                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 16a0049p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


 SHANNON EARL TROCHE,                                     ┐
                                   Plaintiff-Appellant,   │
                                                          │
                                                          │
         v.                                               │
                                                           >       No. 15-3258
                                                          │
 MICHAEL CRABTREE,                                        │
                                  Defendant-Appellee.     │
                                                          ┘
                           Appeal from the United States District Court
                          for the Southern District of Ohio at Cincinnati
                      No. 1:12-cv-00176—Timothy S. Black, District Judge.

                              Decided and Filed: February 25, 2016

              Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.
                                 _________________

                                            COUNSEL

ON BRIEF: Neal Shah, Steven T. McDevitt, FROST BROWN TODD LLC, Cincinnati, Ohio,
for Appellant. Caitlyn A. Nestleroth, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.

                                       _________________

                                            OPINION
                                       _________________

       BERNICE BOUIE DONALD, Circuit Judge. Shannon Troche (“Troche”) appeals the
district court’s summary judgment decision that dismissed his 42 U.S.C. § 1983 civil action filed
against the defendant, Michael Crabtree (“Crabtree”), alleging violations of the Eighth and
Fourteenth Amendments. The district court granted summary judgment because it found that
Troche failed to exhaust his administrative remedies prior to filing suit.




                                                 1
No. 15-3258                              Troche v. Crabtree                            Page 2


         For the reasons set forth below, we disagree and REVERSE the judgment of the district
court.

                                                 I.

         On August 20, 2001, Troche, an inmate in the Southern Ohio Correctional Facility
(SOCF) alleges that he was severely beaten, without provocation, by Ohio Correctional Officer,
Crabtree. Troche alleges that Crabtree, who was supervising him at the time, ordered him to
clean brooms in a secluded pan room. Once in the pan room, Troche alleges that Crabtree
choked and assaulted him. As a result, he alleges that he sustained multiple injuries that required
medical treatment. Troche further alleges that after he received treatment for his injuries, he was
placed in isolation and deprived of food for two weeks.

         On the same day Crabtree assaulted him, Troche alleges that he submitted an Informal
Complaint Resolution (ICR), which initiated the Ohio three-step grievance procedure. See Ohio
Admin. Code 5120-9-31(K)(1). Troche never received a response to his ICR. Therefore, Troche
alleges that he moved to the second step of Ohio’s grievance procedure and submitted a
notification of grievance form to the inspector of institutional services (IIS). See Ohio Admin.
Code 5120-9-31(K)(2). Troche again received no response, so he alleges that he sent, via an
internal prison mail system, correspondence to prison personnel to inquire about the status of his
grievance. After receiving no response for the third time, he filed a § 1983 civil action in the
Southern District of Ohio alleging violations of his Eighth and Fourteenth Amendment rights.

         On July 25, 2014, Crabtree filed his first motion for summary judgment, contending that
Troche failed to satisfy the Prison Litigation Reform Act’s (PLRA) requirement that he exhaust
his available administrative remedies prior to filing suit in federal court. (Appellant Br. 2.); see
42 U.S.C. § 1997e(a). In support of his motion, Crabtree submitted two declarations from the
IIS at the SOCF, Linda Mahlman, who alleged, in pertinent part, that: (1) Troche had not filed
any proper informal complaints nor any other grievance forms regarding the alleged incidents of
August 20, 2011; (2) Troche had filed two complaints days after the incident, however, they
were improperly submitted because he had not submitted an informal complaint to Crabtree’s
direct supervisor or the staff member most directly responsible for the incident, as is required by
No. 15-3258                              Troche v. Crabtree                            Page 3


the grievance procedure; (3) Inspector Mahlam had no record of receiving a request from Troche
asking for a notification of grievance form; and (4) Inspector Mahlam investigated the incident
and determined that his complaints were without merit.

       In opposition to Crabtree’s first motion for summary judgment, Troche also submitted his
own declaration. In it, he stated that prior to filing his lawsuit, he had followed the three-step
grievance procedure, and that he did not write the ICRs that Inspector Mahlman’s declaration
claimed he had improperly submitted.

       On January 12, 2015, the Magistrate Judge issued a Report and Recommendation
recommending that the district court grant Crabtree’s motion for summary judgment. With
respect to the exhaustion of administrative remedies issue, the Magistrate Judge determined that
Troche’s declaration sufficiently created a factual dispute as to whether he completed the first
two steps of Ohio’s grievance procedure. But, even if Troche did not receive a response to his
step two grievance, the Magistrate Judge reasoned that he should have still filed a step three
appeal “despite the alleged failure of the SOCF prison officials to respond to his earlier filings.”
Consequently, the Magistrate Judge found Troche’s failure to file an appeal necessitated a
finding that he failed to exhaust the administrative remedies available to him.

       On February 10, 2015, the district court adopted the Magistrate Judge’s Report and
Recommendation and granted Crabtree’s motion for summary judgment.                  The case was
dismissed with prejudice. This timely appealed followed.

                                                II.

       “We review de novo a district court’s grant of summary judgment.” Siggers v. Campbell,
652 F.3d 681, 691 (6th Cir. 2011) (quoting Spencer v. Bouchard, 449 F.3d 721, 727 (6th Cir.
2006) (internal quotation marks omitted)). Summary judgment is proper if there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Cook v. Caruso, 531 F. App’x 554, 559 (6th Cir. 2013) (citing EEOC v. Prevo’s Family Market,
Inc., 135 F.3d 1089, 1093 (6th Cir.1998)). “In considering a motion for summary judgment, the
court must view the evidence and draw all reasonable inferences in favor of the non-moving
party.” Hall v. Warren, 443 F. App’x 99, 106 (6th Cir. 2011) (internal quotation marks omitted).
No. 15-3258                              Troche v. Crabtree                           Page 4


The essential question is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (internal quotation
marks omitted)). “The court considering a motion for summary judgment must consider the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, in the light most favorable to the party opposing the motion.” Adams v.
Metiva, 31 F.3d 375, 378 (6th Cir. 1994) (internal quotation marks omitted). We must also be
mindful of the fact that we cannot weigh the evidence or make credibility determinations. See id.

       Non-exhaustion is an affirmative defense under the PLRA, with the burden of proof
falling on Crabtree. Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011). Thus, summary
judgment is appropriate only if Crabtree establishes the absence of a “genuine dispute as to any
material fact” regarding non-exhaustion. Id. (quoting Fed.R.Civ.P. 56(a)).

                                               III.

       Section 1997e of the PLRA provides that “No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). Although prisoners “are not required to
specially plead or demonstrate exhaustion in their complaints,” Jones v. Bock, 549 U.S. 199, 216
(2007), “[t]here is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court,” id. at 211.

       In order to comply with the PLRA’s exhaustion requirement, an inmate may only exhaust
his claim by “taking advantage of each step the prison holds out for resolving the claim internally
and by following the ‘critical procedural rules’ of the prison’s grievance procedure to permit
prison officials to review and, if necessary, correct the grievance ‘on the merits.’” Reed-Bey v.
Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) (quoting Woodford v. Ngo, 548 U.S. 81, 95
(2006)); see also Woodford, 548 U.S. at 92 (“Proper exhaustion demands compliance with an
agency’s deadlines . . . because no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.”).
No. 15-3258                              Troche v. Crabtree                           Page 5


       In Ohio, prisoners must follow a three-step grievance procedure. See Ohio Admin. Code
5120-9-31(K).    First, within fourteen calendar days of the incident, inmates must “file an
informal complaint to the direct supervisor of the staff member, or department most directly
responsible for the particular subject matter of the complaint.” Ohio Admin. Code 5120-9-
31(K)(1). “If the inmate has not received a written response from the staff member within a
reasonable time, the inmate should immediately contact the inspector of institutional services
either in writing or during regular open office hours.” Id. If the inmate is not provided a
response by the end of the fourth day, “the informal complaint step is automatically waived.” Id.

       Second, “[i]f the inmate is dissatisfied with the informal complaint response, or the
informal complaint procedure has been waived, the inmate may obtain a notification of grievance
form from the inspector of institutional services,” which must be filed “by the inmate no later
than fourteen calendar days from the date of the informal complaint response or waiver of the
informal complaint step.” Ohio Admin. Code 5120-9-31(K)(2). “Grievances must be filed by
the inmate no later than fourteen calendar days from the date of the informal complaint response
or waiver of the informal complaint step.” Id. Once received, “the inspector of institutional
services shall provide a written response to the grievance within fourteen calendar days.” Id.
“The inspector of institutional services may extend the time in which to respond, for good cause,
with notice to the inmate;” however, “any extension exceeding twenty-eight calendar days from
the date the response was due must be approved by the chief inspector or designee.” Id.

       Third, “[i]f the inmate is dissatisfied with the disposition of grievance, the inmate may
request an appeal form from the inspector of institutional services.” Ohio Admin. Code 5120-9-
31(K)(3). The appeal must then be filed with the office of the chief inspector within fourteen
calendar days of the date of disposition of grievance. Id.

       Since the district court dismissed this case on summary judgment, we must examine
Troche’s declaration—because it was the only “evidence” submitted with his Response to
Crabtree’s summary judgment motion—and determine adequately if it creates a genuine issue of
material fact as to whether Troche adequately complied with Ohio’s three-step grievance
procedure. In his declaration, Troche alleges that the sequence of pertinent events that led to him
ultimately filing his § 1983 civil action was as follows:
No. 15-3258                                      Troche v. Crabtree                                     Page 6


    (1) On August 20, 2011, Troche submitted an ICR to the “shift supervisor/captain” that was
        on duty, and a week later asked the “shift supervisor/captain” for a response;
    (2) “About a week later,” Troche asked the “shift supervisor/captain” for a response and also
        submitted a notification of grievance form to the IIS, presumably Inspector Mahlman;1
    (3) After an unspecified period of time elapsed without receiving a response, Troche
        contacted the IIS and inquired about the status of his grievance and also sent, via an
        internal prison mailing system, a letter regarding the circumstances which led to his
        assault, his subsequent placement in isolation, and the treatment he received after his
        assault;
    (4) After receiving no response, Troche did not pursue step three of the grievance procedure.

(Page Id # 326-28.)

         The district court determined, and we agree, that Troche’s declaration sufficiently created
a factual dispute as to whether he satisfied the first two steps of the grievance procedure. (See
Page Id # 358.) Although Inspector Mahlman’s declaration alleges that Troche failed to properly
comply with any step of the grievance procedure, and Troche does not have any documents
proving that he did, Troche’s declaration is sufficient to withstand summary judgment as to the
first two steps of Ohio’s grievance procedure.

         However, we part company with the district court with respect to its determination that
Troche was mandated, under Ohio’s three-step grievance procedure, to file an appeal to the
office of the chief inspector. See Ohio Admin. Code 5120-9-31(K)(3). The Magistrate Judge’s
analysis of this issue is as follows:

                 Defendant Crabtree is entitled to summary judgment because there is no
         genuine dispute of material fact about whether plaintiff pursued step three of the
         ODRC grievance process and, therefore, failed to exhaust his administrative
         remedies. Under step three, plaintiff was required to appeal to the office of the
         chief inspector within two weeks of receiving a response to his step two formal
         grievance . . . Assuming plaintiff did not receive a response to his informal
         complaint or grievance as he alleges, nothing prevented plaintiff from pursuing
         step three of the inmate grievance procedure . . . Plaintiff acknowledges that he

         1
           The actual sequence of events is unclear. Troche’s declaration states that “[p]ursuant to step two of the
grievance process, I grieved to the Inspector of Institutional Services (“IIS”) and asked for the IIS to have the Shift
Supervisor/Captain respond to my complaint about a week after making my informal complaint.” [R. 50-1 at 326].
What is clear, for the purposes of summary judgment, is that Troche never received a response to these requests and
that he did his best to satisfy the requirements of the grievance procedure.
No. 15-3258                              Troche v. Crabtree                           Page 7


       did not pursue step three of the inmate grievance procedure. As it is undisputed
       that plaintiff did not file an appeal to the chief inspector before he filed the
       lawsuit, he has failed to exhaust his administrative remedies under the PLRA and
       Defendant Crabtree is entitled to summary judgment.
              To the extent plaintiff contends he could not complete the grievance
       process because SOCF officials failed to timely respond at steps one and two,
       making further administrative remedies unavailable or futile, this argument is
       unavailing.

Troche v. Crabtree, No. 1:12-CV-176, 2015 WL 160717, at *4 (S.D. Ohio Jan. 12, 2015), report
and recommendation adopted, No. 1:12-CV-176, 2015 WL 541931 (S.D. Ohio Feb. 10, 2015)
(citations and footnotes omitted).

       We disagree. Under Ohio Administrative Code 5120-9-31(K)(1), an inmate is statutorily
authorized to proceed to step two of Ohio’s grievance procedure if he does not receive a response
to his informal complaint within a “reasonable time.” However, such authorization is not
granted to inmates who fail to receive a response to a notification of grievance form at step two
of the grievance procedure. See Ohio Admin. Code 5120-9-31(K)(2). Although step two of the
grievance procedure requires the IIS to “provide a written response to the grievance within
fourteen calendar days of receipt,” it imparts no authorization to proceed to step three of the
grievance procedure to inmates who never receive a response. Id. Moreover, the fact that step
one instructs inmates to proceed to step two after a “reasonable time,” but step two does not,
suggests that inmates are foreclosed from proceeding to step three until they receive a response
to their step two grievance. Lastly, the Magistrate Judge’s conclusion that Troche was obligated
to “file an appeal of the disposition of [his] grievance” does not make sense. Troche alleges that
he never received a response to his step two grievance, so he had nothing to appeal. In the
absence of any statutory instruction, Troche proceeded logically, as his declaration alleges that
he sent a letter to SOCF staff inquiring about the status of his grievance. (Page Id # at 327.) In
the end, it cannot be said that an inmate did not exhaust his administrative remedies because he
failed to do something not specified, outlined, or required by his prison’s grievance procedure.

       In the Report and Recommendation, the Magistrate Judge heavily cited our ruling in
Risher, 639 F.3d at 238–40 (6th Cir. 2011), to support her conclusion. We respectfully disagree
with the Magistrate Judge’s interpretation of Risher. Not only is Risher factually distinguishable
No. 15-3258                               Troche v. Crabtree                             Page 8


from the present case, but its reasoning actually supports our holding that Troche’s declaration
sufficiently creates a genuine issue of material fact regarding whether he exhausted his available
administrative remedies.

       Risher involved the Bureau of Prisons’ four-tier grievance procedure. Id. The plaintiff, a
federal inmate, did not receive a timely response at tier three, but he nevertheless filed a tier four
appeal. Id.; see also 28 C.F.R. § 542.10(a). He did so pursuant to a Bureau of Prisons’ policy
that read, “if the inmate does not receive a response within the time allotted for a reply . . . the
inmate may consider the absence of response to be a denial at that level.” Risher, 639 F.3d at
239 (brackets and internal quotation marks omitted). However, tiers three and four of the Bureau
of Prisons’ grievance procedure required inmates to submit the filings and attachments from the
previous level. Id. at 238–39.

       Since the inmate did not receive a response to his tier three appeal, he did not have the
required paperwork to file a tier four appeal. Id. Consequently, his tier four appeal was rejected;
however, he was instructed to resubmit it with the required paperwork. Id. He decided not to
resubmit the appeal and instead opted to file suit. Id. The district court dismissed the case on
summary judgment because it found that the inmate failed to properly exhaust his administrative
remedies because the inmate should have sought copies of the required documents and
resubmitted his tier four appeal. Id. at 239. We reversed. Id. at 241. We found that the inmate
complied with all the deadlines, and that the prison did not comply with its own regulations in
failing to timely provide the inmate with a tier three response. Id. at 240–41. Therefore, after
submitting his tier four appeal, the inmate had satisfactorily exhausted his administrative
remedies.

       The Magistrate Judge interpreted Risher to require Troche to treat SOCF’s failure to
respond to his step two grievance as a denial. However, all prison grievance procedures are not
made alike, and what a prisoner is required to do by one grievance procedure to exhaust his
administrative remedies is not necessarily required by another. Like the inmate in Risher, who
did not receive a response to his tier three grievance, Troche did not receive a response to his
step two grievance. However, the grievance procedure at issue in Risher instructed inmates to
treat a prison’s failure to respond as a denial. See id. In contrast, the grievance procedure at
No. 15-3258                             Troche v. Crabtree                           Page 9


issue in this case only instructs inmates to treat non-responses at step one as a denial. It says
nothing about non-responses at step two. The difference is dispositive.

       Accordingly, in the absence of such language, we cannot find that Troche was required to
file a step three appeal to comply with the PLRA’s requirement that he exhaust his
administrative remedies prior to bringing his § 1983 civil action. As we stated in Risher, “When
pro se inmates are required to follow agency procedures to the letter in order to preserve their
federal claims, we see no reason to exempt the agency from similar compliance with its own
rules.” Id. at 241.

                                               IV.

       We REVERSE the judgment of the district court and REMAND for proceedings
consistent with this opinion.
