Jones v. Barnhart et al

Filing 176

ORDER Adopting 174 Report and Recommendation and denying 141 Motion for Summary Judgment filed by John Jones, granting 140 Motion for Summary Judgment filed by Patricia Barnhart, Overruling 170 Objections to Order, Overruling 175 Objections to Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN W. JONES,
Case No. 10-12114
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
PATRICIA BARNHARDT,

U.S. MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendant.
/
ORDER OVERRULING PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE’S ORDER
DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER TO AMENDED
COMPLAINT [170]; ADOPTING REPORT AND RECOMMENDATION [174];
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [140]; DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [141]; OVERRULING
PLAINTIFF’S OBJECTION TO THE REPORT AND RECOMMENDATION [175]
Defendant Barnhart filed a Motion for Summary Judgment on February 13,
2017 [140]. Plaintiff filed a response on March 7, 2017 [161] and Defendant
replied on March 21, 2017 [166]. Plaintiff filed a Motion for Summary Judgment
on February 13, 2017 [141]. Defendant responded on March 6, 2017 [157]. A
hearing was held before the Magistrate Judge on April 19, 2017. The Magistrate
issued a Report and Recommendation (R&R) on May 11, 2017 [174],
recommending that the Court grant Defendant’s Motion for Summary Judgment
and dismiss Plaintiff’s case in its entirety on the bases of failure to exhaust
administrative remedies and qualified immunity.

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Plaintiff filed an objection on May 14, 2017 [175], stating that their
objection was based on the arguments presented in their Appeal of the Order
denying Plaintiff’s Motion to Strike the Answer and Affirmative Defenses [170]
filed on May 2, 2017. Plaintiff concedes that, if the Appeal is not granted the Court
should affirm the R&R. Defendant did not file a response to the objection to the
Magistrate’s Order to Strike or to the objection to the R&R. For the reasons stated
below, Plaintiff’s objection is OVERRULED and the Court ADOPTS the R&R,
GRANTING Defendant’s Motion for Summary Judgment [140] and dismissing
Plaintiff’s case in its entirety on the bases of failure to exhaust administrative
remedies and qualified immunity.
1. PLAINTIFF’S OBJECTION TO THE MAGISTRATE’S ORDER DENYING
PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER TO AMENDED
COMPLAINT [170]
PROCEDURAL HISTORY
The Magistrate Judge summarized the background of the case as follows:
In relevant part, Plaintiff filed his initial complaint on May 26, 2010
and was granted leave to file an amended complaint on August 22,
2013. (DE 59.) On December 3, 2013, Defendant Barnhart—at one
time the acting Warden of Thumb Correctional Facility—filed her
first motion for summary judgment, incorporating by reference the
motion for summary judgment previously filed by the other
Defendants in the action, which asserted that Plaintiff failed to state a
claim upon which relief can be granted under the Eighth Amendment,
improperly asserted individual liability under the Americans with
Disabilities Act (“ADA”), and that Defendants were entitled to
qualified immunity. (DE 63.) The Court denied the motion on
September 15, 2014 because it was filed in response to Plaintiff’s
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initial complaint and not the active pleading. (DE 81.) Defendant
Barnhart, with Court approval, filed a second motion for summary
judgment on March 25, 2014, asserting the same arguments as her
previous motion, which was denied on March 26, 2015. (DE 70 and
97.) She filed her third motion for summary judgment on February 16,
2016, and withdrew the motion on July 26, 2016, following the order
of assignment of counsel issued on May 4, 2016, appointing attorney
Daniel E. Manville as counsel for Plaintiff. (DE 109, 118, and 122.)
Defendant Barnhart filed her fourth motion for summary judgment on
February 13, 2017 and it awaits the Court’s review. (DE 140.) She
argues that the case is barred by the applicable statute of limitations,
that Plaintiff failed to exhaust his administrative remedies, that she is
entitled to qualified immunity, and that there is no personal liability
under the ADA.
On February 17, 2017, Plaintiff filed a request for clerk’s entry of
default and motion for default judgment, asserting that Defendant
Barnhart had failed to file an answer in this matter. (DE 145 and 146.)
Later that day, Defendant Barnhart filed an answer and the clerk
denied the entry of default. (DE 147 and 151.) Plaintiff withdrew his
motion for default judgment on February 18, 2017. (DE 150.)
[169 at 1-2].
STANDARD OF REVIEW
When a litigant objects to a magistrate judge’s ruling on a non-dispositive
pretrial matter, the court may “modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). The “clearly
erroneous” standard does not permit a district court to reverse the magistrate
judge's finding simply because it would have decided the issue differently.
Anderson v. City of Bessemer, N.C., 470 U.S. 564, 573 (1985). Rather, a “finding
is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing

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court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
ANALYSIS
Plaintiff filed a Motion to Strike the Answer to the Amended Complaint and
to take as admitted all factual allegations in the amended complaint and brief in
support [152] on February 22, 2017. On April 26, 2017, Magistrate Judge Patti
entered an Order [169] Denying Plaintiff’s Motion to Strike Defendant’s Answer
to the Amended Complaint. The Magistrate relied on the Prison Litigation Reform
Act (“PLRA”), that provides, in relevant part,
(g) Waiver of reply
(1) Any defendant may waive the right to reply to any action brought
by a prisoner confined in any jail, prison, or other correctional facility
under section 1983 of this title or any other Federal law.
Notwithstanding any other law or rule of procedure, such waiver shall
not constitute an admission of the allegations contained in the
complaint. No relief shall be granted to the plaintiff unless a reply has
been filed.
(2) The court may require any defendant to reply to a complaint
brought under this section if it finds that the plaintiff has a reasonable
opportunity to prevail on the merits.
42 U.S.C. §1997e(g). The Magistrate interpreted “reply” in this section to refer to
an answer. Therefore, since the Court had not ordered Defendant Barnhart to reply,
Barnhart was not required to file an answer, i.e. her reply.

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Plaintiff objects to Magistrate’s Order on the basis of the interpretation of
the term “reply” in 42 U.S.C. §1997e(g), arguing that the term “reply” should be
found to include an answer, a motion to dismiss, or a motion for summary
judgment, per legislative history of the PLRA, the common legal interpretation of
the word “reply” and the Federal Rules of Civil Procedure. Thus, Plaintiff argues
that, once Defendant Barnhart filed either an answer, a motion to dismiss or a
motion for summary judgment, the waiver provision in the PLRA became null and
void, and that Fed. R. Civ. P. 15 became applicable. He therefore asks the Court to
sustain his objection and strike Defendant’s answer and affirmative defenses as
untimely.
Plaintiff first argues that, because the Magistrate did not mention or consider
the legislative history in terms of what “reply” means, the plain language of the
statute controls. Because Congress did not employ the term “answer,” but rather
used “reply,” Plaintiff argues that the term cannot be deemed to be narrowly
construed as per the Magistrate’s Order. United States v. Johnson, 529 U.S. 53, 58
(2000) (“When Congress provides exceptions in a statute, it does no follow that
courts have authority to create others. The proper inference…is that Congress
considered the issue of exceptions and, in the end, limited the statute to the ones set
forth.”). Plaintiff looks to the statutory language of §1997e(g), usage of the term

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“reply” in law, and the Federal Rules of Civil Procedure to argue that the
Magistrate’s narrow interpretation of “reply” is incorrect.
Plaintiff argues that the term “reply” cannot possibly mean only answer
given the plain language of §1997e(g)(2). This section allows a court to “require
any defendant to reply to a complaint brought under this section if it finds that the
plaintiff has a reasonable opportunity to prevail on the merits.” Plaintiff argues that
if “reply” is interpreted as only encompassing an answer, then, if a Judge orders a
“reply” under §1997e(g)(2), the Defendant will lose the right to file a Motion to
Dismiss under Fed. R. Civ. P. 12(b). Santander Consumer USA Inc v Superior
Pontiac Buick GMC, Inc, No. 10-13181, 2012 WL 2116060, at *1 (E.D.Mich. June
11, 2012) (“Once a party has filed an answer to a complaint, it can no longer file a
timely motion to dismiss under Rule 12(b)(6).”).

Plaintiff also argues that

“reply” cannot logically be interpreted to mean “answer,” since nothing in the
Federal Rules of Civil Procedure or the Local Rules of the Eastern District of
Michigan supports this interpretation. Finally, Plaintiff argues that legal dictionary
definitions do not support limited the meaning of the word “reply” to an answer.
First, it is incorrect to argue that the Magistrate’s interpretation of the term
“reply” would cause a situation where an order under §1997e(g)(2) would prevent
Defendant from filing a Motion to Dismiss. When a Judge orders a “reply” under
§1997e(g)(2), the Order can and does specifically order the Defendant what they

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should file, rather than generically calling for a reply only. See Lafountain v.
Martin, No. 1:07-CV-76, 2009 WL 4729933, at *3 (W.D. Mich. Dec. 3, 2009)
(Court ordered Defendant to “file a motion raising only the issue of exhaustion or
file an answer, motion to dismiss, or a motion for summary judgment”). Therefore,
this basis of argument is not persuasive.
Further, Plaintiff’s argument is simply not logical under the reasoning
behind §1997e(g). This District has interpreted §1997e(g) as “‘an exception to the
standard rules of civil pleading outlined in the Federal Rules of Civil Procedure’
and held that, while the statute could be ‘more exact,’ ‘the Court relies on previous
Sixth Circuit decisions that construe the term ‘reply’ to encompass an ‘Answer[.]’”
Robinson v. Tansel, No. 2:16-CV-10135, 2017 WL 1963904, at *3 (E.D. Mich.
Apr. 26, 2017), report and recommendation adopted sub nom., No. 2:16-CV10135, 2017 WL 1954533 (E.D. Mich. May 11, 2017) (citing Aaron v. Dyer, No.
15-cv-11014, 2016 WL 1698399, at *1 (E.D. Mich. Apr. 28, 2016) (Roberts, J.). If
the Court adopted Plaintiff’s interpretation of the exception, then §1997e(g) would
only create an exception to the standard rules of civil pleading if the Defendants
never filed any dispositive motions. When considering this provision, courts have
brought up this argument from the Magistrate’s Order as a basis for how to
interpret §1997e(g), and Plaintiff does not address this point at all in his objection.
See e.g. Robinson, 2:16-CV-10135, 2017 WL 1963904, at *3. The Court agrees

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with the Magistrate. It would be illogical to adopt Plaintiff’s interpretation of the
word “reply” since it would create a very narrow exception to the standard rules of
pleading that would disappear as soon as any dispositive motion was filed with the
court. Such an interpretation would be counter to the purpose of the PLRA as
described above.
Plaintiff tries to distinguish the cases relied upon by the Magistrate, arguing
that the applicable precedent does not support the finding at issue. However,
Plaintiff admits that this is a case of first impression, and therefore cannot present
any precedent to support her argument. Therefore, the fact that the cases cited do
not explicitly stand for the proposition that a rely is an answer, is not surprising.
Plaintiff states that the controlling case resolving this issue is Henricks v
Pickaway Corr Inst, No. 2:08-CV-580, 2016 WL 4705647, at *1 (S.D.Ohio Sept.
8, 2016). In that case, the Court relied on Lafountain v. Martin, No. 1:07-CV-76,
2009 WL 4729933, at *3 (W.D. Mich. Dec. 3, 2009), to find that “[a] reply under
section 1997e(g) constitutes an answer, a motion to dismiss, or a motion for
summary judgment.” However, as the Magistrate pointed out, that case did not
concern the definition of reply under §1997e(g)(1), but rather addressed a Court
Order for case management under §1997e(g)(2), where the Defendant was directed
either to “file a motion raising only the issue of exhaustion or file an answer,
motion to dismiss, or a motion for summary judgment.”

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Further, in that case, the Defendant had already filed a Motion raising
exhaustion, which was granted, appealed and vacated. In that opinion, the Court
explained that typically the Defendant would be ordered to “file an answer to the
complaint after the action was remanded and before a case management order
issue[d]” but in this case, given the provisions of §1997e(g), “Defendant Martin
had no obligation to file an answer to the complaint.” Lafountain, 2009 WL
4729933 at *5. The decision in Lafountain does not support a decision that an reply
constitutes a motion for summary judgment, motion to dismiss or answer, but
rather appears to support the Magistrate’s Order that a reply encompasses an
answer only, and that the filing of a dispositive motion does not result in a waiver
of the right to reply. Therefore, the non-binding decision in the Henricks case is
not persuasive.
The Court is not persuaded that the Magistrate’s order was “clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a). Because the PLRA was
written to create exceptions to the ordinary pleading requirements, Plaintiff has not
shown why the term “reply” should be construed to encompass, not only an
answer, but also a dispositive motion, since that would effectively mirror the
traditional pleading requirements unless a Defendant never filed any dispositive
motion.

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2. REPORT

AND

RECOMMENDATION [174]

The Magistrate Judge issued an R&R on May 11, 2017 [174],
recommending that Defendant’s Motion for Summary Judgment be granted and
that the Court dismiss Plaintiff’s case in its entirety on the bases of failure to
exhaust administrative remedies and qualified immunity.
Plaintiff filed an objection to the R&R on May 14, 2017 [175]. Defendant
did not file a response. Plaintiff’s objection rests solely on the arguments made in
the objection to the Magistrate Order to Strike. Plaintiff argues that if the Court
adopts the Appeal of the Magistrate Order than the affirmative defenses of failure
to exhaust and qualified immunity were waived when the Defendant failed to file a
timely answer and affirmative defenses. Plaintiff concedes that if the Court
overrules the objection to Magistrate Order denying Plaintiff’s Motion to Strike,
than the Court should adopt the Magistrate’s R&R.
As explained above, the Court overrules Plaintiff’s objection to the Order
denying Plaintiff’s Motion to Strike and therefore Plaintiff’s objection to the R&R
is overruled as moot. The Court has reviewed the various Motions, responses filed
by Defendant and Plaintiff and the Report and Recommendation [174]. The Report
and Recommendation is hereby ADOPTED and entered as the findings and
conclusions of the Court.
Accordingly,

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IT IS ORDERED that Plaintiff’s Objection to the Magistrate Judge’s Order
Denying Plaintiff’s Motion to Strike Defendant’s Answer to Amended Complaint
[170] is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s Objection to the Magistrate’s
Report and Recommendation [175] is OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation is
ADOPTED.
IT IS FURTHER ORDERED that Defendant Barnhart’s Motion for
Summary Judgment [140] is GRANTED and Plaintiff’s Motion for Summary
Judgment [141] is DENIED.
IT IS FURTHER ORDERED that the case is dismissed in its entirety.
SO ORDERED.

Dated: June 8, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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