United States District Court, W.D. Michigan, Northern Division
MEMORANDUM OPINION AND ORDER
J. QUIST UNITED STATES DISTRICT JUDGE
January 19, 2017, United States Magistrate Judge Timothy P.
Greeley issued a Report and Recommendation
(“R&R”) (ECF No. 42), recommending that
Defendants' motion for summary judgment be denied in part
and granted in part. Plaintiff has filed objections to the
R&R (ECF Nos. 45, 47), as have Defendants (ECF No. 43).
For the reasons that follow, the objections will be denied
and the R&R will be adopted as the opinion of the Court.
Court is required to make a de novo review of those
portions of a R&R to which specific objections are 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)(3).
objects to the dismissal of any claim for damages against
Defendants Frechette, Haske, and Murphy in their official
capacity. Plaintiff asserts that Defendants did not raise a
viable argument regarding the dismissal of suit against them
in their official capacity. To the contrary, Defendants'
brief in support of the motion for summary judgment explained
in detail why they were not liable in their official
capacity. Plaintiff argues that they lost immunity to a claim
against them in their official capacity, but he does not
provide legal support for his argument. Plaintiff also
contends that Defendants are not entitled to qualified
immunity; however, the R&R did not discuss qualified
immunity or recommend any ruling on that issue. Plaintiff
further argues that Defendants' liability in their
official capacity presents a question of fact, because the
issue of malice and direct involvement have not been
resolved. Malice and personal involvement have no bearing on
whether Defendants are liable in their official capacity.
Thus, Plaintiff's objections are meritless.
supplemental objections, Plaintiff objects to the fact that
the case caption refers to Defendants as “Unknown Haske
et al.” (Suppl. Objs., ECF No. 47-1, PageID.617.) The
case caption is irrelevant to the substance of the R&R,
and is not part of any opinion issued by this
also argues that, as to his official-capacity claims, the
R&R did not address the fact that he seeks declaratory
relief as well as damages. However, the R&R expressly
recommended dismissal of the official-capacity claims only
“[t]o the extent that Plaintiff seeks damages.”
(R&R 5, ECF No. 42.) In other words, the R&R did not
find that Plaintiff could not seek declaratory relief.
Plaintiff also asserts that Michigan law prevents dismissal
of the claims against Defendants in their official
capacities, but the Eleventh Amendment trumps Michigan law.
Thus, Plaintiff's supplemental objections are also
R&R denied Defendants' motion for summary judgment
insofar as it claimed that Plaintiff failed to exhaust his
administrative remedies against Defendants Haske, Murphy, and
Frechette. Defendants assert that Plaintiff failed to
complete the grievance process before filing suit. The
R&R relied on Defendant's assertion that four of his
grievances were appealed through Step III of the grievance
Defendants claim that the grievance process for three of
these grievances was not complete when Plaintiff filed suit,
because the Step III grievance responses were sent to
Plaintiff after the date that he filed his complaint. A
prisoner must complete the grievance process before
filing suit; exhaustion may not be completed after a
complaint has been filed. Freeman v. Francis, 196
F.3d 641, 645 (6th Cir. 1999). With respect to the three
grievances identified by Defendants, the grievance process
was completed before Plaintiff filed suit on January 8, 2016,
even though the Step III responses were not provided to
Plaintiff until a later date. MDOC policy provides that
“[t]he total grievance process from the point of filing
a Step I grievance to providing a Step III response shall
generally be completed within 120 calendar days unless an
extension has been approved in writing by the Grievance
Coordinator at Step I and/or Step II.” MDOC Policy
Directive 03.02.130 ¶ S (effective July 9,
2007). Plaintiff filed Grievance
ECF-15-07-2066-14f at Step I on July 23, 2015. (MDOC Prisoner
Step III Grievance Report, ECF No. 37-3, PageID.353.) The
Step III grievance response was sent to Plaintiff on March
15, 2016, more than 120 days after Plaintiff filed the Step I
grievance. (Id.) Similarly, Plaintiff filed
Grievance ECF-15-08-2310-01i at Step I on August 17, 2015.
(Id. at PageID. 352.) The Step III response was sent
to Plaintiff on January 12, 2016, more than 120 days after
Plaintiff filed the Step I grievance. (Id.)
Likewise, Plaintiff filed Grievance No. ECF-15-08-2230-15b on
August 7, 2015. (Id. at PageID.354.) The Step III
response was sent to Plaintiff on March 15, 2016, more than
120 days after Plaintiff filed the Step I grievance.
Sixth Circuit has held that “administrative remedies
are exhausted when prison officials fail to timely respond to
a properly filed grievance.” Boyd v. Corr. Corp. of
Am., 380 F.3d 989, 996 (6th Cir. 2004). “Moreover,
judges in this district, including the undersigned, have
concluded that administrative remedies are deemed exhausted
after 120 days regardless of whether a Step III response has
been issued.” Dykes v. Marshall, No.
1:14-CV-1167, 2016 WL 1059618, at *2 (W.D. Mich. Mar. 17,
2016) (Quist, J.); accord Lewis v. Spitters, No.
1:14-CV-917, 2015 WL 5682405, at *6-7 (W.D. Mich. Sept. 18,
2015) (“[I]f prison officials fail to respond to an
inmate's Step III grievance by the end of the
aforementioned 120 day period, the inmate should be able to
initiate, without fear of dismissal on exhaustion grounds, an
action in federal court.”); see also Carter v.
Ayala, No. 1:13-CV-807, 2014 WL 4660320, at *3 (W.D.
Mich. Sept. 17, 2014) (denying the defendants' motion for
summary judgment on exhaustion grounds because prison
officials failed to provide a timely step III response);
Jarrett v. Snyder, No. 1:13-CV-139, 2014 WL 4472732,
at *2 (W.D. Mich. Sept. 10, 2014) (“Defendants'
argument that Plaintiff should have simply waited for a
response before filing his complaint-no matter how long that
response took-is unavailing.”). With respect to each of
the three grievances mentioned above, the 120-day period
expired before Plaintiff filed the complaint. Thus,
Defendants' first objection is without merit.
Defendants claim that Plaintiff never pursued Grievance No.
ECF-15-10-2857-27b through Step III of the grievance process.
The Court agrees. In response to the motion for summary
judgment, Plaintiff asserted that he received a Step III
response to this grievance, but there is no evidence of such
a response. Moreover, this grievance is not listed in the
Step III report provided by Defendants. Thus, there does not
appear to be a genuine dispute that Plaintiff did not exhaust
his remedies for this grievance. This finding does not
necessarily change the result of the R&R, however.
Plaintiff identified this grievance to show that he exhausted
his administrative remedies as to Defendant Frechette, but he
also asserted that another grievance, Grievance No.
ECF-15-08-2230-15b, named Frechette. The latter grievance is
listed in Defendants' Step III report, and for the
reasons stated above, it was properly exhausted before
Plaintiff filed his complaint. Defendants have not challenged
Plaintiff's assertion that he named Frechette in this
grievance, and Defendants did not raise any issue about the
contents of this grievance in their motion for summary
judgment. Thus, Defendants' objection does not change the
outcome recommended by the R&R.
Defendants argue that the fact that Plaintiff was on modified
access to the grievance process does not excuse him from
exhausting his administrative remedies. That is true, but it
does not change the fact that Defendants have not satisfied
their burden at summary judgment of showing that Plaintiff
did not exhaust his remedies. See Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986) (noting that
“where 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.”) (emphasis in
for the reasons stated herein and in the R&R, IT IS
HEREBY ORDERED that Plaintiff's objections to the Report
and Recommendation of the Magistrate Judge (ECF Nos. 45, 47)