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Hanserd v. Souder

United States District Court, E.D. Michigan, Southern Division

February 15, 2017

N. SOUDER, Defendant.

          Matthew F. Leitman United States District Judge


          Stephanie Dawkins Davis United States Magistrate Judge


         On September 9, 2015, plaintiff Marcus Hanserd filed the instant action alleging a violation of his First Amendment rights against defendant Natalie Souder (Ms. Souder, or Souder).[1] (Dkt. 1). Plaintiff is a pro se prisoner who is currently confined in the Michigan Department of Corrections (MDOC), at the Chippewa Correctional Facility (URF) in Kincheloe, Michigan. The actions that gave rise to the events in plaintiff's complaint, however, took place while plaintiff was incarcerated at the St. Louis Correctional Facility (SLF), in St. Louis, Michigan. On October 13, 2015, District Judge Matthew F. Leitman referred this case to Magistrate Judge Michael Hluchaniuk for all pretrial purposes. (Dkt. 6). The case was referred to Magistrate Judge Stephanie Dawkins Davis for all pretrial purposes on June 2, 2016. (Dkt. 19). Defendant Souder filed a motion for summary judgment on July 29, 2016 (Dkt. 20), and plaintiff responded on September 30, 2016 (Dkt. 23).

         This matter is now is ready for Report and Recommendation. For the reasons set forth below, the undersigned RECOMMENDS that defendant's motion for summary judgment be GRANTED because plaintiff failed to exhaust his retaliation claim and his complaint should be DISMISSED without prejudice.


         Defendant Natalie Souder is a registered nurse employed by MDOC at SLF. Plaintiff alleges that on May 28, 2015, Souder examined him pursuant to his request to be properly fitted for a pair of Deep Toe Box (DTB) shoes. According to plaintiff, Souder examined him and then informed him that there was nothing wrong with his feet and that he did not require medical shoes. On the other hand, Souder indicates that on May 28, 2015, she examined plaintiff whose main complaint was foot discomfort. At that time, she was aware that in 2012 the Regional Medical Officer (RMO) had approved plaintiff for DBT shoes. (Dkt. 20, Ex. A, Souder Aff. at ¶ 5). Based on her May 28, 2015 assessment, Souder testified that she referred plaintiff to the medical provider for further evaluation, including an updated RMO approval for his DBT shoes. (Id. ¶ 6; see also Dkt. 20-2, MDOC Nurse Protocol, dated 5/28/15, Pg ID 111). On June 3, 2015, plaintiff was seen by the Medical Provider who concluded that plaintiff could either wear his current pair of DBT shoes, or purchase other shoes from the prisoner catalogue. (Id. ¶ 7; see also Dkt. 20-2, MDOC Bureau of Health Care Services Notes, dated 6/3/15, Pg ID 112).

         Plaintiff also alleges that on June 16, 2015, Souder issued him a false misconduct violation for sexual misconduct in retaliation for the administrative grievance that plaintiff had filed regarding his May 28, 2015 medical exam. Souder acknowledges that on June 16, 2015, she issued plaintiff a Class I violation for sexual misconduct. (Dkt. 20, Ex. A, Souder Aff. ¶ 11; see also Dkt 20-2, Misconduct Report, Pg ID 114). According to the misconduct report, on that day, a segregation unit staff member announced nurse rounds and “female in unit” over the PA system. When Souder approached plaintiff's cell, he was standing at his toilet masturbating and looking directly at her. Plaintiff made no attempt to cover himself or stop “stroking his penis.” Following a Class I Misconduct Hearing, plaintiff was found guilty of the misconduct charge. (Dkt. 20-2, Pg ID 115).

         Plaintiff sues Souder in her individual and official capacities, and seeks undisclosed compensatory and punitive damages.


         The court notes at the outset that while Souder briefed that there was also no Eighth Amendment violation under the facts outlined by the complaint, in response, plaintiff made clear that he was not pursuing an Eighth Amendment claim. As such, the undersigned will not engage in an Eighth Amendment review and, to the extent plaintiff ever had a claim under the Eighth Amendment, he has voluntarily abandoned it.

         A. Legal Standards

         Title 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Section 1997e(a)'s “exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that “failure to exhaust is an affirmative defense under the PLRA, ” and “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. “Compliance with prison grievance procedures . . . is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218. “Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). “[P]roper exhaustion of administrative remedies is necessary.” Woodford v. Ngo, 548 U.S. 81, 84 (2006); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, 525 U.S. 833 (1998) (No federal action shall be brought until such administrative remedies as are available are exhausted). In other words, a prisoner may not exhaust administrative remedies during the pendency of the federal lawsuit. Larkins v. Wilkinson, 1998 WL 898870, at *2 (6th Cir. Dec. 7, 1998).

         In Jones v. Bock, the Supreme Court also held that the burden rests on the defendant to show that a plaintiff failed to exhaust when asserting exhaustion as an affirmative defense. Id. Accordingly, exhaustion is satisfied if plaintiff complied with the applicable grievance procedures and defendants bear the burden of showing otherwise. See Kramer v. Wilkinson, 226 Fed.Appx. 461, 462 (6th Cir. 2007) (a prisoner-plaintiff “does not bear the burden of specially pleading and ...

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