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Moses v. Finco

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

January 2, 2018

JAMERO MOSES #231885 WILLIAM JOHNSON #235820 LAMONT HEARD #252329, Plaintiffs,
v.
THOMAS FINCO, et al., Defendants.

          Hon. Paul L. Maloney

          REPORT AND RECOMMENDATION

          ELLEN S. CARMODY, U.S. MAGISTRATE JUDGE.

         This matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 43). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Defendant's motion be granted in part and denied in part.

         BACKGROUND

         This action was initiated by ten (10) prisoners against the following Michigan Department of Corrections (MDOC) employees: (1) Thomas Finco, MDOC Deputy Director; (2) David Leach, Special Activities Coordinator; and (3) Michael Martin, Dietician. (ECF No. 8). Seven (7) of the plaintiffs were subsequently dismissed from this action. The three remaining plaintiffs are: (1) Jamero Moses; (2) William Johnson; and (3) Lamont Heard. (ECF No. 40). Plaintiffs Moses, Johnson, and Heard allege that they have been approved to participate in the MDOC's religious vegan meal, but that such does not meet their religious needs. Plaintiffs assert that Defendants denied their requests to receive a special alternative menu. Plaintiffs also assert that Defendants denied their requests to receive certain religious literature. Defendants Finco, Leach, and Martin now move for summary judgment on the ground that Plaintiffs have failed to properly exhaust their administrative remedies.

         SUMMARY JUDGMENT STANDARD

         Summary judgment “shall" be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party moving for summary judgment can satisfy its burden by demonstrating “that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case." Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once the moving party demonstrates that “there is an absence of evidence to support the nonmoving party's case, " the non-moving party “must identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial." Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006).

         While the Court must view the evidence in the light most favorable to the non-moving party, the party opposing the summary judgment motion “must do more than simply show that there is some metaphysical doubt as to the material facts." Amini, 440 F.3d at 357. The existence of a mere “scintilla of evidence" in support of the non-moving party's position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir. 2005). The non-moving party “may not rest upon [his] mere allegations, " but must instead present “significant probative evidence" establishing that “there is a genuine issue for trial." Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir. 2006).

         Moreover, the non-moving party cannot defeat a properly supported motion for summary judgment by “simply arguing that it relies solely or in part upon credibility determinations." Fogerty v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather, the non-moving party “must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and. . .may not merely recite the incantation, 'Credibility, ' and have a trial on the hope that a jury may disbelieve factually uncontested proof." Id. at 353-54. In sum, summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Daniels, 396 F.3d at 735.

         While a moving party without the burden of proof need only show that the opponent cannot sustain his burden at trial, a moving party with the burden of proof faces a “substantially higher hurdle." Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). Where the moving party has the burden, “his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). The Sixth Circuit has emphasized that the party with the burden of proof "must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it." Arnett, 281 F.3d at 561. Accordingly, summary judgment in favor of the party with the burden of persuasion "is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

         ANALYSIS

         I. Exhaustion

         Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust all available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Prisoners are no longer required to demonstrate exhaustion in their complaints. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, failure to exhaust administrative remedies is "an affirmative defense under the PLRA" which the defendant bears the burden of establishing. Id. With respect to what constitutes proper exhaustion, the Supreme Court has stated that "the PLRA exhaustion requirement requires proper exhaustion" defined as "compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). In Bock, the Court reiterated that

Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to 'properly exhaust.' The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.

Bock, 549 U.S. at 218.

         Michigan Department of Corrections Policy Directive 03.02.130 articulates the applicable grievance procedures for prisoners in MDOC custody. Prior to submitting a grievance, a prisoner is required to "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." Mich. Dep't of Corr. Policy Directive 03.02.130 ¶ P. If this attempt is unsuccessful (or such is inapplicable), the prisoner may submit a Step I grievance. Id. The Step I grievance must be submitted within five business days after attempting to resolve the matter with staff. Id. at ¶ V. The issues asserted in a grievance “should be stated briefly but concisely” and the “[d]ates, times, places, and names of all those involved in the issue being grieved are to be included.” Id. at ¶ R.

         If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II within ten business days of the response, or if no response was received, within ten business days after the response was due. Id. at ¶ BB. If the prisoner is dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal the matter to Step III. Id. at ¶ FF. The Step III grievance must be submitted within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id.

         A. Plaintiff Heard

         With respect to Plaintiff Heard's claims, Defendants have submitted the following evidence regarding grievances that Plaintiff submitted during the relevant time period.[1]

         I. Grievance KCF-16-01-0095-27a

         Plaintiff initiated this grievance on January 14, 2016, alleging that mail room staff were not properly processing his legal mail. (ECF No. 44-3 at PageID.325). This grievance does not concern any of Plaintiff's claims in this matter.

         II. Grievance URF-15-04-0992-20c

         Plaintiff filed this grievance on April 12, 2015, alleging that the Director, Deputy Director and CFA Special Activities Director placed on the "Restrictive Publication list" the following religious texts: (1) How to Eat to Live, vol. I & II; (2) Message to the Black Man; (3) Fall of America; and (4) Our Savior has Arrived. (ECF No. 44-3 at PageID.332). Plaintiff asserted that the ban of these texts violated his right to practice his religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA). (ECF No. 44-3 at PageID.332). Plaintiff pursued this grievance through all three steps of the grievance process. (ECF No. 44-3 at PageID.329-32).

         In their amended complaint, Plaintiffs allege that Defendants placed on the "Restrictive Publication" list the following items: (1) How to Eat to Live, vol. I & II; (2) Our Savior has Arrived; (3) Secret Relationship between Blacks and Jews, Supreme Wisdom; and (4) "some lectures" by Elijah Muhammad and Louis Farrakhan. (ECF No. 8 at PageID.65).

         While Plaintiff did not identify by name any of the individuals against whom this grievance was asserted, the grievance was not rejected on this basis. (ECF No. 44-3 at PageID.329-32). Defendant Finco acknowledges that he was previously employed as the Corrections Facilities Administration Deputy Director and Defendants Martin and Leach acknowledge that they were both employed as Special Activities Coordinators. In the absence of evidence or argument that this grievance was asserted against other individuals, the Court concludes that this grievance exhausts Plaintiff Heard's claim that Defendants improperly prevented him from possessing the following texts: (1) How to Eat to Live, vol. I & II and (2) Our Savior has Arrived.

         III. Grievance URF-15-04-0993-20z

         Plaintiff filed this grievance on April 9, 2015, alleging that he was not permitted to attend religious services while on "toplock" status. (ECF No. 44-3 at PageID.337). This grievance does not concern any of the claims asserted by Plaintiff in this matter and was not asserted against any of the present Defendants. Accordingly, this grievance does not serve to exhaust any of the claims asserted by Plaintiff Heard.

         IV. Grievance URF-15-01-0129-20e

         Plaintiff filed this grievance on January 12, 2015, alleging that Defendant Finco improperly denied his request to participate in "an alternative religious menu." (ECF No. 44-3 at PageID.343). Plaintiff pursued this matter through all three steps of the grievance process. (ECF No. 44-3 at PageID.340-44). The Court finds that this grievance exhausts, as to Defendant Finco only, Plaintiff's claim that he was denied the ability to participate in "an alternative religious menu."

         V. Grievance URF-15-02-0542-28a

         Plaintiff filed this grievance on February 10, 2015, alleging that Defendant Finco improperly denied his request to be provided with appropriate religious meals. (ECF No. 44-3 at PageID.350). This grievance was rejected as being duplicative of Grievance URF-15-01-0129-20e, described in the preceding paragraph. (ECF No. 44-3 at PageID.347-51). Accordingly, this grievance does not serve to exhaust any of the claims asserted by Plaintiff Heard.

         VI. Grievance 14-11-3543-02c

         Plaintiff filed this grievance on November 7, 2014, alleging that he was not being paid at the appropriate rate for work he was performing. (ECF No. 44-3 at PageID.356). This grievance does not concern any of the claims asserted by Plaintiff in this matter and was not asserted against any of the present Defendants. Accordingly, this grievance does not serve to exhaust any of the claims asserted by Plaintiff Heard.

         VII. Grievance 14-10-3119-28a

         Plaintiff filed this grievance on October 4, 2014, alleging that certain dryers were not properly identified as "high voltage." (ECF No. 44-3 at PageID.368). This grievance does not concern any of the claims asserted by Plaintiff in this matter and was not asserted against any of the present Defendants. Accordingly, ...


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