United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a state
prisoner pursuant to 42 U.S.C. § 1983. This lawsuit
arises out conditions of plaintiff's confinement in 2012
at the Michigan Reformatory, and it stems from a dispute
regarding a pair of orthopedic shoes that plaintiff says were
prescribed to him as a medical accommodation. The defendants
are Lieutenant Keara Muzzin, Lieutenant Roger Martin, and
Resident Unit Manager Kerry Gobert. Plaintiff sues defendants
in their official capacities for compensatory damages under
the Americans with Disabilities Act and the Rehabilitation
Act. He also sues defendants Muzzin and Martin in their
individual capacities for damages on plaintiff's claims
that they violated his Eighth Amendment rights.
matter is before the Court on defendants' motion for
summary judgment based on the affirmative defense of failure
to exhaust administrative remedies, as required by 42 U.S.C.
§ 1997e(a), and qualified immunity. (ECF No. 73).
Plaintiff opposes defendants' motion. (ECF No. 85). For
the reasons set forth herein, I recommend that the Court
grant defendants' motion with respect to plaintiff's
Eighth Amendment claims against defendants Muzzin and Martin,
and that it deny the motion on all other claims.
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); McKay v. Federspiel, 823 F.3d
862, 866 (6th Cir. 2016). The standard for determining
whether summary judgment is appropriate is “whether
‘the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.' ”
Rocheleau v. Elder Living Const., LLC, 814 F.3d 398,
400 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)). The Court must
consider all pleadings, depositions, affidavits, and
admissions on file, and draw all justifiable inferences in
favor of the party opposing the motion. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials “negating” the
opponent's claim. See Morris v. Oldham Cty. Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party's case,
” the nonmoving party has the burden of coming forward
with evidence raising a triable issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain
this burden, the nonmoving party may not rest on the mere
allegations of his pleadings. See Ellington v. City of E.
Cleveland, 689 F.3d 549, 552 (6th Cir. 2012). The motion
for summary judgment forces the nonmoving party to present
evidence sufficient to create a genuine issue of fact for
trial. Street v. J.C. Bradford & Co., 886 F.2d
1472, 1478 (6th Cir. 1990); see Newell Rubbermaid, Inc.
v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012).
“A mere scintilla of evidence is insufficient;
‘there must be evidence on which a jury could
reasonably find for the [non-movant].' ”
Dominguez v. Correctional Med. Servs., 555 F.3d 543,
549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at
252); see Lossia v. Flagstar Bancorp, Inc., 895 F.3d
423, 428 (6th Cir. 2018).
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 Cty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.
2001). “[W]here 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)
(citation and quotation omitted). In other words, the movant
with the burden of proof “ ‘must show that 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)); see Surles v. Andison, 678 F.3d
452, 455-56 (6th Cir. 2012); Cockrel, 270 F.2d at
1056. Accordingly, summary judgment in favor of the party
with the burden of proof “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).
Applicable to the Affirmative Defense of Failure to Exhaust
have asserted the affirmative defense of plaintiff's
failure to exhaust administrative remedies. A prisoner
bringing an action with respect to prison conditions under 42
U.S.C. § 1983 “or any other Federal law”
must exhaust available administrative remedies. 42 U.S.C.
§ 1997e(a); see Jones v. Bock, 549 U.S. 199,
220 (2007); Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731 (2001). A
prisoner must 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 734. “This requirement is a strong one. To
further the purposes behind the PLRA, exhaustion is required
even if the prisoner subjectively believes the remedy is not
available, even when the state cannot grant the particular
relief requested, and even where the prisoner[ ] believes the
procedure to be ineffectual or futile.” Napier v.
Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011)
(internal quotations and citations omitted).
Jones v. Bock, the Supreme Court held that
“exhaustion is an affirmative defense, and prisoners
are not required to specifically plead or demonstrate
exhaustion in their complaints.” 549 U.S. at 216. The
burden is on defendants to show that plaintiff failed to
properly exhaust his administrative remedies. The Supreme
Court reiterated that “no unexhausted claim may be
considered.” 549 U.S. at 220. The Court held that when
a prisoner complaint contains both exhausted and unexhausted
claims, the lower courts should not dismiss the entire
“mixed” complaint, but are required to dismiss
the unexhausted claims and proceed to address only the
exhausted claims. 549 U.S. at 219-24.
order to exhaust administrative remedies, prisoners must
complete the administrative review process in accordance with
the deadlines and other applicable procedural rules
established by state law. Jones v. Bock, 549 U.S. at
218-19. In Woodford v. Ngo, 548 U.S. 81 (2006), the
Supreme Court held that the PLRA exhaustion requirement
“requires proper exhaustion.” 548 U.S. at 93.
“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural
rules.” Id. at 90; see Scott v.
Ambani, 577 F.3d 642, 647 (6th Cir. 2009). Thus, when a
prisoner's grievance is rejected by the prison as
untimely because it was not filed within the prescribed
period, the prisoner's claim is not “properly
exhausted” for purposes of filing a section 1983 action
in federal court. 548 U.S. at 90-93; Siggers v.
Campbell, 652 F.3d 681, 692 (6th Cir. 2011);
see 42 U.S.C. § 1997e(a).
Policy Directive 03.02.130 (effective July 9, 2007) sets
forth the applicable grievance procedures. In Sullivan
v. Kasajaru, 316 Fed.Appx. 469, 470 (6th Cir. 2009), the
Sixth Circuit held that this policy directive
“explicitly required [the prisoner] to name each person
against whom he grieved, ” and it affirmed the district
court's dismissal of a prisoner's claim for failure
to properly exhaust his available administrative remedies.
Id. at 470.
Sixth Circuit has “clearly held that an inmate does not
exhaust available administrative remedies when the inmate
fails entirely to invoke the grievance procedure.”
Napier, 636 F.3d at 224. An argument that it would
have been futile to file a grievance does not suffice.
Assertions of futility do not excuse plaintiff from the
exhaustion requirement. See Napier, 636 F.3d at 224;
Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir.
1999) (“[A]n inmate cannot simply fail to file a
grievance or abandon the process before completion and claim
that he has exhausted his remedies or that it is futile for
him to do so because his grievance is now time-barred under
the regulations.”); see also Booth v. Churner,
532 U.S. at 741 n.6 (“[W]e will not read futility or
other exceptions into statutory exhaustion requirements where
Congress has provided otherwise.”).
argue that they are entitled to summary judgment on the basis
of qualified immunity. “Once [an] official[ ] raise[s]
the qualified immunity defense, the plaintiff bears the
burden to ‘demonstrate that the official [is] not
entitled to qualified immunity.' ” LeFever v.
Ferguson, 645 F. App=x 438, 442 (6th Cir. 2016) (quoting
Silberstein v. City of Dayton, 440 F.3d 306, 311
(6th Cir. 2006)).
government official sued under section 1983 is entitled to
qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the
time of the challenged conduct.” Carroll v.
Carman, 135 S.Ct. 348, 350 (2014); see Taylor v.
Barkes, 135 S.Ct. 2042, 2044 (2015). The first prong of
qualified immunity analysis is whether the plaintiff has
alleged facts showing that defendant's conduct violated a
constitutional or statutory right. See Saucier v.
Katz, 533 U.S. 194, 201 (2001). The second prong is
whether the right was “clearly established” at
the time of the defendant's alleged misconduct.
Id. Trial courts are permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
qualified immunity defense can be asserted at various stages
of the litigation, including the summary judgment stage.
See English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). The qualified immunity inquiry at the summary judgment
stage is distinguished from the Rule 12(b)(6) stage in that
generalized notice pleading no longer suffices, and the
broader summary judgment record provides the framework within
which the actions of each individual defendant must be
evaluated. At the summary judgment stage, “the
plaintiff must, at a minimum, offer sufficient evidence to
create a ‘genuine issue of fact,' that is,
‘evidence on which a jury could reasonably find for the
plaintiff.' ” Thompson v. City of Lebanon,
Tenn., 831 F.3d 366, 370 (6th Cir. 2016).
Brosseau v. Haugen, the Supreme Court examined the
underlying purpose of the requirement that ...