United States District Court, E.D. Michigan, Southern Division
PHILIP BERRYMAN and ALBERT L. LEE, Plaintiffs,
R. HAAS, GEORGE STEPHENSON, REGINA JENKINS-GRANT, and ARUS SCAMBATTI, Defendants.
Magistrate Judge Patricia T. Morris
OPINION AND ORDER ACCEPTING MAGISTRATE JUDGE'S
RECOMMENDATION , GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT , AND DENYING ALL OTHER MOTIONS AS
J. MICHELSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
short, the Court denied Berryman a preliminary injunction but
granted one to Lee.
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
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
(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 ...