United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Green's Report and
Recommendation (ECF No. 59) and Plaintiff's Objections to
it. (ECF No. 60). Under the Federal Rules of Civil Procedure,
where, as here, a party has objected to portions of a Report
and Recommendation, “[t]he district judge . . . has a
duty to reject the magistrate judge's recommendation
unless, on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Plaintiff's objections. After its review, the Court finds
the Magistrate Judge correctly concluded that Plaintiff is
not entitled to the relief he seeks.
Plaintiff's Motion for a Preliminary
Magistrate Judge first recommends the Court deny
Plaintiff's motion for a preliminary injunction.
Plaintiff's motion (ECF No. 46) seeks an order from the
Court compelling Defendant to provide him with physical
therapy and a medical consultation with a qualified
physician. The Magistrate Judge concluded that Plaintiff had
not demonstrated any of the four factors used by the Sixth
Circuit when evaluating such motions. (ECF No. 59, PageID.369
(citing Southern Glazer's Distributors of Ohio, LLC
v. Great Lakes Brewing Co., 860 F.3d 844, 849 (2017)).
objection, while disagreeing with the Magistrate's
conclusion, does not identify any error in the Magistrate
Judge's analysis. Rather his objections merely insists,
largely in a conclusory fashion, that he has demonstrated he
is entitled to a preliminary injunction. The gravamen of his
Objection discusses the back pain he continues to experience
and, he contends, is being ignored by the Defendant. Howe
ver, “serious health risks alone do not entitle a
plaintiff to a preliminary injunction.” Rhinehart
v. Scutt, 509 Fed.Appx. 510, 513 (6th Cir. 2013). And at
bottom, the purpose of a preliminary injunction is to
preserve the status quo until a trial on the merits can be
held. See Six Clinics Holding Corp., II v. Cafcomp Sys.,
Inc., 119 F.3d 393, 400 (6th Cir.1997). Plaintiff's
requested relief would alter the status quo. After its de
novo review, the Court agrees with the Magistrate Judge that
Plaintiff's motion for a preliminary injunction is
Defendant's Motion for Summary Judgment on the Basis of
Magistrate Judge next recommends the Court grant
Defendant's motion for summary judgment and dismiss this
action for lack of proper exhaustion. Plaintiff objects by
asserting he has exhausted his claim.
the applicable portion of the Prison Litigation Reform Act
(PRLA), 42 U.S.C. § 1997e(a), a prisoner bringing an
action with respect to prison conditions under 42 U.S.C.
§ 1983 must first exhaust his available administrative
remedies. See Porter v. Nussle, 534 U.S. 516, 532
(2002); Booth v. Churner, 532 U.S. 731, 733 (2001).
A prisoner must 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.
See 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). Additionally, a plaintiff must
fully exhaust his administrative remedies before filing a
complaint. See Freeman, 196 F.3d at 645. Further,
“the PLRA exhaustion requirement requires
proper exhaustion.” Woodford v. Ngo,
548 U.S. 81, 90 (2006) (emphasis added). Thus, 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 v. Bock, 549 U.S. 199, 217-18 (2007);
Woodford, 548 U.S. at 90-91. “Compliance with
prison grievance procedures, therefore, is all that is
required by the PLRA to ‘properly exhaust.'”
Jones, 127 S.Ct. at 922-23.
Woodford, the Supreme Court held that the exhaustion
requirement was not satisfied when grievances were dismissed
because prisoners had missed deadlines set by the grievance
policy. 548 U.S. at 91. Under the MDOC Grievance Policy,
inmates must first attempt to resolve a problem orally with
the staff member involved within two business days of
becoming aware of the grievable issue unless prevented by
circumstances beyond his or her control. Mich. Dep't. of
Corr., Policy Directive 03.02.130, ¶ Q.
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. A grievance coordinator has
discretion to reject a grievance that filed in an untimely
manner. Mich. Dep't. of Corr., Policy Directive 03.02.130
at ¶ J(5).
filed grievance MCF-18-03-259-28E on March 11, 2018. In it,
Plaintiff argued that he had a back condition that was giving
him excruciating pain. He requested x-rays, treatment, and a
special mattress. Plaintiff further stated he had sent a kite
to “medical” in December 2017 and February 2018.
He failed to name any other individual in the grievance form.
The MDOC issued a Step 1 response on March 12, 2018 rejecting
it as being untimely. On that basis, the Magistrate Judge
recommends granting Defendant's motion for summary
judgment on the basis of exhaustion. That is, because his
grievance was not timely filed, the Magistrate Judge
concluded Plaintiff's claims were not “properly
exhausted” under Woodford. 548 U.S. at 102.
objection argues there is a genuine issue of material fact on
the matter. The Court disagrees. As noted above, a grievance
at Step I “must be filed “[w]ithin five business
days after attempting to resolve a grievable issue with
staff.” Mich. Dep't. of Corr.,
Policy Directive 03.02.130, ¶ Q. It is true that
“the prison regulations do not define a
‘grievable issue'” and while “some
discrete events obviously fit neatly with that label, such as
an assault by a prison guard or a denial of certain
privileges, other circumstances may not become
‘grievable' until the passage of time.”
Ellis v. Vadlamudi, 568 F.Supp.2d 778, 783 (E.D.
Mich. 2008). Here, however, the analysis is fairly
straightforward. Plaintiff complained about the denial of
medical care in two “kites” he sent to medical in
December 2017 and February 2018. In other words, he attempted
to resolve the issue with staff. At that point, he had five
days to submit a Step 1 grievance form. Even giving Plaintiff
the last day available-February 28, 2018-he did not file a
grievance until March 11, 2018, more than five days later.
recognizing this deficiency, Plaintiff argues in his
objection that he attempted to resolve the issue with the
Defendant “a couple of days before March 11,
2018.” (ECF No. 60, PageID.374). He references only the
“declarations and affidavits on record”, of which
there are plenty. In the Court's review of the record,
there is only one mention of any other kite. In a Declaration
dated September 24, 2018, Plaintiff states that after
receiving no response to his February 2018 kite to medical he
“then submitted a medical kite directly to defendant
Wilkerson [sic] but [received] no response[.]” (ECF No.
37, PageID.235). No. date is given here and Plaintiff does
not demonstrate how this assertion renders his grievance
timely or creates a genuine issue with respect to a material
fact. Indeed, a greivance is required to contain the [d]ates,
times, places, and names of all those involved in the issue