govinfo:USCOURTS-kyed-0_23-cv-00118-0

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
NORTHERN DIVISION  
AT ASHLAND     
                                                        
CIVIL ACTION NO. 23-118-DLB  
 
BRETT SIMPSON PLAINTIFF 
 
  
VS. MEMORANDUM ORDER 
 
 
COOKIE CREWS   DEFENDANT 
 
*** *** *** *** 
Pro se Plaintiff Brett Simpson filed a civil rights complaint pursuant to 42 U.S.C. § 
1983.  (Doc. # 1).  Simpson names Cookie  Crews, the Commissioner of the Kentucky 
Department of Corrections (“KDOC”), as t he Defendant, and he alleges that he was 
denied a Kosher diet and the ability to parti cipate in a substance abuse program while 
incarcerated at the Little Sandy Correctional Co mplex (“LSCC”), in vi olation of his First 
Amendment rights.  (See id.).  Simpson is seeking money damages.  (Id. at 4).     
 Crews responded to Simpson’s complaint by filing a motion for summary judgment.  
(Doc. # 21).  Crews argues that Simpson failed to adequately exhaust his administrative 
remedies before filing suit in federal court.  (See id.).  Crews concedes that Simpson filed 
an administrative grievance regarding two issues—i.e., his ability to practice his faith and 
his interest in completing a substance abuse program.  ( See id. at 3).  However, Crews 
suggests that prison officials appropriately rejected this grievance because it improperly 
related to multiple matters and failed to provide dates regarding the matters in question.  
(See id.).  Crews then claims that Simpson did not refile his gr ievance, and, as a result, 
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he failed to adequately exhaust hi s administrative remedies, as required by the Prison 
Litigation Reform Act, 42 U.S.C. § 1997e(a).  ( See id. at 3-4).  Thus, Crews argues that 
Simpson’s complaint must be dismissed.  (Id. at 4). 
Simpson responded to Crews’s motion by alleging that he made multiple attempts 
to file administrative grievanc es, albeit to no avail.  ( See Doc. # 23-1 at 1-2).  Simpson 
also says that he wrote to both the War den of the LSCC and the KDOC Commissioner.  
(See id. at 2).  Simpson further a lleges that he filed even mo re grievances which were 
“suppose[d]ly never turned into the correct person.”  ( Id. at 2-3).  Simpson then says, “I 
took it into my own hands to file a 1983 form.”  (Id. at 3).   
Crews replied to Simpson’s response by arguing that his “allegations about his 
thwarted attempts to file grievances are unsupported by any evidence.”  (Doc. # 28 at 4).  
Crews points out that Simpson only submitt ed one document into the record to support 
his response and argues that the document “does not show that [Simpson] exhausted his 
administrative remedies.”  ( Id.).  Crews therefor e says that the Court should dismiss 
Simpson’s complaint.  (Id. at 5). 
The Court has fully reviewed the parties’ submissions and will deny, without 
prejudice, Crews’s motion for summary judgment.  The parties’ filings make it clear that, 
at a minimum, there is a genuine factual dispute as to whether the administrative remedy 
process was functionally available to Simps on given his allegations, which suggest that 
his attempts to file grievances were thwarted.  See Gilmore v. Ormond , No. 19-5237, 
2019 WL 8222518, at *2 (6th Cir. Oct. 4, 2019) (making it clear that “[a] grievance system 
is unavailable if prison admin istrators thwart inmates from taking advantage of a 
grievance process through machination, misrepresentation, or intimidation.” (citation and 
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quotation marks omitted)).  And while Crew s emphasizes that Simpson has not offered 
sufficient evidence to support his allegati ons regarding exhaustion, her arguments and 
request for summary judgment are premature bec ause, to date, no discovery has taken 
place.  See Vance v. United States, 90 F.3d 1145, 1148 (6th Cir. 1998) (“The general rule 
is that summary judgment is improper if t he non-movant is not afforded a sufficient 
opportunity for discovery.”).  Thus, the Court will deny Crews’s motion for summary 
judgment, though she is free to renew her motion at a subsequent stage of the litigation. 
Accordingly, it is ORDERED as follows: 
(1) Crews’s motion for summary judgment (Doc. # 21) is DENIED without 
prejudice; 
(2) Pursuant to 28 U.S.C. § 636(b), this matter is REFERRED to a United 
States Magistrate Judge to conduct all pr etrial proceedings, including overseeing the 
discovery process;  
(3) The Clerk of the Court shall ASSIGN this matter to a Magistrate Judge 
consistent with this Order; and 
(4) Finally, since the Court has denied Crews’s motion for summary judgment 
at this time, Crews must file an answer to Simpson’s complaint within twenty-one (21) 
days from the entry of this Order.  Once Crews files her answer, the assigned Magistrate 
Judge will enter a new Order regarding the next steps in the litigation. 
This 26th day of April 2024. 
 
 
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