United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY JUDGE.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN United States Magistrate Judge.
a civil rights action brought pro se by a state
prisoner pursuant to 42 U.S.C. § 1983.
This lawsuit arises out of conditions of plaintiffs
confinement at the Ionia Correctional Facility.
defendants are Sergeant Unknown Greenfield, Lieutenant
Unknown Ryske, Corrections Officer Unknown Phelps, Lieutenant
D. Howard, Assistant Deputy Warden B. Snyder, Sergeant
Unknown Derochers, Lieutenant Unknown Zwiker, Corrections
Officer Unknown Obgurn, Corrections Officer Unknown Hicks,
Prison Counselor Unknown Thurlby, Corrections Officer Unknown
Mygrants, and Corrections Officer Unknown
alleges that, on the morning of April 11, 2017, he disobeyed
two direct orders by Officer Mygrants, but he eventually
allowed himself to be placed in restraints. Plaintiff states
that he believes that Officer Eyers was the corrections
officer who used excessive force in violation of his Eighth
Amendment rights by hitting his head and applying restraints
too tightly. Plaintiff alleges that Sergeant Greenfield,
Lieutenant Ryske, Officers Mygrants, Phelps, Sparry, and
Schafer, and Counselor Thurlby failed to intervene in
violation of his Eighth Amendment rights.
alleges that Registered Nurse Lake, Officers Phelps,
Mygrants, Sparry, Schafer, Obgurn, Hicks, and Eyers,
Counselor Thurlby, Lieutenants Howard, Ryske, and Zwicker,
Sergeants Greenfield and Derochers, and Assistant Deputy
Warden Snyder violated his Eighth Amendment rights by
allowing him to remain in restraints.
matter is before the Court on a motion for summary judgment
by all defendants, except unserved defendants Lake, Schafer,
and Sparry, based on the affirmative defense of failure to
exhaust administrative remedies, as required by 42 U.S.C.
§ 1997e(a). (ECF No. 52). Plaintiff opposes the
motion. (ECF No. 55). Defendants did not file a reply brief.
For the reasons set forth herein, I recommend that the Court
dismiss all plaintiff's claims against defendants Lake,
Schafer, and Sparry without prejudice for failure to achieve
service. I further recommend that the Court deny
defendants' motion for summary judgment.
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 County 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 Ellington v. City of E.
Cleveland, 689 F.3d 549, 552 (6th Cir. 2012). 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 Newell Rubbermaid, Inc.
v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012).
“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 County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir.
2001). The moving party without the burden of proof needs
only show that the opponent cannot sustain his burden at
trial. “But where 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). The Court of Appeals has
repeatedly emphasized that the party with the burden of proof
faces “a substantially higher hurdle” and “
‘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
persuasion “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 (1999).
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