United States District Court, W.D. Michigan, Northern Division
GORDON J. QUIST JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by state prisoner Dimas Garza
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that
Defendants Warden Robert Naples, Assistant Deputy Warden
James Alexander, Assistant Deputy Warden Sarah Schroeder,
Inspector Niemisto, Inspector Tasson, Resident Unit Manager
Darren Viitilia, Resident Unit Supervisor Ms. Cesarek, and
Security Threat Group Sergeant Mr. Lee failed to protect him
from inmate assaults after he warned them of the threats.
Plaintiff alleges violations under the First, Fourth, Fifth,
Eighth, Ninth, and Fourteenth Amendments, ethnic
intimidation, assault, abuse of process, and libel and
slander. Defendants filed a motion for partial summary
judgment (ECF No. 34) on the ground that Plaintiff failed to
exhaust his available administrative remedies. Plaintiff
filed a response. (ECF No. 36).
alleges that he arrived at the Marquette Branch Prison (MBP)
in April of 2016, and was confined in G-block, because he had
enemies in B-block. During August of 2016, Plaintiff moved
into segregation after a smuggling attempt. He learned that
the son of the victim his co-defendant had murdered resided
at MBP and wanted to kill him to get revenge for his father.
On August 28, 2016, Plaintiff kited Defendant Warden Napel
requesting protection. Defendants Viitalia and Sergeant Lee
stopped at Plaintiff's cell on or about September 1,
2016, to discuss the kite. When Plaintiff told him about the
threat, Defendant Viitalia stated “Ain't no one
going to do nothing to “Big D”, you run the
operation.” Plaintiff states that he is known as
“Big D” among prisoners. Defendant Viitalia
stated that he would investigate. Defendant Lee stated to
Plaintiff that he did not believe him. On another occasion,
Defendant Niemisto told Plaintiff that he would investigate.
Defendants Alexander and Schroeder told Plaintiff that they
would send the Inspector and STG sergeant to speak with
Plaintiff and to investigate his concern.
asked each Defendant for protection and for a transfer.
Plaintiff had his family speak with Defendants to address his
concerns for protection. Plaintiff informed Defendants that
the victim's son was in B-block with Plaintiff, but
Plaintiff did not know what he looked like. Defendants told
Plaintiff that nothing would happen and that he should stop
writing and requesting protection. Defendants told Plaintiff
that there was no room in segregation and that a transfer was
possible, but that he needed to stop making requests because
it would only get worse for him. This conversation caused
other prisoners to believe that Plaintiff was a
“rat-informant.” Defendants refused to place
Plaintiff in protective custody, and placed his life in
danger by calling him a snitch.
October 6, 2016, Plaintiff visited the Security Threat Group
yard with all the violent and dangerous gang-members.
Plaintiff went into the unsupervised kiosk room. Ninety-five
percent of all inmate assaults occur in the kiosk room.
Plaintiff was assaulted and stabbed nine times by the
victim's son. Plaintiff asserts that the officers watched
the assault take place and did nothing to intervene until the
victim's son left the kiosk room. Plaintiff was rushed to
the hospital where he almost died from his injuries.
Plaintiff received multiple stab wounds and a punctured lung.
Plaintiff had life-saving emergency surgery.
returned to MBP on October 11, 2016, where he was initially
placed in quarantine until he was released into the general
population on October 27, 2016. Plaintiff was housed in the
same unit with a prisoner whose mother was arrested for her
involvement with Plaintiff in the attempted smuggling scheme.
Plaintiff visited the Security Threat Group yard on October
28, 2016. Within five minutes of being in the yard, Plaintiff
was assaulted. Defendant Lee visited Plaintiff in quarantine
after the second assault to inform Plaintiff that they had
arrested the son of the mother involved in the smuggling
scheme for the assault.
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Kocak v. Comty. Health Partners of
Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005);
Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005). 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)); see also Tucker v. Union of
Needletrades Indus. & Textile Employees, 407 F.3d
784, 787 (6th Cir. 2005). The court must consider all
pleadings, depositions, affidavits, and admissions on file,
and draw all justifiable inferences in favor of the party
opposing the motion. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296
(6th Cir. 2005).
prisoner's failure to exhaust his administrative remedies
is an affirmative defense, which Defendants have the burden
to plead and prove. Jones v. Bock, 549 U.S. 199,
212-216 (2007). A moving party without the burden of proof
need show only that the opponent cannot sustain his burden at
trial. See Morris v. Oldham County Fiscal Court, 201
F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI
Paints, 398 F.3d 751, 761 (6th Cir. 2005). A moving
party with the burden of proof faces a “substantially
higher hurdle.” Arnett v. Myers, 281 F.3d 552,
561 (6th Cir. 2002); Cockrel v. Shelby County Sch.
Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). “Where
the moving party has the burden -- the plaintiff on a claim
for relief or the defendant on an affirmative defense -- his
showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving
party.” Calderone v. United States, 799 F.2d
254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of
Material Fact, 99 F.R.D. 465, 487-88 (1984)). The United
States Court of Appeals for the Sixth Circuit repeatedly has
emphasized that the party with the burden of proof
“must show the record contains evidence satisfying the
burden of persuasion and that the evidence is so powerful
that no reasonable jury would be free to disbelieve
it.” Arnett, 281 F.3d at 561 (quoting 11 James
William Moore, et al., Moore's Federal Practice §
56.13, at 56-138 (3d ed. 2000); Cockrel, 270 F.2d
at 1056 (same). Accordingly, summary 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.” Hunt v.
Cromartie, 526 U.S. 541, 553 (1999).
to the applicable portion of the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(a), a prisoner bringing an
action with respect to prison conditions under 42 U.S.C.
§ 1983 must exhaust his available administrative
remedies. See Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731, 733 (2001).
A prisoner must first exhaust available administrative
remedies, even if the prisoner may not be able to obtain the
specific type of relief he seeks in the state administrative
process. See Porter, 534 U.S. at 520;
Booth, 532 U.S. at 741; Knuckles El v.
Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman
v. Francis, 196 F.3d 641, 643 (6th Cir. 1999). In order
to properly exhaust administrative remedies, prisoners must
complete the administrative review process in accordance with
the deadlines and other applicable procedural rules.
Jones v. Bock, 549 U.S. 199, 218-19 (2007);
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to
‘properly exhaust.'” Jones, 549 U.S.
at 218-19. In rare circumstances, the grievance process will
be considered unavailable where officers are unable or
consistently unwilling to provide relief, where the
exhaustion procedures may provide relief, but no ordinary
prisoner can navigate it, or “where prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross v. Blake, 136 S.Ct. 1850,
Policy Directive 03.02.130 (effective July 9, 2007), sets
forth the applicable grievance procedures for prisoners in
MDOC custody at the time relevant to this complaint. Inmates
must first attempt to resolve a problem orally within two
business days of becoming aware of the grievable issue,
unless prevented by circumstances beyond his or her control.
Id. at ¶ P. If oral resolution is unsuccessful,
the inmate may proceed to Step I of the grievance process and
submit a completed grievance form within five business days
of the attempted oral resolution. Id. at
¶¶ P, V. The inmate submits the grievance to a
designated grievance coordinator, who assigns it to a
respondent. Id. at ¶ V. The Policy Directive
also provides the following directions for completing
grievance forms: “The issues should be stated briefly
but concisely. Information provided is to be limited to the
facts involving the issue being grieved (i.e., who,
what, when, where, why, how). Dates, times, places and names
of all those involved in the issue being grieved are to be
included.” Id. at ¶ R (emphasis in
original). “But when prison officials decline to
enforce their own procedural rules and instead consider a
non-exhausted claim on its merits, a prisoner's failure
to comply with those rules does not create a procedural bar
to that prisoner's subsequent federal lawsuit.”
Hardy v. Agee, No. 16-2005, at 3 (6th Cir. Mar. 5,
2018) (unpublished) citing Reed-Bey v. Pramstaller,
603 F.3d 322, 325 (6th Cir. 2010). The Sixth Circuit has
[A] prisoner ordinarily does not comply with MDOCPD 130-and
therefore does not exhaust his administrative remedies under
the PLRA-when he does not specify the names of each person
from whom he seeks relief. See Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010)
(“Requiring inmates to exhaust prison remedies in the
manner the State provides-by, say, identifying all
relevant defendants-not only furthers [the PLRA's]
objectives, but it also prevents inmates from undermining
these goals by intentionally defaulting their claims at each
step of the grievance process, prompting unnecessary and
wasteful federal litigation process.”). An exception to
this rule is that prison officials waive any procedural
irregularities in a grievance when they nonetheless address
the grievance on the merits. See id. at 325. We have
also explained that the purpose of the PLRA's exhaustion
requirement “is to allow prison officials ‘a fair
opportunity' to address grievances on the merits to
correct prison errors that can and should be corrected to
create an administrative record for those disputes that
eventually end up in court.” Id. at 324.
Mattox v. Edelman, 2017 WL 992510, slip op. at 8-9
(6th Cir. 2017).
inmate is dissatisfied with the Step I response, or does not
receive a timely response, he may appeal to Step II by
obtaining an appeal form within ten business days of the
response, or if no response was received, within ten days
after the response was due. Id. at ¶¶ T,
BB. The respondent at Step II is designated by the policy,
e.g., the regional health administrator for medical
care grievances. Id. at ¶ DD. If the inmate is
still dissatisfied with the Step II response, or does not
receive a timely Step II response, he may appeal to Step III
using the same appeal form. Id. at ¶¶ T,
FF. The 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. Id. at
¶¶ T, FF. The Grievance and Appeals Section is the
respondent for Step III grievances on behalf of the MDOC