Lee v. Freeman

          Avern Cohn United States District Judge

          REPORT AND RECOMMENDATION BENCH TRIAL ON EXHAUSTION OF ADMINISTRATIVE REMEDIES

          STEPHANIE DAWKINS DAVIS, UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         Plaintiff, Gregory Lee, a prisoner in the custody of the Michigan Department of Corrections (MDOC), filed this civil rights complaint on November 22, 2016. (Dkt. 1). Lee is currently incarcerated at Ionia Correctional Facility but at the time of the events giving rise to this complaint (August-September 2016), he was housed at Macomb Regional Correctional Facility (MRF) in New Haven, Michigan. (Dkt. 40, p. 1). Lee alleges a First Amendment retaliation claim under 42 U.S.C. § 1983 against defendants. He claims that defendants Freeman and Hofbauer retaliated against him for assaulting a prison employee and deprived him of his Eighth Amendment right to be free from cruel and unusual punishment by handcuffing him so tightly that the handcuffs injured his wrists. (Dkt. 40, p. 6). Lee also alleges that defendants Noble, King, and Amalfitano retaliated against him for filing grievances and a formal complaint by planting a knife in his cell and harassing, threatening and intimidating him into silence during the grievance process. Id. Finally, Lee alleges that Noble also retaliated against him and violated his Eighth Amendment rights by squeezing his testicles during a search of his person. Id.

         On February 1, 2017, defendants moved for summary judgment based on Lee's failure to exhaust administrative remedies. (Dkts. 15, 16). After this matter was fully briefed (Dkts. 20, 22, 23), the undersigned recommended that the Court deny defendants' motion for summary judgment, finding a genuine issue of material fact as to whether Lee was thwarted from completing the exhaustion process. (Dkt. 31). The undersigned also recommended that this issue be resolved via bench trial. Id. On September 19, 2017, the Court adopted the undersigned's Recommendations. (Dkt. 33). Shortly thereafter, counsel was assigned to represent Lee. (Dkt. 36). Lee, with the assistance of counsel, filed an amended complaint on December 6, 2017. (Dkt. 40). Defendants filed a second motion for summary judgment on the issue of exhaustion, which was denied by District Judge Avern Cohn. (Dkt. 45, 51).

         The Court subsequently referred this matter to the undersigned for a bench trial on the issue of exhaustion of administrative remedies. (Dkt. 53). After a period of limited discovery, which was extended, a bench trial was scheduled for October 5, 2018. (Dkt. 64). At the final pre-trial conference, the Court was informed that one of the defendants was unable to attend trial due to an extended illness. The parties stipulated to adjourn the bench trial. (Dkt. 67). The joint final pre-trial order was entered on March 25, 2019 and the bench trial held on March 27, 2019. (Dkt. 71, 73). The parties submitted their proposed findings of fact and conclusions of law on April 10, 2019. (Dkt. 74, 75).^[1] This matter is now ready for report and recommendation.

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiffs claims be DISMISSED based on his failure to exhaust his administrative remedies.

         II. FINDINGS OF FACT

         The parties present the current dispute as primarily a contest of credibility, each arguing that their version of events is more credible and supported by the objective evidence. Neither party disputes the fact that Lee did not complete the three-step grievance process or the two step Prison Rape Elimination Act ("PREA") grievance process. Where their positions diverge is on the issue of whether the defendants' alleged threats of physical violence and harassment thwarted Lee from fully exhausting his administrative remedies.

         Lee asserts that he has filed many grievances during his incarceration and is well-familiar with MDOC's three-step grievance process and his ability to file lawsuits against prison employees. (Dkt. 73, Trial Transcript, pp. 5-6, 13-14, 20). Thus, when defendants Freeman and Hofbauer used excessive force on him in August of 2016 (Dkt. 73, p. 6), he attempted to address the issue through that grievance process. (Dkt. 73, p. 6; Trial Exhibit 1). Lee refused to be interviewed for that grievance. (Dkt. 73, p. 33). In early September of 2016, shortly after filing the grievance based on Freeman's and Hofbauer's conduct, Lee says that defendant Noble approached him, "asking about some grievances [he] was writing" and took away his "yard" time, prompting Lee to ask Noble for a grievance form. (Dkt. 73, pp. 8-10). According to Lee, Noble refused to provide him with a grievance form, telling him "to stop filing grievances" and informing him that "they don't like litigators at Macomb" in hopes of preventing Lee "from filing the Step II grievance" or filing a new one. (Dkt. 73, pp. 8-11). Noble testified that he did not recall taking away Lee's yard time but says that it was possible. (Dkt. 73, pp. 50-51). Noble also denies making any statement about not liking litigators or refusing to provide grievance forms. (Dkt. 73, pp. 50-51). Based on Noble's decision to take away his yard time, Lee filed a second grievance. (Dkt. 73, p. 21; Trial Exhibit 2). This grievance was resolved in Lee's favor in that his improperly taken yard time "was replaced at a later date." (Dkt. 73, pp. 19-21, 38-39).

         On September 19, 2016, purportedly based on a "tip" from a known snitch, defendants Noble and King searched Lee for a weapon but did not find one. Lee contends that during this search, they reiterated Noble's previous statement, saying "they don't like litigators" and they threatened that, "if I continue to file a grievance, I be put on Al, which is the hole for that unit, for possession of a weapon." (Dkt. 73, pp. 24, 54-58, 60-62, 92-93). During this "shake-down," Lee says that Noble "grabbed [his] testicle," causing him to "jerk[] away a little bit," which he testified was met with more threats:

Noble checked the pocket, and as he went down lower, he grabbed my testicle, and I jerked away like a natural reaction. And Officer King told me if I moved again, I was gonna go to hole for assaulting an officer. And I said, he just grabbed my nuts. He's like, don't move. That was the end of the shakedown, and as I was walking away, Officer King told me again, you remember what I said. You gonna go to A-Wing for possession of a weapon. That was the end of that.

(Dkt. 73, p. 27). To corroborate his version of events, Lee presented the testimony of inmate Steve Caprice Smith, who witnessed the September 19th shake-down and thought that defendant Noble was "messing with" Lee, i.e., trying to aggravate Lee or get a reaction out of him. (Dkt. 73, pp. 104-105). Smith testified that Noble "said he was ... fucking somebody up" and that he'd get away with it to Lee during the search. (Dkt. 73, p. 103; Trial Exhibit 12 - Smith's handwritten statement). Defendants point out that Smith could not recall any of the events of September 19, 2016 until his prior statement was read out loud to him, in its entirety. (Dkt. 73, pp. 99-100). Noble denies grabbing Lee's testicles, instead describing Lee as "cooperative" and the entire incident as unremarkable. (Dkt. 73, pp. 62, 75-76). Likewise, King denies that defendant Noble grabbed Lee's testicles. (Dkt. 73, p. 92). The shake-down was admittedly unsuccessful in that "No contraband was recovered... ." (Dkt. 73, p. 62). Lee points out that even though the officers found no weapon on his person and thus, any purported weapon was still "missing," they allowed him to return "back to his cell," which is the only other conceivable place a weapon in his possession might have been. (Dkt. 73, p. 62).

         After the shake-down, Lee wrote another grievance under the Prison Rape Elimination Act Grievance Process (a "PREA grievance"), placing it in an envelope, and sliding it out in the hall per usual procedure. (Dkt. 73, p. 26; Trial Exhibit 3; Trial Exhibit 4). According to Lee, "Maybe 30 minutes" later, Noble, King, and Amalfitano came to his cell, handcuffed him, transported him to the shower, and started searching his cell for the supposed knife they had not found on his person. (Dkt. 73, pp. 26-27, 80-82, 92). During this search of Lee's ...