United States District Court, W.D. Michigan, Northern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE.
September 16, 2016, United States Magistrate Judge Timothy P.
Greeley issued a Report and Recommendation
(“R&R”) recommending that Defendants'
motion for summary judgment (ECF No. 16) be denied in part
and granted in part. The matter is before the Court on
Plaintiff's objections to the R&R. (ECF No. 27.)
Court is required to make a de novo determination of those
portions of the R&R to which specific objection has been
made, and may accept, reject, or modify any or all of the
Magistrate Judge's findings or recommendations. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). “[A] general
objection to a magistrate's report, which fails to
specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those
issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
complaint contains five claims for relief. First, Plaintiff
alleges that Defendant Makela conspired to have Plaintiff
attacked by another prisoner, and that he refused to
investigate Plaintiff's property issue. (ECF No. 1,
PageID.10.) Second, Plaintiff alleges that Defendant Lee
conspired to have Plaintiff attacked by another prisoner, was
responsible for a retaliatory body search, and participated
in the cell search on December 17, 2014. (Id.)
Third, Plaintiff asserts that Defendant Pelkola threatened to
plant drugs, and destroyed his property. (Id. at
PageID.9, PageID.11.) Fourth, Plaintiff claims that Defendant
Leece acted in concert with the co-defendants by invading
Plaintiff's cell and destroying property in retaliation
for Plaintiff's protected conduct. (Id.) Lastly,
Plaintiff alleges that Defendant Gooseberry conducted a
retaliatory strip search and conspired with the co-defendants
to have Plaintiff attacked by another prisoner.
Magistrate Judge concluded that Plaintiff had exhausted
grievance remedies on his claims that involved his December
17, 2014 cell search and confiscation or destruction of
property against Defendants Makela, Lee, Pelkola, Leece, and
Gooseberry. (ECF No. 25.) The Magistrate Judge also found
that Plaintiff fully exhausted his grievance remedies
regarding the loss of his property, including a 13-inch flat
screen, against Defendants Pelkola and Leece. (Id.)
But the Magistrate Judge concluded that Defendants had
succeeded in showing that Plaintiff had not exhausted any
other incidents that could support his legal claims.
(Id.) Plaintiff objects to the Magistrate
Judge's conclusion that Plaintiff did not fully exhaust
his administrative remedies for the remaining claims. He a r
gue s that the Magistrate Judge failed to acknowledge all of
the claims that he raised in Steps 2 and 3, and that he cited
conspiracy and retaliation actions against all Defendants for
more than just the December 17th cell-search incident.
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in the dispute,
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c). The Court must look beyond the
pleadings and assess the proof to determine whether there is
a genuine need for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). In
considering a motion for summary judgment, “the
district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.”
Martin v. Cincinnati Gas & Elec. Co., 561 F.3d
439, 443 (6th Cir. 2009) (citing Jones v. Potter,
488 F.3d 397, 403 (6th Cir. 2007)). The proper inquiry is
whether the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see
generally Street v. J.C. Bradford & Co., 886 F.2d
1472, 1476-80 (6th Cir. 1989). The Court must determine
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.” Anderson, 477 U.S. at 251-52. The Court
must consider all of the pleadings, depositions, affidavits,
and admissions on file, and draw all justifiable inferences
in favor of the party opposing the motion.
Matsushita, 475 U.S. at 587.
prisoner bringing an action under 42 U.S.C. § 1983 must
exhaust all of his available administrative remedies. 42
U.S.C. § 1997e(a). Failure to exhaust administrative
remedies is an affirmative defense, which Defendants have the
burden to plead and prove. Jones v. Bock, 549 U.S.
199, 211 (2007). When the “moving party has the
burden--the plaintiff on a claim for relief or the defendant
on an affirmative defense--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)
(internal quotation omitted). Here, Defendants 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 v. Myers, 281 F.3d 552, 561 (6th
Cir. 2002) (internal quotations omitted).
order to exhaust administrative remedies, prisoners must
complete the administrative review process in accordance with
deadlines and other applicable procedural rules.
Jones, 549 U.S. at 217-19; see also Woodford v.
Ngo, 548 U.S. 81, 92-91 (2006). Compliance with prison
grievance procedures is all that is required. Id. at
218-19. MDOC Policy Directive 03.02.130 sets forth the
applicable grievance procedures for prisoners in MDOC custody
at the time relevant to the complaint. A prisoner must first
attempt to resolve a problem orally. (ECF No. 17-1,
PageID.84, ¶ P.) If oral resolution is unsuccessful, the
prisoner may proceed to Step I of the grievance process and
submit a completed grievance form within 5 business days of
the attempted oral resolution. (Id.) If a prisoner
is not satisfied with the Step I response, he may appeal to
Step II by obtaining an appeal form within 10 business days
of the response. (Id. at PageID.86, ¶ BB.) If
the prisoner is still dissatisfied with the Step II response,
he may appeal to Step III using the same appeal form.
(Id. at PageID.87, ¶ FF.) The Step III form
shall be sent within 10 business days after the date the Step
II response was due. (Id.)
argues that he exhausted all of his claims against all named
Defendants in Steps 2 and 3, and that he cited conspiracy and
retaliation beyond the December 17th cell-search incident in
his grievance forms. Plaintiff exhausted all available
administrative remedies for Grievances MBP 14-12-2227-17a,
relating to the December 17th cell search, and
MBP-15-04-007-119z, relating to the loss of his television.
In Step I for Grievance MBP 14-12-2227-17a, Plaintiff named
Defendant Lee, and stated that he did not know the names of
the officers who conducted the December 17th cell search.
(ECF No. 1-4.) Defendant Makela investigated and signed
Plaintiff's Step I grievance. (Id.) But
Plaintiff did not name Defendant Gooseberry until Step II and
Defendant Makela until Step III. He argues that, in the past,
when he submitted new grievances naming new officers on the
same incident, these grievances were rejected as relating to
the original grievance. Thus, he thought that he was required
to name new parties in the next grievance level once he
learned of the individual's identity or involvement.
Given this understanding, Plaintiff exhausted claims relating
to the December 17th cell search against all Defendants. He
also explained that Defendants Lee, Makela, and Gooseberry
had a prisoner “come at” him. (ECF No. 1-6,
PageID.21.) So Plaintiff exhausted the claim that those
Defendants conspired to have another prisoner attack him as
it relates to the December 17th cell search.
I for Grievance MBP-15-04-007-119z, Plaintiff claimed that
Defendants Pelkola and Lee conspired to take his flat-screen
television. (ECF No. 17-3, PageID.1117.) The R&R found
that Plaintiff had exhausted this claim for Defendants
Pelkola and Leece. But on the grievance forms, Plaintiff
named Defendant Lee, not Defendant Leece, so Plaintiff
exhausted administrative remedies relating to this incident
for Defendants Pelkola and Lee. Plaintiff argues that he
added retaliation and conspiracy claims against Defendants
Lee, Makela, and Gooseberry in Steps II and III for a
retaliatory strip search and carrying out a threat to have a
prisoner attack Plaintiff. These claims were not exhausted in
connection with the grievance forms alleging the loss of the
television. But in Step II, Plaintiff claimed that Defendant
Makela had intentionally disregarded his grievance and failed
to properly verify that a television in storage was
Plaintiff's property. (ECF No. 17-3, PageID.115.)
Although the R&R did not find that Plaintiff had
exhausted this claim against Defendant Makela, given
Plaintiff's understanding of the grievance process and
the fact that the grievance arises from Defendant
Makela's investigation during Step I, Plaintiff exhausted
the claim against Defendant Makela.
Court finds the R&R to be well-reasoned, and
Plaintiff's objection is without merit. Plaintiff has
exhausted his grievance remedies on claims involving the
December 17th cell search against each named Defendant, as
well as claims arising from the loss of his television
against Defendants Pelkola, Lee, and Makela. For the reasons
explained by the R&R, as modified by this opinion, the
Court will grant in part and deny in part Defendants'
motion for summary judgment (ECF No. 16).
order will enter in ...