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Jones v. Brinkley

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

March 31, 2017

JESSIE E. JONES, # 260563, Plaintiff,
v.
WENDY BRINKLEY, et al., Defendants.

          MEMORANDUM OPINION

          Honorable Paul L. Maloney, Judge

         This is a civil rights action brought pro se by a state prisoner under 42 U.S.C. § 1983.[1] Plaintiff is an inmate held in the custody of the Michigan Department of Corrections (MDOC) at the Central Michigan Correctional Facility. (ECF No. 31). Plaintiff filed his complaint on September 29, 2014. His complaint arises out of conditions of his confinement in 2013 and 2014 at the Oaks Correctional Facility (ECF). The defendants are Assistant Resident Unit Supervisor (ARUS) Wendy Brinkley, Corrections Officers Steven Hulet, Robert Zwiefka, Michael Shelley, Timothy Sutter, Grievance Coordinator Todd Bassett (collectively referred to herein as the MDOC defendants), and Aramark Food Supervisors Stephanie Torras and Joanne French.

         Plaintiff alleges that defendants Hulet, Zwiefka, Brinkley, Bassett, French and Torras violated his Eighth Amendment rights under the Cruel and Unusual Punishments Clause by their failure to protect plaintiff. Plaintiff alleges that on some unspecified date after October 2013, an unidentified prisoner punched him in the face. This individual purportedly told plaintiff that “Brinkley, Hulet, Bassett [and] Zwiefka, said that [plaintiff] was a rat.” (Compl. ¶ IV, ECF No. 1, PageID.4-5, 8). Plaintiff alleges that Torras and French told members of Torras's “gang” that plaintiff was “gay and a rat, ” and that as a result of these statements prison gang members have threatened to rape and kill plaintiff. (Id. at PageID.7-8).

         Plaintiff alleges that defendants Brinkley, Hulet, Zwiefka, Torras, Bassett, Shelley, Sutter, and French “retaliated” against him in violation of his First Amendment rights.[2]

         Defendant Hulet allegedly retaliated against plaintiff for filing of Grievance No. 13-11-2737-03H by confiscating a Pocket Guide for Prisoner Rule Violations, ten legal books, and trial transcripts, gave plaintiff a class 2 misconduct charge for possession of stolen property, and stated in front of other prisoners that plaintiff was a rat for filing Grievance No. 13-11-2737-03H. (Compl. at ¶ IV, PageID.4).

         Defendant Zwiefka allegedly retaliated against plaintiff for filing Grievance No. 13-11-2797-03H, by confiscating items of clothing, stealing plaintiff's belt, and stating to other prisoners that plaintiff was a rat for filing Grievance No. 13-11-2797-03H. (Compl. at ¶ IV, PageID.4).

         Defendant Bassett allegedly retaliated against plaintiff for filing Grievance No. 13-11-2796-19Z by writing a class 2 misconduct report and by stating to other prisoners that plaintiff was a rat for filing Grievance No. 13-11-2796-19Z. (Compl. at ¶ IV, PageID.5).

         Defendant Brinkley allegedly retaliated against plaintiff for Grievance No. 13-11-2796-19Z and a hearing officer's decision by disposing of plaintiff's property and by telling other prisoners that plaintiff was a rat for filing Grievance No. 13-11-2796-19Z. (Compl. at ¶ IV, PageID.5).

         Defendant Sutter allegedly retaliated against plaintiff for Grievance No. 14-03-953-15B by making “mendacious statements” which helped support a finding that plaintiff was guilty of misconduct and concluded in the termination of plaintiff's work assignment. (Compl. at ¶ IV, PageID.5).

         Defendant Shelley allegedly retaliated against plaintiff for Grievance No. 14-03-953-15B by finding plaintiff guilty of a misconduct charge and sentencing plaintiff to a loss of privileges for ten days. Plaintiff states that he prevailed on his appeal of this misconduct conviction. (Compl. at ¶ IV, PageID.6). He alleges that Shelley conducted another hearing, found him guilty, sentenced him to loss of privileges for fifteen days, and that decision was overturned on appeal. (Id.).

         Plaintiff's retaliation claims against the Aramark employees are not based on any purported resort to the MDOC's grievance process. Instead, plaintiff claims that he filed a sexual harassment complaint against Ms. Torras which he believes resulted in her changing his work assignment and his being denied a pay increase. (Compl. at ¶ IV, PageID.6). “In reprisal defendant flashed her prison gang tattoo and told her prison gang members that plaintiff is a rat and to kill him.” (Id. at PageID.7). Plaintiff alleges that he made a second complaint regarding Ms. Torras with Ms. French and that they wrote a mendacious misconduct report which resulted in plaintiff being terminated from his work assignment and told members of Torras's gang that plaintiff was gay and a rat. (Id.).

         Plaintiff sues defendants in their individual and official capacities and seeks damages. (Id. at ¶ III, PageID.2 and ¶ V, PageID.9-10).

         The matter is before the Court on a motion for partial summary judgment by defendants Brinkley, Bassett, Shelley, and Sutter[3] (ECF No. 18) and a motion for summary judgment by defendants Torras and French (ECF No. 22). Defendants' motions are based on the affirmative defense provided by 42 U.S.C. § 1997e(a). Plaintiff opposes defendants' motions. (ECF No. 21, 23, 25). For the reasons set forth herein, all plaintiff's claims against defendants Brinkley, Hulet, Zwiefka, Bassett, Shelley, and Sutter in their official capacities will be dismissed with prejudice because they are barred by Eleventh Amendment immunity. The motion for partial summary judgment by defendants Brinkley, Bassett, Shelley, and Sutter (ECF No. 18) on plaintiff's claims for damages against them in their individual capacities based on the affirmative defense provided by 42 U.S.C. § 1997e(a) will be granted in part and denied in part. All claims dismissed pursuant to the affirmative defense of lack of exhaustion will be dismissed without prejudice. The motion will be granted as to all plaintiff's claims against defendant Bassett and all plaintiff's claims against defendant Brinkley other than his claim that defendant Brinkley retaliated against him for a hearing officer's decision by depriving him of a personal copy of the Pocket Guide to Prisoner Rule Violations. Although that claim is exhausted, it is not a claim of constitutional dimension. The one claim against defendant Brinkley that is not being dismissed for lack of exhaustion will be dismissed for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). The motion will be denied as to plaintiff's retaliation claims defendants Shelley and Sutter because the defendants did not carry their burden on the affirmative defense. The motion for summary judgment by defendants Torras and French (ECF No. 22) will be granted and all plaintiff's claims against those defendants will be dismissed without prejudice.

         Applicable Standards

         A. Summary Judgment Standard

         Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). The standard for determining whether summary judgment is appropriate is “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.' ” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The Court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th Cir. 2016).

         When the party without the burden of proof seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials “negating” the opponent's claim. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once the movant shows that “there is an absence of evidence to support the nonmoving party's case, ” the nonmoving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations of his pleadings. See Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012); see also Scadden v. Warner, No. 16-1876, __ F. App'x __, 2017 WL 384874, at * 4 (6th Cir. Jan. 27, 2017). The motion for summary judgment forces the nonmoving party to present evidence sufficient to create a genuine issue of fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A mere scintilla of evidence is insufficient; ‘there must be evidence on which a jury could reasonably find for the [non-movant].' ” Dominguez v. Correctional Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see Brown v. Battle Creek Police Dep't, 844 F.3d 556, 565 (6th Cir. 2016).

         A moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). The moving party without the burden of proof needs only show that the opponent cannot sustain his burden at trial. “But 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.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (citation and quotation omitted). The Court of Appeals has repeatedly emphasized that the party with the burden of proof faces “a substantially higher hurdle” and “ ‘must show that 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 (quoting 11 James William Moore, et al., Moore's Federal Practice § 56.13[1], at 56-138 (3d ed. 2000)); see Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012); Cockrel, 270 F.2d at 1056. 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).

         B. Standards Applicable to the Affirmative Defense of Failure to Exhaust Remedies

         Defendants Brinkley, Bassett, Shelley, Sutter, Torras, and French have asserted the affirmative defense of plaintiff's failure to exhaust administrative remedies. A prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. 42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 734. “This requirement is a strong one. To further the purposes behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not available, even when the state cannot grant the particular relief requested, and even where the prisoner[ ] believes the procedure to be ineffectual or futile.” Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011) (internal quotations and citations omitted).

         In Jones v. Bock, the Supreme Court held that “exhaustion is an affirmative defense, and prisoners are not required to specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216. The burden is on defendant to show that plaintiff failed to properly exhaust his administrative remedies. The Supreme Court reiterated that “no unexhausted claim may be considered.” 549 U.S. at 220. The Court held that when a prisoner complaint contains both exhausted and unexhausted claims, the lower courts should not dismiss the entire “mixed” complaint, but are required to dismiss the unexhausted claims and proceed to address only the exhausted claims. 549 U.S. at 219-24.

         In order to exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Jones v. Bock, 549 U.S. at 218-19. In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA exhaustion requirement “requires proper exhaustion.” 548 U.S. at 93. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009). Thus, when a prisoner's grievance is rejected by the prison as untimely because it was not filed within the prescribed period, the prisoner's claim is not “properly exhausted” for purposes of filing a section 1983 action in federal court. 548 U.S. at 90-93; Siggers v. ...


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