United States District Court, W.D. Michigan, Southern Division
JAMERO MOSES #231885 WILLIAM JOHNSON #235820 LAMONT HEARD #252329, Plaintiffs,
THOMAS FINCO, et al., Defendants.
Paul L. Maloney
REPORT AND RECOMMENDATION
S. CARMODY, U.S. MAGISTRATE JUDGE.
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
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.
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).
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).
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.
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
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
Bock, 549 U.S. at 218.
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.
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.
respect to Plaintiff Heard's claims, Defendants have
submitted the following evidence regarding grievances that
Plaintiff submitted during the relevant time
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.
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).
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
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.
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
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
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.
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.
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, ...