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Dearduff v. Washington

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

September 12, 2017

JOEY DEARDUFF, MOSSES KIRSCHKE, JAMES McRAE, ANTHONY RICHARDSON, BRYANT SLONE, DARRYL J. SMITH, TINA STOLL, and STANLEY WILLIAMS, Plaintiffs,
v.
HEIDI WASHINGTON, Defendant.

          Mona K. Majzoub Magistrate Judge.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT [177]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE.

         Plaintiffs 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 inmates).

         Defendant 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 As the motion has not been withdrawn, the Court will decide it.

         Washington 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.)

         Under 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).

         The 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 the case.

         I.

         When a 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.

         Washington 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.)

         As to 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.)

         It is 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).)

         Or 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.

         Maybe 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. ...


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