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Raper v. Controneo

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

June 12, 2018

Larry Raper, Sr., Plaintiff,
Joseph Controneo, et al., Defendants.



         This is a civil rights action brought by a pro se state prisoner under 42 U.S.C. § 1983. Plaintiff Larry Raper alleges that Defendants Lynn Larson, D.O. and Terrance White man, M.D. were deliberately indifferent to his serious medical needs while he was housed at Duane Waters Hospital (DWH), a medical facility operated by the Michigan Department of Corrections (MDOC).

         Defendants Larson and White man have moved for summary judgment based solely on Plaintiffs alleged failure to exhaust his administrative remedies. The magistrate judge issued an R & R on May 14, 2018, concluding that Plaintiff had exhausted his administrative remedies because the Defendants waived any procedural defect by addressing the merits of the grievance at earlier steps, before the defect was raised. The matter is now before the Court on the Defendants' concise objections to the R & R.

         The magistrate judge concluded that Plaintiff had filed two grievances relating to his claim: DRF-1608-2074-12D ("2074") and DRF-1702-0333-28A ("333").

         Grievance 2074 recounted Plaintiffs experience this way:

This grievance is dealing mainly with Duane Waters Hospital there in Jackson, and their over all [sic] negligence in my treatment of my right leg, mainly Doctor Larson. As on Wednesday Night I was bleeding in my right leg. Now how on earth could they be so grouse [sic] of a negligence on behalf of Doctor Larson. As I was scheduled to be released on Thursday or Friday, just one or two days before I almost bleed to death. I was within one hour of getting on a van to come back here to this Carson City Facility. Now if that any one can explain to me just how over all incompetent Doctor Larson, but then trickling all the way down to the entire medical staff there at Duane Waters Medical Facility. As I am quite sure none of the ones that work there would want to have one of their loved ones subject to that kind of treatment, having to loose [sic] their leg.

(ECF No. 22-1 at PageID.134.)

         MDOC then issued a Step I response to Grievance 2074. (Id. at PageID.135.) It summarized Plaintiffs relevant medical history including his surgery on March 6, 2015, second surgery on April 27, 2015, and post-surgery treatment from May 31, 2016 and continuing over the summer. (Id.) It noted that on August 5, 2016, Plaintiff suffered a related medical issue when the surgical site ruptured resulting in further medical treatment and the amputation of Plaintiffs leg below the knee. (Id.) MDOC's Step I response concluded by noting, "Upon review of [the medical history], no evidence to support the grievanf s claim of negligence is found. With any surgery there are many possible complications. Grievance denied. The grievant is encouraged to re-access health care as needed." (Id.)

         Plaintiff then escalated the grievance to a Step II appeal. MDOC responded similarly: "Grievanf s electronic medical record was reviewed. Documentation revealed grievant was provided timely and appropriate care for his medical condition." (Id. at PageID.133.) In the conclusion section, the Step II appeal indicated: Evidence[:] Policy 03.04.100 Health Care Services. Grievance: Denied. (Id.)

         Plaintiff then escalated Grievance 2074 to Step III. For the first time, MDOC rejected the grievance because there was "no indication the grievant attempted to resolve this issue prior to filing [Grievance 2074] as outlined in policy [PD 03.02.130]." (Id. at PageID.131.)

         The magistrate judge concluded that because MDOC had considered the merits of grievance at Step I and Step II without any reference to a procedural defect, the Defendants had waived the defect noted at Step III. The magistrate judge's conclusion was premised on Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). There, the Sixth Circuit explained, "[w]hen prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we." Id.

         The magistrate judge further concluded that Plaintiff had exhausted a claim against Dr. Whiteman because Grievance 333, which contained a claim against Whiteman, was rejected as duplicative by MDOC. The magistrate judge reasoned that if Grievance 333 was truly duplicative of Grievance 2074, then Dr. Whiteman had fair notice of the alleged mistreatment that led to Plaintiffs claim despite Plaintiff not identifying him by name.

         The Defendants now object that the Report and Recommendation does not address Cook v. Caruso, an unpublished Sixth Circuit opinion. 531 Fed.Appx. 554, 563 (6th Cir. 2013).[1]

         In Cook, the MDOC denied the plaintiff a bottom bunk even though he had a special medical accommodation as a precaution for his epilepsy. Id. at 556. He suffered a ...

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