United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
L. MALONEY, UNITED STATES DISTRICT JUDGE
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. On August 16, 2017, United States
Magistrate Judge Phillip J. Green issued a Report &
Recommendation (“R&R”) recommending that the
Court grant Defendants Stoddard, Young, Ball, Allen, Roberts,
and Foldie's motion for summary judgment based on
Plaintiff's failure to properly exhaust his
administrative remedies and dismiss Plaintiff's remaining
claims against Defendants who have not yet been served. (ECF
No. 43; R&R, ECF No. 62.) The matter is before the Court
on Plaintiff's objections to the R&R. (ECF No. 63.)
Court is required to make a de novo determination of those
portions of the R&R to which specific objections have
been 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). “[A]
general objection to a magistrate's report, which fails
to specify the issues of contention, does not satisfy the
requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those
issues that are dispositive and contentious.”
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Court thus reviews the Magistrate's recommendation that
summary judgment be granted de novo. Summary judgment is
appropriate if the moving party establishes that there is no
genuine issue of material fact for trial and that he is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). If the movant
carries the burden of showing that there is an absence of
evidence to support a claim, then the party opposing the
motion must demonstrate by affidavits, depositions, answers
to interrogatories, and admissions on file, that there is a
genuine issue of material fact. Id. at 324-25. The
non-moving party cannot rest on his pleadings; he must
present “specific facts showing that there is a genuine
issue for trial.” Id. at 324 (citing
Fed.R.Civ.P. 56(e)). The evidence must be viewed in the light
most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Ultimately, the Court must determine whether there is
sufficient evidence on which the jury could reasonably find
for Plaintiff. Id. at 252.
liberally construing Plaintiff's complaint, Erickson
v. Pardus, 551 U.S. 89, 94 (2007), it appears that he is
challenging the Magistrate's recommendation for summary
judgment on the basis that he “could not reasonably be
expected to exhaust his administrative remedies” when
Defendant Stoddard noted an incorrect date on his Step Two
grievance and Grievance Coordinator Heffelbower withheld his
grievance from the time it was filed in September until it
was recorded on January 11, 2013. (ECF No. 63 at PageID.
Defendant Stoddard's alleged mistake in the Step Two
grievance response is irrelevant because whether the
grievance was filed on January 11th or January 28th, it was
untimely. Her response to Plaintiff's grievance read
“Your grievance was filed untimely as you state the
date of the incident was 8/2/12 and you did not file a
grievance until 1/28/13.” (ECF No. 63-1 at PageID.404.)
The grievance was actually received by the grievance
coordinator on January 11, 2013. (Id. at
PageID.403.) Stoddard then continued, noting that
“[t]here is no record of the grievance office receiving
a grievance about prisoners [sic] concern. To inquire about a
grievance for the first time 5 months later is considered
untimely by policy . . . .” (ECF No. 44-3 at PageID.
299-300.) Therefore, even if Defendant Stoddard was mistaken
when she said that the grievance was filed on January 28th,
it would not have prevented Plaintiff from exercising his
administrative remedies-it was untimely either on January
11th or January 28th.
this, Plaintiff argues that a grievance is considered
“filed” when it is mailed, and that he mailed the
grievance on August 4, 2012. See Michigan Dep't of
Corrections, Policy Directives 03.02.130 §
S. In support of his factual assertion that he filed his
grievance on August 4, and that the grievance was either lost
or withheld by the prison officials until January 11, he has
attached a kite that he purportedly wrote to the prison
grievance coordinator on August 19, 2012 to ask about the
grievance's status. (ECF No. 63-3.) If the kite is
genuine, it directly contradicts Defendant Stoddard's
written statement that Plaintiff inquired about the grievance
for the first time five months after it was supposed to be
filed, and it supports his allegation that he filed on August
the Court finds it extraordinarily curious that this evidence
that directly contradicts the Defendants' claim was not
included in Plaintiff's voluminous filings supporting his
brief in opposition to the motion for summary judgment or
produced at any point in the administrative process when
prison officials noted that his grievance was untimely. The
kite shows no markings or any sign that it was ever actually
given to the grievance office. The grievance office indicates
that they have no record of ever receiving any inquiry about
the alleged August 4, 2012 grievance. (ECF No. 44-3 at
PageID. 299-300.) A district court has discretion to consider
evidence first presented after the magistrate has filed a
report, provided that the evidence is furnished by the time
objections to the report are due. Muhammad v. Close,
798 F.Supp.2d 869 (E.D. Mich. 2011). Consideration of such
evidence is not mandatory. Id. Here, given the lack
of corroboration that the kite is authentic, and
Plaintiff's failure to submit the kite in his brief in
opposition to the motion for summary judgment, the court will
decline to consider Exhibit 1.
also attached his sworn affidavit to his objections. (ECF No.
66-2.) There, he again asserts that he filed his Step 1
grievance on August 4, 2012. (Id. at PageID.412.)
However, he does not include more than a bare assertion that
he did so; he includes no other facts that would support his
assertion that either the facility mailroom or grievance
coordinator delayed processing the grievance.
document offered by the Plaintiff creates a genuine dispute
as to the date he filed the grievance. As noted, Exhibit 1 is
of dubious authenticity. Plaintiff's affidavit is
self-serving, and does not allege any credible facts that
would bolster his claim that the grievance was mailed on
August 4th, but withheld from, or ignored by, the grievance
coordinator until January 11, 2013.
Plaintiff has not presented specific facts showing that a
genuine dispute exists as to whether he failed to
properly exhaust his administrative remedies as required by
42 U.S.C. § 1997e(a). “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules.” Woodford v. Ngo, 548 U.S.
81, 90. Here, Plaintiff's grievance was rejected at all
three administrative stages because it was untimely. Further,
his argument that administrative remedies were not available
must fail because it is unsupported by anything other than
the Plaintiff's own self-serving affidavit and a kite of
dubious authenticity, never before produced at any stage of
the administrative process or this litigation. Plaintiff has
not identified the staff member that he allegedly gave his
Step I grievance to, and he has not identified anything more
than a conspiracy to withhold his grievance to explain why it
was not recorded by the grievance coordinator until January
11, 2013. Accordingly, the Court finds that Plaintiff has
shown that a material dispute exists as to whether he
properly exhausted his claim for purposes of filing a §
1983 action in federal court. See Siggers v.
Campbell, 652 F.3d 681, 692 (6th Cir. 2011); Doss v.
Mackie, 2017 WL 924363 at *4 (W.D. Mich. Feb. 13, 2017).
regard to the sections of the R&R not specifically
objected to, the Court has reviewed the matters and concludes
that the R&R correctly analyzes the issues and makes a
sound recommendation. Accordingly, IT IS
ORDERED that the August 16, 2017 R&R (ECF No.
62) is APPROVED and ADOPTED
as the opinion of the Court.
IS FURTHER ORDERED that Plaintiff's objections
to the R&R (ECF No. 63) are OVERRULED.
IS FURTHER ORDERED that Defendants' motion for