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Favors v. Leach

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

January 17, 2019

GENE T. FAVORS #159735, Plaintiff,
v.
DAVID M. LEACH, 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 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, [1] 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.

         The 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.

         Plaintiff 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.

         Plaintiff 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.

         Summary 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).

         The 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.

         The 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[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). 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. 2017).[2]

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


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