United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING REPORT AND
J. QUIST UNITED STATES DISTRICT JUDGE.
Terry Adams, a prisoner in a Michigan Department of
Corrections (MDOC) facility, brought this pro se
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that Defendant John Dobias and two unidentified
officers used excessive force against him by placing
handcuffs too tight, in violation of the Eighth Amendment,
when transporting Adams to a different correctional facility.
Dobias filed a motion for summary judgment, arguing that
Adams failed to exhaust his administrative remedies. (ECF No.
12.) On October 11, 2019, Magistrate Judge Phillip Green
submitted a Report and Recommendation (R & R)
recommending that this Court (1) grant Dobias's motion
for summary judgment and dismiss Adams's claim against
Dobias without prejudice for failure to properly exhaust
administrative remedies; (2) dismiss Adams's claim
against the two unidentified officers for failure to timely
effectuate service; and (3) terminate this matter. (ECF No.
objected to the R & R. (ECF No. 24.) Upon receiving
objections to an R & R, 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.” 28 U.S.C. § 636(b)(1). This
Court may accept, reject, or modify any or all of the
magistrate judge's findings or recommendations. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). After conducting a de
novo review of the R & R, the Objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted as the Opinion of the Court.
exhaustion of administrative remedies requires
“compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure
on the course of its proceedings.” Woodford v.
Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 2386 (2006). In
the instant case, the magistrate judge found that Adams had
not properly exhausted his administrative remedies because,
although he pursued a grievance regarding his claim of
excessive force against Dobias, the grievance was rejected as
untimely at all three steps of the grievance process. Prior
to submitting a grievance, a prisoner is required to attempt
to resolve the issue with the staff member involved within
two business days of becoming aware of the a grievable issue.
Mich. Dep't of Corr. Policy Directive 03.02.130 ¶ P.
If the attempt is unsuccessful, the prisoner must submit a
Step I grievance within five business days after attempting
to resolve the matter with staff. Id. at ¶ V.
The events at issue in this case occurred on February 6,
2018. Adams first submitted a corresponding Step I grievance
on September 17, 2018, more than seven months later.
first objects to the R & R by asserting that “the
ongoing medical condition doctrine” renders his
September 17, 2018, Step I grievance timely. But that is a
misunderstanding of the doctrine. Under the doctrine,
“claims relating to an ongoing medical condition
arising before, as well as after, the relevant grievance was
filed may be considered exhausted.” Ellis v.
Vadlamudi, 568 F.Supp.2d 778, 782 (E.D. Mich. 2008). In
other words, had Adams properly grieved his excessive force
claim (and the related medical condition) shortly after the
incident in February 2018, any claims related to ongoing or
lingering pain and suffering originating from the incident
would also be exhausted. The ongoing medical condition
doctrine does not save Adams's claim.
next objects to the magistrate judge's statement that
Adams did not allege that he submitted any other grievance
that he properly pursued through all three steps of the
grievance process. (See R & R, ECF No. 20 at
PageID.112.) Adams contends that he did submit a Step I
grievance for bruises on his left hand, but then he was again
transferred to another facility. (Objections, ECF No. 24 at
PageID.125.) Thus, there was nothing incorrect about the
magistrate judge's statement-Adams did not properly
pursue any other grievance through all three steps of the
grievance process, as he stopped after Step I.
Adams objects to the magistrate judge's recommendation
that his claims be dismissed against the unidentified
officers for failure to effectuate service. Adams argues that
because he was granted in forma pauperis status and
the U.S. Marshal Service has made no comment regarding the
location of the unknown Defendants, he should be granted
discovery and time to identify the unknown officers. However,
as the magistrate judge pointed out, at the time that the R
& R was submitted, Adams had neither requested an
extension of time nor requested assistance in learning the
identity of the two unknown Defendants.
Federal Rule of Civil Procedure 4(m), Adams had 90 days from
the filing of his complaint to serve the unidentified
Defendants. Only if Adams shows “good cause for the
failure” to effectuate service, must the court extend
the time for service. Id. Adams has not shown good
cause. Nearly six months passed between the time the Court
ordered service of the complaint and when the R & R was
submitted, and in that time, Adams did nothing to discover
the identities of the two unknown officers to aid the U.S.
Marshals in locating Defendants for service. “Although
the Marshal had a duty to serve [the unidentified
Defendants], Plaintiff could not sit by in silence when he
knew that service had not been executed.” VanDiver
v. Martin, 304 F.Supp.2d 934, 943 (E.D. Mich. 2004).
While [Adams] and other incarcerated plaintiffs proceeding in
forma pauperis may rely on service by the U.S. Marshals, a
plaintiff may not remain silent and do nothing to effectuate
such service. At a minimum, a plaintiff should request
service upon the appropriate defendant and attempt to remedy
any apparent service defects of which a plaintiff has
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir.
IT IS HEREBY ORDERED that the October 11,
2019, Report and Recommendation (ECF No. 20) is
adopted as the Opinion of this Court.
Plaintiff's Objections (ECF No. 24) are
IS FURTHER ORDERED that Defendant Dobias's
Motion for Summary Judgment Based on Failure to Exhaust (ECF
No. 12) is granted. Plaintiff's claim
against Defendant Dobias is dismissed without
IS FURTHER ORDERED that Plaintiff's claims
against Unknown Parties #1 and #2 are dismissed
without prejudice for failure to timely effectuate
case is concluded. A separate ...