United States District Court, W.D. Michigan, Northern Division
GENE T. FAVORS #159735, Plaintiff,
DAVID M. LEACH, et al., Defendants.
GORDON J. QUIST Judge.
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE.
a civil rights action brought by state prisoner Gene T.
Favors pursuant to 42 U.S.C. § 1983. Plaintiff asserts
First and Fourteenth Amendment claims against Defendants
David M. Leach, Unknown Rink, G. Gugin, R. Masker,
Unknown Valle, and Unknown Switzer. (ECF No. 1, PageID.6).
Defendant Gugin filed a motion for summary judgment. (ECF No.
133). Plaintiff filed a motion for partial summary judgment
against Defendant Gugin. (ECF No. 140). Plaintiff also filed
an Affidavit of Jason Shaver that appears to be a response to
Defendant Gugin's motion for summary judgment. (ECF No.
146). Defendant Gugin filed a response. (ECF Nos. 156, 157,
& 158). In addition, Defendants Leach, Rink, Masker,
Valle, and Switzer (“the MDOC Defendants”) filed
a separate motion for summary judgment. (ECF No. 143).
Plaintiff filed a Declaration that appears to be his response
to the MDOC Defendants' motion. (ECF No. 155). This
matter is ready for decision.
claims in this case arise from a series of events that
occurred while Plaintiff was confined at the Chippewa
Correctional Facility (URF). Plaintiff first makes several
complaints concerning his religion and the food he received
at URF. Plaintiff states that he is a Sunni Muslim. On June
9, 2014, Chaplain Bolton informed Plaintiff that the MDOC had
denied his request for the religious vegan diet. On June 25,
2014, Plaintiff met with Chaplain Bolton. During this
meeting, Chaplain Bolton explained that he did not know why
Plaintiff was denied the religious diet. Plaintiff believes
that he was denied the religious diet because he has history
of filing grievances.
also alleges that his meals were cross contaminated with
either pork or meat juices. He states that pork is placed
next to non-meat foods and that the pork grease splashes onto
the non-meat food. He also states that the cooking equipment
is not properly cleaned. In addition, Plaintiff complains
that some of the employees do not wear hairnets when handling
the food. Plaintiff alleges that Defendant Gugin, a Trinity
Services Group, Inc. (“Trinity”) employee, has
refused to correct these issues.
further alleges that, on October 4, 2014, Defendant Rink
prohibited Plaintiff from bringing snacks to the Eid Service.
On January 17, 2015, Plaintiff found a bug in his food. On
September 23, 2015, Defendant Switzer told Plaintiff and
other Muslim inmates that they were not allowed “to
make Wudu” in the gym. Wudu is a religious ritual that
involves the washing of body parts. Plaintiff alleges that
Muslim inmates “have been making Wudu” in the gym
“for years.” Plaintiff next makes several
complaints regarding the handling of his mail at URF. On July
24, 2013, an individual attempted to mail to Plaintiff a
Quran. Plaintiff never received the Quran. On October 14,
2014, Bound Together Books attempted to mail Plaintiff a
book. However, Plaintiff never received the book. Plaintiff
complains that Bound Together Books never received a
rejection notice. Plaintiff states that Defendants altered
the notice form that he received because the form did not
have a box to check to request a hearing. Plaintiff also
alleges that Defendants opened his legal mail and removed the
large envelopes, so he could not send mail back.
judgment is appropriate only if the moving party establishes
that there is no genuine issue of material fact for trial and
that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). If the movant carries the burden of
showing there is an absence of evidence to support a claim or
defense, then the party opposing the motion must demonstrate
by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material
fact for trial. Id. at 324-25. The nonmoving party
cannot rest on its pleadings but must present “specific
facts showing that there is a genuine issue for trial.”
Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The
evidence must be viewed in the light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). Thus, any direct evidence
offered by the plaintiff in response to a summary judgment
motion must be accepted as true. Muhammad v. Close,
379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v.
Metiva, 31 F.3d 375, 382 (6th Cir. 1994)). “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson,
477 U.S. at 247-48. Ultimately, the court must determine
whether there is sufficient “evidence on which the jury
could reasonably find for the plaintiff.” Id.
at 252. See also Leahy v. Trans Jones, Inc., 996
F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence
of other evidence to the contrary, failed to present genuine
issue of fact); cf. Moore, Owen, Thomas & Co. v.
Coffey, 992 F.2d 1439, 1448 (6th Cir. 1993) (single
affidavit concerning state of mind created factual issue).
Court will first address Defendant Valle. The MDOC Defendants
argue that Plaintiff failed to allege that Defendant had the
requisite personal involvement in this case. It is a basic
pleading essential that a plaintiff attribute factual
allegations to particular defendants. See Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007) (holding that, in order
to state a claim, a plaintiff must make sufficient
allegations to give a defendant fair notice of the claim).
Where a person is named as a defendant without an allegation
of specific conduct, the complaint is subject to dismissal,
even under the liberal construction afforded to pro
se complaints. See Frazier v. Michigan, 41
Fed.Appx. 762, 764 (6th Cir. 2002) (dismissing the
plaintiff's claims where the complaint did not allege
with any degree of specificity which of the named defendants
were personally involved in or responsible for each alleged
violation of rights); Griffin v. Montgomery, No.
00-3402, 2000 WL 1800569, at *2 (6th Cir. Nov. 30, 2000)
(requiring allegations of personal involvement against each
defendant)); Rodriguez v. Jabe, No. 90-1010, 1990 WL
82722, at *1 (6th Cir. June 19, 1990) (“Plaintiff's
claims against those individuals are without a basis in law
as the complaint is totally devoid of allegations as to them
which would suggest their involvement in the events leading
to his injuries.”). Here, as the MDOC Defendants
correctly note, Plaintiff mentions Defendant Valle only when
naming him as a Defendant in the complaint. Plaintiff states
that “Defendant Valle is a Business Office staff at
Chippewa C.F.” and that she is being sued in her
official and individual capacity. (ECF No. 1, PageID.7).
Plaintiff's fails to make any specific allegations
against Defendant Valle; thus, Plaintiff falls short of the
minimal pleading standards. Therefore, Defendant Valle should
be dismissed from this case.
Court will next address the issue of whether Plaintiff
exhausted his administrative remedies. Defendant Gugin and
the MDOC Defendants argue that Plaintiff did not exhaust his
available administrative remedies. 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, 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). 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, 851 F.3d 583, 590-91 (6th Cir.
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 a
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