DOE 1 et al v. Michigan Department of Corrections et al

Filing 130

ORDER REGARDING Scope of Discovery and Setting a( TELEPHONIC Status Conference for 4/23/2015 11:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)

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

JOHN DOE 1, et al.,
Plaintiffs,
Case No. 13-14356

v.
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/

ORDER REGARDING SCOPE OF DISCOVERY
On August 12, 2014, the court issued an Order Allowing Targeted Discovery ” (Dkt.
# 120.), which limits the scope of discovery to “whether Plaintiffs exhausted their
administrative remedies under the [Prison Litigation Reform Act (“PLRA”)] and whether
said remedies were actually available.” A dispute arose about the scope of this discovery,
and the parties submitted Statements of Issues. The court directed the parties to provide
position statements. Having read the position statements, the court reiterates its original
determination that the scope of discovery is limited to Plaintiffs’ exhaustion of remedies
and the availability of those remedies.
DISCUSSION
The Civil Rights Act provides that “[n]o 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). Exhaustion is not “left to the discretion of
the district court, but is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). Plaintiffs

have advanced several arguments that exhaustion is not required in this case. However,
despite Plaintiffs’ recitation of several theoretical circumstances where exhaustion may not
be required, Plaintiffs have made no showing that any such exceptions to the exhaustion
requirement apply to the facts of this case.
A. Plaintiffs No Longer Incarcerated
Plaintiffs argue that because many or all of them are not incarcerated, they were not
required to exhaust their administrative remedies. However, if Plaintiffs were incarcerated
when the complaint was filed, the exhaustion requirement applies. Contrary to Plaintiffs’
assertion that “the Sixth Circuit has not yet specially addressed this question,” (Dkt. # 127,
Pg ID 2508), the law is settled that, if a “plaintiff was a prisoner when he ‘brought’ his suit,
and [his] suit implicates ’prison conditions,’ § 1997e(a) applies and plaintiff was required to
exhaust any available administrative remedies before he filed suit.” Cox v. Mayer, 332
F.3d 422, 425 (6th Cir. 2003).
B. Post-Complaint Injuries
Plaintiffs next argue that exhaustion is not required because some injuries occurred
after this lawsuit was filed. This argument presupposes that Plaintiffs have properly made
the necessary pre-complaint grievances. If, as Defendants claim, no such grievance has
been made, the existence of post-complaint injuries is irrelevant to the instant dispute,
which concerns whether Plaintiffs have exhausted in the first place. Unless Plaintiffs are
able to establish this initial exhaustion, the fact that post-complaint injuries are alleged
does not serve to circumvent §1997e’s requirement.
C. Plaintiffs’ Juvenile Status
Plaintiffs also contend that their status as juveniles excuse strict compliance
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exhaustion requirement.. However, § 1997e’s definition of “prisoner” includes any “person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h) (emphasis
added). The inclusion of “adjudicated delinquent” in the definition specifically
contemplates juveniles. See Lewis v. Gagne, 281 F. Supp. 2d 429, 433 (N.D.N.Y. 2003)
(“The plain meaning of [§ 1997e(h)’s] language clearly includes juveniles.”).
It is true that at least one court in this circuit has found juvenile status to be “an
integral element to its exhaustion analysis” J.P. v. Taft, 439 F. Supp. 2d 793, 826 (S.D.
Ohio 2006) However, J.P. involved a juvenile inmate who actually grieved in the facility.
Id. at 800. Assuming, arguendo, that this court agrees that some relaxation of the
exhaustion requirement is appropriate for juveniles, it is beyond cavil that Plaintiffs must
have in some way attempted to complain within the facility of confinement prior to filing this
action. To find otherwise would completely exempt minors from the requirements of the
PLRA. Absent a showing that Plaintiffs raised their concerns while incarcerated, the
exhaustion requirement is a bar to further discovery.
D. Imputed Exhaustion
Plaintiffs also argue that a single class representative’s exhaustion is sufficient for
the court to consider all claims behalf of the class as exhausted. This argument is
premature. Plaintiffs have not yet shown that any class representative has exhausted.
Only if this showing has been made would the court consider argument on this issue.
E. The PREA
Plaintiffs claim that the Prison Rape Elimination Act (“PREA”) prohibits Defendants
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from imposing procedures more stringent than those in those set forth in the MDOC PREA
Manual. The court finds that the PREA standards do not affect the exhaustion analysis.
Even if Defendants failed to comply with PREA, it would not provide Plaintiffs with a cause
of action. Furthermore, “[p]risoners must now exhaust all ‘available’ remedies, not just
those that meet federal standards.” Woodford, 548 U.S. at 85. As such, the PLRA’s
exhaustion requirement is not superseded or otherwise altered by the PREA.
F. Availability of Remedies
Plaintiffs discuss whether Defendants’ exemption of certain claims from the
grievance procedure affects the availability of remedies to Plaintiffs. This question of
“whether [PLRA] remedies were actually available” was initially within the scope of the
court’s Order Allowing Targeted Discovery. (Dkt. # 120.) The contemplated discovery
includes an inquiry into what procedures are available and the facts surrounding Plaintiffs’
actual ability to follow those procedures. However, unless Plaintiffs can show “some
affirmative efforts to comply with the administrative procedures,” the court is prohibited
from “analyzing whether the facility rendered these remedies unavailable.” Napier v. Laurel
County, 636 F.3d 218, 223–24 (6th Cir. 2011). “[T]he only way to determine if the process
was available, or futile, was to try.” Id. at 224.
G. Other Circumstances Where Exhaustion Is Excused
In accordance with the Order Directing Submission of Position Statements (Dkt. #
125), Plaintiffs have listed several circumstances where exhaustion is excused. However,
Plaintiffs have not suggested that any of these circumstances apply to this case. Absent a
showing that some specific disability other than mere youth existed preventing exhaustion,
the court is not persuaded that discovery should be enlarged in this case.
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CONCLUSION
The court finds that the initial scope of targeted discovery is sufficient to determine
whether Plaintiffs can overcome the threshold requirement to administratively exhaust their
claims. Accordingly,
IT IS ORDERED that discovery shall recommence in accordance with the foregoing
opinion.
IT IS FURTHER ORDERED that the parties shall appear for a telephone conference
on APRIL 23, 2015 AT 11:00 A.M. to discuss what discovery, if any, remains to be
conducted.

(The Court will initiate the call)

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 9, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of record on
this date, April 9, 2015, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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