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Garza v. Naples

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

June 12, 2018

DIMAS GARZA #270734, Plaintiff,
v.
ROBERT NAPLES, et al., Defendants.

          HON. GORDON J. QUIST JUDGE

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         This is 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).

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         Summary 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).

         A 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[1], 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).

         Pursuant 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, 1859-1860 (2016).

         MDOC 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 explained:

[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).[1]

         If the 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 ΒΆΒΆ T, FF. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC ...


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