United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF United States District Judge
state prisoner filed this civil rights action pursuant to 42
U.S.C. § 1983, alleging claims based on a wrist injury
he sustained during his incarceration. Defendants Steven
Buda, Steven Lehto, Jeffrey Stachowicz, and Andrew Mettler
filed a motion for summary judgment, on the ground that
Plaintiff failed to exhaust his administrative
remedies. The matter was referred to the Magistrate
Judge, who issued a Report and Recommendation (R&R),
recommending that summary judgment be granted. The matter is
presently before the Court on Plaintiffs objections to the
Report and Recommendation. In accordance with 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court has
performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made.
Because Plaintiff has raised a valid objection to the Report
and Recommendation, the Court refers this matter back to the
Magistrate Judge for further consideration and/or
Report and Recommendation sets forth the facts and the
applicable legal standards. In short, Plaintiffs complaint
seeks recovery related to a broken wrist/forearm he sustained
while he was being handcuffed by correction officers after a
fight with another prisoner (R&R, ECF No. 38 at PagelD.
167-168). Plaintiff filed a grievance (OCF-15-05-0230-026A)
on May 5, 2015 raising the issues presented in this case;
however, at the time Plaintiff did not know the names of each
Defendant involved and he mistakenly thought Defendant Lehto,
rather than Defendant Buda, caused his broken wrist
(id. at PageID.173). The grievance was rejected on
the merits at Steps I and II (id.). Plaintiff
appealed the Step II denial to Step III (id). The
Step III grievance appeal was rejected as untimely
(id., citing ECF No. 32-2 at PagelD. 115).
the Michigan Department of Corrections (MDOC) rejected
Plaintiffs Step III grievance as untimely, the Magistrate
Judge concluded that Plaintiff failed to properly exhaust
this grievance and recommended granting Defendants'
Motion for Summary Judgment (R&R, ECF No.38 at
PageID.174-175). Plaintiff objects, arguing that his Step III
grievance was denied in error, and his Step III grievance
was, in fact, timely; thus, his grievance should be
considered exhausted (Obj., ECF No. 39 at PageID.178).
Magistrate Judge observed, "[t]he Step III form shall be
sent 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" (R&R, ECF No. 38 at PagelD. 172, citing MDOC
Policy Directive 03.02.130 (effective July 9, 2007) at
¶¶ T, FF). In his Objection, Plaintiff asserts that
he received his Step II grievance response on August 24, 2015
and timely mailed a Step III appeal on August 25, 2015,
within ten business days (Obj., ECF No. 39 at PagelD. 178).
Plaintiff asserts that Defendants cannot dispute these dates
because the only other possible date Plaintiff mailed out any
mail between the dates of 8/18/15 (the date the Step II was
returned to Plaintiff) and 9/8/15 (the date the Step III
appeal was received) was 9/3/15, as shown by his MDOC Trust
Account Statement (id, citing Ex. O, ECF No. 39-1 at
contrary to Plaintiffs argument, the record before the Court
is inconclusive concerning the dates at issue. Although
Plaintiff states in his objection that he received his Step
II grievance response on August 24, 2015, in his Step III
grievance, Plaintiff indicated that he received the Step II
denial on "8/31/15" (ECF No. 39-1 at PageID.199;
ECF No. 32-2 at PageID.116). If Plaintiff received the Step
II response on 8/31/15, he could not have mailed his Step III
appeal on 8/25/15 as he asserts in his objection. Rather, it
may be that the Step III appeal was mailed on 9/3/15-the next
date he placed outgoing mail according to his MDOC Trust
Account Statement noted above. Thus, while the dates and
evidence cited by Plaintiff allow for the possibility that
his Step III grievance appeal was timely filed, they are not
the Court finds Plaintiff s obj ection valid to the extent it
challenges the Report and Recommendation's determination
that his Step III appeal was properly rejected as untimely.
Although Defendants argued that Plaintiff failed to file his
Step III grievance within the 10 days allowed, the Step III
Grievance Appeal Decision offered in support (ECF No. 32-2 at
PagelD. 115), shows only the dates that the Step I was
grievance was received (05/05/2015) and the date Plaintiffs
Step III appeal was received (09/08/2015), and states that
the "business days between" was 126 days
(id.)-z timeframe immaterial to the timeliness of
Plaintiff s Step III appeal. While the MDOC Decision rejects
Plaintiffs Step III appeal as being untimely submitted, it
fails to state the number of business days that elapsed or
the relevant dates. Accordingly, on the record presented,
Defendants failed to carry their burden on the affirmative
defense that Plaintiff failed to exhaust his administrative
remedies (see R&R, ECF No.38 at PagelD. 169,
citing Jones v. Bock, 549 U.S. 199, 212-216 (2007)).
while Plaintiffs evidence does not clearly show that he
exhausted his administrative remedies, Defendants'
evidence is also unclear regarding how Plaintiffs Step III
grievance was determined to be untimely. "[S]ummary
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'" (R&R, ECF No. 38 at PageID.170, citing
Hunt v. Cromartie, 526 U.S. 541, 553 (1999)).
Accordingly, this Court rejects the Magistrate Judge's
Report and Recommendation to the extent it recommends that
Defendants' motion for summary judgment be granted. The
case is remanded to the Magistrate Judge for further
consideration and/or proceedings at his discretion.
IS HEREBY ORDERED that the Report and Recommendation
(ECF No. 38) is REJECTED as stated herein.
IS FURTHER ORDERED that the Motion for Summary
Judgment (ECF No. 31) is DENIED without prejudice.
IS FURTHER ORDERED that this case is referred back
to the Magistrate Judge for further ...