United States District Court, W.D. Michigan, Northern Division
GORDON J. QUIST JUDGE.
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by state prisoner Robert Tywan
Washington pursuant to 42 U.S.C. § 1983. Plaintiff
alleges that Defendants Ernst, Martin, Derry, and Wonacott
retaliated against him by taking his television set.
Defendants filed a motion for summary judgment (ECF No. 13)
on the ground that Plaintiff failed to exhaust his available
administrative remedies. Plaintiff did not file a response.
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005);
Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005). The standard for determining whether summary
judgment is appropriate is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” State Farm Fire & Cas.
Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986)); see also Tucker v. Union of
Needletrades Indus. & Textile Employees, 407 F.3d 784,
787 (6th Cir. 2005). The court must consider all pleadings,
depositions, affidavits, and admissions on file, and draw all
justifiable inferences in favor of the party opposing the
motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Twin City
Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir.
prisoner's failure to exhaust his administrative remedies
is an affirmative defense, which Defendants have the burden
to plead and prove. Jones v. Bock, 549 U.S. 199,
212-216 (2007). A moving party without the burden of proof
need show only that the opponent cannot sustain his burden at
trial. See Morris v. Oldham County Fiscal Court, 201
F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI
Paints, 398 F.3d 751, 761 (6th Cir. 2005). A moving
party with the burden of proof faces a “substantially
higher hurdle.” Arnett v. Myers, 281 F.3d 552,
561 (6th Cir. 2002); Cockrel v. Shelby County Sch.
Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). “Where
the moving party has the burden -- the plaintiff on a claim
for relief or the defendant on an affirmative defense -- 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) (quoting W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of
Material Fact, 99 F.R.D. 465, 487-88 (1984)). The United
States Court of Appeals for the Sixth Circuit repeatedly 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 (quoting 11 James
William Moore, et al., Moore's Federal Practice §
56.13, at 56-138 (3d ed. 2000); Cockrel, 270 F.2d
at 1056 (same). 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).
to the applicable portion of the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(a), a prisoner bringing an
action with respect to prison conditions under 42 U.S.C.
§ 1983 must exhaust his available administrative
remedies. See Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731, 733 (2001).
A prisoner must first exhaust available administrative
remedies, even if the prisoner may not be able to obtain the
specific type of relief he seeks in the state administrative
process. See Porter, 534 U.S. at 520;
Booth, 532 U.S. at 741; Knuckles El v.
Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman
v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order
to properly exhaust administrative remedies, prisoners must
complete the administrative review process in accordance with
the deadlines and other applicable procedural rules.
Jones v. Bock, 549 U.S. 199, 218-19 (2007);
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to
‘properly exhaust.'” Jones, 549 U.S.
at 218-19. In rare circumstances, the grievance process will
be considered unavailable where officers are unable or
consistently unwilling to provide relief, where the
exhaustion procedures may provide relief, but no ordinary
prisoner can navigate it, or “where prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross v. Blake, 136 S.Ct. 1850,
Policy Directive 03.02.130 (effective July 9, 2007), sets
forth the applicable grievance procedures for prisoners in
MDOC custody at the time relevant to this complaint. Inmates
must first attempt to resolve a problem orally within two
business days of becoming aware of the grievable issue,
unless prevented by circumstances beyond his or her control.
Id. at ¶ P. If oral resolution is unsuccessful,
the inmate may proceed to Step I of the grievance process and
submit a completed grievance form within five business days
of the attempted oral resolution. Id. at
¶¶ P, V. The inmate submits the grievance to a
designated grievance coordinator, who assigns it to a
respondent. Id. at ¶ V. The Policy Directive
also provides the following directions for completing
grievance forms: “The issues should be stated briefly
but concisely. Information provided is to be limited to the
facts involving the issue being grieved (i.e., who,
what, when, where, why, how). Dates, times, places and names
of all those involved in the issue being grieved are to be
included.” Id. at ¶ R (emphasis in
original). The Sixth Circuit has explained:
[A] prisoner ordinarily does not comply with MDOCPD 130-and
therefore does not exhaust his administrative remedies under
the PLRA-when he does not specify the names of each person
from whom he seeks relief. See Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010)
(“Requiring inmates to exhaust prison remedies in the
manner the State provides-by, say, identifying all
relevant defendants-not only furthers [the PLRA's]
objectives, but it also prevents inmates from undermining
these goals by intentionally defaulting their claims at each
step of the grievance process, prompting unnecessary and
wasteful federal litigation process.”). An exception to
this rule is that prison officials waive any procedural
irregularities in a grievance when they nonetheless address
the grievance on the merits. See id. at 325. We have
also explained that the purpose of the PLRA's exhaustion
requirement “is to allow prison officials ‘a fair
opportunity' to address grievances on the merits to
correct prison errors that can and should be corrected to
create an administrative record for those disputes that
eventually end up in court.” Id. at 324.
Mattox v. Edelman, 2017 WL 992510, slip op. at 8-9
(6th Cir. 2017).
inmate is dissatisfied with the Step I response, or does not
receive a timely response, he may appeal to Step II by
obtaining an appeal form within ten business days of the
response, or if no response was received, within ten days
after the response was due. Id. at ¶¶ T,
BB. The respondent at Step II is designated by the policy,
e.g., the regional health administrator for a
medical care grievances. Id. at ¶ DD. If the
inmate is still dissatisfied with the Step II response, or
does not receive a timely Step II response, he may appeal to
Step III using the same appeal form. Id. at
¶¶ T, FF. The Step III form shall be sent 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. at
¶¶ T, FF. The Grievance and Appeals Section is the
respondent for Step III grievances on behalf of the MDOC
director. Id. at ¶ GG. “The total
grievance process from the point of filing a Step I grievance
to providing a Step III response shall generally be completed
within 120 calendar days unless an extension has been
approved . . . .” Id. at ¶ S.
addition, the grievance policy provides that, where the
grievance alleges conduct that falls under the jurisdiction
of the Internal Affairs Division pursuant to PD 01.01.140,
the prisoner may file his Step I grievance directly with the
inspector of the institution in which the prisoner is housed,
instead of with the grievance coordinator, as set forth in
¶ V of PD 03.02.130. Id. at ¶Q. In such
instances, the grievance must be filed within the time limits
prescribed for filing grievances at Step I. Id.
Regardless of whether the grievance is filed with grievance
coordinator or the inspector, the grievance will be referred
to the Internal Affairs Division for review and will be
investigated in accordance with PD 01.01.140. The prisoner
will be promptly notified that an extension of time is needed
to investigate the grievance. Id.
filed grievance URF 16-01-0316-27a (ECF No. 14-1,
PageID.60-66) asserting that Defendant Ernst and the
“3rd shift sergeant with 5 other officers”
conspired to retaliate against him by taking his television
set. That grievance was rejected at each step of the
grievance process as a non-grievable issue because the issue
involved a misconduct hearing decision. At the misconduct
hearing, Plaintiff pleaded “guilty” because he
“was going through some things.” (ECF No. 14-2,
PageID.68). Plaintiff never raised the retaliation issue
during his misconduct hearing. Siggers v. Campbell,
652 F.3d 681, 693-94 (6th Cir. 2011). Accordingly, in the
opinion of the undersigned, Plaintiff failed to properly
exhaust his claims against the remaining Defendants.
foregoing reasons, I recommend that the motion for summary
judgment filed by Defendants Ernst, Martin, Derry, and
Wonacott (ECF No. 13) be granted dismissing the remaining
issues in the case without prejudice.
the court adopt the report and recommendation in this case,
the court must next decide whether an appeal of this action
would be in good faith within the meaning of 28 U.S.C. §
1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d
601, 611 (6th Cir. 1997). For the same reasons that the
undersigned recommends granting Defendants' motion for
summary judgment, the undersigned discerns no good-faith
basis for an appeal. Should the court adopt the report and
recommendation and should Plaintiff appeal this decision, the
court will assess the $505 appellate filing fee pursuant to
§ 1915(b)(1), see McGore, 114 F.3d at 610-11,
unless Plaintiff is barred from ...