United States District Court, W.D. Michigan, Southern Division
CARLOS J. HERNANDEZ, Petitioner,
WILLIE SMITH, et al., Respondent.
ORDER REJECTING REPORT AND RECOMMENDATION
J. QUIST, UNITED STATES DISTRICT JUDGE.
Carlos Hernandez, has filed Objections, (ECF No. 61), to
Magistrate Judge Ray Kent's October 31, 2017, Report and
Recommendation (R & R). (ECF No. 56.) In the R & R,
the magistrate judge recommends that the Court grant
Defendants' motion for summary judgment for failure to
exhaust and dismiss Defendants Watkins, Wilkinson,
Hengesbach, Ybarra, and Howard; dismiss Hernandez's
retaliation claims against all Defendants; and allow
Hernandez's excessive force claims against Defendants
Smith, Christiansen, Schiebner, Greenfield, Jaramillo,
Andrews, and Scott to proceed.
to 28 U.S.C. § 636(b)(1), upon receiving objections to a
report and recommendation, the district judge “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R and Hernandez's Objection, the Court
will reject the R & R and deny Defendants' summary
facts are largely undisputed and are adequately summarized in
the R & R. The magistrate judge recommends dismissing the
claims against Defendants Ybarra, Hengesbach, Wilkinson, and
Watkins because Hernandez failed to exhaust his
administrative remedies, per the Prisoner Litigation Reform
Act, 42 U.S.C. § 1983, in that he failed to name those
Defendants in Grievance 1363. The magistrate judge recommends
limiting claims under Grievance 1363 to excessive force
claims related to the use of a chemical agent because
Hernandez did not raise the subsequent events, i.e.,
throwing him into the shower, pulling him out, and refusing
to clean the chemical agent from his cell, in the grievance.
The magistrate judge recommends dismissing Hernandez's
retaliation claims because Grievance 1491 did not comply with
Policy Directive 03.02.130.
Policy Directive 03.02.130 requires that a prisoner
specifically “name all those involved in the
issue being aggrieved” when the prisoner files a
grievance. See, e.g., Hall v. Warren, 443
F. App'x 99, 106 (6th Cir. 2011) (emphasis in original);
Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir.
2010). The Sixth Circuit created an exception to this
requirement so that “if the prison considers a
grievance on the merits, this allows a federal court to
consider the grievance's merits-‘even when a
procedural default might otherwise have resolved the
claim.'” Cook v. Caruso, 531 F. App'x
554, 562-63 (6th Cir. 2013) (quoting and interpreting
Reed-Bey, 603 F.3d at 325).
have [also] refused to rigidly enforce this requirement [of
naming all those involved], however, where an inmate is
unaware of an individual's involvement at the time a
grievance is filed.” Martin v. MacLaren, No.
2:14-CV-208, 2015 WL 4928937, at *2 (W.D. Mich. Aug. 13,
2015) (citing Contor v. Caruso, No. 1:07-CV-303,
2008 WL 878665, at *7 (W.D. Mich. Mar.28, 2008)); see
also, Hodges v. Corizon, No. 14-11837, 2015 WL
1511153, at *11 (E.D. Mich. Mar. 30, 2015) (citing
Contor favorably). “[P]risoners may not be
able to learn the names of all persons involved in a
situation given prisoners' limited access to information
and the short time within which they must file a Step I
grievance.” Contor, 2008 WL 878665, at *3.
failed to name Defendants Ybarra, Hengesbach, Wilkinson, and
Watkins in his original grievance, instead listing
“John Doe # 1-5, ” stating that the John Does
would be “used as place holders until their names can
be obtained through the discovery process.” (ECF No.
34-3 at PageID.163.) The R & R concluded that
Plaintiff's failure to specifically name those involved
in the grievance amounted to a failure to exhaust his
administrative remedies against these Defendants. The Court
disagrees. As an initial matter, Hernandez qualifies for the
Reed-Bey exception because the prison did consider
the merits of his grievance without objecting to the use of
his John Doe placeholders. (ECF No. 34-3 at PageID.160, 162,
164.) Therefore, the Court can likewise consider the merits
of his claim against these Defendants.
Hernandez was unaware of the respective Defendants' names
at the time he filed his grievance, and he made that clear
from the time he first filed. He has further supported this
claim in an affidavit attached to his objection to the R
& R. (ECF No. 61-1 at PageID.362.) Similar to the
prisoner in Contor, Hernandez made clear that he
would seek to uncover the respective Defendants' names,
and his lack of knowledge of their names is understandable
given his possible “limited access to information and
the short time within which [he had to] file a Step I
grievance.” Contor, 2008 WL 878665, at *3.
Accordingly, the magistrate judge's recommendation that
Defendants Ybarra, Hengesbach, Wilkinson, and Watkins be
dismissed will be rejected.
magistrate judge recommended dismissing Hernandez'
allegations that Defendants “threw him into the shower,
pulled him out of the shower, and refused to clean the
chemical agent from his cell, ” because Grievance 1363
exhausted only his claim of excessive force via the chemical
agent. (ECF No. 56 at PageID.303.) The facts that Hernandez
alleges, e.g., bringing him to the shower and
refusing to clean the chemical agent, derive from and are
closely related to the same event-i.e., the use of a
chemical agent in his cell. Accordingly, the magistrate
judge's recommendation that Hernandez's claim be
limited to the act of spraying the chemical agent will be
magistrate judge recommended dismissing Hernandez's
retaliation claims because Grievance 1491 did not meet MDOC
Policy 03.02.130. In particular, the prison rejected the
claim at Step I of the grievance procedure because the
grievance, in the prison's view, was challenging
decisions made in a misconduct hearing. (ECF No. 34-3 at
PageID.158-59.) It is clear from Hernandez's Step I
grievance that he was challenging retaliatory conduct in the
form of a “fabricated misconduct, ” as opposed to
an actual result of the misconduct hearing, a fact Hernandez
emphasized in his Step II appeal. (ECF No. 34-3 at
PageID.156, 158.) Accordingly, the magistrate judge's
recommendation to dismiss Hernandez's retaliation claims
will be rejected.
the R & R's findings that Hernandez did not exhaust
his administrative remedies and its recommendations that
Defendants' motion for summary judgment be granted will
IT IS SO ORDERED that Plaintiff's
objections (ECF No. 61) are sustained.
IS FURTHER ORDERED that the magistrate judge's R
& R (ECF No. 56) is rejected.
IS FURTHER ORDERED that Defendants' Motion for