United States District Court, W.D. Michigan, Southern Division
Janet T. Neff, Judge
REPORT AND RECOMMENDATION
S. CARMODY, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion for
Summary Judgment. (ECF No. 11). Pursuant to 28 U.S.C.
§ 636(b)(1)(B), the undersigned recommends that
Defendants' motion be granted and this matter terminated.
initiated this action against Debra Moses and two unknown
parties. (ECF No. 1). Plaintiff alleges that Defendants
failed to provide him appropriate medical treatment for a
finger injury which resulted, ultimately, in amputation.
Defendant Moses now moves for relief on the ground that
Plaintiff has failed to properly exhaust his administrative
remedies. Plaintiff has failed to respond to Defendant's
judgment “shall” be granted “if the movant
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). A party moving for summary
judgment can satisfy its burden by demonstrating “that
the respondent, having had sufficient opportunity for
discovery, has no evidence to support an essential element of
his or her case.” Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). Once the moving party
demonstrates that “there is an absence of evidence to
support the nonmoving party's case, ” the
non-moving party “must identify specific facts that can
be established by admissible evidence, which demonstrate a
genuine issue for trial.” Amini v. Oberlin
College, 440 F.3d 350, 357 (6th Cir. 2006).
the Court must view the evidence in the light most favorable
to the non-moving party, the party opposing the summary
judgment motion “must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Amini, 440 F.3d at 357. The existence
of a mere “scintilla of evidence” in support of
the non-moving party's position is insufficient.
Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir.
2005). The non-moving party “may not rest upon [his]
mere allegations, ” but must instead present
“significant probative evidence” establishing
that “there is a genuine issue for trial.”
Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir.
the non-moving party cannot defeat a properly supported
motion for summary judgment by “simply arguing that it
relies solely or in part upon credibility
determinations.” Fogerty v. MGM Group Holdings
Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather,
the non-moving party “must be able to point to some
facts which may or will entitle him to judgment, or refute
the proof of the moving party in some material portion, and.
. .may not merely recite the incantation, ‘Credibility,
' and have a trial on the hope that a jury may disbelieve
factually uncontested proof.” Id. at 353-54.
In sum, summary judgment is appropriate “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Daniels, 396 F.3d at 735.
moving party without the burden of proof need only show that
the opponent cannot sustain his burden at trial, a moving
party with the burden of proof faces a “substantially
higher hurdle.” Arnett v. Myers, 281 F.3d 552,
561 (6th Cir. 2002). Where the moving party has the burden,
“his showing must be sufficient for the court to hold
that no reasonable trier of fact could find other than for
the moving party.” Calderone v. United States,
799 F.2d 254, 259 (6th Cir. 1986). The Sixth Circuit has
emphasized that the party with the burden of proof
“must show the record contains evidence satisfying the
burden of persuasion and that the evidence is so powerful
that no reasonable jury would be free to disbelieve
it.” Arnett, 281 F.3d at 561. Accordingly,
summary judgment in favor of the party with the burden of
persuasion “is inappropriate when the evidence is
susceptible of different interpretations or inferences by the
trier of fact.” Hunt v. Cromartie, 526 U.S.
541, 553 (1999).
to 42 U.S.C. § 1997e(a), a prisoner asserting an action
with respect to prison conditions under 42 U.S.C. § 1983
must first exhaust all available administrative remedies.
See Porter v. Nussle, 534 U.S. 516, 524 (2002).
Prisoners are no longer required to demonstrate exhaustion in
their complaints. See Jones v. Bock, 549 U.S. 199,
216 (2007). Instead, failure to exhaust administrative
remedies is “an affirmative defense under the
PLRA” which the defendant bears the burden of
establishing. Id. With respect to what constitutes
proper exhaustion, the Supreme Court has stated that
“the PLRA exhaustion requirement requires proper
exhaustion” defined as “compliance with an
agency's deadlines and other critical procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 90-93
(2006). In Bock, the Court reiterated that
Compliance with prison grievance procedures, therefore, is
all that is required by the PLRA to ‘properly
exhaust.' The level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to
system and claim to claim, but it is the prison's