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Miller v. Klee

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

February 23, 2018

TONY MILLER, Plaintiff
v.
PAUL KLEE, NICKOLAS LESLIE, HERB BRIGHTON, STEPHEN YOUNG, and BRENT, Defendants.

          David M. Lawson, United States District Judge

          REPORT AND RECOMMENDATION MOTIONS FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DKT. 22, 24)

          Stephanie Dawkins, Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         Pro se plaintiff, Tony Miller, a prisoner in the custody of the Michigan Department of Corrections (MDOC), filed this civil rights lawsuit on March 29, 2017. (Dkt. 1). All defendants except for defendant Brent (who has not yet been served with the complaint) have filed motions for summary judgment based on plaintiff's failure to exhaust administrative remedies. (Dkt. 22, 24). Plaintiff filed a combined response to the two motions (Dkt. 26) and defendants filed a reply (Dkt. 28). In addition, plaintiff filed a sur-reply, without leave of court. (Dkt. 32). This matter is now ready for report and recommendation.

         For the reasons set forth below, the undersigned RECOMMENDS that defendants' motions for summary judgment based on exhaustion of administrative remedies be DENIED without prejudice.

         II. FACTUAL BACKGROUND

         Plaintiff's complaint sets forth two claims: one for sexual assault by defendants Leslie, Young, and Brighton and a second claim for retaliation by defendant Brent and defendant Klee. Plaintiff's specific allegations are as follows:

Warden Paul Klee authorized the issuing of three displincr [sic] reports against me for filing grievance (see exhibit A), 2) Capt. D. Messer retaliate for me writing the grievance rather than afford me my rights under PREA 3) Lt. Ringman, participate in the retaliation for writing of the PREA grievance by writing a displinary [sic] rather than conducting a proper investigation 4) Sgt. Leslie, Officer Young, Officer Brighton, sexually assaulted me when conducting a body cavity search 5) Officer Brent retaliate against me by writing misconducts from 6 months prior and truning [sic] my phone off for contectin [sic] PREA hotline regarding sexually assault.

(Dkt. 1, Pg ID 3). He further alleges:

Warden Paul Klee penalized me for exercising my rights of access to the court when not contecting [sic] the state police regarding the incident and authoring three displinary [sic] actions for me filing the PREA [Prison Rape Elimination Act] grevance [sic] in violation of Bounds v. Smith, 430 U.S. 817 (1977) also see Bureau of Prison Rules 88.31 2) Capt. D. Messer retaliate against me when writing displinary [sic] reports rather than providing me with a proper investigation of his co-worker in violation of Ruiz v. Estelle, 503 F.Supp. 1265 (SD Tex 1920) 3) Lt Ringman participate in the same conduct in violation of Millhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) 4) Sgt. Leslie, Officer Brighton, and Officer Young, conspired to sexually assault me humiliate and harass me in violation of the PREA Rape Elimination Act of 2003 (PREA).[1]

(Dkt. 1, Pg ID 3).

         Defendants have moved for summary judgment based solely on the issue of plaintiff's alleged failure to exhaust his administrative remedies. Thus, the undersigned will endeavor to detail plaintiff's efforts to exhaust his administrative remedies, at least so far as the parties have provided such evidence to the Court. Plaintiff appears to have filed three grievances pertaining to the allegations in the complaint. In the analysis section below, the undersigned will discuss the significance of plaintiff's Prison Rape Elimination Act (PREA) grievances versus grievances filed under the MDOC Directive 03.02.130 - the directive containing the three step grievance process typically required to exhaust any grievable claims before bringing them to this Court.

         On May 6, 2016, plaintiff filed a PREA grievance complaining of being “sexually violated and sexually harassed” on that same day by three guards. (5/6/16 PREA Step I Grievance, Dkt. 22-3, Ex. 2, Pg ID 119, ARF 1605 17606). Plaintiff filed a second grievance with the same identifying number on May 17, 2016, alleging further sexual harassment on May 15, 2016. (5/17/16 PREA Step I Grievance, Dkt. 1, Pg ID 13; Dkt. 22-3, Ex. 2, Pg ID 120). Plaintiff received two Step I Emergency Responses to this grievance. (5/27/16 and 5/31/16 Emergency PREA Responses, Dkt. 22-3, Ex. 2, Pg ID 121-122). The response found at Dkt. 22, Ex. 2 Pg ID 122 refers to conduct alleged to have taken place on May 6, 2016. The response found at Dkt. 22-3, Ex. 2, Pg ID 121 does not refer to the date of any particular conduct, so it is not clear to which of the two grievances with the same identifier it is tied. On June 22, 2016, prison officials completed their investigation into plaintiff's complaint of misconduct alleged to have occurred on May 6, 2016 and found no evidence to support the complaint. (PREA Notification, Dkt. 1, Pg ID 26, 32). This report was purportedly provided to plaintiff on June 24, 2016. Id. Neither party provided a copy of any investigation results relating to the May 15, 2016 incident.

         Plaintiff filed a Step II PREA grievance appeal on June 30, 2016 relating to the May 15, 2016 incident. (PREA Step II Grievance, Dkt. 22, Ex. 2, Pg ID 123, ARF 1605 17606). Plaintiff's Step II appeal was denied as untimely because the reviewer determined that plaintiff's original grievance was filed on May 25, 2016[2]and responded to on May 26, 2016, according to the Step II PREA Grievance Appeal Response. (Step II PREA Grievance Appeal Resp., Dkt. 22, Ex. 2, Pg ID 124). According to the Step II response, plaintiff was required to file his Step II appeal within 10 calendar days (in accordance with Director's Office Memorandum 2016-29) after the response was due, and plaintiff failed to do so. Id.

         Also on May 6, 2016, plaintiff filed another PREA grievance, # ARF 1605 17498, which recounts the same facts as those set forth in grievance # ARF 1605 17606, albeit in more detail. (Complaint, Dkt. 1, Pg ID 6-7; Second 5/6/16 PREA Step I Grievance, Dkt. 22, Ex. 2, Pg ID 115-116). The Step I emergency response for # ARF 1605 17498 was combined with one of the Step I emergency responses to # ARF 1605 17606. (Emergency PREA Grievance Response, Dkt. 22, Ex. 2, Pg ID 121). On June 20, 2016, prison officials completed their investigation into plaintiff's claims and concluded that there was no evidence to support the alleged sexual misconduct. (PREA Notification, Dkt. 1, Pg ID 25, 31). Plaintiff purportedly received a copy of this report on June 24, 2016. Id. Plaintiff filed a Step II PREA grievance appeal on June 30, 2016. (Dkt. 1, Pg ID 9; Dkt. 22, Ex. 2, Pg ID 117). Plaintiff's Step II appeal was denied as untimely because the reviewer determined that plaintiff's original grievance was filed on May 25, 2016[3] and responded to on May 27, 2016 (according to the Step II Grievance Appeal Response). (Dkt. 22, Ex. 2, Pg ID 118). According to the Step II response, plaintiff was required to file his Step II appeal within 10 calendar days (in accordance with Director's Office Memorandum 2016-29) after the response was due and plaintiff failed to do so. Id.

         On May 7, 2016, plaintiff also filed a standard grievance under P.D. 03.02.130 regarding his sexual misconduct complaints, # ARF 1605 17661. (5/7/16 Prison Grievance Form, Dkt. 22, Ex. 2, Pg ID 125; Dkt. 1, Pg ID 10[4]). Though this grievance was filed as a standard grievance, in response to it plaintiff was provided a “PREA Grievance Response” on May 31, 2016 indicating that he would be notified of the outcome of the investigation when it was concluded. (5/31/16 PREA Grievance Resp., Dkt. 22, Ex. 2, Pg ID 126). It is not clear from the record if or when plaintiff received the results of the investigation, but he filed a Step II PREA appeal on June 30, 2016. (PREA Step II Grievance Form, Dkt. 1, Pg ID 12). Plaintiff's Step II appeal was denied as untimely because the reviewer determined that plaintiff's original grievance was filed on May 26, 2016[5] and responded to on May 27, 2016. According to the Step II response, plaintiff was required to file his Step II appeal within 10 calendar days (in accordance with Director's Office Memorandum 2016-29) after the response was due and plaintiff failed to do so. (Step II PREA Grievance Appeal Response, Dkt. 1, Pg ID 11). Notably, defendants have not provided to the Court a copy of the Director's Office Memorandum 2016-29 which is referenced in the grievance responses. It is undisputed that plaintiff did not take any grievance pertaining to the allegation in the complaint through the three step grievance procedure outlined in P.D. 03.02.130.

         Regarding plaintiff's claims that defendants Klee and Messer retaliated against him, plaintiff attached to his complaint copies of three misconduct tickets that were issued between June 22 and July 12, 2016. (6/22/16 Misconduct Report, Dkt. 1, Pg ID 17; 6/23/16 Misconduct Report, Dkt. 1, Pg ID 18; 07/12/16 Misconduct Report, Dkt. 1, Pg ID 19). The June 22, 2016 and June 23, 2016 misconduct tickets relate to plaintiff's filing of PREA complaints claiming officer misconduct alleged to have occurred on May 6, 2016. The July 22, 2016 ticket purports to relate to plaintiff's filing of a PREA complaint for a claim of officer misconduct alleged to have occurred on May 7, 2016.[6] Id. Neither party provided evidence of the results of any misconduct hearings associated with these misconduct reports.

         III. DISCUSSION

         A. Standard of Review

         When a party files a motion for summary judgment, it must 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 asserting that a fact cannot be or is genuinely disputed must support that assertion by: (A) citing to particular parts of materials in the record...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). 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). Furthermore, the evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Where the movant establishes the lack of a genuine issue of material fact, the burden of demonstrating the existence of such an issue shifts to the non-moving party to come forward with “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). That is, the party opposing a motion for summary judgment must make an affirmative showing with proper evidence and must “designate specific facts in affidavits, depositions, or other factual material showing ...


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