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Kimber v. Murphy

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

January 23, 2018

Aaron Kimber, # 257691, Plaintiff,
John Murphy, et al., Defendants.

          Honorable Paul L. Maloney Judge


          PHILLIP J. GREEN United States Magistrate Judge

         This is a civil action brought by a state prisoner under 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. §' 12101, et seq. Plaintiff is an inmate at the Gus Harrison Correctional Facility. This lawsuit arises out of conditions of plaintiff's confinement at the Oaks Correctional Facility. Plaintiff named Librarian John Murphy, Medical Health Unit Manager Rick Bookheimer, and Optometrist Brian Allen as defendants. Plaintiff sues defendants in their individual capacities and seeks declaratory and injunctive relief and damages.

         The matter is now before the Court on defendant Bookheimer's motion for summary judgment based on the affirmative defense of failure to exhaust administrative remedies, as required by 42 U.S.C. § 1997e(a). (ECF No. 22). This motion is the re-filing of an earlier motion, this time in compliance with Local Civil Rule 7.1(d). On March 9, 2017, the Court entered an order (ECF No. 25) advising plaintiff that his response to defendant's earlier motion (ECF No. 18, 19) would be considered as his response to this motion. The order also gave plaintiff an opportunity to supplement his earlier response on or before March 24, 2017. (ECF No. 25 at PageID.219). Plaintiff elected not to supplement his response.

         For the reasons set forth herein, I recommend that plaintiff's claims for declaratory and injunctive relief against all defendants be dismissed because they are moot. I recommend that defendant Bookheimer's motion for summary judgment be granted, and that all plaintiff's claims for damages against defendant Bookheimer be dismissed without prejudice.

         Summary Judgment Standard

         Summary 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(a); McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). 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.' ” Rocheleau v. Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). 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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th Cir. 2016).

         When the party without the burden of proof seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials “negating” the opponent's claim. 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). Once the movant shows that “there is an absence of evidence to support the nonmoving party's case, ” the nonmoving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations of his pleadings. See Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012); see also Scadden v. Warner, 677 F. App=x 996, 1001, 2017 WL 384874, at *4 (6th Cir. Jan. 27, 2017). The motion for summary judgment forces the nonmoving party to present evidence sufficient to create a genuine issue of fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A mere scintilla of evidence is insufficient; ‘there must be evidence on which a jury could reasonably find for the [non-movant].' ” Dominguez v. Correctional Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see Brown v. Battle Creek Police Dep't, 844 F.3d 556, 565 (6th Cir. 2016).

         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). The moving party without the burden of proof needs only show that the opponent cannot sustain his burden at trial. “But 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) (citation and quotation omitted). The Court of Appeals has repeatedly emphasized that the party with the burden of proof faces “a substantially higher hurdle” and “ ‘must show that 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[1], at 56-138 (3d ed. 2000)); see Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012); Cockrel, 270 F.2d at 1056. 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).

         Standards Applicable to the Affirmative Defense of Failure to Exhaust Remedies

         Defendant Bookheimer has asserted the affirmative defense of plaintiff's failure to exhaust administrative remedies. A prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 “or any other Federal law” must exhaust available administrative remedies. 42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must 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 734. “This requirement is a strong one. To further the purposes behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not available, even when the state cannot grant the particular relief requested, and even where the prisoner[ ] believes the procedure to be ineffectual or futile.” Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011) (internal quotations and citations omitted).

         In Jones v. Bock, the Supreme Court held that “exhaustion is an affirmative defense, and prisoners are not required to specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216. The burden is on defendant to show that plaintiff failed to properly exhaust his administrative remedies. The Supreme Court reiterated that “no unexhausted claim may be considered.” 549 U.S. at 220. The Court held that when a prisoner complaint contains both exhausted and unexhausted claims, the lower courts should not dismiss the entire “mixed” complaint, but are required to dismiss the unexhausted claims and proceed to address only the exhausted claims. 549 U.S. at 219-24.

         In order to exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Jones v. Bock, 549 U.S. at 218-19. In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA exhaustion requirement “requires proper exhaustion.” 548 U.S. at 93. “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009). Thus, when a prisoner's grievance is rejected by the prison as untimely because it was not filed within the prescribed period, the prisoner's claim is not “properly exhausted” for purposes of filing a section 1983 action in federal court. 548 U.S. at 90-93; Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011); see 42 U.S.C. § 1997e(a).

         MDOC Policy Directive 03.02.130 (effective July 9, 2007) sets forth the applicable grievance procedures.[1] In Sullivan v. Kasajaru, 316 Fed.Appx. 469, 470 (6th Cir. 2009), the Sixth Circuit held that this policy directive “explicitly required [the prisoner] to name each person against whom he grieved, ” and it affirmed the district court's dismissal of a ...

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