Opinion
2:22-cv-11586
06-21-2023
EDWARD LEE SMITH, JR., Plaintiff, v. BISCHAN HASSUNIZADEH, et al., Defendants.
District Judge Nancy G. Edmunds
REPORT AND RECOMMENDATION TO GRANT MDOC DEFENDANTS BYRNE, MILLER & ROACH'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS OF EXHAUSTION (ECF No. 26)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION: The Court should GRANT MDOC Defendants
Byrne, Miller & Roach's motion for summary judgment on the basis of exhaustion (ECF No. 26).
II. REPORT:
A. Background
On July 8, 2022, while located at the Michigan Department of Corrections (MDOC) G. Robert Cotton Correctional Facility (JCF), Plaintiff Edward Lee Smith, Jr. initiated this lawsuit in pro per against multiple defendants. (ECF No. 1.) The Court has granted his application to proceed in forma pauperis. (ECF Nos. 4, 5.) Plaintiff has kept the Court apprised of his address and is currently located at the MDOC's Parnall Correctional Facility (SMT). (ECF Nos. 7, 39; see also www.michigan.gov/corrections, “Offender Search.”)
B. Eighteen Remaining Defendants
On August 24, 2022, Judge Edmunds entered an opinion and order, which dismissed the complaint against the MDOC but also provided Plaintiff “sixty (60) days from the date of this order to specify the names of the defendants he wishes to sue and to provide the Court with the addresses of these defendants.” (ECF No. 8, PageID.24 (emphasis in original).)
Plaintiff's timely response listed thirty Defendants. (ECF Nos. 9, 10.)On October 18, 2022, Judge Edmunds entered another opinion and order, this time:
These responses are the same, except the latter contains a six-page “Attachment 1.” (Compare ECF No. 9, PageID.25-29; with, ECF No. 10, PageID.30-41.) And, while they appear to list thirty-two (32) Defendants, Zuger is listed twice (id., ¶¶ 3. 16) and one other paragraph seemingly describes the location(s) of certain Defendants (see id., ¶ 17).
(1) dismissing the complaint as to the ten Henry Ford Hospital Defendants (Hassunizadeh, Zeeshan, Zuger, Kazem, Chiu, Ivy, Lacey Wilson, Fulmerhouser, Bugbee, and Evans);
(2) dismissing the complaint against two defendants (M. Caran and K. Chauris) because they had not been fully identified so that service could be effectuated; but,
(3) directing the USMS to serve the complaint upon the eighteen remaining named Defendants (Byrne, Price, Miller, Erickson, Baghal, Efrusy, Rogers, Lander, Bahner (i.e., Bhavsar), Sperling, Varney-Herr, Robert Lacy, Roach, Griffith, Yarid, Chester, Hill, and Remus).(ECF No. 11; see also ECF Nos. 22, 23, & 54.)
According to Plaintiff's list, the remaining eighteen Defendants are associated with the MDOC's Duane Waters Health Center (DWH), the Charles E. Egeler Reception & Guidance Center (RGC), the Carson City Correctional Facility (DRF), and/or the G. Robert Cotton Correctional Facility (JCF). (ECF No. 10, PageID.31-32.) To date, ten defendants have appeared via counsel. (ECF Nos. 22, 23, 53, & 54 [Bahner (i.e., Bhavsar), Chester, Hill, Robert Lacy, Yarid], 24 [Byrne, Miller, Roach], 27 & 28 [Sperling], 46 [Lander].) Eight defendants - i.e., Price, Erickson, Baghal, Efrusy, Rogers, Varney-Herr, Griffith, & Remus - have yet to appear. (See ECF Nos. 29-30, 32-37, 38, 41, 50, 52.)
C. Defendants Byrne, Miller & Roach's Motion for Summary Judgment on the Basis of Exhaustion (ECF No. 26)
Of the ten Defendants who have appeared, only three are movants in the instant motion. The status of the other seven will be addressed separately, via: (a) Lander's motion to dismiss (ECF No. 47), as to which a response was due on April 24, 2023 (ECF No. 48); and, (b) Bahner (i.e., Bhavsar), Chester, Hill, Robert Lacy, Sperling, and Yarid's counsel's motion for withdrawal of attorney and for 120-day stay (ECF No. 44).
Although this case was originally assigned to Judge Edmunds and Judge Grey, it has recently been reassigned from Judge Grey, who was handling pretrial matters, to me, and then referred to me for pretrial matters. (ECF Nos. 21, 42.) Currently before the Court is MDOC Defendants Byrne, Miller, and Roach's February 1, 2023 motion for summary judgment on the basis of exhaustion (ECF No. 26), as to which Plaintiff has filed a response (ECF Nos. 40, 49),and the movants have filed a reply (ECF No. 51). This motion is ready for decision.
On February 28, 2023, Plaintiff filed what was docketed as an “objection” to Defendants' motion (see ECF No. 40, PageID.149-161), attached to which was a 1-page “affidavit” (id., PageID.162). On March 13, 2023, under the impression that a response had not yet been filed, I entered an order setting the response deadline for April 3, 2023. (ECF No. 43.) Plaintiff's March 29, 2023 “response” consists of the same February 15, 2023 response, albeit missing one page (see ECF No. 49, PageID.223-234), the same February 15, 2023 “affidavit” (id., PageID.221), two MDOC disbursement authorizations dated February 15, 2023 (id., PageID.219-220), and a two-page “ex-parte motion” dated March 21, 2023 (id., PageID.216-217). To the extent Plaintiff sought sanctions for Defendants' “actions, to impede, delay, obstruct this litigation . . . [,]” because “they did this with my grievances too[,]” (id., PageID.217 ¶ 3), the mistaken impression that a response had not yet been filed is the Court's - not Defendants' - error. To the extent he believes that Defendants' filing of the instant motion had these nefarious purposes, he is mistaken, as their motion has merit and is appropriate at this juncture.
To the extent Plaintiff takes issue with the fact that Defendants did not seek concurrence (ECF No. 40, PageID.153 ¶ 7), Defendants appropriately explain they did not seek concurrence, because Plaintiff “is an incarcerated prisoner proceeding pro se.” (ECF No. 26, PageID.96; ECF No. 51, PageID.246.) See E.D. Mich. LR 7.1(a)(2)(D) (“concurrence in the motion has not been sought because the movant or nonmovant is an incarcerated prisoner proceeding pro se.”).
D. Standard
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004) (internal citations omitted).
“The moving party has the initial burden of proving that no genuine issue of material fact exists ....” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56 (e)(2) (providing that if a party “fails to properly address another party's assertion of fact,” then the court may “consider the fact undisputed for the purposes of the motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must “make an affirmative showing with proper evidence in order to defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (“The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts .... [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.”) (internal quotation marks and citations omitted). Moreover, “the mere existence of a scintilla of evidence that supports the nonmoving party's claims is insufficient to defeat summary judgment.” Pack v. Damon Corp., 434 F.3d 810, 814 (6th Cir. 2006) (internal quotations and citations omitted).
Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when “a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case....” Stansberry, 651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The fact that Plaintiff is pro se does not lessen his obligations under Rule 56. Rather, “liberal treatment of pro se pleadings does not require lenient treatment of substantive law.” Durante v. Fairlane Town Ctr., 201 Fed.Appx. 338, 344 (6th Cir. 2006). In addition, “[o]nce a case has progressed to the summary judgment stage, . . . ‘the liberal pleading standards under Swierkiewicz [v. Sorema N.A., 534 U.S. 506, 512-13 (2002)] and [the Federal Rules] are inapplicable.'” Tucker v. Union of Needletrades, Indus. & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)). The Sixth Circuit has made clear that, when opposing summary judgment, a party cannot rely on allegations or denials in unsworn filings and that a party's “status as a pro se litigant does not alter [this] duty on a summary judgment motion.” Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010); see also United States v. Brown, 7 Fed.Appx. 353, 354 (6th Cir. 2001) (affirming grant of summary judgment against a pro se plaintiff because he “failed to present any evidence to defeat the government's motion”).
E. Analysis
1. The pleading
Plaintiff's complaint is signed under penalty of perjury. (ECF No. 1, PageID.4) 28 U.S.C. § 1746 (“Unsworn declarations under penalty of perjury”). Therefore, it may be considered as evidence on summary judgment. See Peters v. Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir. 2002) (“28 U.S.C. § 1746 allows for ‘unsworn declarations under penalty of perjury' to support any matter that legally requires an affidavit to support it.”). See also Rogers v. Henry Ford Health Sys., 897 F.3d 763, 767 (6th Cir. 2018) (“This declaration is not competent summaryjudgment evidence because it fails to comply with either Federal Rule of Civil Procedure 56(c)(4) or 28 U.S.C. § 1746: It is neither signed, dated, nor made under penalty of perjury.”).
a. Statement of Facts
By way of background, Plaintiff is serving a sentence imposed in state court on May 10, 2021. See Case No. 20-015538-FH (Berrien County). Plaintiff alleges he “was diagnosed with having a weak heart.” (ECF No. 1, PageID.3.) He also alleges that, on June 6, 2021, he received “multiple diagnos[e]s[,]” including “asthma, COPD [chronic obstructive pulmonary disease], CHF [congestive heart failure], nonischemic cardiomyopathy, apical mural thromb[i], diabetes, HTN [hypertension], with hyperlip[i]d[e]mia[.]” (Id.) Plaintiff alleges he “had [CHF], h[ea]rt failed . . . [,]” and it seems he had an ICD (implantable cardioverter defibrillator) inserted on July 7, 2021. (Id., PageID.3; see also ECF No. 10, PageID.40.) Then, Plaintiff alleges, it was taken out “shortly after . . . on approximately September 17, 2021, due to [him] having an infection and weak heart.” (Id., PageID.3.) Plaintiff alleges he “was sent from (DWH) to Henry Ford Hospital is what I remember where my defibrillator was taken out that caused infections.” (Id.)
Throughout his pleading, Plaintiff refers to Attachments 1, 2, 3 & 4 (see ECF No. 1, PageID.3-5), but the complaint does not have any attachments. Nonetheless, the Court acknowledges that, elsewhere in the record, Plaintiff has attached a six-page “Attachment 1,” which describes the alleged events of July 8, 2021 to September 16, 2021 and also mentions some Defendants, e.g., Price, Griffith, Roach, Robert Lacy, Baghal, Yarid, and Remus. (See ECF No. 10, PageID.35-40.)
Plaintiff also states that “[t]he names of each defendant involved and how [they are] involved” are as follows: (1) Bischan Hassunizadeh was the referring physician; and, (2-4) Rebecca Byrne, R.N., Lacey Wilson, N.P., and J.
Fulmerhouser were “providers of [hi]s care during having surgery, prior to having surgery and then after having surgery.” (Id., PageID.5.) Of these, only Defendant Byrnes is still a party. According to Plaintiff, a “[g]rievance was filed to best of [his] ability,” and he “tried to resolve with staff but [doesn't] remember much at all ....” (Id.)
b. Statement of claims
Plaintiff's statement of claims consists of the following eight (8) paragraphs:
1. My serious medical needs not being met has caused me physical injuries that violate[] my Eight[h] Amendment rights of the United States Constitution. The surgery defibrillator that was taken out that caused an infection and the doctor stating I need a defibrillator back in my chest alone with the denial of [MDOC] and its contracted medical providers ignoring my prior pleas for help until my chest was infected shall warrant my claims of cruel and unusual punishment.
2. As Plaintiff my necessary medical care has been denied because the care the doctor's [sic] individually gave to me after concluding their examinations and given “MDOC” employees doctors orders, the contracted medical providers employees at DWH while I was calling for medical attention for my serious medical needs of my chest was hurting so bad it was to the point I could not breath[e], other prisoners w[ere] ye[l]ling to officers to come see me and call medical nurses or doctors to assist me.
3. The officer John Doe came and s[aw] me and told me to put on my cloth[e]s and . . . it could have clearly been seen that I could not [have] been able to do[] [it] by myself due to my failing health condition then at that time. The correctional officers had been denying me serious medical needs for my necessary need medical care, that's needed still to this day based on MDOC rigid prison policy and ignoring doctors['] orders.
4. The PL[RA] shall not cause a problem about confidentiality as my claims [are] for punitive damage, compensatory damages . . . I can show that I was physically hurt - still [am] hurting and have the scares for life. I was immediately when medical nurses and doctors was alerted then when seeing me was wrapped up in [gauze], ban[d-]aids put on me due to bad infection surrounding the area of my recently had surgery and defibrillator was then ordered to be immediately taken out after[.] I've prior suffered long periods of time in pain.
5. The defendants in this complaint at time[s] ignored and at times waited for hours while I was needing help and told me to . . . “put your f[-]ing blues on[.]” [T]hat was very rude and that could have got a person upset that had my type of surgery and was g[iven] doctor orders not to get upset [be]cause I could have died if [I] did. The officers w[ere] suppose[d] to watch o[ver] me by doing rounds every half hour but did not do rounds every half hour as was called for doctor did order[]. I asked for help to write grievance but got none.
6. The officers at “MDOC” [DRF] . . . only did rounds every 3 to 4 hours, and (DWH) which for all the above reasons mentioned the [MDOC] medical providers through Corizon in concert with prison officials violated constitutional standards, from a state and federal standpoint. My rights violated - violated Michigan Constitution for the “MDOC” contracted medical providers not properly screening my health problems and poorly administering prison health services, the prisons and medical agencies denied and unreasonably delayed my access to proper
medical care then and still to this day in violation of the Eight[h] Amendment and they still are because:
7. The defibrillator was taken out that caused the infection from the first surgery that prior failed which rendered me having life threaten circumstances experienced causing me psychological new conditions. The professional treatment g[iven] that caused my life threatening circumstances make[s] me now fear for my life and refuse to get any other offered surgery done within my having to live in a prison setting due to my prior experience with “MDOC” medical service Corizon contracted employees for prisons - prisoners medical serious health care needs. The unknown Mr. John Doe, who is [an] African American prison guard who made the call to medical that was very rude when I was immediately taken back to hospital[,] acted in complete “deliberat[e] indifference” to my failed heart surgery needs by not immediately calling for medical help until my n[ei]ghboring peer-prisoners started scre[a]ming for guards to come assist me due to my failing health clearly seen by them that happen then. My health failing was clearly being ignored then that placed my life in danger then that now cause[s] me to fear for my life due to [MDOC] and their medical contracted providers not being able to properly provide for my serious medical needs then and now at this time.
8. Recently I was threaten[ed] to take medication for “scabies” without being given any information [in advance] about the dangers could be when taken such medication .... I wanted to ask about the medication but was told I would be placed in (JCF) segregation. Interestingly, prior to tak[ing] medication[,] I s[aw] another prisoner refused only to take the medication and get shot with a taser stun[] gun which deter[r]ed me from asking any questions or refusing to take medication. I take insulin[] twice a day before I eat breakf[a]st and dinner, and I [am] suppose[d] to take insulin[] three times a day after each meal. I was not told that prisoners with immune systems [that are] compromised should not take medication I was forced to take until after.(ECF No. 1, PageID.3, 6-9.)
c. Relief
Plaintiff wants the Court “to rule that [MDOC] is unable to provide for [his] medical serious needs now, has been in the past, and order them to pay monetary damages in punitive, compensatory, in a[n] amount that has been paid to prisoners and citizens prior but in excess of what was paid out prior to deter the actions of those involved and those to come employees of “MDOC,” and contracted medical providers.” (ECF No. 1, PageID.3-4.) Plaintiff also wants the Court to “[r]ule that the not annually checking the health of [his] weak heart after such surgery is deliberately ignoring [his] serious medical needs,” to “appoint counsel for trial urgently[,]” and to “[d]o what this Court deems fit, as we can't put [a] price on life.” (Id., PageID.4.)
2. Exhaustion of administrative remedies
As best the Court can tell from the above-quoted portions of Plaintiff's pleading, Byrne is the only movant currently before the Court who is expressly identified in the complaint. (ECF No. 1, PageID.5.) And, even giving Plaintiff the benefit of the doubt for his court-ordered October 17, 2022 response: (a) it merely identifies movant Rebecca Byrne as located at DWH, movant Misty Miller as an L.P.N., and movant Adria Roach, R.N. as located at JCF (ECF No. 10, PageID.31-32 ¶¶ 9, 13, 25); and, (b) the only movant mentioned in the six-page “Attachment 1” seems to be Roach, along with a handwritten copy of the SOAP (subjective, objective, assessment and plan) notes from September 7, 2021 (ECF No. 10, PageID.36). Although Defendants Byrne, Miller, and Roach have not filed a motion to dismiss for “failure to state a claim upon which relief can be granted[,]” Fed.R.Civ.P. 12(b)(6), they may be summarily dismissed alternatively under 28 U.S.C. § 1915 (“Proceedings in forma pauperis”) for the reasons stated in this footnote. See 28 U.S.C. § 1915(e)(2)(B)(ii) (“fails to state a claim on which relief may be granted[.]”).
Byrne, Miller, and Roach argue that Smith “failed to properly exhaust administrative remedies on his claim against MDOC Defendants . . . .” (ECF No. 26, PageID.101; see also id., PageID.105.) “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). “[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands 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, 548 U.S. at 90-91 (footnote omitted).
a. MDOC PD 03.02.130 (“Prisoner/Parolee Grievances”)
The MDOC's 3-step prisoner/parolee grievance procedure is set forth in MDOC PD 03.02.130 (effective March 18, 2019). (ECF No. 26-2.) Importantly, this policy directive provides: “[c]omplaints filed by prisoners regarding grievable issues as defined in this policy serve to exhaust a prisoner's administrative remedies only when filed as a grievance through all three steps of the grievance process in compliance with this policy.” (Id., PageID.116 ¶ C (emphasis added).)
“Under the Department of Corrections' procedural rules, inmates must include the ‘[d]ates, times, places and names of all those involved in the issue being grieved” in their initial grievance.'” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). See also MDOC PD 03.02.130 ¶ S (“[d]ates, times, places, and names of all those involved in the issue being grieved are to be included.”) (ECF No. 26-2, PageID.119). The MDOC's prisoner/parolee grievance policy directive also states:
Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of a grievable issue, unless prevented by circumstances beyond his/her control or if the issue is believed to fall within the jurisdiction of Internal Affairs. If the issue is not resolved, the grievant may file a Step I grievance. The Step I grievance must be filed within five business days after the grievant attempted to resolve the issue with appropriate staff.MDOC PD 03.02.130 ¶ Q (ECF No. 26-2, PageID.119). See also MDOC PD 03.02.130 ¶ W (ECF No. 26-2, PageID.120.)
In his response, Plaintiff contends MDOC 03.02.130 intentionally omits “staff corruption, obstruction, misconduct, misrepresentation by its employee.” (ECF No. 40, PageID.159 ¶ 23.) The Court can only assume Plaintiff is referring to the provision that the Grievance Coordinator shall reject “issue[s] fall[ing] within the jurisdiction of Internal Affairs in the Office of Executive Affairs.” MDOC PD 03.02.130 ¶ J(4). (ECF No. 26-2, PageID.117.)
b. RGC-21-10-3223-28E
Byrne, Miller, and Roach argue that Smith “did not pursue, through Step III, any grievances against MDOC Defendants before he filed his complaint[,]” (ECF No. 111), i.e., before July 8, 2022. “The plain language of [42 U.S.C. § 1997e(a)] makes exhaustion a precondition to filing an action in federal court ....” Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (emphasis added). A prisoner “cannot exhaust these remedies during the pendency of the action.” Roberts v. Lamanna, 45 Fed.Appx. 515, 516 (6th Cir. 2002) (citing Freeman, 196 F.3d at 645).
As best the Court can tell, Plaintiff mentions only one grievance in his response, i.e., RGC-21-10-3223-28E. (ECF No. 40, PageID.162 ¶ 4; ECF No. 49, PageID.221 ¶ 4.) The evidence shows that, on October 1, 2021, Plaintiff completed an MDOC Step I grievance form - RGC-21-10-3223-28E - based on the alleged events of September 9, 2021. (ECF No. 51-1, PageID.252-253.)Plaintiff described his attempt at resolution as having occurred on September 9 and September 10, but alleges he “was told that this was not something that they could or would address[.]” (Id.) When asked to state his problem clearly, Plaintiff elaborated:
According to Plaintiff's previously filed six-page “Attachment 1,” September 9, 2021 is a date on which he was seen for complaints of “chest pain still w[ith] deep breaths” and “shortness of breath.” (ECF No. 10, PageID.35.) Yet-to-appear Defendant Price seems to have noted that Plaintiff's medical history included: (1) nonischemic cardiomyopathy with ejection fraction (EF) 20%; (2) pain since July 2021 automatic implantable cardioverter defibrillator (AICD) placement; and, (3) follow-up appointment canceled. (Id.)
I was sent to DWH after complaining about chest pains. After a while I was transfer[r]ed to Henry Fords, who put a [defibrillator] and kept me for a few days to observe me. Then they sent me back to facility. Then af[t]er that I started bruising up in the chest area[,] and they again sent me to Henry Ford. They told me that I might have an[] infection and gave me [antibiotics].(Id.)
RGC-3223 was received at Step I on October 5, 2021. (Id.) That same day, Grievance Coordinator Hawkins rejected the grievance, explaining that Plaintiff “ha[d] exceeded [his] time limits . . .” and “at the same time provided no reasonable circumstance beyond [his] control that would have prevented [him] from filing th[e] grievance in a timely fashion.” (Id., PageID.254-255.) See MDOC PD 03.02.130 ¶ J(5) (“The grievance is filed in an untimely manner[,]” but it “shall not be rejected if there is a valid reason for the delay[,] e.g., transfer.”) (ECF No. 26-2, PageID.117). The grievance form reflects it was returned to Plaintiff on October 8, 2021. (ECF No. 51-1, PageID.252.)
The movants have submitted the April 11, 2023 sworn affidavit of Grievance Coordinator Hawkins, who attests: “When Smith was at RGC, he filed only one Step I grievance [RGC-3223] ....” (ECF No. 51-1, PageID.251 ¶ 5.) Hawkins also attests that “Smith did not appeal RGC-3223 to Step II.” (Id.) Moreover, the movants have also submitted Plaintiff's MDOC Prisoner Step III Grievance Report for the period January 1, 2016 to present (i.e., November 21, 2022), which is blank, indicating that “[a] search of this database has been performed for the time period listed on the title of this report and no records were found.” (ECF. No. 26-3, PageID.125.)
Accordingly, the movants have satisfied their “initial burden of proving that no genuine issue of material fact exists ....” Stansberry, 651 F.3d at 486.
3. Plaintiff's response
“‘[T]he burden [now] shifts to the nonmoving party to set forth specific facts showing a triable issue.'” Wrench LLC, 256 F.3d at 453 (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587). Preliminarily, as for whether the Court should treat Plaintiff's filings as evidence, Plaintiff's responses conclude with “pursuant to: 28 U.S.C. § 1746.” (ECF No. 40, PageID.161; ECF No. 49, PageID.217, 234.) Merely citing the statute does not establish that the response's contents are “subscribed by [Plaintiff], as true under penalty of perjury, and dated, in substantially the [required] form[.]” 28 U.S.C. § 1746. On the other hand, Plaintiff's attached “affidavit,” dated February 15, 2023, concludes with: (1) the phrase “this information is true to the best of my belief and knowledge under the penalties of perjury” and (2) “pursuant to: 28 U.S.C. § 1746.” (ECF No. 40, PageID.162; ECF No. 49, PageID.221.) This substantially satisfies Section 1746's required form; therefore, the “affidavit” may be treated as an unsworn declaration under penalty of perjury, i.e., may be considered as evidence on summary judgment.
That said, in his response, Plaintiff makes varied arguments in opposition to the instant motion, which can be classified into three categories.
a. Imminent danger
With reference to his heart conditions, surgery, defibrillator, and infection . . . [,]” Plaintiff seems to argue that Defendants' alleged actions place him in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). (ECF No. 40, PageID.150 ¶ 3, 155 ¶ 13; see also id., PageID.154 ¶ 10(4).) He claims that “no grievance could have resolved [hi]s irreparable injuries ....” (ECF No. 40, PageID.155 ¶ 13 (emphasis added).)
However, “[t]he PLRA does not excuse exhaustion for prisoners under imminent danger of serious physical injury.” Arbuckle v. Bouchard, 92 Fed.Appx. 289, 291 (6th Cir. 2004). See also Boulding v. Michigan Dep't of Corr., No. 1314325, 2015 WL 136195, at *2 (E.D. Mich. Jan. 6, 2015) (Whalen, M.J.) (“The PLRA does not contain an exception to the exhaustion requirement for ‘exigent circumstances,' be they medical exigencies or otherwise.”), report and recommendation adopted, No. 13-14325, 2015 WL 1510446 (E.D. Mich. Mar. 24, 2015) (Cleland, J.). “[U]nlike Section 1915(g), Section 1997e(a) does not contain an ‘imminent danger' exception, and Section 1915(g)'s ‘three strikes rule' is not at issue here.” Coleman v. Washington, No. 2:18-CV-13171, 2020 WL 6389832, at *7 (E.D. Mich. June 11, 2020) (Patti, M.J.), report and recommendation adopted, No. 18-13171, 2020 WL 4932110 (E.D. Mich. Aug. 24, 2020) (Tarnow, J.). See also Ross v. Blake, 578 U.S. 632, 648 (2016) (“Courts may not engraft an unwritten ‘special circumstances' exception onto the PLRA's exhaustion requirement.”). (ECF No. 40, PageID.156 ¶ 15(4); see also id., PageID.157 ¶ 18.) Indeed, the immediacy of the grievance deadline is designed to administratively address problems and provide expeditious relief or amelioration in meritorious cases without having to go through time-consuming litigation. But, for that administrative process to work, a claimant must comply with its filing requirements.
b. Availability of administrative remedies
Plaintiff notes the administrative grievance process is “unavailable” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016). (ECF No. 40, PageID.150-151 ¶ 4; see also id., PageID.157 ¶ 18, 158 ¶¶ 20-21.) He also notes “the possibility that prisons might create procedural requirements for the purpose of tripping up all but the most skillful prisoners[.]” Woodford, 548 U.S. at 102. (ECF No. 40, PageID.151 ¶ 4.) Accordingly, the Court should consider whether Plaintiff “has demonstrated that a genuine issue of material fact exists as to whether [Defendants (i.e., Byrne, Miller or Roach)] improperly prevented [Plaintiff] from exhausting his administrative remedies.” Himmelreich v. Fed. Bureau of Prisons, 766 F.3d 576, 578 (6th Cir. 2014), aff'd and remanded sub nom. Simmons v. Himmelreich, 578 U.S. 621 (2016). (ECF No. 40, PageID.152 ¶ 4.)
i. September 9, 2021 - October 1, 2021 (JCF / DWH / RGC)
Plaintiff contends he is “not required to request . . . grievances 1, 2, 3, 4, or 5 times when the MDOC will not provide one to exhaust all ‘available' administrative remedies.” (ECF No. 40, PageID.150 ¶ 3 (emphasis in original); see also ECF No. 40, PageID.154 ¶ 10(2); id., PageID.159 ¶ 23.) He claims he was at JCF (in “TA 34” and “B-Unit”) and at DWH (on the 3rd Floor) and video will show him “trying to get a grievance from staff over (5) five attempts to exhaust all ‘available' administrative remedies ....” (ECF No. 40, PageID.155 ¶ 12.)
Plaintiff declares that, on September 9, 2021, while housed at JCF, he “made over (5) five attempts requesting JCF grievances, where unit officers are on video NOT providing them, or assisting [him] with a life threatening heart condition, that was an immin[ent] danger under 42 U.S.C. § 1915(g)[,]” and that he “also attempted to get grievances from MDOC [DWH], that were never provided, or R.G.C.” (ECF No. 40, PageID.162 ¶¶ 1-2; ECF No. 49, PageID.221 ¶¶ 1-2.) Assuming this declaration to be true, Plaintiff should not have had to ask five (5) times for a Prisoner/Parolee Grievance form (CSJ-247A). MDOC PD 03.02.130 ¶¶ S, W (ECF No. 26-2, PageID.119-120).
ii. October 1, 2021 - October 8, 2021 (RGC-3223)
However, even assuming Plaintiff's efforts to obtain a CSJ-247A form were thwarted from September 9, 2021 to October 1, 2021, he eventually completed an MDOC Step I grievance form on October 1, 2021 - apparently while located at DWH (Lock No. 433-E) - based on the alleged events of September 9, 2021. (ECF No. 51-1, PageID.252-253 [RGC-21-10-3223-28E].) According to the movants, “[t]he fact that Smith was able to file RGC-3223 means that the grievance process was available to him during the relevant time-period.” (ECF No. 51, PageID.247.)
Plaintiff declares that, on October 1, 2021, he “yet again attempted to file a grievance to exhaust all ‘available' administrative remedies, and the staff acted in bad-faith to th[war]t my exhaustion.” (ECF No. 40, PageID.162 ¶ 3; ECF No. 49, PageID.221 ¶ 3.) But, the evidence indicates Plaintiff's grievance was received at Step I - i.e., by RGC's Grievance Coordinator - on October 5, 2021, rejected as untimely that same day, and returned to Plaintiff on October 8, 2021. (ECF No. 51-1, PageID.252-255.) (See also ECF No. 40, PageID.162 ¶ 4; ECF No. 49, PageID.221 ¶ 4.)
As noted above, the October 5, 2021 grievance rejection letter explained that Plaintiff “ha[d] exceeded [his] time limits . . .” and “at the same time provided no reasonable circumstance beyond [his] control that would have prevented [him] from filing th[e] grievance in a timely fashion.” (Id., PageID.254-255 (underline added).) At that point, Plaintiff's recourse was to challenge the rejection by way of an appeal to Step II (using Form CSJ-247B), because the MDOC's grievance policy expressly provides: “A grievance whose grievance is rejected may appeal the rejection to the next step as set forth in this policy. A new grievance shall not be filed regarding the rejection.” MDOC PD 03.02.130 ¶ I (ECF No. 26-2, PageID.117).
iii. Steps II & III (RGC-3223)
Plaintiff's appeal of RGC-3223 to Step II was due on or about October 18, 2021, i.e., “within ten business days after receiving the Step I response or, if no response was received, within ten business days after the date the response was due, including any extensions.” MDOC PD 03.02.130 ¶ DD. Plaintiff contends he placed his “Step I, II & III appeals” in the JCF “outgoing mail” - which he claims can be established by video (ECF No. 40, PageID.159-160 ¶ 27) - at which point the “mailbox rule” applies:
The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox-he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner's
assertions that he delivered the paper on a different date. Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.Houston v. Lack, 487 U.S. 266, 275 (1988). (ECF No. 40, pageID.152-153 ¶ 5.) He also contends staff “t[ook] grievances out of [the] mail ....” (ECF No. 40, PageID.159 ¶ 23; see also id., PageID.160 ¶ 27.)
Defendants characterize this argument as Plaintiff asserting “he exhausted his administrative remedies through Step III once he submitted his grievance to Step III . . . [,]” as to which they respond that “[e]xhaustion under the MDOC grievance policy requires completion through Step III.” (ECF No. 51, PageID.245.) Defendants are correct on this point. See, e.g., Cavin v. McBride, No. 4:20-CV-12470, 2023 WL 1771170, at *9 (E.D. Mich. Jan. 4, 2023) (Patti, M.J.) (“The administrative review process is not complete until a prisoner receives the Step III response.”), report and recommendation adopted, No. 20-12470, 2023 WL 1767753 (E.D. Mich. Feb. 3, 2023) (Kumar, J.). Nonetheless, this report interprets Plaintiff's argument somewhat differently, namely that Plaintiff lost control of his appeals once they were submitted. (See ECF No. 40, PageID.160 ¶ 27.)
Plaintiff declares “under the penalties of perjury[,]” and, seemingly with reference to RGC-21-10-3223-28E, that:
[He] filed Step II & Step III appeals that were through MDOC mail box that were impeded, obstructed, th[war]ted by staff [corruption], . . . is intentionally misleading, misrepresented, inaccurate to my multiple attempts to exhaust all “available” administrative remedies[.] [T]hey have provided no grievance filed!(ECF No. 40, PageID.162 ¶ 5; ECF No. 49, PageID.221 ¶ 5.) See also 28 U.S.C. § 1746. However, this paragraph of the declaration is light on details, such as the dates on which he submitted Step II and Step III appeals, the attachment of a written log to establish the dates appeals were submitted, etc. Notwithstanding Plaintiff's assertions that he submitted grievance appeals by prison mail and that prison staff removed grievances from the mail, “‘[c]onclusory allegations and selfserving affidavits, without support in the record, do not create a triable issue of fact' and are insufficient to withstand a motion for summary judgment[.]” Mav of Michigan, Inc. v. Am. Country Ins. Co., 289 F.Supp.2d 873, 875 n.3 (E.D. Mich. 2003) (Hood, J.) (quoting Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002)). See also Freeman v. Learning Care Grp., No. 18-CV-13720, 2019 WL 2433411, at *1 (E.D. Mich. June 11, 2019) (Steeh, J.) (“The court is cognizant that a self-serving affidavit, without support in the record, does not create a triable issue of fact.”). Moreover, Plaintiff asserts in his response that Defendants are “conceal[ing] that they are on ‘video' th[war]ting exhaustion,” and “acting in bad-faith concealing material video . . . [,]” and suggests that the Court “should have viewed the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381 (2007). (ECF No. 40, PageID.154 ¶ 10(1), PageID.156 ¶ 15(2).) Yet, to the extent Plaintiff seeks video from an MDOC facility - such as RGC (where movants seemingly are or were located) - to prove his point, he could have done so by serving an appropriate request for production consistent with Fed.R.Civ.P. 34, after which he could have filed a motion to compel consistent with Fed.R.Civ.P. 37 if Defendants did not respond appropriately.Claiming that a video will show something favorable to one's position, without presenting the video itself, is of no evidentiary value and runs contrary to the rules on hearsay and best evidence. Fed.R.Evid. 802, 1002 (“An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”).Finally, while Plaintiff's “affidavit,” i.e., his declaration, mentions video of attempts to get grievance forms (see ECF No. 40, PageID.162 ¶ 2; ECF No. 49, PageID.221 ¶ 2) and submission of grievance appeals (id., PageID.162 ¶ 5; id., PageID.221 ¶ 5), it does not claim that Plaintiff “cannot present facts essential to justify [his] opposition[.]” Fed.R.Civ.P. 56(d).
Generally, “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” but a party may do so “in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) ....” Fed.R.Civ.P. 26(d)(1). This lawsuit is exempt from the initial disclosure requirement, because it is “an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision[.]” Fed.R.Civ.P. 26(a)(1)(B)(iv).
And as a practical matter, and from the Court's previous experience, such video evidence, if it ever existed, is unlikely to have been retained for such a long period - in this case 20 or 21 months (i.e., as far back as September 2021 or October 2021) - in the ordinary course of business without a prior preservation request.
By comparison, Defendants' evidence - i.e., Hawkins' affidavit (ECF No. 51-1, PageID.251 ¶ 5) and Plaintiff's MDOC Step III Grievance Report (ECF. No. 26-3, PageID.125) - supports the conclusion that Plaintiff did not appeal RGC-3223 to Step II or Step III.
iv. Availability summary
In sum, Plaintiff argues that “MDOC officials prevented [him] from complying with the grievance process, which may have [led] to this inability to exhaust, and this ‘external['] circumstance made administrative remedies unavailable ....” (ECF No. 40, PageID.152 ¶ 5.) Plaintiff claims Defendants did not follow MDOC PD 03.02.130; thus, their affirmative defense of exhaustion is “estopped due to their own misconduct ....” (ECF No. 40, PageID.153 ¶ 6; see also id., PageID.155 ¶ 13; id., PageID.156 ¶ 15(3); id., PageID.160 ¶ 27.)
Yet, as set forth above, Plaintiff only mentions RGC-3223 in his response (ECF No. 40, PageID.162 ¶ 4; ECF No. 49, PageID.221 ¶ 4), and Grievance Coordinator Hawkins consistently attests that, “[w]hen Smith was at RGC, he filed only one Step I grievance [RGC-3223] . . . [,]” (ECF No. 51-1, PageID.251 ¶ 5). Even if Plaintiff was hindered in his efforts to secure a Step I grievance (from September 9, 2021 to October 1, 2021), Plaintiff completed the Step I grievance in RGC-3223, submitted it, and received the rejection (from October 1, 2021 to October 8, 2021), and the evidence supports the conclusion that Plaintiff did not appeal RGC-3223 to Step II or Step III. Moreover, even though Plaintiff identifies movant Rebecca Byrne as located at DWH, movant Misty Miller as an L.P.N., and movant Adria Roach, R.N. as located at JCF (ECF No. 10, PageID.31-32 ¶¶ 9, 13, 25), their motion suggests they are (or were) each “healthcare staff at [RGC],” (ECF No. 26, PageID.103); therefore, grievances at locations other than RGC do not appear to be relevant to Plaintiff's claims against these particular movants. As such, Plaintiff has not “demonstrated that a genuine issue of material fact exists as to whether [Defendants (i.e., Byrne, Miller or Roach)] improperly prevented [Plaintiff] from exhausting his administrative remedies.” Himmelreich, 766 F.3d at 578.
c. Continuing violation doctrine
Finally, in a single phrase, Plaintiff claims this is an “ongoing constitutional violation ....” (ECF No. 40, PageID.154 ¶ 10(3).) See Ellis v. Vadlamudi, 568 F.Supp.2d 778, 784 (E.D. Mich. 2008) (Lawson, J.) (“a grievance that identifies the persistent failure to address that condition must be considered timely as long as the prison officials retain the power to do something about it.”). Relatedly, he contends he was “[n]ever required to file a grievance anew.” (ECF No. 40, PageID.159 ¶ 25.)
However, mere mention of legal concepts in the most general way does not prove that they apply. “‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.'” McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm'n, 59 F.3d 284, 293-94 (1st Cir. 1995) (citation omitted)).
F. Conclusion
In his response, Plaintiff explains he is “a disabled American, with learning disabilities, and extreme health case [sic] serious medical needs.” (ECF No. 40, PageID.161.) Plaintiff asks the Court to “proceed with pretrial matters[,]” “grant orders for all video[,]” and/or “excuse exhaustion based on facts . . . [,]” “set a trial date[,]” “grant orders for a hearing on this matter,” - such as a hearing on exhaustion (ECF No. 40, PageID.159 ¶ 26) - and “show cause orders for all video in the housing units that Plaintiff . . . was in going back and [forth] from the hospitals,” presumably to prove he “was not required to ask/request (5) five times for MDOC 03.02.130 grievances never provided, or to file a JCF Step I grievance anew, that staff th[war]ted to Step III[.]” (Id., PageID.160-161 [Conclusion and Relief Requested].)
More to the point, for the reasons set forth in greater detail above, the movants have satisfied their initial burden (Section II.E.2), and Plaintiff has not demonstrated the existence of a genuine issue of material fact (Section II.E.3). Accordingly, the Court should GRANT MDOC Defendants Byrne, Miller & Roach's motion for summary judgment on the basis of exhaustion (ECF No. 26). If the Court agrees with this recommendation, then there will be fifteen remaining Defendants.
III. PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Fed.R.Civ.P. 72(b)(2) and E.D. Mich. LR 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” and “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.