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Rose v. Damron

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

June 27, 2018

WILLIE ROSE, # 235893, Plaintiff,
v.
JOSEPH DAMRON, et al., Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND ADDRESSING CERTAIN MOTIONS

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         Plaintiff, Willie Rose, an inmate incarcerated with the Michigan Department of Corrections (MDOC), filed a complaint pursuant to 42 U.S.C. § 1983 against numerous MDOC and Corizon Health employees. Following initial screening pursuant to 28 U.S.C. §§ 1915 and 1915A and 42 U.S.C. § 1997(e), Rose was left with: (1) Eighth Amendment claims against Defendants Damron, Covert, Bonefeld, Rogers, McDowell, Kinny, Paquette, and Canlas; (2) retaliation claims against Defendants Fretag, Covert, Rogers, and McDowell; and (3) Fourth Amendment claims against Defendants Rogers, McDowell, and Unknown Party #12. (ECF No. 43 at PageID.978.) Thereafter, Defendants Rogers, Paquette, Canlas, and Bonefeld (the Corizon Defendants), and Defendants Damron, Kinny, Fretag, and Covert (the MDOC Defendants), filed motions for summary judgment on the basis that Rose failed to exhaust his administrative remedies.

         On March 20, 2018, Magistrate Judge Greeley issued a Report and Recommendation (R & R) recommending that the Court: (1) grant the Corizon Defendants' motion as to the claims against Defendant Bonefeld and deny it as to the claims against Defendants Rogers, Paquette, and Canlas; and (2) grant the MDOC Defendants' motion only as to the hot-water-bottle claim against Defendant Covert and deny it as to the claims against Damron, Kinny, and Freytag and the co-pay claim against Defendant Covert. (ECF No. 202 at PageID.2529.)

         Rose filed Objections to the R & R, arguing that: (1) the magistrate judge erred in concluding that Rose failed to exhaust his hot-water-bottle claim against Defendant Covert; and (2) the magistrate judge erred in concluding that Rose did not exhaust his claim against Defendant Bonefeld. The Corizon Defendants also filed Objections, arguing that the magistrate judge erred in concluding that Defendants failed to show that Rose did not exhaust his claims against Paquette, Canlas, and Rogers. Rose and the Corizon Defendants have responded to each others' objections.

         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, the parties' Objections, and the pertinent portions of the record, the Court will adopt the R & R.

         I. Rose's Objections

         Defendant Covert-Hot-Water-Bottle Claim

         The magistrate judge concluded that Rose failed to exhaust his administrative remedies as to his claims against Defendant Covert related to the hot-water-bottle because grievance URF-16-02-0487-28e, which complained that “nurse Supervisor Mr. Coventry” took Rose's hot-water-bottle on December 16, 2015, was rejected as untimely. (ECF No. 202 at PageID.2526.) Rose objects that he made prison officials aware of Covert's ongoing abuse/retaliation of Plaintiff in grievance KCF-1512-1690-12Z. (ECF No. 214 at PageID.2610.) The Court disagrees. Rose's Step I grievance and Step II appeal both identified the date of the incident as December 24, 2015, and neither form mentions Defendant Covert taking Rose's hot-water-bottle. (ECF No. 26-8 at PageID.620, 623.) Thus, the magistrate judge did not err in concluding that Plaintiff failed to exhaust this claim.

         Defendant Bonefeld

         The magistrate judge concluded that Rose failed to exhaust his claim against Defendant Bonefeld for failing to treat Rose for back pain on January 21, 2016, because the grievance Rose cited: (1) concerned Rose's complaints about being charged a co-pay, not about lack of treatment for back pain; (2) did not name Defendant Bonefeld; and (3) cited the date of the incident as January 15, 2016, and January 25, 2016, not January 21, 2016. (ECF No. 202 at PageID.2528.) Rose argues that he “believes that he did exhaust these claims in grievance KCF-16-01-165-12, ” (ECF No. 214 at PageID.214), but he fails to indicate where in the record such grievance materials can be found. The Court has reviewed grievance KCF-16-02-165-12z, which the magistrate judge noted is Exhibit G of the amended complaint, and concurs with the magistrate judge's assessment that such grievance concerned Rose's complaints about being charged a co-pay, not Defendant Bonefeld's refusal to treat Rose on January 21, 2016. Therefore, this argument is rejected.

         II. Corizon Defendants' Objections

         Defendant Paquette

         The magistrate judge concluded that Defendant Paquette failed to meet his burden to show that Rose did not exhaust his administrative remedies regarding his claim that Defendant Paquette was deliberately indifferent on November 22, 2015, when he allowed non-medical professionals to transport Rose to the hospital. The magistrate judge concluded that Rose exhausted this claim against Defendant Paquette in grievance URF-15-12-650-12e3. The magistrate judge noted that in his Step II appeal, Rose wrote, “Why did health care Danielle M. Paquette PA send grievant out by car when grievant was not able to stand on his own?” and the Step II response addressed Rose's claim “that an inappropriate mode of transport (car) was used to transport him off-site that day.” (ECF No. 202 at PageID.2525.)

         Defendant Paquette argues that the magistrate judge erred because Grievance No. URF-15-12-4650-12e3 grieved a nurse and several corrections officers and not Paquette, and Rose's simple question did not suffice to add a new issue at Step II or to convert the grievance to one against Defendant Paquette. Alternatively, Defendant Paquette argues that even if the grievance exhausted Rose's claim, sending an inmate to the hospital in a car rather than by ambulance does not rise to the level of a constitutional violation. Having reviewed the grievance at issue, the Court concurs with the magistrate judge's assessment that Rose's Step II appeal and the response show that Paquette failed to carry his burden of showing lack of exhaustion. As for Defendant Paquette's merits-related claim, the Court declines to consider it at this juncture. Raising a merits argument in an objection to a motion for summary judgment for lack of exhaustion is inappropriate because it would deprive the magistrate judge of an opportunity to address it in the first instance and would preclude Rose from ...


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