United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 41) and
Plaintiff's Objections (ECF No. 42). Under the Federal
Rules of Civil Procedure, where, as here, a party has
objected to portions of a Report and Recommendation,
“[t]he district judge . . . has a duty to reject the
magistrate judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure,
§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Civ. P. 72(b)(3). De novo review in these circumstances
requires at least a review of the evidence before the
Magistrate Judge. Hill v. Duriron Co., 656 F.2d
1208, 1215 (6th Cir. 1981). The Court has reviewed de novo
the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Plaintiff's
objections. The Court finds the Magistrate Judge's Report
and Recommendation, which recommends granting Defendants'
motion for summary judgment based on lack of exhaustion (ECF
No. 37), factually sound and legally correct.
Objections, Plaintiff reiterates his earlier assertion (ECF
No. 31) that he filed a Step I grievance and that the
Grievance Coordinator failed to answer the Step I grievance.
(ECF No. 42, PageID.178.) Plaintiff states that he requested
an answer to the Step I grievance and a Step II grievance
form, received neither, and so was unable to proceed to Step
III. This argument is unavailing. The record evidence
reflects that Plaintiff filed a Step I grievance (ECF No.
31-1, PageID.116), but failed to exhaust by pursuing his
grievance through Step III (ECF No. 38-3). The Report and
Recommendation accurately points out that there is no record
evidence that the MDOC's grievance appeal process was not
an available administrative remedy. Moreover, the applicable
MDOC Policy Directive explicitly provides a means of
exhaustion under precisely the circumstances Plaintiff says
prevented him from exhausting:
If the prisoner is dissatisfied with the Step I response, or
does not receive a timely response, he may appeal to Step II
within ten business days of the response, or if no response
was received, within ten business days after the response was
due. Mich. Dep't of Corr. Policy Directive 03.02.130
¶BB. If the prisoner is dissatisfied with the Step II
response, or does not receive a timely Step II response, he
may appeal the matter to Step III. Id. at ¶DD.
The Step III grievance must be submitted 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.
is no record evidence that Plaintiff followed the process
available “if no response was received.”
Id. Plaintiff's argument that it was futile for
him to pursue the grievance process to its conclusion does
not change the analysis. See 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 . . . .”); Booth
v. Churner, 532 U.S. 731, n. 6 (2001) (“[W]e will
not read futility or other statutory exceptions into
statutory exhaustion requirements where Congress has provided
otherwise.”). The Magistrate Judge properly concluded
that Defendants Clute, Barber, Thurlby, Miniard, McLeod,
Fandrick, Gregory, and Deschroces are entitled to summary
judgment based on failure to exhaust.
IT IS ORDERED:
1. The Report and Recommendation of the Magistrate Judge (ECF
No. 41) is approved and adopted as the opinion of the Court.
2. Defendants' Clute, Barber, Thurlby, Miniard, McLeod,
Fandrick, Gregory, and Deschroces's Motion for Summary
Judgment based on failure to exhaust (ECF No. 37) is
GRANTED. Plaintiff's claims against
Defendants Clute, Barber, Thurlby, Miniard, McLeod, Fandrick,
Gregory, and Deschroces are DISMISSED WITHOUT
PREJUDICE based on failure to exhaust administrative
3. Plaintiff's Objections (ECF No. 42) are
4. For the same reasons that the Court dismisses
Plaintiff's claims, the Court discerns no good-faith
basis for an appeal within the meaning of 28 U.S.C. §
1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d
601, 611 (6th Cir. 1997) (overruled on other grounds by
Jones v. Bock, 549 U.S. 199 (2007)).