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Doe v. Anderson

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

March 31, 2017

Doe, Plaintiff,
v.
Anderson et. al., Defendant.

          MONA K. MAJZOUB, MAGISTRATE JUDGE

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [29]

          Arthur J. Tarnow Senior United States District Judge

         Plaintiffs filed a complaint against Defendants on November 2, 2015 [1], alleging First Amendment retaliation under §1983. Plaintiff filed a second amended complaint on February 18, 2016 [22], adding facts and removing the Michigan Department of Corrections as a party. Defendants filed a Motion for Summary Judgment based on a failure to exhaust remedies was filed on March 8, 2016 [29]. Plaintiffs responded on March 29, 2016 [33] and Defendants replied on April 29, 0216 [40]. The Court held a hearing on the Motion on July 25, 2016. For the reasons stated below, this Motion is GRANTED in part and DENIED in part. Specifically, Motion is granted as with respect to all of John Doe 2 and John Doe 8's claims. Additionally, Defendants Hoogewind, McLeod, Rogers, Sherwood and Schooley are dismissed from the case because none of the claims against them were properly exhausted. Summary Judgment is denied for several of Plaintiff's claims as discussed below.

         Factual Background

         Plaintiffs, during the spring of 2013, were under the age of 18 and housed in adult prisons in Michigan. At this time, John Doe 1 participated in an inquiry conducted by the Inter-American Commission on Human Rights, which resulted in a hearing focused on the violations of the human rights of Michigan children incarcerated in adult prisons. Following the exposure of abuse by John Doe 1's testimony and associated written submission to the Inter-American Commission on Human Rights, Plaintiffs filed litigation on behalf of themselves, and as class representatives on behalf of children confined in adult prisons operated by the Michigan Department of Corrections (MDOC).

         Plaintiffs consist of nine John Does who allege retaliation resulting from their exposure of the abuse of youth housed in MDOC facilities by MDOC staff, or of abuse that MDOC staff facilitated or failed to intervene to prevent, through the testimony before the Inter-American Commission on Human Rights and in their civil rights litigation in Washtenaw Circuit Court and in Federal Court in the Eastern District of Michigan. Defendants consist of members of MDOC staff who are alleged to have engaged in various forms of retaliation against the Plaintiffs, including, inter alia, “prolonged isolation, destruction of legal and other property, denial of visits, false misconduct tickets, excessive and destructive room searches, verbal harassment and threats, excessive pat-downs, interference with attorney communications, knowingly placing Plaintiffs in situations likely to cause them harm, and intentional disclosure of Plaintiffs' identities within the prison system, making them more vulnerable to abuse.” [22 at ¶6].

         Each specific allegation of each Plaintiff and their grievance process will be discussed in detail below.

         Analysis

         1. Exhaustion in General

         Defendants allege that Plaintiffs have failed to exhaust available administrative remedies, as required by the Prison Litigation Reform Act (PLRA). Under the PLRA, prisoners filing claims in federal court concerning prison conditions must exhaust “all ‘available' remedies” before their claims may be heard. Porter v. Nussle, 534 U.S. 516, 524 (2002). For exhaustion to be proper, Plaintiffs must comply with an agency's procedural rules for grievances, with the boundaries of proper exhaustion being defined by the prison's requirements. See Woodford v. Ngo, 548 U.S. 81, 90 (2006); Jones v. Bock, 549 U.S. 199, 218 (2007). It falls to the District Courts, with some reasonable discretion, to determine if the “exhaustion requirement has been substantially met before proceeding to the merits of any prisoner claims.” Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999).

         When considering exhaustion, summary judgment is only appropriate if Defendant can “establish the absence of a ‘genuine dispute as to any material fact' regarding non-exhaustion, ” and the Court must look at the evidence “in the light most favorable to the party opposing the motion.” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011).

         2. MDOC Grievance Policy

         Per MDOC policy directive, when grieving “alleged violations of policy or procedure or unsatisfactory conditions of confinement which directly affect the grievant, ” a prisoner must follow these requirements:

(1) Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of the grievable issue. [29-3 at ¶P]
(2) If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with appropriate staff Id.
(3) Information provided [by the prisoner in the grievance form] is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of all those involved in the issue being grieved are to be included. [29-3 at ¶R].
(4) A grievant may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he did not receive a timely response. To file a Step II grievance, the grievant must request a Prisoner/Parolee Grievance Appeal (CSJ-247B) from the Step I Grievance Coordinator and send the completed form to the Step II Grievance Coordinator designated for the facility, field office, or other office being grieved within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶BB].
(5) A grievant may file a Step III grievance if s/he is dissatisfied with the Step II response or does not receive a timely response. To file a Step III grievance, the grievant must send a completed Step III grievance, using the Prisoner/Parolee Grievance Appeal form (CSJ-247B), to the Grievance and Appeals Section within ten business days after receiving the Step II response or, if no response was received, within ten business days after the date the response was due, including any extensions. [29-3 at ¶FF]
(6) The 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. [29-3 at ¶S].

         Additionally, if the conduct alleged includes staff sexual misconduct:

All grievances alleging such conduct [staff sexual misconduct], whether filed with the inspector or a CFA or FOA grievance coordinator, shall be referred to the Internal Affairs Division for review as set forth in PD 01.01.140 “Internal Affairs… if the grievance is determined to fall within the jurisdiction of the Internal Affairs Division; in such cases, an investigation shall be conducted in accordance with PD 01.01.140 and the grievant notified that an extension of time is therefore needed to respond to the grievance. The Manager of the Internal Affairs Division or designee also shall notify the Warden or FOA Deputy Director or designee, and the inspector or grievance coordinator as appropriate, if it is determined that the grievance is not within the jurisdiction of the Internal Affairs Division; in such cases, the grievance shall continue to be processed as a Step I grievance in accordance with this policy.

[29-3 at ¶Q].

         3. Plaintiff John Doe 1.

         a. Factual Allegations in the Complaint

         In the Second Amended Complaint filed on February 18, 2016 [22], John Doe 1 alleged the following:

         i. Bellamy Creek (IBC)[1] Defendant Coburn

         John Doe 1 (JD 1) alleges that, after testifying for the Inter-American Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons, Defendant Coburn performed the following retaliatory acts: (1) Coburn entered JD 1's cell on daily basis to look through JD 1's correspondence and legal property; (2) Coburn falsely announced over loudspeaker that JD 1 was HIV positive; (3) Coburn destroyed JD 1's property with co-Defendant Arp.

         Additionally, after JD 1 filed suit alleging violations of his rights arising from MDOC's and its officials' and employees' deliberate indifference to the safety of youth in their care and custody, Coburn (1) entered JD 1's cell and removed all of his legal materials; (2) along with co-Defendant Arp, Coburn targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, which exposed him as a person reporting sexual assaults by other prisoners and staff. [22 at ¶¶49-61].

         ii. IBC Defendant Arp

         JD 1 alleges that after testifying for the Inter-American Human Rights Commission on sexual abuse of juveniles in adult Michigan prisons, Defendant Arp, along with Defendant Coburn, destroyed JD 1's property.

         JD 1 alleges that, after he filed suit alleging violations of his rights resulting from MDOC's and its officials' and employees' deliberate indifference to the safety of youth in their care and custody, Arp (1) along with co-Defendant Coburn, targeted JD 1 for pat down searches and made open statements and comments identifying JD 1 as a Plaintiff the pending litigation, exposing him as a person reporting sexual assaults by other prisoners and staff; (2) approached JD 1 in the library and demanded that JD 1 handover a letter to his attorney. JD 1 was given a 15 day loss of privilege and was banned from the law library for 6 months when he refused to surrender the letter. JD 1 also lost recreation privileges, phone calls, and visits as further consequences. [22 at ¶¶49-61].

         iii. IBC Defendant Warden McKee

         JD 1 also alleges that Defendant Warden McKee “engaged in unlawful retaliation against [him].” [22 at ¶43]. However, there are no factual allegations detailing Warden McKee's actions in the amended complaint, and there is no evidentiary support for this claim. Accordingly, summary judgment is granted as to this claim for lack of the requisite exhaustion.

         b. Evidence Presented of Grievances and Exhaustion

         In his response, JD 1 identifies one specific grievance and supplies an affidavit stating why other grievances were not filed pertaining to his other allegations.

         i. IBC-1306-1534-17Z [29-E]- against Coburn and McKee

         Grievance IBC-1306-1534-17Z was filed on June 11, 2013 concerning the allegation that Coburn announced over the loudspeaker that JD 1 was HIV positive. The grievance alleges that, on May 28, 2013, Coburn “stated over the intercom for all of the unit to hear that I was HIV/AIDS positive and that I needed to start my treatment.” [29-6 at 737]. The grievance further states that “[JD 1] feel[s] like officer Coburn purposely put my life in jeopardy with defamation of character.” Id. This grievance was appealed through step III. [29-6 at 734].

         Defendants argue that this grievance was not properly exhausted, because it was filed before participation in litigation began, does not allege that Coburn acted in retaliation for JD 1's participation in the litigation, and there was therefore no fair notice of a First Amendment retaliation claim in that grievance. Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2004) (internal citations omitted).

         However, as JD 1 points out, the Amended Complaint contemplates the protected activity to include the time when JD 1 complained about sexual abuse, met with counsel, and testified before the Inter-American Commission regarding his abuse, and is thus not an issue to be decided in a motion alleging failure to exhaust.

         With respect to the argument that JD 1 failed to exhaust the grievance because its content failed to provide fair notice of the alleged misconduct that forms the basis of the constitutional claim, Plaintiff asserts that the standard applied to whether prisoners have described the alleged misconduct sufficiently in their grievances is “not a particularly strict” standard, and prisoners are not required to “allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory, ” and that instead only “fair notice [must be] given.” Bell, 450 F.3d at 654. This is consistent with the practice of liberally construing pro se prisoners' filings. Id. Other Courts have held that the term “retaliation” does not need to be included in a grievance in order to properly exhaust a claim for retaliation. See Jackson v. Huss, No. 1:14-CV-426, 2015 WL 5691026, at *7 (W.D. Mich. Sept. 28, 2015) (finding that the allegations that Defendant was “not treating [the prisoner] because of my complaints against the prison” was sufficient to put prison officials on notice that Plaintiff was asserting a retaliation claim).

         In the grievance at issue, JD 1 does not specifically use the word “retaliation” and does not include any allegations that even under a liberal pro se reading could be construed as retaliation. The claims relate to a defamation of character but at no point does the grievance even allude to a possible retaliation claim. Therefore, summary judgment is granted on this grievance against Coburn.

         JD 1 also alleges that McKee is an appropriate party to this retaliation claim in this grievance. McKee was the Warden who denied the grievance at all three steps, however he is not mentioned by name in the grievance, and there are no allegations in the amended complaint detailing the actions taken by the Warden that were retaliatory. Because Plaintiff has failed to show how the grievance is applicable to McKee, he was not fairly put him on notice for a retaliation claim. The mere denial of a grievance, without more, should not be sufficient to raise a retaliation claim, and this grievance is unexhausted as to Defendant McKee.

         ii. Affidavit- Evidence against Arp and Coburn

         As stated in JD 1's affidavit, following the filing of his first grievance against Coburn, JD 1 “began to experience an excessive number of retaliatory room searches and verbal harassment” and he reasonably concluded that filing any additional grievances challenging institutional staff for the continued retaliation would be futile and, render him a target for further harassment and threats, exposing him as a John Doe Plaintiff in this proceeding [29-7].

         The Sixth Circuit has “excused a prisoner's lack of complete compliance [with the grievance process] when the improper actions of prison officials render the administrative remedies functionally unavailable.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014), cert. granted sub nom. Simmons v. Himmelreich, 136 S.Ct. 445, 193 L.Ed.2d 346 (2015), and aff'd and remanded sub nom. Simmons v. Himmelreich, 136 S.Ct. 1843 (2016). To determine whether the process was functionally unavailable, the Court “must ask whether [the prison official's] threats and actions would ‘deter a person of ordinary firmness from [continuing with the grievance process].'” Id. (citations omitted).

         The last instance of alleged retaliation resulted in JD 1 being accused of being HIV positive, rendering him subject to the threats of multiple prisoners. Plaintiff not unreasonably feared further exposure as a John Doe Plaintiff resulting in still further harassment and threats. There is good reason why anonymity is critical in proceedings such as this. Identification as a John Doe Plaintiff would expose him as having reported physical abuse committed by prisoners and MDOC officials, as well as an individual who had been raped. It is a question of fact whether a person of ordinary firmness would not continue the grievance process to protect exposure of their identity. Therefore, the affirmative defense of failure to exhaust the claims of alleged retaliation by Arp and Coburn is rejected because questions of fact remain regarding a person of ordinary firmness would continue the grievance process or not.

         4. John Doe 2 [JD 2]

         a. Factual Allegations in the Complaint

         In the Second Amended Complaint, JD 2 alleged the following:

         i. Michigan Reformatory (RMI) Defendant Schooley

         JD 2 alleges that, after the filing of the lawsuit, Schooley confiscated JD 2's journal which detailed on going abuse and harassment, and delivered it to the Assistant Attorney General representing the MDOC in the lawsuit. [22 at ¶65].

         ii. RMI Defendants Rogers and Hoogewind

         JD 2 alleges that, after the filing of the lawsuit, Defendants Rogers and Hoogewind verbally assaulted him and made threats concerning his participation in the current litigation. Additionally, Rogers and Hoogewind are alleged to have publically disclosed JD 2's identity and his participation in litigation concerning ongoing sexual abuse of juveniles by prisoners and MDOC officers. When JD 2 complained that he was receiving threats from other prisoners because of disclosure of his identity, he was issued a false misconduct, and was subject to continued verbal harassment by Rogers and Hoogewind [22 at 66].

         iii. Ionia Correctional Facility (ICF) Defendants Sherwood, Martens and McLeod

         JD 2 was transferred to administrative segregation at ICF in March 2015. JD 2 alleges that Defendants Sherwood, Martens and McLeod harassed him as a result of his participation in the pending litigation, and mocked him for being sexually abused. [22 at ¶68]. These Defendants are also alleged to have performed several retaliatory acts, including issuance of false misconducts, placement of JD 2 on food loaf, performing excessive room searches resulting in destruction of JD 2's property, and reading JD 2's legal mail. [22 at ¶69]. JD 2 alleges that Sherwood refused to give him grievance forms for these actions, and told him to put it in his lawsuit. Id.

         b. Evidence Presented of Grievances and Exhaustion

         i. ICF Defendants: Grievances against Defendants Martens, McLeod, Sherwood and Stambaugh

         1. Exhibit 33-5A and 33-5B

         These exhibits contain the same handwritten grievance concerning the destruction of property and legal mail. However, retaliation is not mentioned, and the names of the named ICF Defendants are not stated. This grievance was rejected as excessively vague, resulting in a procedural default, so it cannot be considered properly exhausted under the PLRA and summary judgment is granted as to this grievance. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006).

         2. ICF-2015-10-1906-17i [33-5E]

         In this grievance, JD 2 requested protection from Miniard because he identified his as a JD. None of the named Defendants is mentioned in grievance. Per evidence provided by Defendant, the grievance resulted in JD 2 being placed in administrative segregation, and thus out of harm's way. JD 2 reportedly was advised that, when released to the general population, if he continued to feel there was a threat to his safety, he could once again request protection and another investigation would be conducted at that time. Therefore the grievance was resolved, and no named Defendants were placed on notice of any new or continuing grievance. Summary judgment is granted as to this grievance.

         3. ICF-2015-09-1617-03b [33-5E]

         JD 2 asserted a Grievance against Powell (not named as a Defendant herein) for his alleged failure to pick up JD 2's legal mail. The Response by the MDOC states that the grievance was resolved because video footage was reviewed that showed Powell making a legal mail run at ¶ 2's cell. JD 2 was advised of this and purportedly stated “ok, I will resolve the grievance.” The grievance appears to be resolved, and no named Defendants were placed on notice concerning the grievance. Summary judgment is granted as to this claim.

         i. RMI Defendants - Grievances against Defendants Rogers, Hoogewind and Schooley

         1. Exhibit 33-5F

         Plaintiff alleges that he filed a step III grievance for retaliation at RMI after his transferred to ICR, but that the grievance was returned to him. However, all that is provided concerning this particular grievance is a document requesting Plaintiff to provide a date for the incident, which does not support the allegation in the response or the allegations in the complaint. Therefore, this exhibit does not support exhaustion against the RMI Defendants and summary judgment is granted as to this claim.

         2. RMI-1505-10978-19D [40-3 at 16]

         JD 2 alleges that this complaint was a grievance against Hoodgewind and Rogers for destruction of property. However, the actual grievance named CO Greer as the person who packed the property, and the response stated that Officers Hoogewind and Burge worked the shift at issue in JD 2's complaint. While JD 2 failed to allege any wrongdoing on the part of Hoogewind, Rogers or Schooley in his grievance, their identification placed them on notice of the alleged retaliation claims. However, the grievance was resolved at step II and there was no appeal to step III and was, accordingly, subject to a procedural default. Therefore, this exhibit does not support exhaustion of the claim against the RMI Defendants and summary judgment be granted as to this grievance as well. Given that summary judgment has been granted as to all of JD 2's claims, JD 2 is dismissed from the case.

         5. John Doe 3 [JD 3]

         a. Factual Allegations in the Complaint

         In the Second Amended Complaint, JD 3 alleges the following:

         i. St. Louis Correctional Facility (SLF) Defendant Pennell

         JD 3 alleges that, following his entry into the litigation regarding the sexual abuse of juvenile prisoners in adult MDOC facilities, his cell was targeted for searches. After these searches were performed, JD 3 would return to a cell where his legal documents were spread out in the open and family photographs were discarded in the toilet. [22 at ¶76]. JD 3 was advised that Defendant Pennell had performed these searches. Id. JD 3 further alleges that Defendant Pennell publically identified him as a Plaintiff in the litigation, and commenced a pattern of harassment that included requiring him to submit to a shakedown every time he encountered Pennell, that excessive room searches were conducted during which Pennell once required JD 3 to be strip searched, and that JD 3's journal, which had been used to record notes concerning the pending litigation, was removed from his cell. [22 at ¶77].

         ii. IBC Defendant McKee

         JD 3 further alleges that, after his transfer from SLF to IBC, Defendant McKee authorized and directed that a sign to be posted outside his cell that read ‘do not interview.' [22 at 78]. This was understood by staff to identify JD 3 as a Plaintiff in the lawsuit, which is the alleged to have been subsequently disclosed to other prisoners. Id.

         iii. IBC Defendants Hall, Hammer and Stump

         Defendants Hall, Hammer and Stump are alleged to have taunted JD 3 concerning his participation in litigation, physically assaulting him on multiple occasions, and conducting excessive searches of his cell, ripping up his legal documents and destroying his property [22 at 79]. JD 3 alleges that, on October 10, 2015, after he submitted grievances concerning these occurrences, Defendants Hall, Hammer and Stump threatened to issue false misconducts for insolence. Id. JD 3 further alleges that, on October 21, 2015, he was ordered to ‘cuff up' and was placed in a closet while Defendant Stump searched his cell. [22 at 80]. When JD 3 was returned to the cell, Defendant Hammer falsely claimed that he found a weapon in Plaintiff's cell, resulting in the issuance of a misconduct charge and Plaintiff losing his programming and job, endangering his parole. Id.

         b. Evidence Presented of Grievances and Exhaustion

         i. IBC-1410-3045-17C [33-6B]- against ...


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