United States District Court, W.D. Michigan, Northern Division
ORDER MODIFYING AND ADOPTING REPORT AND
RECOMMENDATION
Paul
L. Maloney, United States District Judge
Plaintiff
Michael Powell is a prisoner under the control of the
Michigan Department of Corrections. After an initial review
of his complaint, the Court dismissed some of Plaintiff's
claims. Plaintiff has pending claims for deliberate
indifference to his serious medical needs and a claim for the
unnecessary and wanton infliction of pain, both violations of
the Eighth Amendment. Plaintiff filed a motion to compel the
full names of the named Defendants. (ECF No. 12.) Defendants
filed a motion for summary judgment asserting that Plaintiff
failed to exhaust his administrative remedies. (ECF No. 28.)
The magistrate judge issued a report recommending
Defendants' motion be granted and Plaintiff's motion
be dismissed as moot. (ECF No. 41.) Plaintiff filed
objections. (ECF No. 42.)
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)(2). 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); Fed.R.Civ.P. 72(b)(3). Only 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).
Before
discussing Plaintiff's objections, the Court must
describe the claims still pending in this lawsuit. This Court
identified which claims were adequately pled in the Opinion
issued after the initial review of his complaint. (ECF No. 4
Opinion at 6 PageID.40.) Plaintiff has an Eighth Amendment
claim for deliberate indifference to a serious medical need
against John Doe #1, Jane Doe #1, Jane Doe #2, Mason, Curtis
and Holden, which are described in paragraph 20-25 of the
complaint. (Id. at 19-21 PageID.53-55.) In those
paragraphs, Plaintiff describes several attempts at self-harm
or suicide and the allegedly inadequate responses by the
defendants to those attempts. Plaintiff also has an Eighth
Amendment claim for unreasonable and excessive force based on
the allegation that he was “hogtied.” With these
claims in mind, the Court considers Plaintiff's
objections to the recommendation that he did not exhaust his
administrative remedies.
1. The
magistrate judge concludes that Plaintiff has not provided
factual evidence to show that his mental illness prevented
him from filing grievances or legal authority to show that
his mental illness excused him from exhausting his
administrative remedies. (R&R at 7 PageID.219.) Plaintiff
objects (objections 1-3). These objections are overruled.
Plaintiff
points to provisions in two policy directives-the definition
of “mental illness” and the requirement that a
grievant attempt to resolve an issue before submitting a
written grievance, which can be excused under certain
conditions. He also points to his own affidavit to show he
suffered from mental health breakdowns.[1] This evidence,
when read together, does not establish that Plaintiff was
excused from exhausting his administrative remedies. As the
magistrate judge notes, the evidence in the record
establishes that Plaintiff actually filed grievances during
the relevant time period. The authority in the record, legal
and factual, does not establish that Plaintiff's mental
health issues impaired his ability to utilize the grievance
process. See, e.g., Brown v. McKee, 232 F.Supp.2d
761, 767-68 (E.D. Mich. 2002) (citation omitted) (finding
that the existence of a mental disability, alone, was not
sufficient for equitable tolling for habeas petition because
the moving party needed to show that the disability prevented
him or her from understanding the legal rights and acting
upon them).
This
portion of the Report and Recommendation is
ADOPTED as the Opinion of this Court.
2. The
magistrate judge concludes Plaintiff did not exhaust his
administrative remedies through Grievance 17-05-1712-12F
because it was rejected at Step III for procedural reasons.
(R&R at 7-12 PageID.219-224.) Plaintiff objects
(objection 4-5). The objections are overruled.
Grievance
17-05-1712-12F sets forth two issues/concerns: (1)
Plaintiff's medication was not helping him cope with his
mental health issues as evidenced by his attempts to commit
suicide and (2) his mental health status should preclude him
from being placed in administrative segregation, citing a
Policy Directive. Plaintiff indicated he attempted suicide
three times, without providing dates. The grievance was filed
on May 30, 2017. MDOC concluded that Plaintiff was receiving
mental health care and that his needs were not being ignored.
The MDOC also stated, albeit succinctly, that policy for
mental disabilities and segregation was not violated. This
was a decision addressing the merits of Plaintiff's
grievance. MDOC did not raise any procedural problems.
At Step
II, Plaintiff again asserted two issues. First, Plaintiff
suggests that the quality of his mental health care,
including his placement in segregation, caused him to attempt
suicide on March 27 and again on March 28. The second concern
was that he should not be placed in segregation because of
his mental health status, referencing the same Policy
Directive. The MDOC denied the appeal on the merits and for
procedural deficiencies. As a procedural problem, the MDOC
concluded that Plaintiff changed his complaint because the
initial grievance was specifically about his medications and
not about the quality of his care generally. As to the
merits, MDOC concluded Plaintiff's medication was being
provided consistent with the recommendation of mental health
professionals and that no housing policy had been violated.
At Step
III, Plaintiff asserted that the issues in the initial
grievance and his first appeal were not addressed. Plaintiff
contended that being housed in segregation was not consistent
with prison policy and that staff actions were leading him to
attempt suicide. The MDOC denied the appeal on different
procedural grounds. MDOC stated that Plaintiff did not
attempt to resolve the complaint before filing the grievance.
And, Plaintiff indicated that his circumstances were
“ongoing.” Attempting to resolve the grievance
and identifying a date are procedural requirements.
The
magistrate judge concluded that the rejection of a grievance
at Step III explicitly on procedural grounds means that
Plaintiff did not properly exhaust his administrative
remedies. See Reynolds-Bey v. Harris, 428 Fed.Appx.
493, (6th Cir. 2011).
This
Court has previously held that the MDOC cannot assert a new
procedural defect for the first time at Step III and then
assert, in a motion for summary judgment, that the grievance
was not properly exhausted. See Raper v. Controneo,
No. 1:17-cv-368, 2018 WL 2928188, at *3 (W.D. Mich. June 12,
2018.) Here, the grievance was initially denied on the merits
alone. The procedural concerns raised by the MDOC at Step III
were not raised in the MDOC's response at Step I or at
Step II. In the Court's view, allowing the MDOC to
identify new procedural problems for the first time at Step
III, when those problems were present in the initial
grievance and ...