United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983 involving allegations of deliberate indifference
to serious medical needs under the Eighth Amendment.
Defendant Hardy filed a motion for summary judgment, arguing
that Plaintiff failed to exhaust his administrative remedies
as to Defendant Hardy (ECF No. 10). The matter was referred
to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending Defendant's motion
be granted (ECF No. 16). The matter is presently before the
Court on Plaintiffs objections to the Report and
Recommendation (ECF No. 17). In accordance with 28 U.S.C.
§ 636(b)(1) and FED. R. Civ. P. 72(b)(3), the Court has
performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made.
The Court denies the objections and issues this Opinion and
asserts three objections to the Report and Recommendation,
which are, in part, merely repeated arguments from his
response to the Motion for Summary Judgment (ECF No. 14).
First, Plaintiff argues that the Magistrate Judge erred in
finding that Plaintiff s first grievance failed to exhaust
his remedies with regard to Defendant Hardy (PI. Obj., ECF
No. 17 at PageID.101; R&R, ECF No. 16 at PageID.97). The
Court finds no factual or legal error that undermines the
Magistrate Judge's conclusion as to this objection.
February 18, 2016, Plaintiff filed Grievance
LCF-2016-02-0154-12F regarding an incident on February 16,
2016 and titled the grievance "Deliberate Indifference
To My Medication Needs By The Health Care Department"
(ECF No. 11-3 at PageID.65). Plaintiff claims this grievance
serves to exhaust his claims against Defendant Hardy.
However, as the Magistrate Judge noted, this grievance, for
the delay in receiving medication from February 10, 2016 to
February 16, 2016 (id\ predates the allegations as
to Defendant Hardy in Plaintiffs complaint (R&R, ECF No.
16 at PageID.93, 97). Plaintiffs complaint alleges "[h]e
was seen by Defendant Hardy, DDS on March 01, 2016, whereby
he underwent 'oral surgery' to extract a back
tooth" (ECF No. 1 at PageID.4). Plaintiffs complaint
asserts no allegations of treatment by Defendant Hardy prior
to March 1, 2016.
the Magistrate Judge noted that this grievance was not
asserted against Defendant Hardy (id at PageID.97).
Rather, the grievance alleges deliberate indifference due to
delay in Plaintiffs receipt of pain medication (ECF No. 11-3
at PageID.65). Plaintiffs complaint asserts no allegations
against Defendant Hardy for the February delay in pain
medication (ECF No. I). Plaintiff has failed to set forth any
argument that undermines the analysis and conclusion of the
Magistrate Judge, i.e., that this grievance failed to fully
exhaust any of Plaintiff s claims against Defendant
Hardy. This objection is denied.
second objection, Plaintiff argues that the Magistrate
Judge's determination that Plaintiffs claims have not
been exhausted is "contrary to the rulings by the Sixth
Circuit" (PI. Obj., ECF No. 17 at PageID.102). Plaintiff
asserts that "[a]ll three steps addressed the claims
embedded in the grievance process including the (6) day
delay' (id). Plaintiff cites Reed-Bey v.
Pramstaller, 603 F.3d 322 (6th Cir. 2010), and asserts
that the rejections of his grievances were merit based (ECF
No. 17 at PagelD. 102). However, as noted by the Magistrate
Judge, the second grievance, LCF-2016-03-0205-28e, was
clearly rejected as untimely (ECF No. 16 at PageID.98). This
constitutes a procedural bar by MDOC, not a merit based
rejection, as Plaintiff asserts.
properly exhaust administrative remedies prisoners must
'complete the administrative review process in accordance
with the applicable procedural rules'-rules that are
defined not by the PLRA, but by the prison grievance process
itself." Jones v. Bock, 549 U.S. 199, 218
(2007) (internal citation omitted); see also Burnett v.
Howard, No. 2:09-CV-37, 2010 WL 1286256, at *1 (W.D.
Mich. Mar. 30, 2010). "As long as the state clearly
rejects a grievance for a reason explicitly set forth in the
applicable grievance procedure, 'a subsequent § 1983
claim based on the grievance will be subject to dismissal for
failure to properly exhaust.'" Burnett,
2010 WL 1286256, at *1 (citation omitted). The Magistrate
Judge properly concluded that the denial of Plaintiff s
second grievance was procedural, not merit based. This
objection is denied.
third objection, Plaintiff argues that the Magistrate Judge
erred in finding that Plaintiff failed to exhaust his
administrative remedies as to Defendant Hardy because
"Plaintiff had no remedy after his first step grievance
was rejected as untimely" (PI. Obj., ECF No. 17 at
PageID.104; R&R, ECF No. 16 at PageID.98). As noted
above, the MDOC rejection of the grievance as untimely is a
valid basis for dismissal for failure to exhaust
administrative remedies. Plaintiff merely restates an
argument from his response to the Motion for Summary Judgment
(ECF No. 14) and fails to show error in the Magistrate
Judge's determination that Plaintiff failed to exhaust
his administrative remedies. This objection is denied.
the Magistrate Judge concluded that Plaintiff did not exhaust
his administrative remedies as to Defendant Hardy. Plaintiff
s Objections to the Report and Recommendation do not warrant
a conclusion to the contrary. Accordingly, this Court adopts
the Magistrate Judge's Report and Recommendation as the
Opinion of this Court. Because this action was filed in
forma pauperis, this Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that an appeal of this decision
would not be taken in good faith. See McGore v.
Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones, 549 U.S. at
206, 211-12. Therefore:
IS HEREBY ORDERED that the Objections (ECF No. 17)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 16) is APPROVED and ADOPTED as the
Opinion of the Court.
IS FURTHER ORDERED that the Motion for Summary
Judgment (ECF No. 10) is GRANTED.
IS FURTHER ORDERED that this Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this decision would not be taken in good faith.