United States District Court, W.D. Michigan, Northern Division
OPINION AND ORDER
JANET T. NEFF JUDGE
a prisoner civil rights action filed pursuant to 42 U.S.C.
§ 1983 involving alleged retaliation by remaining
Defendants Scott Smith, Derick Campbell, Jack Payment and
Sharron Seames. Defendants filed a motion for summary
judgment, arguing that Plaintiffs claims should be dismissed
based on the affirmative defense that Plaintiff failed to
exhaust his administrative remedies pursuant to the Prison
Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). The
matter was referred to the Magistrate Judge, who issued a
Report and Recommendation (R&R), recommending summary
judgment be denied. The matter is presently before the Court
on both Defendants' and Plaintiffs objections to the
Report and Recommendation. In accordance with 28 U.S.C.
§ 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court has
performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made.
The Court denies the objections and issues this Opinion and
first object to the R&R's recommendation that
grievance URF-1602-0699-03B exhausted administrative remedies
against Defendants Payment and Campbell. Defendants argue
that the Magistrate Judge erred in relying on Mattox
to find that Plaintiff properly exhausted his administrative
remedies despite having named some but not all Defendants as
required in Step I of the grievance process (PI. Obj., ECF
No. 51 at PageID.542). See Mattox v. Edelman, 851
F.3d 583, 590-91 (6th Cir. 2017). Defendants' objection
states, "at Step II, Ford completely changes the scope
and focus of his grievance, naming [Defendants] Payment and
Campbell ... for the first time. Accordingly, unlike the
prisoner in Mattox which sufficiently identified but
did not name a defendant at Step I, Ford's grievance in
URF-1602-0699-03B did not function to exhaust administrative
remedies against Payment or Campbell" (ECF No. 51 at
Mattox, and liberally construing Plaintiffs
complaint in the light most favorable to Plaintiff, the
Magistrate Judge concluded that Plaintiff properly exhausted
his retaliation claims against Defendants Payment and
Campbell for allegedly issuing him false minor misconduct
tickets in December of 2015 because even though Plaintiff
failed to include the names of all those involved in his Step
I grievance, the grievance was not rejected at any Step, but
was addressed on its merits (ECF No. 46 at PageID.501).
"'When prison officials waive enforcement of ...
procedural rules and instead consider a non-exhausted claim
on its merits, a prisoner's failure to comply with those
rules will not bar that prisoner's subsequent federal
lawsuit'" (ECF No. 46 at PageID.494, quoting
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir.
2010)). The Magistrate Judge addressed Plaintiffs procedural
non-compliance raised by Defendants in their objection. While
Defendants may distinguish the facts in this case from
Mattox, that distinction does not undermine the
Magistrate Judge's reasoning and conclusion.
Defendants' first objection is denied.
Defendants object to the R&R's recommendation that
Ford was prevented from exhausting his administrative
remedies. Defendants argue that the Magistrate Judge erred in
finding a genuine issue of material fact as to whether
Plaintiff attempted to exhaust an unnumbered grievance
against Defendant Seames for which Plaintiff asserts he never
received a response (Defs. Obj., ECF No. 51 at PageID.543).
Defendants assert that Plaintiff "attaches some
documents he claims support his claim" but that
"[t]hese documents do not bear any markings indicating
that they were ever properly submitted to or received at Step
I" (id). Defendants argue that the "record
indicates that the grievance process was available to Ford
and he failed to comply with the procedures ..."
objection essentially asks this Court to weigh Plaintiffs
evidence in support of his efforts to file this unnumbered
grievance and his contention that he was thwarted by prison
officials. But as the Magistrate Judge stated in the R&R,
a "court must consider all pleadings, depositions,
affidavits, and admissions on file, and draw all justifiable
inferences in favor of the party opposing the motion"
(ECF No. 46 at PageID.491, citing Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Comp., 475 U.S. 574, 587
(1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d
293, 296 (6th Cir. 2005)).
Magistrate Judge correctly placed the burden on Defendants as
the movants for summary judgment on the affirmative defense
of exhaustion (ECF No.46 at PageID.491-492). See Jones v.
Bock, 549 U.S. 199, 212-16 (2007). Defendants'
'"showing must be sufficient for the court to hold
that no reasonable trier of fact could find other than for
the moving party'" (ECF No. 46 at PageID.492,
quoting Calderone v. United States, 799 F.2d 254,
259 (6th Cir. 1986) (citation omitted)). Setting aside
questions of whether Plaintiffs evidence is ultimately
persuasive, Defendants have not shown that the Magistrate
Judge erred in finding that "a question of fact exists
as to whether Plaintiff was prohibited from exhausting his
administrative remedies against Defendant Seames" (ECF
No. 46 at PageID.503). Therefore, Defendants' second
objection is denied.
also cursorily request in the alternative that "this
Court should order a bench trial on this issue" in the
event "the Court concludes there is a factual issue as
to whether MDOC thwarted Ford's attempts to exhaust a
grievance against Defendant Seames (ECF No. 51 at
PageID.543). Such a request is not appropriately addressed on
objection to the R&R. Any request for an evidentiary
hearing on the exhaustion issue can be raised, if
appropriate, in further proceedings before the Magistrate
argues that the Magistrate Judge erred by allegedly
mischaracterizing a misconduct report filed against Plaintiff
by Defendants as being "minor" instead of
"major" (PI. Obj., ECF No. 54 at PageID.550-551;
R&R, ECF No. 46 at PageID.487, 501, 503). Plaintiff
provides no record cite to confirm this alleged error, and to
the contrary, the record coincides with the Magistrate
Judge's statements that the December 2015 misconducts
were "minor" misconducts (see Compl., ECF
No. 1 at PagelD. 12). Plaintiffs objection is therefore
argues in his second and third objections that the Magistrate
Judge erred in concluding that Plaintiff has not properly
exhausted his administrative remedies against Defendants
Payment, Campbell, and Seames concerning his Grievance
URF-1605-1939-08G because Plaintiff named those Defendants
for the first time in his Step III appeal of that grievance
(PI. Obj., ECF No. 54 at PageID.551; R&R, ECF No. 46 at
PageID.500). Plaintiff asserts that he "clearly
explained the conduct that Defendants Payment and Campbell
took against him," that he asserted in Step II that he
believed Smith, Payment and Campbell all acquiesced and
played a retaliatory role in taking adverse action against
him, and that he "placed the URF Administration on
notice in Step I and II... of Plaintiff s problem with
Defendants Smith, Payment and Campbell" (ECF No. 54 at
PageID.551-552). However, Plaintiff does not address the
Magistrate Judge's reasoning that by failing to identify
those Defendants by name at Step I, Plaintiff failed to
properly exhaust the claims. Therefore, Plaintiffs second and
third objections are denied.
this Court adopts the Magistrate Judge's Report and