United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ACCEPTING AND ADOPTING THE
MAGISTRATE JUDGE'S MAY 10, 2019 REPORT AND RECOMMENDATION
G. Edmunds United States District Judge.
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.
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  and DENIES Plaintiff's
motion for summary judgment .
Standard of Review
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. §
Plaintiff's First Objection
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)).
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.
Plaintiff's Second Objection
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
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.
Plaintiff's Third ...