United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST UNITED STATES DISTRICT JUDGE
have filed an Objection to Magistrate Judge Maarten
Vermaat's May 30, 2019, Report and Recommendation (R
& R) (ECF No. 21), recommending that the Court deny
Defendants' motion for summary judgment based on
Plaintiff's failure to exhaust his administrative
remedies. As the magistrate judge observed, there was no
dispute that Plaintiff did not exhaust his administrative
remedies, and in fact would not have had time to complete the
process before filing suit, because Plaintiff filed his
complaint only days after the alleged retaliatory conduct
occurred. (Id. at PageID.212-13.) The only open
issue for summary judgment was whether Defendants, through
threats or intimidation, effectively rendered the grievance
process unavailable to Plaintiff. Ross v. Blake, 578
U.S. __, 136 S.Ct. 1850, 1858-60 (2016). The magistrate judge
concluded, based on Plaintiff's statements in his
affidavit in support of his complaint (ECF No. 1-1), that
Plaintiff's allegations of threats and retaliation by
Defendants for Plaintiff's prior lawsuits create a
genuine issue of material fact as to whether the
administrative process was available to Plaintiff. (ECF No.
21 at PageID.218.) Defendants argue that the Court should
reject the R & R because, although Plaintiff presented
some evidence, Plaintiff's unsubstantiated assertions
were insufficient to overcome the substantial evidence in the
record that the grievance process was available to Plaintiff.
to 28 U.S.C. § 636(b), upon receiving an objection to a
report and recommendation, the district judge “shall
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R, Defendants' Objection, Plaintiff's
Opposition to the Objection, and the pertinent portions of
the record, the Court concludes that the R & R should be
cite three reasons for concluding that the grievance process
was available to Plaintiff and that Plaintiff should have
complied with it. First, Defendants note that the Step III
grievance report Defendants submitted in support of their
summary judgment motion shows that Plaintiff was not only
familiar with the grievance process, but was a prolific
grievant, having filed more than 300 grievances through Step
III between November 2011 and September 2018. (ECF No. 22 at
PageID.221 (citing Defs.' Ex. 2 (ECF No. 13-3 at
PageID.104-191).) Second, Defendants point out that the Step
III report shows that Plaintiff filed numerous grievances
concerning events at Baraga Correction Facility within a
month of February 9, 2018-around the time Plaintiff alleges
Defendants prevented him from pursuing grievances.
(Id. at PageID.22 (citing Defs.' Ex. 2 (ECF No.
13-3 at PageID.109-115).) Finally, Defendants note that in
another case Plaintiff filed around the same time as the
instant case, Judge Maloney concluded that Plaintiff failed
to exhaust his administrative remedies. See Jackson v.
Bastian, No. 2:18-CV-16 (W.D. Jan. 11, 2019) (ECF No.
Defendants' arguments are persuasive, they do not
demonstrate that no genuine issue of material fact remains.
For purposes of summary judgment, Plaintiff's statements
in his affidavit must be taken as true. Young v. Am.
Diabetes Ass'n, 30 Fed.Appx. 360, 365 (6th Cir.
2002) (observing that unrebutted statements in an affidavit
are accepted as true on a motion for summary judgment). While
the evidence Defendants cite might cast doubt on
Plaintiff's assertion that the grievance process was
unavailable, such evidence presents an issue of credibility
that may not be resolved on summary judgment. As to Judge
Greeley's Report and Recommendation and Judge
Maloney's Order adopting it in No. 2:18-CV-16, Defendants
did not bring that case to Magistrate Judge Vermaat's
attention in a supplemental filing, and there is no
indication that he was aware of it when he issued the R &
R. Moreover, there is no indication in the Report and
Recommendation in No. 2:18-CV-16 that Plaintiff argued, or
that Magistrate Judge Greeley considered, whether the
grievance process was unavailable due to threats and
intimidation. Of course, the fact that Plaintiff apparently
did not raise the issue in that case may have some bearing on
the issue in the instant case, but Plaintiff's failure to
do so would go to credibility-a matter that cannot be
resolved on summary judgment. Alspaugh v. McConnell,
643 F.3d 162, 168 (6th Cir. 2011) (“When reviewing a
summary judgment motion, credibility judgments and weighing
of the evidence are prohibited.”) (internal quotation
request that if the Court concludes that a factual issue
remains-which it does-the Court order a bench trial on
exhaustion. Defendants' request for a bench trial is
appropriate, as “disputed issues of fact regarding
exhaustion under the PLRA present a matter of judicial
administration that could be decided in a bench trial.”
Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015).
Because a disputed issue of material fact remains, a bench
trial is an appropriate means for deciding the threshold
issue of exhaustion, which must be established before the
case may proceed on the merits.
IT IS HEREBY ORDERED that the May 30, 2019,
Report and Recommendation (ECF No. 21) is
ADOPTED as the Opinion of this Court.
Defendants' Objection (ECF No. 22) is
IS FURTHER ORDERED that Defendants' Motion for
Summary Judgment (ECF No. 12) is DENIED.
IS FURTHER ORDERED that a bench trial/evidentiary
hearing shall be held at a date and time to be set by the
magistrate judge, to resolve the disputed issue of ...