United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker Judge.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a state
prisoner under 42 U.S.C. § 1983. This
lawsuit arises out of conditions of plaintiffs confinement at
the Muskegon Correctional Facility. The defendants are
Jonathan Decker, D.O., and Dirk Bakker, M.D. Plaintiff
alleges that defendants were deliberately indifferent to his
serious medical needs in violation of his Eighth Amendment
matter is before the Court on each of defendants' motions
for summary judgment based on the affirmative defense of
failure to exhaust administrative remedies, as required by 42
U.S.C. § 1997e(a), and on the merits of
plaintiff s claims. (ECF No. 13, 19). Plaintiff opposes the
motions. (ECF No. 14, 15, 26, 27). Defendants filed reply
briefs. (ECF No. 16, 29).
reasons set forth herein, I recommend that the Court grant
defendants' motions for summary judgment on the merits
(ECF No. 13, 19) and that judgment be entered in
defendants' favor on all plaintiff's claims. I
recommend, in the alternative, that the Court grant defendant
Decker's motion for summary judgment based affirmative
defense of failure to exhaust administrative remedies as
required by 42 U.S.C. § 1997e(a) (ECF No. 13), but that
the Court deny Dr. Bakker's failure-to-exhaust motion
(ECF No. 19).
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(a); McKay v. Federspiel, 823 F.3d
862, 866 (6th Cir. 2016). 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.' ”
Rocheleau v. Elder Living Const., LLC, 814 F.3d 398,
400 (6th Cir. 2016) (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. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); France v. Lucas, 836 F.3d 612, 624 (6th
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials “negating” the
opponent's claim. See Morris v. Oldham Cty. Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that “there is an absence
of evidence to support the nonmoving party's case,
” the nonmoving party has the burden of coming forward
with evidence raising a triable issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain
this burden, the nonmoving party may not rest on the mere
allegations of his pleadings. See Huff v. TeleCheck
Servs., Inc., 923 F.3d 458, 462 (6th Cir. 2019). The
motion for summary judgment forces the nonmoving party to
present evidence sufficient to create a genuine issue of fact
for trial. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1478 (6th Cir. 1990); see AES-Apex Employer
Servs., Inc. v. Rotondo, 924 F.3d 857, 866 (6th Cir.
2019) (“[C]asting only [a] ‘metaphysical
doubt' is insufficient to survive summary
judgment.”) (quoting Matsushita, 475 U.S. at 586).
“A mere scintilla of evidence is insufficient;
‘there must be evidence on which a jury could
reasonably find for the [non-movant].' ”
Dominguez v. Correctional Med. Servs., 555 F.3d 543,
549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252)); see
Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428
(6th Cir. 2018).
moving party with the burden of proof faces a
“substantially higher hurdle.” Arnett v.
Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v.
Shelby Cty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.
2001). “[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)
(citation and quotation omitted). In other words, the movant
with the burden of proof “ ‘must show that 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.' ” Arnett,
281 F.3d at 561 (quoting 11 James William Moore, et al.,
Moore's Federal Practice § 56.
13, at 56-138 (3d ed. 2000)); see Surles v.
Andison, 678 F.3d 452, 455-56 (6th Cir. 2012);
Cockrel, 270 F.2d at 1056. Accordingly, summary
judgment in favor of the party with the burden of proof
“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
Applicable to the Affirmative Defense of Failure to Exhaust
have asserted the affirmative defense of plaintiffs failure
to exhaust administrative remedies. A prisoner bringing an
action with respect to prison conditions under 42 U.S.C.
§ 1983 “or any other Federal
law” must exhaust available administrative remedies. 42
U.S.C. § 1997e(a); see Jones v.
Bock, 549 U.S. 199, 220 (2007); Porter v.
Nussle, 534 U.S. 516, 532 (2002); Booth v.
Churner, 532 U.S. 731 (2001). A prisoner must 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. See Porter, 534
U.S. at 520; Booth, 532 U.S. at 734. “This
requirement is a strong one. To further the purposes behind
the PLRA, exhaustion is required even if the prisoner
subjectively believes the remedy is not available, even when
the state cannot grant the particular relief requested, and
even where the prisoner[ ] believes the procedure to be
ineffectual or futile.” Napier v. Laurel County,
Ky., 636 F.3d 218, 222 (6th Cir. 2011) (internal
quotations and citations omitted).
Jones v. Bock, the Supreme Court held that “exhaustion
is an affirmative defense, and prisoners are not required to
specifically plead or demonstrate exhaustion in their
complaints.” 549 U.S. at 216. The burden is on
defendants to show that plaintiff failed to properly exhaust
his administrative remedies. The Supreme Court reiterated
that “no unexhausted claim may be considered.”
549 U.S. at 220. The Court held that when a prisoner
complaint contains both exhausted and unexhausted claims, the
lower courts should not dismiss the entire
“mixed” complaint, but are required to dismiss
the unexhausted claims and proceed to address only the
exhausted claims. 549 U.S. at 219-24.
order to exhaust administrative remedies, prisoners must
complete the administrative review process in accordance with
the deadlines and other applicable procedural rules
established by state law. Jones v. Bock, 549 U.S. at
218-19. In Woodford v. Ngo, 548 U.S. 81 (2006), the
Supreme Court held that the PLRA exhaustion requirement
“requires proper exhaustion.” 548 U.S. at 93.
“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural
rules.” Id. at 90; see Scott v.
Ambani, 577 F.3d 642, 647 (6th Cir. 2009). Thus, when a
prisoner's grievance is rejected by the prison as
untimely because it was not filed within the prescribed
period, the prisoner's claim is not “properly
exhausted” for purposes of filing a section 1983 action
in federal court. 548 U.S. at 90-93; Siggers v.
Campbell, 652 F.3d 681, 692 (6th Cir. 2011); see
42 U.S.C. § 1997e(a).
Policy Directive 03.02.130 (effective July 9, 2007) sets
forth the applicable grievance procedures  In Sullivan v.
Kasajaru, 316 Fed.Appx. 469, 470 (6th Cir. 2009), the
Sixth Circuit held that this policy directive
“explicitly required [the prisoner] to name each person
against whom he grieved, ” and it affirmed the district
court's dismissal of a prisoner's claim for failure
to properly exhaust his available administrative remedies.
Id. at 470.
Sixth Circuit has “clearly held that an inmate does not
exhaust available administrative remedies when the inmate
fails entirely to invoke the grievance procedure.”
Napier, 636 F.3d at 224. An argument that it would
have been futile to file a grievance does not suffice.
Assertions of futility do not excuse plaintiff from the
exhaustion requirement. See Napier, 636 F.3d at 224;
Hartsfield v. Vidor,199 F.3d 305, 309 (6th Cir.
1999) (“[A]n inmate cannot simply fail to file a
grievance or abandon the process before completion and claim
that he has exhausted his remedies or that it is futile for
him to do so because his grievance is now time-barred under
the regulations.”); se ...