govinfo:USCOURTS-ohsd-1_22-cv-00557-4

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF OHIO 
WESTERN DIVISION 
 
JERMAINE SPENCER, 
 
Plaintiff, 
 
v. 
 
WES JORDAN, et al., 
 
Defendants. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
JUDGE DOUGLAS R. COLE 
 
OPINION AND ORDER 
 Plaintiff Jermaine Spencer, invoking both Federal Rules of Civil Procedure 
59(e) and 60(b), asks the Court to reconsider its previous summary judgment decision, 
(Op. & Order, Doc. 54). ( See Mot. for Reconsideration, Doc. 66). Separately, he 
requests the Court enter a Temporary Restraining Order and Preliminary Injunction 
to prevent his transfer back to the facility where the harm he alleged in his Complaint 
occurred. (Doc. 68, #360). For the reasons below, the Court DENIES Spencer’s Motion 
for Reconsideration (Doc. 66), and, because this matter remains closed, DENIES his 
motion for emergency relief, (Doc. 68). 
BACKGROUND 
Plaintiff Jermaine Spencer alleged that in October 2020, while he was 
incarcerated at the Southern Ohio Correctional Facility (SOCF), Correctional Officers 
Jordan and Adkins (along with another unnamed officer) physically assaulted him 
without provocation. (Compl., Doc. 1, #4–5). Based on that, he sued several of those 
officers, the Warden, and the Director of Ohio Department of Rehabilitation and 
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Corrections. (See generally id. ). After dismissing several claims and Defendants on 
the pleadings, ( see Docs. 26, 37), the Court ultimately dismissed the case in its 
entirety at the summary judgment stage, ( see Doc. 54). It did so because Spencer 
failed to exhaust his administrative remedies, or at least he failed to create a genuine 
dispute as to whether he had, which is a necessary precondition to suit under the 
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. (Id.). 
 As the Court explained in its previous decision, the PLRA requires an inmate 
to exhaust all state administrative remedies before suing in federal court. 42 U.S.C. 
§ 1997e(a); Ross v. Blake , 578 U.S. 632, 638–39 (2016). The state administrative 
remedies themselves arise under Ohio Administrative Code §§ 5120-9-31(J)(1)–(3). 
Those regulations require an inmate with a grievance to complete three steps. First, 
within fourteen days of the event giving rise to the complaint, the inmate must file 
an informal complaint with the direct supervisor of the staff member about whom the 
inmate is complaining. Id. § 5120-9-31(J)(1). Second, if the inmate is “dissatisfied” 
with the response he receives to that informal complaint, he then must file a formal 
grievance with the inspector of institutional services. Id. § 5120-9-31(J)(2). Finally, 
at step three, if the inmate does not like the inspector’s disposition of the grievance 
(or if the inspector does not provide a disposition within twenty-eight days), he has 
fourteen days in which to file an appeal with the office of the chief inspector (although 
the chief inspector can waive that time requirement for “good cause”). Id. § 5120-9-
31(J)(2), (3). 
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 At summary judgment, both parties agreed that Spencer completed the first 
two steps, but not the third. (Doc. 54, #282). While he made a few arguments blaming 
his failure to complete that step on SOCF, the Court found them unconvincing. ( Id. 
at #282–88). So the Court granted summary judgment to Defendants. (Id. at #289). 
Now, in his Motion for Reconsideration, Spencer advances a different story 
about step three. He claims that he did in fact file an appeal with the Chief Inspector’s 
Office, thereby completing the final step of the grievance procedures. (Doc. 66, #341–
42). And he attaches two documents, for the first time, that he says are evidence 
proving that. (Id. at #351–52). He also makes a second, new, argument: that because 
SOCF responded that his claim was “non-grievable” (as demonstrated by his newly 
provided evidence), his Complaint cannot be dismissed for lack of exhaustion. (Id. at 
#344). Based on all that, Spencer argues that “reconsideration is warranted because 
the Court’s decision rest[s] on (1) a misapprehension of material facts, (2) clear error 
of law, and (3) the need to prevent manifest injustice.” ( Id. at #339). The Court 
addresses each of the two claims in turn below, but finds both wanting. 
Then there is also one final wrinkle. While his Motion for Reconsideration 
remained pending, Spencer filed another motion, requesting the Court enter a 
Temporary Restraining Order and Preliminary Injunction to “prevent his transfer 
from the Ohio State Penitentiary (OSP) in Youngstown, Ohio back to the Southern 
Ohio Correctional Facility (SOCF) in Lucasville, Ohio,” because that is where the 
alleged actions giving rise to his Complaint occurred. (Doc. 68, #360). Both motions 
are now ripe. 
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LEGAL STANDARD 
A litigant may move to alter or amend a judgment under Federal Rule of Civil 
Procedure 59(e). But “[t]he time for doing so is short—28 days from entry of the 
judgment, with no possibility of an extension.” Banister v. Davis, 590 U.S. 504, 507–
08 (2020) (citing Fed. R. Civ. P. 6(b)(2) (prohibiting extensions to Rule 59(e)’s 
deadline)). 
Rule 60(b) motions for relief from a judgment or order, on the other hand, can 
arise, “depending on the reason given for relief, within either a year or a more open-
ended ‘reasonable time.’” Banister, 590 U.S. at 519 (citing Fed. R. Civ. P. 60(c)(1)). 
Courts generally interpret Rule 60(b) narrowly. The Rule allows a court to “relieve a 
party or its legal representative from a final judgment, order, or proceeding for [six 
enumerated] reasons.” Fed. R. Civ. P. 60(b). But “[a] Rule 60(b) motion is neither a 
substitute for, nor a supplement to, an appeal.” GenCorp, Inc. v. Olin Corp., 477 F.3d 
368, 373 (6th Cir. 2007) (collecting cases). “And the public policy favoring finality of 
judgments limits the availability of relief under the rule.” Id. at 372 (cleaned up). 
Moreover, “[a] party seeking relief from judgment under Rule 60(b) must show that 
its case comes within the provisions of the Rule.” Lewis v. Alexander, 987 F.2d 392, 
396 (6th Cir. 1993). “In short, it is well-established in the Sixth Circuit that a … Rule 
60(b) motion … does not allow the unhappy litigant to reargue the case.” Prows v. 
City of Oxford , No. 1:22-cv-693, 2023 WL 7384684, at *5 (S.D. Ohio Nov. 8, 2023) 
(cleaned up). 
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LAW AND ANALYSIS 
At the outset, the Court notes that Spencer cannot advance a Rule 59(e) motion 
as the time to do so has long since passed. So, the Court focuses only on his request 
for relief under Rule 60(b). Spencer’s arguments seem to implicate two of the possible 
grounds for relief that Rule sets out—mistake and newly discovered evidence. The 
Court addresses both, but Spencer prevails under neither. 
In his motion, Spencer argues that this Court “misapprehended several 
material facts” and committed a “clear error of law.” (Doc. 66, #339–40). Those 
arguments sound in Rule 60(b)(1), which permits relief from a final judgment for 
“mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1); see 
also Kemp v. United States , 596 U.S. 528, 533–34 (2022) (holding that Rule 60(b)(1) 
encompasses judicial mistakes of law). 
Spencer seems to argue that this Court made both a factual and a legal 
mistake. (Doc. 66, #339–46). Factually, he contends that the Court erred in stating 
that he did not proceed to step three of the grievance process because his newly 
attached exhibits purportedly show that he did attempt an appeal to the Chief 
Inspector as that step requires. ( Id. at #341–46, #351–52). Legally, the Court 
supposedly erred by not considering his argument that once prison officials marked 
the matter non-grievable and refused to process it, administrative remedies ceased 
to be available under the PLRA, so the Court should not have required further 
exhaustion at all. (Id. at #345). 
Neither “mistake” warrants relief for Spencer. Regarding the alleged factual 
“misapprehension,” in the summary-judgment briefing, Spencer’s position was that 
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he did not complete step three because he never received the step-two disposition. 
(Pl.’s Resp., Doc. 49, #255–58). His own affidavit said that very thing: “[h]ad I received 
the disposition … I would have exercised my right to appeal to the Chief Inspector.” 
(Doc. 50-2, #264). The Court’s prior opinion therefore did not make a “mistake” in 
stating that Spencer did not proceed to step three—it simply relied on Spencer’s own 
affidavit to that effect, coupled with Assistant Chief Inspector Morrow’s affidavit that 
the Chief Inspector’s Office likewise had no record of any appeal. (Doc. 54, #282–83). 
The claimed legal “mistake” suffers from the same problem; Spencer did not 
raise any argument relating to prison officials allegedly marking his complaint “non-
grievable,” nor did he provide any evidence in support of such an argument at the 
summary judgment stage. (Doc. 54, #282). So the Court did not commit legal error by 
addressing only the arguments Spencer actually raised. 
True, Spencer’s newly attached exhibits may support a different theory than 
the one he previously advanced, but they do not retroactively convert the Court’s 
earlier ruling into a judicial mistake as Rule 60(b)(1) uses that term. At most, they 
present new (and inconsistent) evidence. But Rule 60(b)(1) does not provide relief 
where the Court accurately ruled on the record and arguments actually before it. 
Rather, to the extent Spencer’s new exhibits—a handwritten page asking to 
escalate his grievance, and a purported Appeal to the Chief Inspector—matter at all, 
it would be under Rule 60(b)(2), not Rule 60(b)(1). That is because Rule 60(b)(2) 
provides for relief based on “newly discovered evidence that, with reasonable 
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diligence, could not have been discovered in time to move for a new trial under Rule 
59(b).” So that is where the Court turns next. 
To succeed on a claim under Rule 60(b)(2), Spencer must “show by clear and 
convincing evidence (1) that [he] exercised due diligence to obtain the evidence and 
(2) that the evidence is material, i.e., would have clearly resulted in a different 
outcome.” Luna v. Bell , 887 F.3d 290, 294 (6th Cir. 2018) (citing JPMorgan Chase 
Bank, N.A. v. First Am. Title Ins. Co., 750 F.3d 573, 585 (6th Cir. 2014)). He does not 
demonstrate either. 
First, Spencer offers no explanation of how or when he came to possess these 
documents or, more importantly, why, with reasonable diligence, he could not have 
presented them at the summary-judgment stage. That failure is dispositive. All 
Spencer argues on that front is that he attempted to obtain the evidence in discovery, 
but it was “withheld.” (Doc. 66, #342). But that explanation does not make sense. For 
one, defense counsel avers that these documents were not in the Defendants’ 
possession, so they could not have withheld them. (Resp., Doc. 67, #356). More 
importantly, Spencer appears to be the author of both documents. (See Doc. 66, #351–
52). So if they are genuine, they were in his possession, or at least he certainly knew 
about them, when summary judgment was decided. Given that fact, the Court fails 
to see how they can constitute “newly discovered evidence” under Rule 60(b)(2). 
Moreover, even crediting both new exhibits, they would not have changed the 
outcome at summary judgment. For one, the exhibits, and Spencer’s arguments based 
on them, directly contradict his prior sworn testimony. At the summary judgment 
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stage, Spencer swore that he had not appealed to the Chief Inspector’s Office, stating: 
“[h]ad I received the disposition … I would have exercised my right to appeal to the 
Chief Inspector.” (Doc. 50-2, #264). But he now attaches a form he claims is that very 
appeal, dated November 4, 2020, without any explanation of the obvious 
contradiction. (Doc. 66, #352). Even aside from the concerns with Spencer’s possible 
lack of candor to the Court, he cannot retroactively create a dispute of material fact 
by contradicting his own sworn testimony. See Aerel, S.R.L. v. PCC Airfoils, L.L.C. , 
448 F.3d 899, 907–08 (6th Cir. 2006) (citation omitted) (“A directly contradictory 
affidavit should be stricken unless the party opposing summary judgment provides a 
persuasive justification for the contradiction.”). 
Separately, even if the Court disregards Spencer’s previous affidavit and 
arguments, the “new” evidence still fails to show that he properly exhausted his 
administrative remedies. The “Appeal to the Chief Inspector” form on which he relies 
to satisfy his step-three obligation states it was completed on November 4, 2020. (Doc. 
66, #352). That is only one day after the Institutional Inspector’s receipt of Spencer’s 
step-two appeal. (Doc. 42-1, #220). But Defendants supplied evidence showing that 
his step-two appeal was not adjudicated until November 11, 2020 . ( Id.). Spencer 
cannot have appealed a decision before it was issued. Of course, he claims he never 
actually received that November 11 decision, but if that is true, then he could have 
only appealed after waiting 28 days from the time he filed his step-two appeal with 
the inspector. Ohio Admin. Code § 5120-9-31(J)(2) (“If a disposition has not been 
rendered after a total of twenty-eight days from the receipt of the grievance, the 
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complaint will be deemed unresolved and the inmate may proceed to step three of the 
process.”). Because his new evidence suggests he waited only a single day after filing 
his step-two appeal, Spencer failed to comply with the applicable grievance 
procedures. 
Spencer also appears to make a different argument based on the handwritten 
page. He says that the document, which is stamped November 8, 2020, and states 
“not grievable per AR5120-9-31,” (Doc. 66, #351), demonstrates that the Institutional 
Inspector at step-two designated his complaint as non-grievable, (id. at #344). Based 
on that, he argues that exhaustion does not apply. See Owens v. Keeling , 461 F.3d 
763, 769–70 (6th Cir. 2006) (holding that a non-grievable complaint need not be 
exhausted through the grievance process because that remedy was unavailable under 
Tennessee law). From what the Court can tell, though, it appears the handwritten 
note reflects Spencer’s attempt to escalate a separate ticket tied to his conduct report, 
a rules infraction decision not subject to the grievance process. See Ohio Admin. Code 
§ 5120-9-31(B). Indeed, the page states that it is directed at “Conduct Report SOCF-
20-003060,” so it is that incident that is “not grievable per AR5120-9-31.” But that is 
not the grievance at issue in this case. (Doc. 66, #351). As for the grievance actually 
at issue here, Defendants have already provided the Court with the actual step-two 
decision, which nowhere states anything about non-grievability. (Doc. 42-1, #220). In 
sum, Spencer falls well short of providing clear and convincing evidence of his 
grounds for relief under Rule 60(b). 
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And because this matter remains closed, the Court denies Spencer’s request 
for a TRO and Preliminary Injunction.
CONCLUSION
For the reasons above, the Court DENIES Spencer’s Motion for 
Reconsideration (Doc. 66), and, because this matter remains closed, DENIES his 
motion for emergency relief, (Doc. 68).
SO ORDERED.
May 22, 2026
DATE DOUGLAS R. COLE
 UNITED STATES DISTRICT JUDGE
UGLASSSSSSSSSSSSSSSSSSS R. COLE
ITED STATES DISTRICT JJJJJJJJJJUUUUDUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU
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