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

Filing 188

ORDER denying 157 Plaintiffs' Motion for Reconsideration. Signed by District Judge Robert H. Cleland. (LWag)

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

JOHN DOES 1-7,
Plaintiffs,
v.

Case No. 13-14356

MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
Before the court is Plaintiffs’ Motion for Reconsideration, (Dkt. # 157), which
requests that the court reconsider its February 8, 2016 Opinion and Order granting in
part and denying in party Defendants’ Motion for Summary Judgment. (Dkt. # 156.) The
court's previous Opinion and Order sets forth the history of this case, (id. at Pg. ID
3590-3595), and familiarity with such history is presumed. For the reasons stated below,
the court will deny Plainitffs’ Motion.
I. STANDARD
Subject to the court’s discretion, a motion for reconsideration shall be granted
only if the movant “demonstrate[s] a palpable defect by which the court and the parties
. . . have been misled” and “show[s] that correcting the defect will result in a different
disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that
is obvious, clear, unmistakable, manifest or plain.’” Buchanan v. Metz, 6 F. Supp. 3d
730, 752 (E.D. Mich. 2014) (quoting United States v. Lockett, 328 F. Supp. 2d 682, 684

(E.D. Mich. 2004)). The court “will not grant motions for . . . reconsideration that merely
present the same issues ruled upon by the court.” E.D. Mich. L.R. 7.1(h)(3).
II. DISCUSSION
Plaintiffs raise five grounds that they argue support reconsideration: 1) the
dismissal as to John Does 1, 2, 4, 5, 6, and 7 should be without prejudice; 2) the court
erred in “failing to take into consideration Plaintiff’s child status in considering whether
MDOC provided administrative remedies that were ‘available’ to these Plaintiffs,” Pls.’
Mot. 2; 3) the court erred in finding that the issues in this case were grieveable; 4) the
court erred in granting an evidentiary hearing as to Doe 3; and 5) exhaustion of
administrative remedies is not required for Plaintiffs claims under the Trafficking Victims
Protection Reauthorization Act, 18 U.S.C. § 1584, et seq.
At the outset, the court “will not grant motions for . . . reconsideration that merely
present the same issues ruled upon by the court.” E.D. Mich. L.R. 7.1(h)(3). Grounds
two and three rehash issues directly addressed in the court’s prior opinion and will not
be revisited here. See Op. III.B.1., III.A.1.
As to the first ground, which apparently asks the court to clarify that its grant of
summary judgment was without prejudice, this argument does not warrant
reconsideration. Generally, a grant of summary judgment due to a plaintiffs failure to
exhaust is treated as a dismissal without prejudice. Bell v. Konteh, 450 F.3d 651, 654
(6th Cir. 2006). This holds true here, whether or not the court so designated the
dismissal. Nonetheless, the court takes the opportunity to clarify that the claims of John
Does 1, 2, 4, 5, 6, and 7 were dismissed without prejudice. The court notes however, as
Defendants point out, most of the Does are likely now time barred from exhausting their
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claims. As to John Doe 7, who has been released from prison, the Sixth Circuit has not
decided whether a former prisoner must exhaust remedies in order to bring a claim
arising from his treatment in prison. Cox v. Mayer, 332 F.3d 422, 426 n.3 (6th Cir.
2003). These however are issues not directly raised in the summary judgment briefing,
and the court leaves them to be fully litigated at a later date in another case, if Plaintiffs
choose to file a new action.
Plaintiffs’ fourth ground for relief is that the court erred by ordering a bench trial
on the issue of exhaustion as to Doe 3 to determine whether he was thwarted in his
efforts to file grievances in this case. Specifically, Plaintiffs argue that because
Defendants made no effort to refute John Doe 3's testimony about prison officials
ripping up his grievances, there was no material factual dispute to resolve. Not so.
Defendants argue that no John Doe exhausted. Plaintiffs respond that John Doe 3 was
thwarted in his efforts to exhaust, offering the testimony of John Doe 3 who said that
“there’s some grievances that I wrote that I know that they ripped up because they
ripped them up in front of my face.” (Dkt. # 133-8, Pg. ID 2831). John Doe 3's testimony
however does not resolve the issue. He does not say that prison officials ripped up
grievances related to the issues in this case. His experiences during other attempts to
grieve, maybe even with other officers, that engendered in him the subjective belief that
attempts at exhaustion would be futile are not enough to excuse exhaustion here. See
Napier v. Laurel Cty, Ky., 636 F.3d 218, 224 (6th Cir. 2011) (noting that “[p]risoners
often argue futility precisely because a policy does exist, but they feel it was not actually
available to them” and rejecting that futility argument); see also Brock v Kenton Cty.,
Ky., 93 F. App’x 793, 798 (6th Cir. 2004) (“[The PLRA] says nothing about a prisoner’s
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subjective beliefs, logical or otherwise, about the administrative remedies that might be
available to him. The statute’s requirements are clear: If administrative remedies are
available, the prisoner must exhaust them.”) (internal quotations and citations omitted).
Even viewed in the light most favorable to Plaintiffs, John Doe 3's statement does not
resolve the exhaustion issue in Plaintiffs’ favor and show that he was thwarted in
exhausting grievances that form the basis of the instant action.
Finally, Plaintiffs’ last ground for reconsideration, that claims under the Trafficking
Victims Protection Reauthorization Act (“TVPA”), 18 U.S.C. § 1584, et seq., are not
subject to the PLRA’s exhaustion requirement, is without merit. The PLRA requires
exhaustion for all actions under section 1983 “or any other Federal law.” 42. U.S.C. §
1997e(a). The TVPA is a federal law, and Plaintiffs cite no authority which would
support an exception to the PLRA for claims arising under the TVPA.
Accordingly, IT IS ORDERED that Plaintiff’s Motion for Reconsideration

(Dkt.

# 157) is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 5, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 5, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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