United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING, IN PART, REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE.
Bruce Parker, filed a civil rights action against Defendants
under 42 U.S.C. § 1983. Defendants Roy and Mackie,
employees of the Michigan Department of Corrections, filed a
motion for summary judgment on the basis of Parker's
alleged failure to exhaust administrative remedies. (ECF No.
32.) Parker also filed a motion for summary judgment. (ECF
No. 45.) Magistrate Judge Phillip Green issued a Report and
Recommendation (R & R), recommending that the Court grant
Defendants' motion and deny Parker's motion. (ECF No.
57.) The R & R also recommended dismissing some of
Parker's other claims as follows:
• Dismissing his request for injunctive relief as moot.
• Dismissing claims against Defendants in their official
capacities as barred by the Eleventh Amendment.
• Dismissing Parker's due process claims based on
the two misconduct charges because Parker failed to state a
claim upon which relief can be granted.
filed Objections to the R & R. (ECF No. 62.) Parker's
three objections address only his failure to exhaust his
Federal Rule of Civil Procedure 72(b), a party "may
serve and file specific written objections" to the R
& R, and the Court is to consider any proper objection.
Local Rule 72.3(b) likewise requires that written objections
"shall specifically identify the portions" of the R
& R to which a party objects. Under 28 U.S.C. §
636(b), upon receiving objections to a report and
recommendation, the district judge "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." After conducting a de novo review of the R &
R, Parker's Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be
adopted in part.
party fails to identify and object to specific portions of
the R & R, then any possible objections to those portions
are deemed waived. See, e.g., Smith v. Detroit Fed'n
of Teachers Local 231, Am. Fed'n of Teachers,
AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987) (stating
that "making some objections but failing to raise others
will not preserve all the objections a party may have").
Because Parker objects only to the failure to exhaust issue,
all other possible objections are waived, and the Court will
adopt the R & R as to the claims without objections.
first objection is that the R & R erred in concluding
that he failed to exhaust his claims based on a false
misconduct ticket written by Defendant Roy. At the misconduct
hearing, Parker raised the fact that Roy was not at work at
the time Roy alleged Parker violated the rules. As a result,
Parker was found not guilty. Parker subsequently filed a
grievance against Roy because Roy filed the false misconduct
against him. Hearing dispositions of misconduct cannot be
grieved. In the MDOC's view, Parker's grievance
against Roy was a grievance based on the hearing disposition
of misconduct. The MDOC accordingly rejected his grievance.
(ECF No. 1-1 at PagelD. 17.) The R & R found that Parker
did not exhaust this grievance because his pursuit of appeals
on the grievance continued after he filed this lawsuit.
Typically, this would be grounds for dismissing a claim for a
failure to exhaust.
made in minor misconduct hearings are not grieveable.
(See ECF No. 44-1 at PageID.221.) Allegations of
retaliation via misconduct tickets are properly raised at
misconduct hearings-accordingly, retaliation claims addressed
at a hearing cannot be grieved. See Siggers v.
Campbell, 652 F.3d 681, 693-94 (6th Cir. 2011). It
follows, then, that a retaliation claim is exhausted at the
hearing stage if a prisoner raises the retaliation issue.
Id. Parker asserts he told the administrative law
judge that "Roy promised to set Plaintiff up and file
false misconducts against him based on Plaintiff being black
and filing grievances and complaints." (ECF No. 1 at
PageID.8.) Therefore, Parker's retaliation claim against
Roy for the misconduct was presumably exhausted at his
hearing, i.e., October 4, 2016. (ECF No. 1-1 at
PageID.17.) His subsequent grievance regarding Roy's
retaliation, and the subsequent appeal after the filing of
this suit, is irrelevant because the claim was already
exhausted. Accordingly, the R & R will be rejected as to
Parker's retaliation claim against Roy relating to the
false misconduct ticket.
second objection is that his grievance against Mackie
"wasn't rejected because it concerned other
prisoners as alleged by the Magistrate but because the issue
was not isolated but widespread and more than plaintiff was
suffering from said problem." (ECF No. 62 at
PageID.310.) Parker's grievance alleged that Mackie
failed to protect inmates because his officers continued to
assault inmates. Parker names three inmates and himself as
examples. (ECF No. 41-1 at PageID.211.) Parker's
grievance was rejected because it was not specific to him,
and applied to the prison population as a
whole-i.e., rather than filing a grievance, the
proper means of petitioning was "to direct comments to
the Warden's Forum." (ECF No. 41-1 at PageID.212.)
In accordance with this rejection, the R & R recommended
dismissing the claim, noting that as a pro se
plaintiff, Parker could not represent others on a claim. (ECF
No. 57 at PageID.296 (citing 28 U.S.C. § 1654;
Belser v. Woods, No. 2:16-CV-134, 2016 WL 6975936 at
*5 (W.D. Mich. Nov. 29, 2016)).) The Court agrees.
event, Warden Mackie's alleged failure to remedy abuses
by his staff is not cognizable under § 1983. See
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)
("Thus, a supervisory official's failure to
supervise, control or train the offending individual is not
actionable unless the supervisor either encouraged the
specific incident of misconduct or in some other way directly
participated in it." (internal quotation marks and
third and final objection is that the magistrate judge
applied a "stringent and heightened standard" in
evaluating his grievances, and inappropriately "appears
to make a credibility determination in who's telling the
truth" about whether Parker exhausted his claims. (ECF
No. 62 at PageID.310.) The magistrate judge made his
determinations based on the actual grievances and the
responses to the grievances. The Court finds no basis to
disagree with the magistrate judge's conclusions in the R
& R. The Court finds no basis to say that the magistrate
judge applied the wrong standard or inappropriately dealt
with credibility issues.
day the R & R was filed, Parker filed a motion he called
a "motion for a bench trial pursuant to Lee v.
Willey,789 F.3d 673, 678 (6th Cir. 2015), to resolve
the disputed issues of fact regarding exhaustion." (ECF
No. 59.) Lee does not guarantee a bench trial. As
discussed, there are no credibility issues present, and the
matter is ...