Dean v. Prison Health Services et al

Filing 37

MEMORANDUM OPINION AND ORDER Adopting Report and Recommendation granting 18 Motion for Summary Judgment filed by L Kinder, 30 Report and Recommendation, denying as moot 32 Motion for Extension of Time to File Answer filed by Michael Dean, denyng as moot 35 Motion to Dismiss, filed by A Neff, Z Cohen, L Jackson, Prison Health Services, granting 13 Motion for Summary Judgment,, filed by M Creger, Larry McMillan, T Hunter, Debra Scutt Signed by District Judge Robert H. Cleland. (PPau)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL DEAN,
Plaintiff,
v.

Case No. 10-14135

PRISON HEALTH SERVICES, et al.,
Defendants.
/
OPINION AND ORDER (1) OVERRULING PLAINTIFF’S OBJECTIONS,
(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
(3) GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT,
(4) TERMINATING AS MOOT PLAINTIFF’S MOTION FOR EXTENSION OF TIME,
(5) TERMINATING AS MOOT DEFENDANTS’ MOTION TO DISMISS, AND
(6) DISMISSING THE CASE WITHOUT PREJUDICE
On March 28, 2011, Magistrate Judge Laurie J. Michelson issued a Report and
Recommendation (“R&R”) in the above-captioned matter, recommending that the court
grant Defendants’1 motions for summary judgment. Plaintiff filed a motion for an
extension of time to file his objections on April 6, 2011, but while that motion was
pending he timely filed his objections on April 12, 2011. Defendants responded on April
18, 2011, and Plaintiff replied on April 25, 2011.2 The court will overrule Plaintiff’s

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Defendants Creger, Hunter, McMillan, and Scutt filed the first motion for
summary judgment. Defendant Kinder filed a separate motion for summary judgment
adopting and incorporating the first motion. “Defendants” as used in this order refers to
these five Defendants unless otherwise indicated.
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Defendants Cohen, Jackson, Neff, and Prison Health Services filed a motion to
dismiss on April 25, 2011. The court notes that these Defendants did not object to the
Magistrate Judge’s recommendation to dismiss the case against all Defendants for
failure to exhaust, and because the court finds that recommendation to be sound, it will
not reach the grounds for dismissal raised by these Defendants. (See R&R 19-20.)
Their motion will be terminated as moot.

objections, adopt the R&R in full, and grant Defendants’ motions for summary judgment.
Because Plaintiff timely filed his objections, the court will terminate as moot his motion
for an extension of time.
I. STANDARD
The filing of timely objections requires the court to “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); accord United
States v. Raddatz, 447 U.S. 667, 673-82 (1980); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981). This de novo review, in turn, requires this court to reexamine all of the relevant evidence previously reviewed by the magistrate judge to
determine whether the recommendation should be accepted, rejected, or modified in
whole or in part. 28 U.S.C. § 636(b)(1). The court may “receive further evidence” if
desired. Id.
A party who files timely objections to a magistrate judge’s report in order to
preserve the right to appeal must be mindful of the purpose of such objections: to
provide the district court “with the opportunity to consider the specific contentions of the
parties and to correct any errors immediately.” Walters, 638 F.2d at 949-50. The
Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140 (1985), a habeas
corpus case. The Supreme Court noted that “[t]he filing of objections to a magistrate’s
report enables the district judge to focus attention on those issues—factual and
legal—that are at the heart of the parties’ dispute.” 474 U.S. at 147 (footnote omitted).
An “objection” that does nothing more than state a disagreement with a
magistrate judge’s suggested resolution, or simply summarizes what has been

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presented before, is not an objection as that term is used in this context. See, e.g.,
Slater v. Potter, 28 F. App’x 512, 513 (6th Cir. 2002) (“The filing of vague, general, or
conclusory objections does not meet the requirement of specific objections and is
tantamount to a complete failure to object.”); Howard v. Sec’y of Health and Human
Servs., 932 F.2d 505, 508 (6th Cir. 1991) (“It is arguable in this case that Howard’s
counsel did not file objections at all. . . . [I]t is hard to see how a district court reading
[the ‘objections’] would know what Howard thought the magistrate had done wrong.”).
“The objections must be clear enough to enable the district court to discern those issues
that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)
(citing Howard, 932 F.2d at 509).
Further, “only those specific objections to the magistrate’s report made to the
district court will be preserved for appellate review; making some objections but failing
to raise others will not preserve all the objections a party may have.” Smith v. Detroit
Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
II. DISCUSSION
The Magistrate Judge has recommended that the court grant Defendants’
motions for summary judgment and dismiss the case without prejudice because Plaintiff
has not exhausted his administrative remedies as is required by 42 U.S.C. § 1997e(a).
Several of Plaintiff’s objections are difficult to decipher, but they will be liberally
construed. None is meritorious.
A. Objection # 1
Plaintiff’s first objection appears to be that he was not required to plead
exhaustion, or alternatively that exhaustion is not required for claims brought pursuant

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to 42 U.S.C. § 1983. Plaintiff is correct that exhaustion is an affirmative defense, Jones
v. Bock, 549 U.S. 199, 216 (2007), but the Magistrate Judge did not find that Plaintiff
was required to plead exhaustion. Rather, the Magistrate Judge found that Defendants
properly raised exhaustion as an affirmative defense, and Plaintiff has not exhausted his
administrative remedies. (R&R 10-20.) In addition, while Plaintiff is also correct that
exhaustion is not an element of a freestanding § 1983 claim, where that claim is brought
“with respect to prison conditions . . . by a prisoner,” § 1997e(a) specifies that
exhaustion must be satisfied. (R&R 8 (citing Jones, 549 U.S. at 918-19).) Therefore,
the Magistrate Judge did not err in finding Plaintiff is required to exhaust his
administrative remedies.
B. Objection # 2
Plaintiff’s second objection is lengthy, recounting the delays he encountered in
receiving treatment, Defendants’ alleged knowledge of his medical condition, and his
belief that he was only treated upon filing this federal action. The only actual objection
the court can discern is that Plaintiff claims he “appealed to [step III and] the director in
Lansing have [sic] refused to respond to the step-III grievance,” and therefore the
Magistrate Judge erred in finding he did not exhaust his remedies. (See Obj. 3.)
Although he does not identify the grievance to which he is referring, because he says
Subrina Aiken, RN, responded at the step-II stage, the court deduces Plaintiff is
referencing the JCF 1816 grievance. (Id. & Ex. 9-10.)
This is an example of an argument that merely reasserts an argument already
presented to the Magistrate Judge, and does not point to any flaw in the reasoning of
the R&R. Plaintiff claims he appealed JCF 1816 to step III. The Magistrate Judge,

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however, thoroughly explained how even if Plaintiff has appealed to step III, he must
have filed the form after filing the present action, and therefore he has not exhausted.
(R&R 14.) Plaintiff’s “Exhibit 9” to his objections, Aiken’s step-II response, was not
dated until November 9, 2010, nearly one month after this action was initiated. If the
step-II response was not issued until November 9, Plaintiff could not have filed a step-II
appeal, let alone received a resolution of it, by October 15. As the Magistrate Judge
clearly and carefully explained, Plaintiff was still required to proceed through step III
before commencing a § 1983 suit. (See R&R 4-5, 14-15.) Plaintiff does not address
these observations, and the court finds them to be sound and consistent with the
record. Therefore, this objection must be overruled.
C. Objection # 3
Plaintiff’s third point of error is that the Magistrate Judge found Defendant Larry
McMillan delayed the grievance process by not providing Plaintiff with the proper forms
by about one month, when in fact the delay was closer to two months. The court need
not resolve this dispute because, even if the delay was closer to two months, the court
cannot find any error that would be material to the disposition of Defendants’ motion.
As the R&R accurately explains, a delay in the grievance process does not lead to
exhaustion where a prisoner is still able to pursue a grievance albeit on a protracted
timescale. Here, as the Magistrate Judge notes, Plaintiff filed and received a response
to his step-II JCF 1816 grievance. He prepared a step-III response, and may have filed
it after the case commenced. Thus, any delay caused by McMillan does not alter the
exhaustion analysis. (R&R 16-17.) The objection will be overruled.

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D. Objection # 4
Plaintiff’s next objection appears to present two arguments. First, Plaintiff
contends that the Ombudsman’s letter “is prima facie proof” of delayed medical
treatment. This argument, like those treated above, fails to rebut the R&R’s finding of
no exhaustion.
Second, Plaintiff argues that the Magistrate Judge’s finding of no exhaustion
“conflicts with the ‘alertness’ and ‘notice’ requirement of Jones.” (Obj. 6 (citing Jones,
549 U.S. at 204-06).) Jones rejected the Sixth Circuit’s old rule that to properly exhaust
administrative remedies the plaintiff must have named each of its federal court
defendants in the underlying grievance, holding instead “that exhaustion is not per se
inadequate simply because an individual later sued was not named in the grievances.”
549 U.S. at 219. Thus, the Court adopted a less rigid “notice” requirement. See id.
(“The Sixth Circuit rule may promote early notice to those who might later be sued, but
that has not been thought to be one of the leading purposes of the exhaustion
requirement.”).
But there is no conflict between a relaxed notice rule and a finding of no
exhaustion in this case. The R&R does not conclude that Plaintiff properly exhausted
his administrative remedies, but names more defendants in the federal suit than were
the subjects of the grievance process; if that were the case, Jones’s holding would
apply, and the court would have “to determine the sufficiency of the exhaustion” in this
particular case. Id. Instead, the R&R’s conclusion is that Plaintiff did not exhaust his
administrative remedies at all. Therefore this objection, too, will be overruled.

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E. Objection # 5
Finally, Plaintiff asserts there is a genuine dispute of a material fact, points to
record evidence that he alleges shows an unconstitutional delay in treatment, and
argues this case should proceed to trial. But this objection fails for the same reason
most of Plaintiff’s other objections fail—regardless of the merits of Plaintiff’s § 1983
claim, on which the court expresses no opinion, those merits are not reachable if the
exhaustion requirement is not satisfied.
III. CONCLUSION
For the reasons stated above, IT IS ORDERED that Plaintiff’s objections [Dkt. #
33] are OVERRULED, and the Magistrate Judge’s March 28, 2011, “Report and
Recommendation” [Dkt. # 30] is ADOPTED IN FULL AND INCORPORATED BY
REFERENCE.
IT IS FURTHER ORDERED that Defendant Kinder’s “Motion for Summary
Judgment” [Dkt. # 18] and Defendants’ “Motion for Summary Judgment” [Dkt. # 13] are
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s “Motion for Extension of Time” [Dkt. #
32] is TERMINATED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ “Motion to Dismiss” [Dkt. # 35] is
TERMINATED AS MOOT.

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Finally, IT IS ORDERED that the above-captioned matter is DISMISSED
WITHOUT PREJUDICE for failure to exhaust administrative remedies pursuant to 42
U.S.C. § 1997e(a).

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 28, 2011
I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, April 28, 2011, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\10-14135.DEAN.OverruleObjectionsAdoptR&R.jmp.wpd

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