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Parker v. Horton

United States District Court, W.D. Michigan, Northern Division

July 25, 2019

BRUCE PARKER #593090, Plaintiff,
v.
CONNIE HORTON, et al., Defendants.

          Hon. Paul L. Maloney U.S. District Judge

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT, U.S. MAGISTRATE JUDGE

         Introduction

         This is a civil rights action brought by state prisoner Bruce Parker pursuant to 42 U.S.C. § 1983. Parker alleges that Defendants Warden Connie Horton, Inspector John Miller, Inspector Mike Brown, Sergeant Duncan Martin, Corrections Officer Derek Stabile, Corrections Officer Daniel Eicher, Corrections Officer Aaron Simpson, Sergeant Lisa Belanger, Corrections Officer Jeffrey Green, Resident Unit Manager Rob Batho, Lieutenant Crystal Bigger, Lieutenant Robert Pawley, Corrections Officer Billy Weems, and Corrections Officer Michael Ford violated his First and Eighth Amendment rights by conspiring and retaliating against him for filing grievances and failing to protect him while he was incarcerated at the Chippewa Correctional Facility (URF) in Kincheloe, Michigan.

         Defendants have filed a motion for summary judgment based solely on Parker's failure to exhaust administrative remedies, and Parker has replied. (ECF Nos. 53, 56.) Parker has also filed a motion to strike (ECF No. 57), a motion for declaratory judgment (ECF No. 60), and a motion for spoliation sanctions (ECF No. 67). While the motion to strike and motion for declaratory judgment were filed in direct response to Defendants' Motion for Summary Judgment and are addressed below, Parker's motion for spoliation sanctions is another issue that will be addressed in a separate order.

         The undersigned has reviewed the pleadings and associated documents and respectfully recommends that the Court: (1) grant in part and deny in part Defendants' Motion for Summary Judgment, (2) deny Parker's motion to strike, and (3) deny Parker's motion for declaratory judgment. Acceptance of this Report and Recommendation will result in the dismissal of several of Parker's civil conspiracy, retaliation, and failure to protect claims, as well as the overall dismissal of Defendant Eicher.

         Summary Judgment Standard

         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).

         Exhaustion of Administrative Remedies

         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). "[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 has repeatedly 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).

         Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § l997e(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).

         "Beyond doubt, Congress enacted [Section] ¶ 997e(a) to reduce the quantity and improve the quality of prisoner suits." Porter, 534 U.S. at 524. In the Court's view, this objective was achieved in three ways. First, the exhaustion requirement "afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 525. Second, "the internal review might 'filter out some frivolous claims.'" Id. (quoting Booth, 532 U.S. at 131). And third, "adjudication could be facilitated by an administrative record that clarifies the contours of the controversy." Id. When institutions are provided adequate notice as required under the PLRA, the opportunity to address the claims internally furthers the additional goals of limiting judicial interference with prison administration. Baker v. Vanderark, No. 1:07-cv-004, 2007 WL 3244075, at *5 (W.D. Mich. Nov. 1, 2007).

         Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (eff date 07/09/07, superseded on 03/18/19), 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).

         If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten business days of the response, or if no response was received, within ten days after the response was due. MDOC Policy Directive 03.02.130 at ¶¶ T, BB. The respondent at Step II is designated by the policy, e.g., the regional health administrator for medical care grievances. Id. at ¶ DD.

         If the inmate is still dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at ¶¶ T, FF. The Step III form shall be sent within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. at ¶¶ T, FF. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ GG.

         "The total grievance process from the point of filing a Step I grievance to providing a Step III response shall generally be completed within 120 calendar days unless an extension has been approved." Id. at ¶ S.

         In addition, the grievance policy provides that, where the grievance alleges conduct that falls under the jurisdiction of the Internal Affairs Division pursuant to Policy Directive 01.01.140, the prisoner may file his Step I grievance directly with the inspector of the institution in which the prisoner is housed, instead of with the grievance coordinator, as set forth in ¶ W of Policy Directive 03.02.130. Id. at ¶ R-In such instances, the grievance must be filed within the time limits prescribed for filing grievances at Step I. Id. Regardless of whether the grievance is filed with the grievance coordinator or the inspector, the grievance will be referred to the Internal Affairs Division for review and will be investigated in accordance with MDOC Policy Directive 01.01.140. The prisoner will be promptly notified that an extension of time is needed to investigate the grievance. Id.

         Where the grievance procedures are not available because the issue presented is non-grievable, exhaustion of prison grievance procedures is not required. 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); 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.").

         However, where other administrative remedies are available, the prisoner is required to exhaust those available remedies prior to filing a federal lawsuit. For example, where an inmate claims that he received a retaliatory false misconduct, whether a Class I, Class II or Class III misconduct[1], the inmate must first raise the issue during the misconduct hearing. Siggers v. Campbell, 652 F.3d 681, 693-94 (6th Cir. 2011). If the inmate is claiming to have received a retaliatory Class I misconduct, he or she must then must "file a motion or application for rehearing [of his misconduct conviction] in order to exhaust his or her administrative remedies before seeking judicial review of the final decision or order." Mich. Comp. Laws § 791.255(1); see also Siggers, 652 F.3d at 693-94. Alternatively, if the inmate is claiming to have received a retaliatory Class II or III misconduct, he or she must file an appeal based on retaliation. MDOC PD 03.03.105 ¶¶ UUU-XXX; see also Jones v. Heyns, No. 1:12-cv- 1341, 2014 WL 1607431 (W.D. Mich. Jan. 28, 2014).

         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 officials 'a fair opportunity' to address grievances on the merits to correct prison errors that can and should be corrected to create an administrative record for those disputes that eventually end up in court." Id. at 324.

Mattox v. Edelman, 851 F.3d 583, 590-91 (6th Cir. 2017).[2]

         Plaintiffs Allegations[3]

         Parker's allegations are summarized in the table below.

Count No.

§1983 Claim

Allegations)

Defendant(s)

Date or Date Range of Incident(s)

One

Retaliation

Parker was threatened with segregation if he filed another grievance.[4]

Martin

January 19, 2018

Two

Failure to Protect

Inspectors Miller and Brown failed to protect Parker from violent and overtly racist environments.[5]

Miller and Brown

January 22, 2018

Three

Retaliation

During a shakedown, [6] an officer threatened Parker with MisconductReports if he continued to write grievances. Later that day, the same officer wrote Parker a false Misconduct Report[7]

Stabile

January 24, 2018

Four

Failure to Protect

The warden failed to correct deficiencies in the physical structure of the prison that rendered inmates vulnerable to sexual assault.

Horton

January 24, 2018

Five

Retaliation

An officer conducted a search of Parker's cell and destroyed some of Parker's photographs and legal documents.[8]

Stabile

January 25, 2018

Six

Retaliation

During the hearing on the January 24, 2018 Misconduct Report written by Defendant Stabile, the Hearing Officer found Parker guilty, stating “I don't care what your evidence is. . . I am tired of all of your grievances and complaints.” [9]

Eicher

January 30, 2018

Seven

Retaliation

During a shakedown, an officer threw Parker's shoes at him and called him a dog. When Parker accused the officer of assault, the officer threatened to put a razor in Parker's cell.[10]

Simpson

January 30, 2018

Eight

Failure to Protect

Prison officials were put on notice of Parker's need for protection from existing harm and nevertheless failed to protect him.

Horton, Miller, and Brown

February 2, 2018

Nine

Retaliation

Parker received a false Misconduct Report at the request of the Warden.[11]

Horton

February 9, 2018

Ten

Retaliation

During a shakedown, an officer began to question Parker about his PREA complaint and threatened to have another officer set him up if he did not have the PREA complaint dropped. The officer then smacked Parker's buttocks.[12]

Green

February 25, 2018

Eleven

Retaliation

Parker received a false Misconduct Report at the request of the Warden.[13]

Horton

February 28, 2018

Twelve

Retaliation

A Misconduct Hearing Officer found Parker guilty of the February 9, 2018 Misconduct Report because Parker filed too many grievances, and the Warden wanted Parker to be found guilty.[14]

Batho

March 2, 2018

Thirteen

Retaliation

A Misconduct Hearing Officer found Parker guilty of the February 28, 2018 Misconduct Report because he was “the one filing all of the bullshit sexual complaints and grievances.” [15]

Bigger

March 6, 2018

Fourteen

Retaliation

Parker was written a false misconduct based on his sexual assault complaints and his grievances against Sgt. Belanger.[16]

Belanger

March 9, 2018

Fifteen

Civil

Conspiracy;

Retaliation

A Hearing Officer agreed that the March 9, 2018 Misconduct Report written against Parker was false but found Parker guilty anyways in order to appease the Warden and the officer who wrote the Misconduct Report.[17]

Pawley, Belanger, and Horton

March 13, 2018

Sixteen

Retaliation

Parker was the only one to receive a Misconduct Report for misuse of the Jpay system while on sanctions even though other inmates were also abusing the system.[18]

Pawley

April 15, 2018

Seventeen

Retaliation

A Hearing Officer threatened to put Parker in segregation if he did not plead guilty to the April 15, 2018 Misconduct Report that Defendant Pawley had written, so Parker pled guilty. [19]

Batho

April 18, 2018

Eighteen

Retaliation

Parker received a false Misconduct Report.[20]

Weems

May 16, 2018

Nineteen

Civil

Conspiracy;

Retaliation

Prison officials blocked Parker's access to the PREA complaint hotline[21]

Horton, Miller, Brown, and Pawley

May 17, 2018

Twenty

Retaliation

During a shakedown, Parker was sexually assaulted and then ordered to undress by an officer.[22]

Ford

May 29, 2018

         Grievances Identified as Relevant by Defendants

         In their motion for summary judgment, Defendants identified several grievances that Parker filed with the MDOC. They claim that a review of these grievances will demonstrate that Parker has failed to exhaust his administrative remedies. These grievances are summarized below.

Grievance No.

Person(s) Named

Allegations)

Date or Date Range of Incident(s)

Results at Step 1

Results at Step 2

Results at Step 3

URF-18-01-0252-17a[23]

Martin

Retaliation

January 19, 2018

Denied

Denied

Denied

URF-18-01-0256-28A[24]

Martin

Retaliation

January 16, 2018

Rejected

Rejection Upheld

Rejection Upheld

URF-18-01-0303-27A[25]

Stabile

Retaliation

January 24, 2018

Rejected

Rejection Upheld

Rejection Upheld

URF-18-01-0293-28K[26]

Horton

Failure to correct prison conditions rendering inmates vulnerable to sexual assault.

January 24, 2018

Rejected

Rejection Upheld

Rejection Upheld

URF-18-01-0302-17B[27]

Stabile

Retaliation

January 25, 2018

Denied

Denied

Denied

URF-18-02-0375-17B[28]

Simpson

Retaliation

January 30, 2018

Denied

Denied

Denied

URF-18-03-0705-27A[29]

Horton

Retaliation

February 8, 2018

Rejected

Rejection Upheld

Rejection Upheld

URF-18-03-0709-27A[30]

Bigger

Retaliation

March 6, 2018

Rejected

Rejection Upheld

Rejection Upheld

URF-18-04-1209-15z[31]

Pawley

Retaliation

April 15, 2018

Denied

Denied

Denied

URF-18-06-1557-17A[32]

Weems

Retaliation

May 16, 2018

Denied

Denied

Denied

URF-18-06-1556-23Z[33]

Horton, Miller, Brown, and Pawley

Retaliation

Unknown- May 17, 2018

Denied

Denied

Denied

         Misconduct Appeals Identified by Defendants

         Defendants also identified several Misconduct Appeals in which Parker asserted claims. They contend that a review of these documents will demonstrate that Parker has failed to exhaust his administrative remedies. These Misconduct Appeals are summarized below.

Person(s) Named

Allegations)

Date of Misconduct Report

Date of Misconduct Hearing

Results of Misconduct Hearing

Results of Misconduct Appeal

De Stabile[34]

Retaliation

January 24, 2018

January 30, 2018

Guilty

Denied

Horton[35]

Retaliation

February 9, 2018

March 2, 2018

Guilty

N/A

Bigger[36]

Retaliation

February 28, 2018

March 6, 2018

Guilty

Denied

Pawley[37]

Retaliation

April 15, 2018

April 18, 2018

N/A

N/A

         Additional Grievances Identified by Parker

         In Parker's complaint and response to Defendants' motion for summary judgment, Parker identified additional grievances he filed with the MDOC. These grievances are summarized below.

Grievance No.

Person(s) Named

Allegations)

Date or Date Range of Incident(s)

Results at Step 1

Results at Step 2

Results at Step 3

URF-18-02-23668-PREA-P[38]

Horton, Miller, and Brown

Failure to Protect

January 16, 2018 -February 2, 2018

Unknown

Unknown

N/A

URF-18-02-23928-PREA-P[39]

Green

Retaliation

February 25, 2018

Denied[40]

Unknown

N/A

PREA Hotline Complaint[41]

Ford

Retaliation

May 19, 2018

N/A

N/A

N/A

         Additional Misconduct Appeals Identified by Parker

         Parker identified additional Appeals that he filed with MDOC. These Misr.ondiir.t Anneals are summarized below

Person(s) Named

Allegations)

Date of Misconduct Report

Date of Misconduct Hearing

Misconduct Hearing Results

Misconduct Appeal Results

Belanger, Horton, and Pawley[42]

Retaliation;

Civil

Conspiracy

March 9, 2018

March 13, 2018

Guilty

Denied

Weems[43]

Retaliation

May 16, 2018

May 19, 2018

Not Guilty

N/A

         Analysis

         Defendants concede that Parker exhausted his administrative remedies with regards to the following counts:

1. Count Three: retaliation claim against Defendant Stabile (grievance #URF-18-01-0303-27A) (ECF No.54, PageID.257);
2. Count Four: failure to protect claim against Defendant Horton (grievance #URF-18-01-0293-28k) (Id. at PageID.255);
3. Count Five: retaliation claim against Defendant Stabile (grievance #URF-18-01-0302-17B) (Id. at PageID.256);
4. Count Seven: retaliation claim against Defendant Simpson (grievance #URF-18-02-0375-17B) (Id. at PageID.254); and
5. Count Thirteen: retaliation claim against Defendant Biggers (Id.);

         Parker concedes that grievance #URF-18-03-0705-27A was properly rejected as non-grievable, thereby conceding that Count Nine was not properly exhausted. (ECF No. 56, PageID.412.)

         With respect to Counts Eight, Ten, and Twenty, Defendants broadly assert Plaintiffs failure to exhaust in their motion for summary judgment. In response, Parker identifies two PREA grievances and a PREA hotline complaint through which he claims to have adequately exhausted his administrative remedies. Parker claims to have exhausted his failure to protect claim against Defendants Horton, Miller, and Brown in grievance #URF- 18-02-23668-PREA-P (ECF No. 56, PageID.414), his retaliation claim against Defendant Green in grievance #URF- 18-02-23928-PREA-P (Id.), and his retaliation claim against Defendant Ford in his PREA hotline complaint[44] (ECF No. 56-2, PagelD.430-32). Defendants did not file a response to these allegations. As stated above, a prisoner's failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones, 549 U.S. at 212-16. Because the Court has been left to wonder whether these claims have been properly exhausted through administrative processes, the undersigned respectfully recommends to the Court that there is an issue of material fact concerning the exhaustion of these claims and summary judgment is therefore not appropriate.

         In contrast to the ambiguity of Counts Eight, Ten, and Twenty, it is immediately apparent upon review of the record that Parker exhausted his administrative remedies for the counts discussed below.

         Counts Fourteen and Fifteen

         The documents associated with Parker's claim of retaliation against Defendant Belanger demonstrate that Parker exhausted not only his retaliation claim against Defendant Belanger but also his retaliation and civil conspiracy claims against Defendant Belanger, ...


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