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Dykes v. Fuller

United States District Court, E.D. Michigan, Southern Division

September 30, 2019

ROBERT DYKES, Plaintiff,
v.
BRYAN FULLER, et al., Defendants.

         ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 37) TO THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (ECF NO. 36), (2) ADOPTING THE DISPOSITION RECOMMENDED BY THE MAGISTRATE JUDGE, (3) GRANTING MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANTS FULLER AND SEARFOSS (ECF NOS. 12, 25), AND (4) SUA SPONTE DISMISSING CLAIM AGAINST DEFENDANT ARBOGAST WITHOUT PREJUDICE

          Hon. Matthew F. Leitman, Judge

         Plaintiff Robert Dykes is an inmate in the custody of the Michigan Department of Corrections (the “MDOC”). On April 18, 2018, Dykes brought this pro se action under 42 U.S.C. § 1983 against Sergeant Brian Fuller, Sergeant Searfoss, and food service supervisor Arbogast (collectively, “Defendants”). (See Compl., ECF No. 1.)

         Dykes alleges that Defendant Fuller abused his authority and discriminated against Dykes and that Defendants Searfoss and Arbogast retaliated against Dykes because Dykes filed a grievance against Fuller. Fuller and Searfoss have been served with the Complaint; Arbogast has not been served.

         Defendants Fuller and Searfoss have moved for summary judgment on the ground that Dykes failed to properly exhaust his administrative remedies before filing this action. (See ECF Nos. 12, 25.) On August 7, 2019, the assigned Magistrate Judge issued a Report and Recommendation in which she recommended that the Court grant Defendants Fuller and Searfoss’ motions for summary judgment (the “R&R”). (See R&R, ECF No. 36.) The Magistrate Judge also recommended that the Court sua sponte dismiss Dykes’ claims against Arbogast because the record makes clear that Dykes failed to exhaust his administrative remedies against Arbogast. Dykes has now filed timely objections to the R&R (the “Objections”). (See Objections, ECF No. 37.)

         For the reasons explained below, the Court OVERRULES the Objections (ECF No. 37), ADOPTS the disposition recommended by the Magistrate Judge (ECF No. 36), GRANTS Defendants Fuller and Searfoss’ motions for summary judgment (ECF Nos. 12, 25), and SUA SPONTE DISMISSES Dykes’ suit against Defendant Arbogast.

         I

         A

         Dykes claims that, on May 6, 2017, Defendant Fuller wrongly revoked his bond and placed him on “toplock/non-bond.” (See Compl., ECF No. 1, PageID.4.) Dykes says that this action by Fuller prevented him from working for six days. (See id.) On May 7, 2017, Dykes filed a grievance against Fuller in which he accused Fuller of discrimination and abusing governmental power (“the Abuse of Power Grievance”). (See Abuse of Power Grievance, ECF No. 1-1, PageID.14.) The Abuse of Power Grievance provided, in its entirety:

On 5-6-17 Sgt. Fuller reviewed me on a bondable class one. He revoked my bond and placed me on non-bond, when I asked him why, (because I know at least (3) prisoners with the same misconduct whose bond was not revoked) and he stated “This is how its done here.” There is no reason logged on the misconduct as to why my bond was revoked as expressed by Policy 03.03.105.
Sgt. Fuller is in violation of abuse of governmental power, and discrimination. See PD 03.03.130.
I cannot assert the names of the prisoners with the same misconduct who was not placed on non-bond, because of the last incident where individuals were retaliated against, but I will provide copies for review.

         The MDOC rejected Dykes’ Abuse of Power Grievance against Fuller as nongrievable on May 9, 2017. (See ECF No. 1-1, PageID.12–13.) Dykes appealed, and MDOC officials affirmed the rejection. (See ECF No. 1-1, PageID.15–18.)

         On May 13, 2017, one day after Dykes returned to his job, Arbogast filed a misconduct report against Dykes in which he accused Dykes of consuming alcohol. (Misconduct Report, ECF No. 1-1, PageID.21.) Searfoss wrote a memorandum supporting Arbogast’s misconduct report. (See Compl., ECF No. 1, PageID.5.) On June 14, 2017, a hearing officer held a hearing on the report (the “Arbogast Misconduct Report Hearing”). At the conclusion of the hearing, the hearing officer ruled in Dykes’ favor. (See Misconduct Hr’g Report, ECF No. 1-1, PageID.20.)

         On June 21, 2017, one week after being found not guilty of the alcohol-related misconduct, Dykes filed a grievance against Arbogast and Searfoss in which he accused them of fabricating evidence (the “Fabricated Misconduct Report Grievance”). (See Fabricated Misconduct Report Grievance, ECF No. 1-1, PageID.25.) This grievance provided as follows:

On 5/13/2017, Arbogast and Sgt. Searfoss fab[ri]cated a claim against me, and wrote me a ticket for substance abuse. I requested the camera footage, and was found “not guilty”. Fab[ri]cating department documents constitute[s] falsifying documents, requiring discipline or termination, as it is a violation of department policy and work rules.
A complaint has been filed with the Internal Affairs.

         The MDOC rejected the False Misconduct Report Grievance as nongrievable. (See ECF No. 1-1, PageID.24.) Dykes then appealed to Step II, and that appeal was resolved against him. (See ECF No. 1-1, PageID.27-28.) Dykes next filed a Step III appeal. Dykes’ Step III appeal requested, among other things, that “Internal Affairs” review his allegations against Arbogast and ...


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