United States District Court, W.D. Michigan, Northern Division
Robert J. Jonker U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE
a civil rights action brought by state prisoner Michael
Elliot pursuant to 42 U.S.C. § 1983. The Court served
the Complaint on Defendant Keith Snyder with respect to
Plaintiff's First Amendment and Religious Land Use and
Institutionalized Persons Act (RLUIPA) claims. (ECF No. 4.)
The matter before the undersigned is Defendant's
“Motion for Summary Judgment Based on Failure to
Exhaust.” (ECF No. 7.) For the reasons stated below,
the undersigned recommends that Defendant's motion be
complaint, Plaintiff alleges that he practices the Native
American religion. As part of his religious practices,
Plaintiff states that he must burn tobacco - also known as
“smudging” - in order to pray. He also states
that his religion requires him to purify his body with sage,
cedar, and sweetgrass prior to prayer.
has been in segregation for over four years. On July 7, 2016,
Plaintiff was told by his unit counselor that Defendant
Snyder, the prison chaplain, had disallowed smudging for any
prisoner in segregation. Plaintiff states that Native
American prisoners in the general population may smudge and
pray weekly as part of their religious practice. Plaintiff
alleges that the denial of his ability to practice smudging
constitutes a denial of his ability to pray in the manner
prescribed by his religious beliefs.
filed one grievance relevant to this case: Grievance
#AMF-16-07-1752-27B. (ECF No. 8-3, PageID.61-64.) On July 9,
2016, Plaintiff filed the Step I grievance with an alleged
incident date of July 7, 2016. Plaintiff wrote that his
religion requires him to smudge in order to pray. He further
wrote that when he placed an order for the required herbs, he
was told that pursuant to MDOC policy and a memorandum
regarding tobacco use Plaintiff was not allowed to
“smudge” while housed in segregation. Plaintiff
stated that the “Chaplain's interpretation of the
memo is wrong.” (PageID.64.) The grievance was rejected
at Step I because “the content of policy and procedure
is non-grievable.” (PageID.64.) The rejection was
upheld through Step III.
to the applicable portion of the Prison Litigation Reform Act
(PLRA), 42 U.S.C. § 1997e(a), a prisoner bringing an
action with respect to prison conditions under 42 U.S.C.
§ 1983 must exhaust his available administrative
remedies. Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731, 733 (2001).
A prisoner's failure to exhaust his administrative
remedies is an affirmative defense, which Defendants have the
burden to plead and prove. Jones v. Bock, 549 U.S.
199, 212-16 (2007).
argues that Plaintiff failed to properly exhaust his
administrative remedies. He argues that the only grievance
related to this case was rejected because it was a
non-grievable issue and that the rejection was upheld through
Step III. But, it is well-established that a prisoner
“cannot be required to exhaust administrative remedies
regarding non-grievable issues.” Figel v.
Bouchard, 89 Fed.Appx. 970, 971 (6th Cir. 2004); see
also Mays v. Kentucky Dept. of Corrections,
2018 WL 4603153, at *3 (W.D. Ky. Sept. 25, 2018) (“It
is beyond debate that an inmate cannot be required to exhaust
administrative remedies regarding non-grievable
issues.”); Reeves v. Hobbs, 2013 WL 5462147
(W.D. Ark. Sept. 3, 2013) (“Defendants cannot treat a
complaint as non-grievable, and therefore not subject to the
grievance procedure, and then turn around and maintain the
claim fails because [the plaintiff] failed to follow the
grievance procedure. As the well known proverb states, they
cannot have their cake and eat it too.”).
Plaintiff made the same allegations in both the grievance and
the complaint. After reviewing the grievance, the MDOC
determined that Plaintiff's complaints regarding his
inability to smudge in segregation is a non-grievable issue.
Because Plaintiff cannot grieve non-grievable issues, the
undersigned recommends that Defendant's motion for
summary judgment for failure to exhaust (ECF No. 7) be
TO PARTIES: Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the
Court within fourteen (14) days of receipt of this Report and
Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely
objections constitutes a waiver of any further right to
appeal. United States v. Walters, 638 F.2d 947 (6th