United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
J. QUIST UNITED STATES DISTRICT JUDGE.
February 6, 2018, Magistrate Judge Green issued a Report and
Recommendation (R & R) recommending that the Court grant
Defendants' motion for summary judgment based on
Plaintiff's failure to exhaust administrative remedies in
part and deny it in part. In particular, the magistrate judge
recommended that the Court deny the motion as to
Plaintiff's Eighth Amendment claim against Defendant
Brown and grant the motion as to all other Defendants and
dismiss those claims without prejudice. (ECF No. 48 at
R & R, the magistrate judge noted that Defendants'
evidence, a Step III Grievance Report, showed that Plaintiff
filed three grievances relating to his claims in this case
before he filed the instant case, one on October 21, 2015
(Grievance No. IBC-2015-10-2830-28I), one on November 10,
2015 (Grievance No. IBC-2015-11-3027-12B1), and one on
December 22, 2015 (Grievance No. IBC-2015-12-3450-28C). The
magistrate judge found that the October 21, 2015, grievance
was rejected at Step I because Plaintiff had not attempted to
resolve the issue with staff before he filed the grievance,
and Plaintiff did not appeal that grievance through Step III.
(Id. at PageID.378.) As for the November 10, 2015
grievance, the magistrate judge found that Plaintiff
exhausted it through Step III, and Defendants conceded that
the grievance exhausted Plaintiff's grievance remedies
regarding mental health services up to November 8, 2015,
which included Plaintiff's claims against Defendant
Brown. (Id. at PageID.378-79.). Finally, the
magistrate judge found that Plaintiff's December 22,
2015, grievance was rejected by the grievance coordinator
because it raised multiple issues, and Plaintiff did not
pursue it through Step III. (Id. at PageID.379.)
has filed an Objection to the R & R, arguing that
Defendants and the magistrate judge failed to address certain
arguments Plaintiff made in his response, including that the
magistrate judge should have concluded that the November 10,
2015, grievance also exhausted Plaintiff's claims against
Defendant Ostrander because, like Defendant Brown, Defendant
Ostrander provided mental health services to Plaintiff prior
to the time Plaintiff filed that grievance. Pursuant to 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, Plaintiff's Objection, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted in part and rejected in part.
Plaintiff argues that the November 8, 2015, grievance also
exhausted his claims against Defendant Ostrander, whom
Plaintiff knew as “Mr. H., ” because “Mr.
H.” was one of Plaintiff's “psycs”
prior to the date of the grievance. (ECF No. 49 at
PageID.383.) The magistrate judge noted that Defendants
conceded that Plaintiff “‘exhausted his grievance
remedies regarding mental health services up to November 8,
2015, '” (ECF No. 48 at Page ID.380 (quoting
Defs.' Br. at 7, ECF No. 35 at PageID.232)), and
Plaintiff's claim against Defendant Brown is based on
events that occurred before November 8, 2015. The same
appears to be true with regard to Ostrander, or “Mr.
H.” (ECF No. 8 at PageID.42.) Therefore, the Court
concludes that Plaintiff's November 8, 2015, grievance
exhausted his claims against Defendant Ostrander.
Plaintiff argues that he in fact attempted to appeal the
December 22, 2015, grievance through Step III, but he was
prevented from doing so. Plaintiff points out that in his
response to Defendants' motion, he explained that
following the denial of his Step I grievance and because he
was in administrative segregation at the time, he sent kites
to the grievance coordinator for a Step II appeal form but
the grievance coordinator never provided the form. (ECF No.
49 at PageID.383.) Plaintiff stated in his response that he
“sent numerous kites and waited and waited but never
received my Step 2 appeal form, so I could not fully exhaust
my remedies in the month of December, 2015, but I
tried.” (ECF No. 37 at PageID.282.) Defendants failed
to respond to, let alone acknowledge, Plaintiff's
explanation. As noted in Taylor v. Burt, No.
1:16-CV-9, 2016 WL 4276284 (W.D. Mich. July 20, 2016),
“[i]f prison officials refused Plaintiff's request
for a grievance form . . . the grievance process was
unavailable to Plaintiff and the claim(s) asserted in the
subject grievance cannot be dismissed on failure to exhaust
grounds.” Id. at *5 (citing Ross v.
Blake, 136 S.Ct. 1850, 1858 (2016)). Plaintiff's
December 22, 2015, grievance therefore exhausted
Plaintiff's claims against Defendants Haraburda, Hickey,
Brown, Monestere, and Ostrander-the mental health providers
Plaintiff had seen up to the date of the grievance. (ECF No.
37 at PageID.281.)
Plaintiff argues that Defendants failed to address his
assertion in his response that he wrote another grievance on
February 10, 2016. In his response, Plaintiff explained that
he attempted suicide on January 3, 2016, and was placed in an
observation cell until approximately January 14, 2016.
Plaintiff stated that after he got off observation, he sent a
kite to the grievance coordinator so he could grieve issues
pertaining to denial of mental health services by Defendants
Perry and Kissinger during January 2016. (ECF No. 37 at
PageID.283.) Plaintiff said that he submitted a Step I
grievance but never received a response or a grievance
identifier, which he needed to file a Step II appeal.
Plaintiff kited the grievance coordinator for a Step II
appeal form, but Plaintiff never received one. (Id.
(“When I kited the grievance coordinator to respond to
my grievance or send me a step 2 appeal form I never received
any[, ] making it impossible to exhaust all my remedies, but
I kept trying.”).) Again, Defendants failed to rebut
Plaintiff's allegation. Thus, Defendants fail to show
that Plaintiff failed to exhaust his available grievance
remedies as to Defendants Perry and Kissinger.
Plaintiff admits that he did not file a grievance against
Defendants Davids and Trierweiler regarding his transfer to a
higher level security prison, but he argues that the
MDOC's failure to follow its own policy excuses his
failure to file a grievance. (ECF No. 49 at PageID.386.)
However, Plaintiff cites no authority to support his argument
that he was excused from even attempting to comply with his
available grievance remedies, and the Court declines to rule
that he was so excused.
IT IS HEREBY ORDERED that the February 26,
2018, Report and Recommendation (ECF No. 48) is
ADOPTED IN PART AND REJECTED IN PART, and
Plaintiff's Objection (ECF No. 49) is GRANTED IN
PART AND OVERRULED IN PART.
IS FURTHER ORDERED that Defendants' Motion for
Summary Judgment Based Solely on Plaintiff's Failure to
Exhaust (ECF No. 34) is GRANTED IN PART AND DENIED IN
PART. The motion is granted with
regard to Plaintiff's claims against Defendants Davids
and Trierweiler, which are dismissed without
prejudice, and denied as to Plaintiff's claims
against Defendants Ostrander, Brown, Perry, Kissinger
Haraburda, Hickey, and Monestere.
substantially the same form of declaration under penalty of
perjury specified in 28 U.S.C. § 1746 at the beginning
of his response to Defendants' motion. (ECF No. 37 at
PageID.279.) Although the language is at the beginning rather
than following Plaintiff's responsive factual recitation,
the Court deems the declaration valid. Thus, Defendants were