Brown v. Smith

          REPORT AND RECOMMENDATION

          Ray Kent United States Magistrate Judge

         This is a pro se civil rights action brought by a state prisoner at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. All defendants have been dismissed except for physician Roger Gerlach, M.D. and optometrist Thomas Doyle, O.D. This matter is now before the Court on motions for summary judgment filed by defendants Dr. Gerlach (ECF No. 122) and Dr. Doyle (ECF No. 127).

         Plaintiff alleged that he has a medical condition known as keratoconus which has left him “completely blind in the left eye, and partially blind in the right.” Amend. Compl. (ECF No. 8, PageID.77). In his amended complaint, plaintiff alleged that numerous defendants failed to treat or accommodate his condition. Ultimately, the Court severed all claims from this lawsuit except the Eighth Amendment deliberate indifference claims alleged against medical providers Dr. Gerlach, Dr. Doyle, and Dr. Linsley (identified on the docket sheet as Dr. “Lindsey”). See Order (ECF No. 84). The Court identified the following claims against these three defendants. Plaintiff alleged that Dr. Gerlach: obstructed or prevented recommended cornea surgery and failed to provide plaintiff with appropriate contact lenses in 2012; and failed to prescribe him a cane sometime prior to 2016. Id. at PageID.702. Plaintiff alleged that Dr. Doyle: failed to prescribe him in cane in February, March and April 2016; failed to provide plaintiff with appropriate contact lenses in 2010, 2013 and 2015, which caused the swelling of his cornea; and failed to provide plaintiff with prescription sunglasses from March 2015 through sometime in 2016. Id. at PageID.702-703. Finally, plaintiff alleged that Dr. Linsley: failed to provide plaintiff with appropriate contact lenses in 2010, 2013 and 2015, which caused the swelling of his cornea; and, told plaintiff on July 13, 2016 that he would be receiving contact lenses, but failed to provide the lenses. Id.

         The Court granted Dr. Linsley's motion for summary judgment and dismissed plaintiff's claim that Dr. Gerlach failed to prescribe him a cane. See Order (ECF No. 121). Now, plaintiff's lawsuit consists of five Eighth Amendment claims: (1) that Dr. Gerlach obstructed or prevented recommended cornea surgery in 2012; (2) that Dr. Gerlach failed to provide plaintiff with appropriate contact lenses in 2012; (3) that Dr. Doyle failed to prescribe plaintiff a cane in February, March and April 2016; (4) that Dr. Doyle failed to provide plaintiff with appropriate contact lenses which caused swelling of his cornea in 2010, 2013 and 2015; and, (5) that Dr. Doyle failed to provide plaintiff with prescription sunglasses from March 2015 through sometime in 2016. Dr. Gerlach and Dr. Doyle have moved for summary judgment on all claims.

         III. Motions for summary judgment

         A. Legal standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further provides that a party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in a motion for summary judgment:

The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Copeland, 57 F.3d at 478-79 (citations omitted). “In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.” McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the Court is not bound to blindly adopt a non-moving party's version of the facts. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         B. Plaintiff failed to exhaust his claims against Dr. Gerlach

         1. Exhaustion requirement

         The PLRA provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (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 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court.

Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.

Jones, 549 U.S. at 204. In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; 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.

         2. MDOC Grievance process

         The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive 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 prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.

         3. Discussion

         Dr. Gerlach contends that plaintiff failed to exhaust any grievances with respect to the remaining claims in this lawsuit. The Court agrees. Plaintiff alleged that in 2012, Dr. Gerlach obstructed or prevented recommended cornea surgery and failed to provide plaintiff with appropriate contact lenses. The doctor points out that plaintiff exhausted seven grievances prior to filing this lawsuit: ICF 2012-07-1217-07D (“1217”); ICF 2014-02-0347-12E (“347”); ICF 2014-02-0302-14Z (“302”); ICF 2013-09-1713-28A (“1713”); ICF 2013-10-1987-12D1 (“1987”); ICF 2013-09-1713-28A (“1713”); and, DRF 2016-05-1156-27A (“1156”). Gerlach Brief (ECF No. 122, PageID.1093); Grievance History Report (ECF No. 39-2, PageID. 190-333). In his response, plaintiff contends that he exhausted three grievances against Dr. Gerlach, i.e., nos. 1987, 1079, and 1013. Plaintiff's Response (ECF No. 130, PageID.1459).

         a. Grievance 1987

          In this grievance, plaintiff complained that in October 2013 Dr. Gerlach discontinued his accommodations for barrier-free housing, ramps, contact lenses and supplies. Grievance 1987 at PageID.287. The grievance was denied, noting that plaintiff was seen by a medical provider (Dr. Gerlach) on October 14, 2013, at which time his special accommodations were discussed and updated to reflect plaintiff's true needs. Id. at PageID.288. This grievance addressed the doctor's decision to adjust ...