United States District Court, E.D. Michigan, Southern Division
Cohn United States District Judge
REPORT AND RECOMMENDATION BENCH TRIAL ON EXHAUSTION
OF ADMINISTRATIVE REMEDIES
STEPHANIE DAWKINS DAVIS, UNITED STATES MAGISTRATE JUDGE
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.
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).
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,
This matter is now ready for report and recommendation.
reasons set forth below, the undersigned
RECOMMENDS that plaintiffs claims be
DISMISSED based on his failure to exhaust
his administrative remedies.
FINDINGS OF FACT
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
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.
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).
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 ...