United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN United States Magistrate Judge
a civil rights action brought pro se by a former
state prisoner under 42 U.S.C. § 1983. Corizon, Inc. is
the defendant. Plaintiff alleges that defendant was
deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights by delaying surgery
for a detached retina in his right eye, delaying treatment
for contractures in his fourth and fifth fingers and thumb,
and failing to provide orthopedic footwear. Plaintiff seeks
and award of damages and declaratory and injunctive
matter is before the Court on defendant's motion for
summary judgment. (ECF No. 22). Plaintiff opposes
defendant's motion. (ECF No. 26, 27, 34, 38). For the
reasons set forth herein, I recommend that defendant's
motion for summary judgment be granted in part and denied in
part. I recommend that the portion of defendant's motion
seeking summary judgment based on the affirmative defense of
plaintiff's failure to exhaust his available
administrative remedies as required by 42 U.S.C 1997e(a) be
denied. I recommend that the portion of defendant's
motion seeking summary judgment on the merits be granted, and
that judgment be entered in defendant's favor on all
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
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).
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, 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
Applicable to the Affirmative Defense of Failure to Exhaust
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).
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.
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).
Policy Directive 03.02.130 (effective July 9, 2007) sets
forth the applicable grievance procedures. 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 prisoner's claim for failure
to properly exhaust his available administrative remedies.
Id. at 470.
Sixth Circuit has “clearly held that an inmate does not
exhaust available administrative remedies when the inmate
fails entirely to invoke the grievance procedure.”
Napier, 636 F.3d at 224. An argument that it would
have been futile to file a grievance does not suffice.
Assertions of futility do not excuse plaintiff from the
exhaustion requirement. See Napier, 636 F.3d at 224;
Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.
1999) (“[A]n inmate cannot simply fail to file a
grievance or abandon the process before completion and claim
that he has exhausted his remedies or that it is futile for
him to do so because his grievance is now time-barred under
the regulations.”); see also Booth v. Churner,
532 U.S. at 741 n.6 (“[W]e will not read futility or
other exceptions into statutory exhaustion requirements where
Congress has provided otherwise.”).
Findings of Fact
following facts are beyond genuine issue. Plaintiff was an
inmate held in the custody of the Michigan Department of