LaDouceur #708704 v. First et al, No. 1:2015cv01179 - Document 28 (W.D. Mich. 2016)
Court Description: MEMORANDUM OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
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LaDouceur &#035;708704 v. First et al Doc. 28 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DONALD LaDOUCEUR, JR., # 708704, ) ) ) Plaintiff, ) ) v. ) ) D. FIRST, et al., ) ) Defendants. ) ____________________________________) Case No. 1:15-cv-1179 Honorable Paul L. Maloney MEMORANDUM OPINION This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. Plaintiff is currently an inmate at the Bellamy Creek Correctional Facility (IBC). This lawsuit arises out of alleged conditions of his confinement on May 31, 2013, at the Ionia Correctional Facility (ICF). Plaintiff named seven employees of the Michigan Department of Corrections (MDOC) at ICF as defendants: D. First, B. Risk, R. Drabek, Unknown Conklin, David Hall, D. Rykse, and Pamela Balczak. Plaintiff alleges that, on May 31, 2013, while he was being escorted from the shower to his segregation cell, he was involved in a physical altercation with guards. He alleges that defendants used excessive force against him in violation of his rights under the Eighth Amendment’s Cruel and Unusual Punishments Clause. (Compl. Count I, ECF No. 1, PageID.9). Plaintiff also asks the Court, in its discretion, to exercise supplemental jurisdiction over purported state law claims. (Compl. Count II, ECF No. Dockets.Justia.com 1, PageID.10). Plaintiff sues all defendants in their individual capacities and seeks an award of damages. (Id. at PageID.1-3, 10). The matter is now before the court on a motion for partial summary judgment by defendants Drabek, Conklin, Hall, and Rykse, based on the affirmative defense of failure to exhaust administrative remedies, pursuant to 42 U.S.C. § 1997e(a). (ECF No. 15). Defendants’ motion has been pending since February 4, 2016. Plaintiff elected not to file a response. For the reasons set forth herein, defendants’ motion will be granted and all plaintiff’s claims against defendants Drabek, Conklin, Hall, and Rykse will be dismissed without prejudice. Applicable Standards A. Summary Judgment Standard Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Griffin v. Hardrick, 604 F.3d 949, 953 (6th Cir. 2010). The standard for determining whether summary judgment is appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Moses v. Providence Hosp. Med. Centers, Inc., 561 F.3d 573, 578 (6th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. -2- Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 676 (6th Cir. 2011). When the party without the burden of proof seeks summary judgment, that party bears the initial burden of pointing out to the district court an absence of evidence to support the nonmoving party’s case, but need not support its motion with affidavits or other materials “negating” the opponent’s claim. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once the movant shows that “there is an absence of evidence to support the nonmoving party’s case,” the nonmoving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56(e); see Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009). The motion for summary judgment forces the nonmoving party to present evidence sufficient to create a genuine issue of fact for trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A mere scintilla of evidence is insufficient; ‘there must be evidence on which a jury could reasonably find for the [nonmovant].’” Dominguez v. Correctional Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see LaQuinta Corp. v. Heartland Properties LLC, 603 F.3d 327, 335 (6th Cir. 2010). -3- A moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). The moving party without the burden of proof needs only show that the opponent cannot sustain his burden at trial. “But where the moving party has the burden – the plaintiff on a claim for relief or the defendant on an affirmative defense – his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 48788 (1984)); see also Arnett, 281 F.3d at 561 (The party with the burden of proof “‘must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.’” (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000))). Accordingly, a summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999). -4- B. Standards Applicable to the Affirmative Defense of Failure to Exhaust Remedies Defendants Drabek, Conklin, Hall, and Rykse ask the Court to “dismiss them from this case, without prejudice, because Plaintiff failed to properly exhaust his administrative remedies, as required by the PLRA and applicable case law.” (Defendants’ Brief at 8, ECF No. 16, PageID.49). A prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies. 42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 734. “This requirement is a strong one. To further the purposes behind the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not available, even when the state cannot grant the particular relief requested, and even where the prisoner[ ] believes the procedure to be ineffectual or futile.” Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011) (internal quotations and citations omitted). In Jones v. Bock, the Supreme Court held that “exhaustion is an affirmative defense, and prisoners are not required to specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216. The burden is on defendant to show that plaintiff failed to properly exhaust his administrative remedies. The Supreme Court reiterated -5- that “no unexhausted claim may be considered.” 549 U.S. at 220. The Court held that when a prisoner complaint contains both exhausted and unexhausted claims, the lower courts should not dismiss the entire “mixed” complaint, but are required to dismiss the unexhausted claims and proceed to address only the exhausted claims. 549 U.S. at 21924. In order to exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules established by state law. Jones v. Bock, 549 U.S. at 218-19. In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA exhaustion requirement “requires proper exhaustion.” 548 U.S. at 93. “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009). When a prisoner’s grievance is rejected by the prison as untimely, the claim is not “properly exhausted” for purposes of filing a section 1983 action in federal court. 548 U.S. at 90-93; Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011); see 42 U.S.C. § 1997e(a). The procedural bar does not apply where the State declines to enforce its own procedural rules. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324–25 (6th Cir. 2010). MDOC Policy Directive 03.02.130 (effective July 9, 2007) sets forth the applicable grievance procedures.1 In Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009), 1 A copy of the policy directive is found in the record. See ECF No. 16-1, PageID.51-58. -6- the Sixth Circuit held that this policy directive “explicitly required [the prisoner] to name each person against whom he grieved,” and it affirmed the district court’s dismissal of a prisoner’s claim for failure to properly exhaust his available administrative remedies. Id. at 470. Policy Directive 03.02.130 is not limited to the requirement that the individual being grieved be named in the Step I grievance. The following is an overview of the grievance process. Inmates must first attempt to resolve a problem within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his control. Id. at ¶ P. If the mandatory pre-grievance attempt at resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted resolution. Id. The Policy Directive also provides the following directions for completing Step I grievance forms: “The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places, and names of all those involved in the issue being grieved are to be included.” Id. at ¶ R (emphasis in original). Where an individual is not named in the Step I grievance, or his or her involvement in the issue being grieved is not indicated, or the individual is mentioned for the first time during an appeal of a denial of a grievance, the claims against that individual are not properly -7- exhausted. See Ketzner v. Williams, No. 4:06-cv-73, 2008 WL 4534020, at *16 (W.D. Mich. Sept. 30, 2008) (collecting cases); accord Sullivan v. Kasajaru, 316 F. App’x at 470. The inmate submits the grievance to a designated grievance coordinator who makes an initial determination whether it should be rejected under MDOC policy or assigned to a respondent. P.D. 03.02.130 at ¶¶ W, X. If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten business days of the response, or if no response was received, within ten business days after the response was due. Id. at ¶ BB. The respondent at Step II is generally the warden or the warden’s designee. Id. at ¶ DD. If the inmate is dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at ¶ FF. The Step III appeal form must be sent to the Grievance and Appeals Section within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. at ¶ FF. The Grievance and Appeals Section is the Step III respondent. Id. at ¶ GG. “The total grievance process from the point of filing a Step I grievance to providing a Step III response shall generally be completed within 120 calendar days unless an extension has been approved in writing.” Id. Ordinarily, a prisoner must pursue appeals of his grievance through Step III of the administrative process. The Sixth Circuit has “clearly held that an inmate does not -8- exhaust available administrative remedies when the inmate fails entirely to invoke the grievance procedure.” Napier, 636 F.3d at 224. An argument that it would have been futile to file a grievance does not suffice. See id.; see also Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (“[A]n inmate cannot simply fail to file a grievance or abandon the process before completion and claim that he has exhausted his remedies or that it is futile for him to do so because his grievance is now time-barred under the regulations.”); Booth v. Churner, 532 U.S. at 741 n.6 (“[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.”). Findings of Fact The following facts are beyond genuine issue. Plaintiff is an inmate in the custody of the Michigan Department of Corrections (MDOC), currently at the Bellamy Creek Correctional Facility (IBC). On May 31, 2013, plaintiff was an inmate at the Ionia Correctional Facility (IFC). Plaintiff filed a grievance against defendants D. First and B. Risk regarding the purported incident on May 31, 2013, and pursued appeals through Step III of the MDOC’s grievance process. (Grievance No. ICF-13-06-1165-26a and related appeals, ECF No. 16-2, PageID.63-68). Plaintiff did not file any grievance against the moving defendants based on their actions on the date in question and he did not pursue such a grievance through a Step III-decision. (ECF No. 16-2, PageID.60-109). On November 13, 2015, plaintiff filed this lawsuit. -9- Discussion Defendants Drabek, Conklin, Hall, and Rykse have raised the affirmative defense that plaintiff did not properly exhaust his administrative remedies against them as required by 42 U.S.C. § 1997e(a). Plaintiff failed to exhaust all claims asserted against these defendants. Exhaustion is mandatory. Woodford, 548 U.S. at 93. “[N]o unexhausted claim may be considered.” Jones v. Bock, 549 U.S. at 220. Conclusion For the foregoing reasons, defendants’ motion (ECF No. 15) will be granted and all plaintiff’s claims against defendants Drabek, Conklin, Hall, and Rykse will be dismissed without prejudice. Dated: August 30, 2016 /s/ Paul L. Maloney Paul L. Maloney United States District Judge -10-
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