United States District Court, E.D. Michigan, Southern Division
EARL C. GRAY, Plaintiff,
CORRECTIONS OFFICER KING, Defendants.
OPINION AND ORDER ACCEPTING AND ADOPTING THE
MAGISTRATE JUDGE'S JANUARY 16, 2018 REPORT AND
G. Edmunds United States District Judge
Earl Gray, a prisoner at the Ojibway Correctional Facility in
Marenisco, Michigan, filed this pro se civil rights
case under 42 U.S.C. § 1983, against Defendant James S.
King, a Corrections Officer with the Michigan Department of
Corrections ("MDOC"), in October 2016. (Dkt. 1.) He
amended the complaint in May 2017, without objection, to
correct an minor date error. (Dkt. 15.) Plaintiff filed the
civil rights complaint asserting Defendant violated his
Eighth Amendment Constitutional rights, when he failed to
protect Plaintiff from an attack by fellow inmates.
Statement of Facts
alleges that, on November 13, 2014, three inmates threatened
to stab him. According to Plaintiff, he informed Defendant
about the threats fearing for his safety. Plaintiff claims,
Defendant stated he would be unable to assist Plaintiff
unless he knew the names of the inmates who had threatened
him. (Pl. Amend. Compl., Dkt. 15, at 2; PgID 56.) Plaintiff
alleges that he did not know their names, and so Defendant
did nothing. Plaintiff claims Defendant said, "Welcome
to prison, son." Later that evening, around 8pm,
Plaintiff submits the group of inmates that had threatened
him, attacked and stabbed him. (Dkt. 15, at 3.) MDOC provided
Plaintiff with medical treatment for the injuries sustained
in the assault. MDOC then transferred Plaintiff to a new
facility on November 17, 2014. (Dkt. 22, at 1; PgID 105.)
the Court is Magistrate Judge Majzoub's Report and
Recommendation to grant Defendants' Motion for Summary
Judgment , because Plaintiff failed to exhaust
administrative remedies prior to filing his Complaint.
Plaintiff has since lodged two objections to the Magistrate
Judge's Report and Recommendation, which the Court
considers here. (Dkt. 26.) For the reasons that follow, the
Court OVERRULES Plaintiff's objections, ADOPTS the Report
and Recommendation, and DISMISSES the case.
Standard of Review
Court performs a de novo review of those portions of
Magistrate Judge Majzoub's Report and Recommendation to
which Plaintiff has objected. 28 U.S.C. § 636(b). The
Court need not and does not perform a de novo review
of the report's unobjected-to findings. Thomas v.
Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985). Moreover, an objection that "does nothing more
than state a disagreement with a magistrate [judge]'s
suggested resolution, or simply summarizes what has been
presented before, is not an 'objection' as that term
is used in this context.'" Aldrich v. Bock,
327 F.Supp. 2d. 743, 747 (E.D. Mich. 2004). Indeed, the
purpose of an objection to a report and recommendation is to
provide the Court “with the opportunity to consider the
specific contentions of the parties and to correct any errors
immediately.” Id. (quoting United States
v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981)).
first objection asserts Magistrate Judge Majzoub erred by
referencing facts Plaintiff claims are inaccurate. Plaintiff
claims "I never made a statement in my previous
briefings to filing a Step II or Step III grievance form
because the grievance coordinator / administration for the
Central Michigan Correctional Facility failed to respond and
provide me with an identification # for my Step I
grievances." (Pl. Obj. to R&R, Dkt. 26, at 1; PgID
131.) Magistrate Judge Majzoub referenced in the Report and
Recommendation that "Plaintiff asserts that he received
no response to his Step I grievance, and proceeded to file
Step II and Step III grievances with the grievance
coordinator." (Report & Recommendation, Dkt. 25, at
2; PgID 124)(citing Pl. Resp. to D. Mot. for Sum. J., Dkt.
22, p. 1; PgID 105.) Despite Plaintiff's current claims,
Plaintiff's Response to Defendant's Motion for
Summary Judgment did state he had filed Step II and Step III
grievances. "I have not received a response for [the
Step I grievance] or for the step II and step III, (CSJ 247B)
grievance forms I filed and mail to the said facility's
grievance coordinator." (Pl. Resp. to D. Mot. for Sum.
J., Dkt. 22, p. 1; PgID 105.) The Report and Recommendation
properly references Plaintiff's attempts to file Step II
and Step III, grievance forms, although the full record shows
Plaintiff failed to file them properly.
action shall be brought with respect to prison conditions
under section 1983. . . .or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted." 42 U.S.C. § 1997e(a). The
exhaustion requirement is mandatory and requires a prisoner
to comply with stat procedural rules such as time limits for
filing grievances and other critical procedural rules.
Jones v. Bock, 549 U.S. 199, 211 (2007);
Woodford v. Ngo, 458 U.S. 81, 90-91 (2006).
"[P]roper exhaustion of administrative remedies. . .
.means using all steps that the agency holds out, and doing
so properly (sot that the agency addresses the issues on the
merits)." Woodford, 548 U.S. at 90 (citation
first objection argues he never filed a Step II and Step III
grievance, in contradiction with his earlier statement. In
this instance, whether Plaintiff never filed the grievances
or whether he filed them incorrectly, neither will overcome
Plaintiff's obligation, to first exhaust his remedies
under the proper procedural rules. Plaintiff did not
successfully exhaust his remedies and Plaintiff's first
objection only supports this conclusion. For this reason
Plaintiff's objection fails.
second objection indicates he was prevented from exhausting
his remedies when he was transferred to another facility,
days after the incident at the center of this matter. This
argument is unavailing. A prisoner's transfer does not
relieve him of the obligation to exhaust administrative
remedies. See Price v. Jordan, No. 14-10194, 2016 WL
5109534, at *3 (E.D. Mich. Aug. 8, 2016)(collecting cases
finding that prisoner's transfer does not relieve the
obligation to exhaust administrative remedies). Moreover,
Plaintiff's explanation is undermined by the three
CSJ-247A grievance forms he did file. Plaintiff filed his
first grievance report on Tuesday, November 18, 2014,
immediately after the incident, well within the five business
day limit for filing the Step I grievance report, and
contemporaneous with his transfer. (Dkt. 22, at 5; PgID 109.)
After filing the initial report, Plaintiff was required to
continue to the next step within the procedural rules, even
if he received no response. Michigan Dep't of
Corrections, Policy Directive 03.02.130, ¶G. "[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."
Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.
1999)(citing Wright v. Morris, 111 F.3d 414, 417 n.
3 (6th Cir. 1997)).
reasons thus states, the Court OVERRULES Plaintiff's
objections, ADOPTS the Magistrate Judge's Report and