United States District Court, E.D. Michigan, Southern Division
JOEY DEARDUFF, MOSSES KIRSCHKE, JAMES McRAE, ANTHONY RICHARDSON, BRYANT SLONE, DARRYL J. SMITH, TINA STOLL, and STANLEY WILLIAMS, Plaintiffs,
HEIDI WASHINGTON, Defendant.
K. Majzoub Magistrate Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY
J. MICHELSON U.S. DISTRICT JUDGE.
allege that the dental care provided by the Michigan
Department of Corrections is so deficient that their
incarceration amounts to cruel and unusual punishment
prohibited by the Eighth Amendment. For instance, Plaintiffs
challenge MDOC's written policy of denying inmates
routine dental care (a term defined by the policy) during
their first two years of incarceration. Plaintiffs also
allege that after completing two years of incarceration, and
thus eligible for routine dental care, they are placed on
long wait lists for dental treatment. And, say Plaintiffs,
MDOC has a policy or practice of not providing timely
periodontal diagnosis and treatment. Plaintiffs also say they
are not alone: they seek to represent several large classes
of prisoners in MDOC's custody (which, collectively,
encompass most or perhaps all of the Department's 43, 000
Heidi Washington, the Director of MDOC, has filed an
oddly-timed motion to dismiss or for summary judgment. (R.
177.) The motion only seeks partial dismissal, so even if
granted, the case will proceed. Further, Plaintiffs have not
even finalized their class claims (despite this Court's
repeated urging to do so) and, although the situation was
somewhat different when Washington filed her motion, the
parties are now in the midst of discovery related to class
certification. Further still, our District's local rules
contemplate that a party will usually file only one motion
for summary judgment. See E.D. Mich. LR 7.1(b)(2)
(“A party must obtain leave of court to file more than
one motion for summary judgment.”). As the motion has
not been withdrawn, the Court will decide it.
seeks dismissal of or judgment on all claims brought by James
Taylor, Jesse Knowlton, Khalil Kizy, Reginald Pea, and Bryan
Slone. (See R. 177.) She also seeks summary judgment
on all but one of Joey Dearduff's claims. Since the
motion was filed, the parties have agreed to dismiss Taylor,
Knowlton, Kizy, and Pea. (R. 183, 184, 207, 208.) Thus, what
remains of Washington's motion is her argument that Slone
did not exhaust administrative remedies for any of his claims
before filing suit and that Dearduff only exhausted
administrative remedies as to one of his claims before filing
suit. (See R. 177, PID 4967, 4969, 4976-77.)
the Prison Litigation Reform Act, a prisoner cannot bring a
claim to federal court “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a); see also Mattox v. Edelman, 851
F.3d 583, 590 (6th Cir. 2017). To exhaust available remedies
for a claim, a prisoner must complete the grievance process
set by the Michigan Department of Corrections before filing
the claim in court. See Jones v. Bock, 549 U.S. 199,
218 (2007); Mattox, 851 F.3d at 590. This
(typically) means obtaining a decision at “Step III,
” the third and last step of MDOC's grievance
process. (See R. 177, PID 4996.) The failure to
exhaust is an affirmative defense, so, on summary judgment,
Washington must convince the Court that, even accepting
Dearduff and Slone's version of the facts, no reasonable
jury could find that they exhausted their administrative
remedies. See Surles v. Andison, 678 F.3d 452, 455
(6th Cir. 2012).
Court starts with Washington's claim that Dearduff failed
to exhaust, then turns to her like claim as to Slone. As will
be explained, some of Dearduff's and Slone's claims
will be dismissed as unexhausted but others will remain in
defendant asserts that a plaintiff has not exhausted his
administrative remedies for the claims he has brought to
court, identifying those claims is a good place to start.
Washington believes that Dearduff has asserted three claims
in this case: that, in violation of the Eighth Amendment,
MDOC denied him (1) dental care based on the two-year rule,
(2) partial dentures (both during and after the two-year
period), and (3) adequate periodontal treatment.
(See R. 177, PID 4969.) The Court proceeds-for the
moment-on the assumption that Dearduff has only brought these
three claims to court.
says Dearduff has only exhausted remedies for one of these
three claims: the claim that he was wrongly denied partial
dentures. (R. 177, PID 4969.) According to her,
“Dearduff did not file a grievance regarding either his
claim of denial of care during the two-year waiting period
or his claim of lack of treatment for periodontal
disease.” (R. 177, PID 4977.)
the latter assertion, Dearduff concedes that he did not file
a grievance regarding the lack of periodontal treatment. (R.
182, PID 5180.) But, Dearduff argues, he was “not able
to exhaust [his] administrative remedies due to
Defendant's deliberate actions to hinder and misinform
[him] as to [his] dental conditions.” (R. 182, PID
5170.) In support of this argument, Dearduff submits his own
affidavit. (R. 182, PID 5180.) There, he avers that he was
only “recently” informed that, at his intake
exam, he had been diagnosed with periodontal disease. (R.
182, PID 5180.) Dearduff adds: “if I had been informed
of the periodontal disease and failure to treat, I would have
filed a grievance.” (R. 182, PID 5181.)
not clear how Dearduff's argument works. If his point is
that MDOC personnel concealed the diagnosis until it was too
late for him to comply with the grievance process, it does
not account for the fact that MDOC's grievance policy
directive permits a prisoner to file a grievance after he
learns of the wrong: “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 a grievable issue, unless
prevented by circumstances beyond his/her control or if the
issue falls within the jurisdiction of the Internal Affairs
Division in Operations Support Administration.” (R.
177, PID 4993 (emphasis added).)
perhaps Dearduff's point is that the wrong has been
concealed so long, there are now no longer any administrative
remedies “available” for him to exhaust.
See 42 U.S.C. § 1997e(a). But he has not
developed that line of argument and there is an obvious
rebuttal: he can grieve to get treatment for his periodontal
disease. Cf. White v. Bukowski, 800 F.3d 392, 395
(7th Cir. 2015) (indicating, where baby's birth was first
indication to detainee that she had been given inadequate
medical care during her pregnancy, but jail could not provide
compensation for the baby's birth defects, that there
were no “available” administrative remedies to
exhaust). Indeed, Dearduff seeks no damages in this lawsuit,
only for better dental care in the future.
Dearduff's point is simply that he could not file a
grievance before filing this lawsuit because he did not learn
of his periodontal disease until after he became a plaintiff
in this case. But Dearduff did not become a plaintiff in this
suit until the filing of the Third Amended Complaint. And in
that complaint, Plaintiffs plead, “at the initial
dental examination, Dearduff was diagnosed with ‘early
moderate periodontal disease' but was denied treatment
until 12/10/15.” (R. 168, PID 4829.) Thus, Dearduff
knew of his periodontal disease before Plaintiffs filed the
Third Amended Complaint. Otherwise, what “evidentiary
support” or “likely” evidentiary support
did he have to make this allegation? See Fed. R.
Civ. P. ...