed to exhaust his administrative remedies, as required by the Prison

       *
       The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 10-5141
Michael Holbook v. Boyd County, Kentucky

Litigaton Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). On appeal, Holbrook argues that

there exists a genuine question of fact as to whether he attempted to comply with the PLRA and

whether defendants made him aware of the Boyd County Detention Center’s grievance procedures.

For the reasons that follow, we reverse the district court and remand the case for further

consideration.

                                                  I.

       While in custody at the Boyd County Detention Center, Holbrook was diagnosed with

methicillin resistant staphylococcus aureus (“MRSA”). Holbrook argues that this infection stems

from the prison officials’ deliberate indifference to his medical needs.

       At the conclusion of discovery, the case turned on whether Holbrook had exhausted his

administrative remedies, as required by the PLRA. In relevant part, defendants noted in their motion

for summary judgment, “Holbrook did not file a grievance and thus failed to utilize a grievance

procedure provided to him.” Because Holbrook failed to file a grievance, when a grievance

procedure existed, the defendants argued that he did not exhaust his administrative remedies and that

the lawsuit should be dismissed.1 Defendants supported their contentions with the affidavit of

Burchett, submitted with their reply brief in the district court. Burchett attested that the grievance

procedure for the detention center is open to all inmates and that Holbrook did not file a grievance

concerning the subject matter of this case.



       1
        The defendants offered other arguments too, including an argument for qualified immunity,
but the district court never addressed these other arguments because it could dispose of the case
under the PLRA.

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No. 10-5141
Michael Holbook v. Boyd County, Kentucky

          In response, Holbrook made two primary claims: (1) he was never given any type of

instruction from the jail on grievance procedures, and (2) he knew that grievances, when written,

were often thrown away. Holbrook also argued that he wrote a grievance for this case to which he

never received a reply.2 Holbrook submitted an affidavit with his response in which he stated that

he had received no information or instructions regarding grievance procedures and that he completed

a written medical grievance concerning his condition and lack of medical care and handed it to

Deputy Lovell Marshall. He also averred that complaints were often thrown away at the detention

center.

          In reply, the defendants submitted a copy of a grievance Holbrook had previously filed while

incarcerated in the Boyd County Detention Center in an effort to illustrate that Holbrook did indeed

know about the grievance procedure. The defendants also argued that Holbrook had not mentioned

submitting a grievance in his deposition. In his deposition, Holbrook mentioned only complaining

orally to Barry Adkins.

          The district court agreed with the defendants. Finding that the PLRA applied, the district

court noted both that “the PLRA makes no exception for ignorance” and that Holbrook had

previously filed a grievance. Thus Holbrook’s claim that he “does not understand or is not familiar

with the grievance procedure stretches the bounds of credibility.” The district court also found that

it was undisputed that Holbrook did not avail himself of his available administrative remedies. The


          2
         Holbrook also briefly argued that the PLRA did not apply because he had been moved to a
new institution and the state had not proved that there was a mechanism by which he could “grieve
in the second institution conditions that existed in the first.” Because Holbrook does not argue this
point on appeal, we do not address it.

                                                   3
No. 10-5141
Michael Holbook v. Boyd County, Kentucky

district court appeared unaware of Holbrook’s affidavit stating that he did submit a grievance.

Because there was no genuine issue of fact whether Holbrook filed a grievance, the district court

granted summary judgment to the defendants. The district court then also denied Holbrook’s motion

to alter or amend under Federal Rule of Civil Procedure 59(e).

                                                II.

       This court reviews de novo a district court’s grant of summary judgment. Hartsel v. Keys,

87 F.3d 795, 799 (6th Cir. 1996). Summary judgment is appropriate when the moving party “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). “When evaluating the appeal, the court must view the

evidence in the light most favorable to the non-moving party.” Hartsel, 87 F.3d at 799 (citing

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

       Holbrook correctly insists that there is a genuine question of fact whether he complied with

the PLRA. Holbrook’s affidavit explicitly states that he filed a grievance, even though Burchett’s

affidavit suggests that he did not. Moreover, nothing in Holbrook’s deposition is directly contrary

to the affidavit. While Holbrook was asked in his deposition whether he had complained about his

medical treatment, at no point was he asked whether he had filed a grievance. Because there is a

genuine issue of fact as to whether Holbrook complied with the PLRA, it was error for the district

court to grant summary judgment.

       In remanding Holbrook’s case to the district court, we do not find that he has necessarily

satisfied the PLRA. The district court will need to assess whether Holbrook did in fact submit a



                                                 4
No. 10-5141
Michael Holbrook v. Boyd County, Kentucky

grievance and, if he did, whether the submission of the grievance without further action by Holbrook

is sufficient to constitute exhaustion.

                                                III.

       For the foregoing reasons, we reverse the district court and remand for further consideration.




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