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Berryman v. Haas

United States District Court, E.D. Michigan, Southern Division

March 31, 2019

PHILIP BERRYMAN and ALBERT L. LEE, Plaintiffs,
v.
R. HAAS, GEORGE STEPHENSON, REGINA JENKINS-GRANT, and ARUS SCAMBATTI, Defendants.

          Magistrate Judge Patricia T. Morris

          OPINION AND ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION [50], GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [30], AND DENYING ALL OTHER MOTIONS AS MOOT

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE.

         Philip Berryman and Albert Lee are prisoners in the custody of the Michigan Department of Corrections. Berryman is 77 years old; Lee is 68 years old. Both are permanently confined to a wheelchair. And both say they must use catheters and must manually extract their feces. Further, both claim that cellmates have attacked them because of their compromised condition or because they self-evacuate in their shared cells. For these and related reasons, Berryman and Lee maintain that they are entitled to a single-person cell. For some or even all of 2017, they each had a single-person cell. But things changed in January 2018 when staff at the Macomb Correctional Facility (MRF) assigned each of them to cells with a cellmate. That prompted this lawsuit.

         Defendants, each employed at MRF when this suit was filed, seek early summary judgment. They say neither Berryman nor Lee exhausted a grievance about their single-person cells being taken away in January 2018. This motion, along with all other pretrial matters, have been referred to Magistrate Judge Patricia T. Morris. She recommends granting Defendants' non-exhaustion motion and dismissing Berryman and Lee's complaint without prejudice. As explained below, the Court will accept this recommendation.

         I.

         A.

         In a prior opinion and order, this Court addressed Berryman and Lee's request to preliminary enjoin Defendants from depriving Plaintiffs of a single-person cell. Berryman v. Haas, No. 2:18-CV-10833, 2018 WL 6715826 (E.D. Mich. Dec. 21, 2018). As to Berryman, the Court noted that at the time he had filed the lawsuit, he was incarcerated at the Macomb Correctional Facility (MRF) but had since been transferred from MRF to the Earnest C. Brooks Correctional Facility (LRF). Id. at *2. (Incidentally, last month Berryman was transferred back to MRF. (See ECF No. 51, PageID.480; ECF No. 52.)) “And, ” the Court explained, “Berryman has not pled (let alone evidenced) that LRF staff have denied him a single-person cell.” Berryman, 2018 WL 6715826, at *2. So the Court found that Berryman had not shown he needed a court order for a single-person cell. Id.

         But Lee had not been transferred from MRF and the Court believed that Lee's unrebutted averments of cell-mate assaults and the need to self-evacuate established a likely Eighth Amendment violation. In particular, this Court stated, “The indignity of self-evacuating in front of other prisoners and the risk of assault by other prisoners are, at least when combined, a substantial risk of serious harm under the Eighth Amendment.” Berryman, 2018 WL 6715826, at *3. The Court acknowledged that Defendants sought summary judgment on the basis that neither Berryman or Lee had exhausted grievances for a single-person cell before filing this lawsuit. Id. at *4. In support of their defense of non-exhaustion, Defendants attached a printout from the grievance database showing that Berryman and Lee had not pursued through the final step of the grievance process any grievance related to the January 2018 decision to place them in cells with cellmates. But, the Court noted, “[a]ccording to Plaintiffs, they have ‘[m]irror' claims and the grievance coordinator at MRF, E. Taylor, told them that they could not file a grievance and to take their issue to the Warden's Forum.” Berryman, 2018 WL 6715826, at *4. And, said the Court, “[t]hey did that (at least in part).” Id. at *5. The Court recognized that “[t]here may be good reasons why this did not amount to exhaustion-at least not of all of Plaintiffs' claims.” Id. “But, ” this Court reasoned, “Defendants have not provided them. So, at this stage of the case, Defendants have not carried their burden of showing that Lee has not exhausted.” Id. Thus, while “Lee's likelihood of success [was] discounted by the possibility that he did not exhaust, Defendants ha[d] not yet shown that the discount is substantial.” Id.

         So, in short, the Court denied Berryman a preliminary injunction but granted one to Lee.

         B.

         The Court then referred all pre-trial matters to Magistrate Judge Patricia T. Morris. (ECF No. 46.) That included Defendants' motion for summary judgment on the basis of non-exhaustion.

         The Magistrate Judge recommends granting that motion. As to Plaintiffs' assertion that they tried to file grievances but the grievance coordinator told them to take their issue to the Warden's Forum, the Magistrate Judge found that the Warden's Forum was not the proper place for their grievance. She explains,

The Warden's Forum is the proper place to challenges to the content of a prison policy or procedure. However, in the instant case, Plaintiffs do not challenge the content of policy or procedure, but rather argue that their constitutional rights have been violated and seek compensatory and punitive damages for those violations. They do not argue that any policy is unconstitutional, nor do they ask the court to rewrite or to declare unconstitutional any prison policy. Accordingly, their complaints are grievable and should have been pursued through Step III of the grievance process.

(ECF No. 50, PageID.448.) And because the printout from the grievance database shows that Berryman and Lee did not pursue a complaint about the January 2018 denial through Step III of the grievance process, the Magistrate Judge ...


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