Heard v. Strange

          OPINION AND ORDER ACCEPTING AND ADOPTING THE MAGISTRATE JUDGE'S MAY 10, 2019 REPORT AND RECOMMENDATION [60]

          Nancy G. Edmunds United States District Judge.

         I. Background

         Currently before the Court is the Magistrate Judge's May 10, 2019 report and recommendation. (Dkt. 60.) The Magistrate Judge first recommends that Defendants Douglas and Oosterhof be dismissed because Plaintiff did not exhaust his administrative remedies against them. Second, the Magistrate Judge recommends that summary judgment be granted as to any claims that stem from Plaintiff's housing unit transfer (January 2017 grievance). Lastly, the Magistrate Judge recommends that all claims based on Plaintiff's prison transfer (July 2017 grievance) remain.

         On May 28, 2019, Plaintiff Lamont Heard filed four objections to the Magistrate Judge's report. (Dkt. 62.) Defendants did not object to the report and recommendation or respond to Plaintiff's objections. Having conducted a de novo review of the parts of the Magistrate Judge's report to which specific objections have been filed, the Court OVERRULES Plaintiff's objections and ACCEPTS AND ADOPTS the Magistrate Judge's report and recommendation. As a result, the Court GRANTS IN PART Defendants' motion for partial summary judgment [43] and DENIES Plaintiff's motion for summary judgment [46].

         II. Standard of Review

         Under Federal Rule of Civil Procedure 72(b)(3), “[t]he 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.” See also 28 U.S.C. § 636(b)(1).

         III. Analysis

         A. Plaintiff's First Objection

         Plaintiff objects to the Magistrate Judge's recommendation that the claims stemming from his housing unit transfer be dismissed because he did not exhaust the administrative remedies available to him. More specifically, Plaintiff argues that the Magistrate Judge erred in applying the holdings of Alexander v. Hoffman, No. 16-cv-12069, 2017 U.S. Dist. LEXIS 145519 (E.D. Mich. Sept. 8, 2017), and Boyd v. Corr. Corp. of America, 380 F.3d 989 (6th Cir. 2004). In Boyd, 380 F.3d at 996, the Sixth Circuit held that “administrative remedies are exhausted when prison officials fail to timely respond to a properly filed grievance.” But, in that case, the court specifically noted that the prisoner had no available administrative remedies remaining to him because he “was required to wait for a grievance officer to make a decision regarding his formal grievance before he could make an appeal.” Id. The Magistrate Judge noted that here, even though prison officials did not respond to Plaintiff's January 2017 grievance regarding the housing unit transfer, the MDOC grievance policy explicitly provided that he could file a Step II grievance but he did not do so. Nor did he allege that he was precluded from pursing an appeal. In Alexander, 2017 U.S. Dist. LEXIS 145519, at *3-6, the court found that because the plaintiff did not receive the grievance identifier he would need to fill out a Step II appeal form, “it [wa]s not clear” whether he had the option of appealing after prison officials failed to respond to his Step I grievance. The Magistrate Judge acknowledged Alexander's holding in a parenthetical but agreed with a number of courts that have held to the contrary. See, e.g., Weatherspoon v. Dinsa, No. 14-12756, 2015 U.S. Dist. LEXIS 130407, at *11 (E.D. Mich. Aug. 4, 2015) (holding that “[b]ecause ‘proper exhaustion' requires ‘compliance with an agency's deadlines and other critical procedural rules,' and because, unlike Boyd, Plaintiff had further administrative remedies available to him, his failure to proceed through Step III before filing suit in this Court mandate[d] dismissal”) (quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)).

         The Court agrees with the Magistrate Judge. Even though Plaintiff now alleges that, similar to the plaintiff in Alexander, he did not have a grievance identifier due to prison officials' failure to respond to his grievance, the grievance policy does not require a grievant to have an identification number to proceed to Step II. Rather, the policy states that the grievant must submit the Step II grievance form “if no response was received, within ten business days after the date the response was due, including any extensions.” MDOC Policy Directive, 03.02.130(BB) (eff. July 9, 2007). Moreover, Defendants attached to their motion a report of all the grievances Plaintiff has appealed through Step III, which demonstrates that he is able to properly use the grievance policy. (See dkt. 43-2.) Accordingly, Plaintiff's first objection is overruled, and the Court will dismiss any claims stemming from Plaintiff's housing unit transfer as recommended by the Magistrate Judge.

         B. Plaintiff's Second Objection

         Plaintiff objects to the Magistrate Judge's recommendation that Defendants Douglas and Oosterhof be dismissed from this case because he failed to list their names in the July 2017 grievance. More specifically, Plaintiff asserts that the primary purpose of a grievance is to alert prison officials of a particular problem and not to provide personal notice to a particular official that he may be sued. Therefore, he argues his failure to identify Oosterhof and Douglas by name should be excused. The Magistrate Judge found that based on Plaintiff's own filings, both Oosterhof and Douglas were known to him at the time he filed his grievance and, thus, a reference to “unknown staff” did not encompass them.

         As the Magistrate Judge noted, in Jones v. Bock, 549 U.S. 199, 205, 218 (2007), the Supreme Court instructed courts to look to the prison's policy itself when determining “whether a prisoner has properly exhausted administrative remedies-specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim.” Here, the MDOC policy expressly requires prisoners to identify the ”names of all those involved in the issue being grieved.” See MDOC Policy Directive, 03.02.130(R). Thus, even if the grievance complied with the “fair notice” requirement, as alleged by Plaintiff, that does not excuse his failure to list the names of all those involved. See Edwards v. Burnett, No. 05-73790, 2007 U.S. Dist. LEXIS 43492, at *6 (E.D. Mich. June 15, 2007) (holding the same). Accordingly, Plaintiff's second objection is overruled, and the Court will grant Defendants' motion for summary judgement as to Oosterhof and Douglas as recommended by the Magistrate Judge.

         C. Plaintiff's Third ...