UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ TOBY LAMB, II, │ Plaintiff-Appellant, │ > No. 21-3390 │ v. │ │ BRANT KENDRICK, SHANE CAREY, JUSTIN REECE, │ BRITTANY MAXWELL, JUSTIN CROWDER, and SYDNEY │ HENSLEY, Correctional Officers, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:20-cv-00265—Susan J. Dlott, District Judge.

Argued: December 8, 2021

Decided and Filed: October 26, 2022

Before: CLAY, DONALD, and NALBANDIAN, Circuit Judges.

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COUNSEL ARGUED: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, for Appellant. Lori H. Duckworth, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Jacqueline Greene, FRIEDMAN, GILBERT + GERHARDSTEIN, Cincinnati, Ohio, Sarah Gelsomino, FRIEDMAN, GILBERT + GERHARDSTEIN, Cleveland, Ohio, for Appellant. Lori H. Duckworth, Thomas E. Madden, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

DONALD, J., delivered the opinion of the court in which CLAY, J., joined. NALBANDIAN, J. (pp. 16–22), delivered a separate dissenting opinion. No. 21-3390 Lamb v. Kendrick, et al. Page 2

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OPINION _________________

BERNICE BOUIE DONALD, Circuit Judge. Inmate Toby Lamb II alleges that several correctional officers at the Warren Correctional Institution in Lebanon, Ohio (“WCI”) brutally beat and pepper sprayed him while he was handcuffed, immediately placed him in solitary confinement, and prevented him from accessing the requisite grievance forms to report the incident properly. When Lamb sought judicial intervention by bringing this excessive force action under 42 U.S.C. § 1983, defendants promptly responded with a pre-discovery motion for summary judgment accusing Lamb of failing to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Although we agree that Lamb did not exhaust his administrative remedies properly, we nevertheless reverse the district court’s judgment dismissing this case and remand for further proceedings because there remain material disputes of fact about whether prison officials rendered those administrative remedies unavailable.

I.

On April 6, 2018, Lamb was involved in a physical altercation with a nonparty correctional officer at WCI. Lamb alleges that officers Justin Reece, Justin Crowder, Shane Carey, Britany Maxwell, and Sydney Hensley, and Lieutenant Brant Kendrick (collectively, “defendants”) retaliated against him later that day by beating him and deploying pepper spray against him while he was handcuffed outside the presence of surveillance cameras. The beating caused Lamb’s eyes to swell shut, and he suffered several other serious temporary and permanent injuries. Later that night, Lamb was transferred from WCI to the Lebanon Correctional Institution (“LeCI”), where he was placed in restrictive housing co