United States District Court, W.D. Michigan, Southern Division
ORDER MODIFYING AND ADOPTING REPORT AND
L. Maloney United States District Judge.
a civil rights action brought pro se by a state prisoner
under 42 U.S.C. § 1983. On August 12, 2019, United
States Magistrate Judge Phillip J. Green issued a Report
& Recommendation (“R&R”) recommending
that the Court grant the Defendants’ motion for partial
summary judgment (ECF No. 20) in part and deny the motion in
part (R&R ECF No. 29). This matter is now before the
Court on Defendants’ objection to the R&R (ECF No.
30). For the reasons to be discussed, the Court will sustain
the objection, modify the R&R, and adopt the R&R as
the Opinion of the Court.
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an order. After being
served with a report and recommendation (R&R) issued by a
magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). A district court
judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1);
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986) (per curiam) (holding the district
court need not provide de novo review where the objections
are frivolous, conclusive, or too general because the burden
is on the parties to “pinpoint those portions of the
magistrate’s report that the district court must
specifically consider”). Failure to file an objection
results in a waiver of the issue and the issue cannot be
appealed. United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005); see also Thomas v. Arn, 474
U.S. 140, 155 (upholding the Sixth Circuit’s practice).
The district court judge may accept, reject, or modify, in
whole or in part, the findings and recommendations made by
the magistrate judge. 28 U.S.C. § 636(b)(1);
sole objection to the R&R is that the magistrate judge
erred when he found that Plaintiff exhausted his Eighth
Amendment claim regarding personal hygiene items via a July
2, 2018 kite. This Court agrees.
relevant time, Plaintiff was on “modified access”
to the grievance system, so he was required to submit
requests for grievance forms to the grievance coordinator.
The grievance coordinator would then review the request to
determine whether it complied with institutional rules
regarding the filing of grievances. If a plaintiff is refused
a grievance form for a non-frivolous grievance, his remedies
are deemed unavailable and he is not obligated to exhaust
them. See Walker v. Mich. Dep’t of Corr., 128
F. App’x 441, 446-47 (6th Cir. 2005). If a plaintiff is
granted a grievance form and files the grievance, he must
exhaust that administrative appeal before filing a federal
suit; he may not exhaust the administrative remedy
while the federal suit is pending. See Freeman
v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
demonstrated an understanding of this modified system on June
14, 2018, when he sent a kite (an informal complaint) to the
grievance coordinator explicitly stating “I need these
grievances” and requesting five grievance forms (ECF
No. 24-1 at 3, PageID.356). On July 5, 2018, Plaintiff again
explicitly requested a grievance via kite, stating “I
want to grieve you” (ECF No. 24-1 at 7, PageID.360).
However, the July 2, 2018 kite contains no such language (ECF
No. 24-1 at 9, PageID.362). Plaintiff outlines his request
for hygiene products but does not request a grievance form or
state that he is seeking to grieve anyone. Plaintiff did not
invoke the grievance process with this kite, so Plaintiff did
not exhaust his administrative remedies on this claim. The
R&R’s conclusion is erroneous.
a review of the record shows that Plaintiff filed several
grievances regarding this issue and still failed to exhaust
his administrative remedies before filing this claim. In
2016, Plaintiff filed a grievance raising several of the same
issues as he raises in this lawsuit, including the personal
hygiene items issue (ECF No. 21-4 at 3, PageID.259). That
grievance was apparently lost or never processed by prison
officials, because both a Legislative Ombudsman Analyst and
the grievance coordinator informed Plaintiff that no
grievance existed with that number (ECF No. 21-4 at 4, 7,
PageID.260, 263). Plaintiff resurrected the personal hygiene
issue in a grievance filed on July 9, 2018 (ECF No. 24-1 at
10, PageID.363).Plaintiff filed this lawsuit on July 20,
2018 (ECF No. 1), well before that grievance was processed:
the Step I resolution was returned to Plaintiff on August 3,
2018, the Step II appeal was filed on August 29, 2018, and
the Step III appeal was received on October 2, 2018 (ECF No.
24-1 at 11-13, PageID.364-66). This was Plaintiff’s
fatal error: he did not allow the administrative process to
play out prior to filing suit in federal court. By
allowing the administrative process to complete during the
pendency of this federal suit, Plaintiff has failed to
exhaust his administrative remedies. See Freeman,
196 F.3d at 645. Accordingly, Defendants are entitled to
summary judgment on Plaintiff’s Eighth Amendment claim
regarding hygiene items.
Court finds no other error in the R&R, and therefore,
defendants motion for partial summary judgment is
GRANTED in part, on Plaintiff’s claims
under the Fourteenth Amendment’s Equal Protection
Clause based on the elimination of the START program and the
Eighth Amendment claim based on denial of hygiene items.
Defendant’s motion is DENIED on
Plaintiff’s two remaining claims.
IS ORDERED that the August 12, 2019 R&R (ECF No.
29) is MODIFIED and ADOPTED
as the opinion of the Court.
IS FURTHER ORDERED that Defendants’ objection
to the R&R ...