United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Maloney United States District Judge
Coonrod, a prisoner under the control of the Michigan
Department of Corrections (MDOC), filed this lawsuit under
§ 1983 alleging violations of his constitutional rights.
Currently pending are three motions for summary judgment,
each asserting a failure to exhaust administrative remedies.
The magistrate judge issued a report (ECF No. 42)
recommending that two motions be granted in part and denied
in part and the third motion be denied without prejudice.
Coonrod and Defendants filed objections.
being served with a report and recommendation (R&R)
issued by a magistrate judge, a party has fourteen days to
file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). A district court judge reviews de novo the portions of
the R&R to which objections have been filed. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). Only those objections
that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986) (per curiam) (holding the district court need not
provide de novo review where the objections are frivolous,
conclusive or too general because the burden is on the
parties to “pinpoint those portions of the
magistrate's report that the district court must
claims in the complaint arise from an incident that occurred
on April 26, 2014. Coonrod was attacked by other inmates, and
suffered a number of injuries, including fractures of the
bones in his face. The attack occurred at the Pugsley
Correctional Facility (MPF). Following the attack, Coonrod
received at least some of his treatment at the Duane Waters
Hospital (DWH). Defendants filed three motions: (1) ECF No.
23 (Corizon Health, Tan, Whiteman, and Bomber); (2) ECF No.
27 (Sherman, Pratt, Douglas, Saur, Wilson, Kingsley,
Zaborowski, Bourque, Hansen, Sobeck, Dunning-Meyers, Buren,
Pandya, and Borgerding); and (3) ECF No. 32 (Eklin).
Reviewing the complaint, the magistrate judge identified four
claims: (1) failure to protect, (2) deliberate indifference
to his medical needs at MPF immediately following the attack,
(3) deliberate indifference to his medical needs in the days
following the attack by the DWH treaters, and (4) deliberate
indifference to his medical needs by delaying and refusing
treatment by the DWH treaters. (R&R at 6 PageID.266.)
claims 1, 2 and 3, all of which arose on the day of the
attack or in the days following the attack, the magistrate
judge recommended denying, without prejudice, the motions for
summary judgment. The magistrate judge concluded that, based
on the record, there remained genuine issues of material fact
whether Coonrod had the ability and opportunity to exhaust
his administrative remedies. The magistrate judge proposed
entering a standard case management order, which would afford
Coonrod an opportunity for discovery with respect to
exhaustion and also allow defendants to raise the exhaustion
issue with respect to the 2014 claims.
agrees with this recommendation. Defendants object to this
recommendation. (ECF Nos. 43 and 44.) Defendants argue that,
even if Coonrod was not able to exhaust grievances, either
immediately after or in the days following the attack, he
could have exhausted his grievances “once he was able
to do so.” (ECF No. 43 at 2 PageID.272.) Defendants
point out that Coonrod did file a grievance, JCS
2016-03-0213-12D, which was received on March 22, 2016.
(See ECF No. 23-1 PageID.176.)
objection is OVERRULED. Defendants bear the burden of
establishing the affirmative defense of failure to exhaust
remedies. To the extent Defendants assert or otherwise rely
on Coonrod's failure to plead or explain why he did not
file a grievance, Defendants have not carried their burden.
Based on Coonrod's affidavit, the magistrate judge
concluded that a genuine issue of material fact remained.
That Coonrod was able to file a grievance concerning the
alleged refusal to provide treatment does not dispositively
resolve the question of whether he was able to file a
grievance concerning the problems that arose immediately and
in the days after the attack. Paragraph P (ECF No. 23-2
PageID.181), the grievance process portion of the MDOC Policy
Directive, requires prisoners to file grievance within a
certain time period. Coonrod's affidavit creates a
disputed fact whether he was able to file a grievance within
that window of time.
claim 4, the magistrate judge recommends granting
Defendants' motions. The magistrate judge concluded that
Coonrod had not exhausted his administrative remedies before
filing his complaint. The grievance was filed in March 2016.
This complaint was filed in April 2016. The grievance was
still pending when the complaint was filed.
concur with the recommendation. Coonrod objects. (ECF No.
46.) In a footnote, the magistrate judge applied the prison
mailbox rule and concluded Coonrod filed his complaint on
April 7, 2016, the day he signed the complaint. Coonrod
insists the complaint was delivered, by his wife, to the
Clerk's office on April 25. 2016. The Court notes that
the receipt for the $400 filing fee was made to Suzanne
Denise Coonrod. The Court also notes that, starting around
April 14, 2016, when the Clerk's office receives
documents by mail, the envelope is scanned and included as
part of the document loaded into the electronic docket. No
envelope is included in the document entry for the complaint
in this case. And the first page of the complaint
contains the Clerk's notation that it was received on
April 25, 2016, at 10:43 a.m.
objection is OVERRULED. Although Coonrod has established that
one of the factual conclusions in the R&R is erroneous,
the magistrate judge's recommendation remains legally
correct. Assuming that Coonrod's complaint was filed on
April 25, 2016, and not on April 7, 2016, Coonrod still filed
his complaint before exhausting his administrative remedies.
The grievance was still pending when the complaint was filed.
1. The Report and Recommendation (ECF No. 42) is ADOPTED as
the Opinion of this Court;
motion for summary judgment filed by Corizon Health, Tan,
Whiteman and Bomber (ECF No. 23) is GRANTED IN PART.
Coonrod's claim relating to the failure to authorize a
third eye surgery, as referenced in the grievance
(PageID.176) is dismissed, without prejudice, for failure to