United States District Court, W.D. Michigan, Northern Division
REPORT AND RECOMMENDATION
Gordon J. Quist U.S. District Judge
a civil rights action brought by state prisoner Wayne Lamarr
Harvey pursuant to 42 U.S.C. § 1983. Harvey alleges that
that he is a paraplegic and quadriparetic,  with “upper body
ability and blindness.” Harvey states that he is
susceptible to blood clotting and aneurysms. Harvey is
bedridden and physically vulnerable. Harvey asserts that he
was subject to a wide range of abusive conduct by Defendants
from 2014 through 2016 while he was confined at the Marquette
Branch Prison (MBP).
claims that, on February 19, 2014, Defendant James told him
that he had gone down “the wrong road” in
response to Harvey's questions regarding his treatment
for blood clots. (ECF No. 1, PageID.6.) In addition, Harvey
claims that, on February 27, 2014, Defendant James assaulted
him by striking him with folded documents. (Id.)
Harvey also says that, on March 19, 2014, Defendant James
threw documents at Harvey, striking him on the legs.
alleges that Defendant Gluesing repeatedly pulled on a
catheter tube attached to Harvey's penis, causing Harvey
to scream and object that Defendant Gluesing was hurting
(Id.) Defendant Gluesing refused to stop until
Harvey called for the unit officer, at which point Defendant
Gluesing ran from the room.
says that, on November 14, 2015, he requested a protection
order to prevent Defendants James and Gluesing from having
any physical contact with him. Harvey also requested an
investigation into the assaultive behavior of Defendants
James and Gluesing. Harvey says his requests were ignored.
Harvey alleges that Defendant Kimsel stated that he had no
interest in protecting him from Defendant Gluesing.
furthermore alleges that, during July of 2016, Defendant
James placed Defendant Gluesing in the infirmary area on days
when Nurse Hedlund indicated Harvey would likely need
assistance using the bed pan to have a bowel movement. Harvey
states that Nurse Hedlund deliberately traded job assignments
with Defendant Gluesing, knowing that Harvey would not accept
help from Defendant Gluesing, which would force Harvey to
have a bowel movement in his bed. (Id. at PageID.7.)
also asserts that Defendant James kept him at MBP for an
extended time. Harvey alleges that Defendant LaForest
sexually assaulted him and came to work intoxicated. Finally,
Harvey claims that Defendant Gluesing was responsible for
dropping Harvey on the floor. Harvey asserts that he required
emergency surgery to repair the resulting neck injury.
James, Kimsel, and Gluesing have filed motions for summary
(ECF Nos. 14 and 22.) The undersigned has reviewed the
pleadings and associated documents and respectfully
recommends that the Court grant Defendants' motion for
summary judgment and dismiss without prejudice the following:
(1) all of Plaintiff's claims against Defendant Kimsel,
(2) Plaintiff's claim that Defendant Gluesing dropped
Plaintiff causing a neck injury, (3) Plaintiff's claims
that Defendant James struck Plaintiff with documents on
February 27, 2014, and March 19, 2014, and (4)
Plaintiff's claim that, during July 2016, Defendant James
scheduled Defendant Gluesing to work on days that Plaintiff
needed his bed pans cleaned.
Summary 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). 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)). 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).
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). “[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). 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 v. Shelby Cnty. Sch.
Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). 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 officials waive enforcement of these
procedural rules and instead consider a non-exhausted claim
on its merits, a prisoner's failure to comply with those
rules will not bar that prisoner's subsequent federal
lawsuit. Reed-Bey v. Pramstaller, 603 F.3d 322, 325
(6th Cir. 2010). The Sixth Circuit has explained:
[A] prisoner ordinarily does not comply with MDOCPD 130-and
therefore does not exhaust his administrative remedies under
the PLRA-when he does not specify the names of each person
from whom he seeks relief. See Reed-Bey v.
Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010)
(“Requiring inmates to exhaust prison remedies in the
manner the State provides-by, say, identifying all
relevant defendants-not only furthers [the PLRA's]
objectives, but it also prevents inmates from undermining
these goals by intentionally defaulting their claims at each
step of the grievance process, prompting unnecessary and
wasteful federal litigation process.”). An exception to
this rule is that prison officials waive any procedural
irregularities in a grievance when they nonetheless address
the grievance on the merits. See id. at 325. We have
also explained that the purpose of the PLRA's exhaustion
requirement “is to allow prison ...