United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
Kent United States Magistrate Judge
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).
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.
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.
Motions for summary judgment
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).
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
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
Plaintiff failed to exhaust his claims against Dr.
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.
MDOC Grievance process
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.
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,
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 ...