United States District Court, W.D. Michigan, Northern Division
DEXTER A. CHEATHAM #418181, Plaintiff,
UNKNOWN MORENO, et al., Defendants.
Robert J. Jonker Chief U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE
a civil rights action brought by state prisoner Dexter A.
Cheatham pursuant to 42 U.S.C. Â§ 1983. Plaintiff filed his
complaint on October 27, 2016. He alleged that Defendants
violated his rights by engaging in retaliation that
culminated in the use of excessive force against him during
his time of confinement at the Chippewa Correctional
case was dismissed on February 1, 2017, for lack of
prosecution. (ECF Nos. 7 and 8.) On March 8, 2017, the Court
granted Plaintiff's motion for reconsideration and
reopened the case. (ECF No. 11.) On November 7, 2017, the
Court issued an opinion dismissing all of Plaintiff's
claims against each of the named Defendants except for
Plaintiff's Eighth Amendment excessive force claim
against Defendant Gallagher. (ECF No. 12.)
November 30, 2017, Plaintiff moved to amend his complaint to
add John Moreno as a Defendant. (ECF No. 16.) Plaintiff
asserted that Moreno violated his Eighth Amendment rights by
using excessive force. The Court granted that motion on
February 6, 2018. (ECF No. 21.)
3, 2018, the Court dismissed Defendant Gallagher due to
Plaintiff's failure to exhaust administrative remedies.
(ECF No. 29.)
Moreno was served and appeared through counsel, on October 3,
2018. On that Date, Defendant Moreno moved for summary
judgment due to Plaintiff's failure to exhaust his
administrative remedies. (ECF No. 31.) Plaintiff did not
undersigned respectfully recommends that this Court grant
Defendant Moreno's motion for summary judgment due to
Plaintiff's failure to exhaust his administrative
judgment is appropriate when the record reveals that there
are no genuine issues as to any material fact in dispute and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; Kocak v. Comty. Health Partners of Ohio,
Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v.
City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
The standard for determining whether summary judgment is
appropriate is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” State Farm Fire & Cas. Co. v.
McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)); Tucker v. Union of Needletrades Indus. &
Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005).
The court must consider all pleadings, depositions,
affidavits, and admissions on file, and draw all justifiable
inferences in favor of the party opposing the motion.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins.
Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).
of Administrative Remedies
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). A moving party without the burden of proof
need show only that the opponent cannot sustain his burden at
trial. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d
784, 787 (6th Cir. 2000); Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). But a moving party with the
burden of proof faces a “substantially higher
hurdle.” Arnett v. Myers, 281 F.3d 552, 561
(6th Cir. 2002); Cockrel v. Shelby Cnty. Sch. Dist.,
270 F.3d 1036, 1056 (6th Cir. 2001). “[W]here the
moving party has the burden -- the plaintiff on a claim for
relief or the defendant on an affirmative defense -- his
showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving
party.” Calderone v. United States, 799 F.2d
254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of
Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Sixth
Circuit repeatedly has emphasized that the party with the
burden of proof “must show the record contains evidence
satisfying the burden of persuasion and that the evidence is
so powerful that no reasonable jury would be free to
disbelieve it.” Cockrel, 270 F.3d at 1056
(citing 11 James William Moore, et al., Moores Federal
Practice § 56.13, at 56-138 (3d ed. 2000)).
Accordingly, summary judgment in favor of the party with the
burden of persuasion “is inappropriate when the
evidence is susceptible of different interpretations or
inferences by the trier of fact.” Hunt v.
Cromartie, 526 U.S. 541, 553 (1999).
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 must first 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. Porter, 534 U.S. at 520; Booth,
532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d
640, 642 (6th Cir. 2000); Freeman v. Francis, 196
F.3d 641, 643 (6th Cir. 1999). In order to properly exhaust
administrative remedies, prisoners must complete the
administrative review process in accordance with the
deadlines and other applicable procedural rules.
Jones, 549 U.S. at 218-19; 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 218-19. In rare circumstances,
the grievance process will be considered unavailable where
officers are unable or consistently unwilling to provide
relief, where the exhaustion procedures may provide relief,
but no ordinary prisoner can navigate it, or “where
prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation,
or intimidation.” Ross v. Blake, 578 U.S.__,
136 S.Ct. 1850, 1859-60 (2016).
Dept. of Corrections (MDOC) Policy Directive 03.02.130
(effective on July 9, 2007, superseded on March 18, 2019),
sets forth the applicable grievance procedures for prisoners
in MDOC custody at the time relevant to this complaint.
Inmates must first attempt to resolve a problem orally within
two business days of becoming aware of the grievable issue,
unless prevented by circumstances beyond his or her control.
Id. at ¶ P. If oral resolution is unsuccessful,
the inmate may proceed to Step I of the grievance process and
submit a completed grievance form within five business days
of the attempted oral resolution. Id. at
¶¶ P, V. The inmate submits the grievance to a
designated grievance coordinator, who assigns it to a
respondent. Id. at ¶ V. The Policy Directive
also 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). When prison ...