United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 40) and
Defendants' Objection to it (ECF No. 41). Under the Federal
Rules of Civil Procedure, where, as here, a party has
objected to portions of a Report and Recommendation,
“[t]he district judge . . . has a duty to reject the
magistrate judge's recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure
§ 3070.2, at 381 (2d ed. 1997). Specifically, the Rules
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981).
Magistrate first recommends denying Plaintiff's
application for entry of default (ECF No. 17) and dismissing
without prejudice all claims against Defendant Nurses Diane
(unknown) and (unknown) Thomas. No. objections have been
raised relating to this portion of the Magistrate's
Report and Recommendation, and the Court agrees with the
recommended disposition here for the very reasons recited by
the Magistrate Judge.
sole Objection in the record relates to the Magistrate
Judge's recommendation that Defendants' motion for
summary judgment (ECF No. 22) be denied because the
Defendants had not carried their burden on the affirmative
defense of exhaustion. More specifically, the Magistrate
Judge found that it would be error to grant the motion
because the Defendants' affirmative defense focused on a
truncated period-the date between March and July 2016, rather
than what the Magistrate concluded was the applicable period
of March 2016 through June 2017. The Magistrate Judge
concluded that the omission means Plaintiff could
theoretically have exhausted grievances between July 2016 and
June 2017. Because Defendants bear the burden of proof on the
affirmative defense of failure to exhaust, this omission
precluded summary judgment.
contend the Magistrate erred in finding the applicable period
extended through to the date Plaintiff filed this suit
because Plaintiff could only have filed timely grievances
related to those complained of incidents through July 2016.
(ECF No. 41, PageID.330). Defendants further contend that
even if the Magistrate were correct, the proper recourse in
this case is an evidentiary hearing, not denial of the
motion. After performing a de novo review, the Court
concludes that the Magistrate provided an accurate
application of the relevant law and, accordingly,
Defendants' motion for summary judgment must be denied.
PLRA provides as follows: ‘No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.'” Woodford v. Ngo, 548 U.S. 81,
87-88 (2006) (quoting 42 U.S.C. § 1997e(a)).
“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211
(2007). But it is equally plain that “failure to
exhaust is an affirmative defense under the PLRA, and that
inmates are not required to specially plead or demonstrate
exhaustion in their complaints.” Id. at 216.
This means that Defendants bear the burden of coming forward
with an evidentiary showing to support the affirmative
defense in the motion for summary judgment.
a clam has been properly exhausted is determined as of the
date of the filing of the complaint or other currently
operative pleading where the complaint has been amended See
Mattox v. Edelman, 851 F.3d 583, 592 (6th Cir.
2017). A grievance cannot be exhausted after the lawsuit is
filed. “It is well established that a prisoner cannot
file a lawsuit first and then exhaust his administrative
remedies after-the-fact.” Jennings v.
Crompton, No. 1:16-cv-921, 2017 WL 3557427, at * (W.D.
Mich. July 20, 2017). But a prisoner can theoretically
exhaust right up to the time of filing suit. The fundamental
error in Defendants' position is that the applicable time
period for purposes of an exhaustion analysis is not limited
by the date of the underlying factual allegations, but by the
dictates of the PLRA. For the reasons discussed above, the
applicable time period under the PLRA extends to the date of
the filing of the Complaint.
cannot avoid this burden of establishing failure to exhaust
by suggesting that any grievance filed between July of 2016
and the filing of this lawsuit in June of 2017 would have
been untimely under MDOC rules. Even an untimely grievance
can properly exhaust a claim if the defendants fail to
enforce their own procedural basis in the grievance process.
A procedural bar does not apply where the State declines to
enforce its own procedural rules. See Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010). The
pivotal question is whether the Step III decision, the last
decision, was based on the enforcement of a procedural bar.
Id. at 326 (6th Cir. 2010); see also
Reynolds-Bey v. Harris, 428 Fed.Appx. 493, 502 (6th
Cir. 2011) (The Step III decision is “the equivalent of
the last state court [decision] in [a] habeas
[case.]”). The affidavit of Clarice Lewis is entirely
silent regarding the period between July 2016 and June 2017.
The Court therefore cannot determine whether Plaintiff filed
grievances within this time, and if so whether the state
enforced its own procedural rules in response. Therefore the
Magistrate Judge correctly found that Defendants could not
meet their burden on the affirmative defense of exhaustion.
these reasons the Defendants' argument for an evidentiary
hearing also misses the mark. This is not a case of
conflicting evidence on whether Plaintiff was prevented from
pursuing his administrative remedies. Rather, it's a case
where Defendants failed to meet their initial burden on
summary judgment of demonstrating that Plaintiff failed to
exhaust during the potentially available time period
established by the PLRA. Of course, denial of summary
judgment does not preclude defendants from relying upon and
attempting to establish a viable exhaustion defense at trial,
or in any other appropriate motion.
IT IS ORDERED:
Report and Recommendation of the Magistrate Judge (ECF No.
40) is APPROVED and ADOPTED ...