Stevens v. Bouskirk
ORDER ACCEPTING REPORT AND RECOMMENDATION (#25), OVERRULING PLAINTIFFS OBJECTIONS (#28), GRANTING DEFENDANTS MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (# 17), DENYING PLAINTIFFS MOTION TO APPOINT COUNSEL (#27), AND DISMISSING PLAINTIFFS CLAIMS. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HON. GERSHWIN A. DRAIN
JOSHUA BUSKIRK, P.A.,
ORDER ACCEPTING REPORT AND RECOMMENDATION (#25), OVERRULING
PLAINTIFF’S OBJECTIONS (#28), GRANTING DEFENDANT’S MOTION TO
DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (# 17),
DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL (#27), AND DISMISSING
Plaintiff is an inmate who filed a prisoner civil rights action challenging the conditions of
his confinement on December 23, 2013. Specifically, Plaintiff asserts that Defendant has been
deliberately indifferent to his serious medical needs in contravention of the Eighth Amendment. On
April 25, 2014, Defendant filed a Motion to Dismiss based on Plaintiff’s failure to fully exhaust his
administrative remedies. The matter was referred to Magistrate Judge Patricia Morris, who issued
a Report and Recommendation on June 26, 2014, recommending that the Court grant Defendant’s
Motion to Dismiss because Plaintiff failed to exhaust his administrative remedies prior to filing the
On July 14, 2014, Plaintiff submitted his objections to the Report and
Recommendation and Defendant filed a Response to Plaintiff’s objections on August 4, 2014. For
the reasons that follow, the Court ACCEPTS Magistrate Judge Morris’s recommendation.
The standard of review to be employed by the court when examining a report and
recommendation is set forth in 28 U.S.C. § 636. This Court “shall 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)(C). This court “may accept, reject or modify, in whole or in part,
the findings or recommendations made by the magistrate.” Id.
A district court may affirm, modify, or reverse the Commissioner’s decision, with or without
remand. See 42 U.S.C. § 405(g). Findings of fact by the Commissioner are conclusive if supported
by substantial evidence. Id. The court must affirm the decision if it is “based on [an appropriate]
legal standard and is supported by substantial evidence in the record as a whole.” Studaway v. Sec’y
of Health and Human Servs., 815 F. 2d 1074, 1076 (6th Cir. 1987). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Prison Litigation Reform Act requires Plaintiff to exhaust his administrative remedies
prior to bringing this action. See 42 U.S.C. § 1997e(a) (“[n]o action shall be brought with respect
to prison conditions under §1983 . . . by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”). Proper exhaustion is
mandatory. Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001);
Woodford v. Ngo, 548 U.S. 81 (2006). To meet the exhaustion requirement, Plaintiff must
demonstrate compliance with the MDOC’s grievance policies, including its deadlines and procedural
rules. Woodford, 548 U.S. at 90. Thus, examination of the MDOC’s grievance policies, set forth
in MDOC Policy Directive 03.02.130, Prisoner/Parolee Grievances, is required to determine
whether Plaintiff’s claims are exhausted.
The MDOC grievance procedure entails four steps. First, a grievant must attempt to resolve
the issue orally within two business days of becoming aware of the grievable issue, unless prevented
by circumstances beyond his or her control. See Ex. 1, Defs.’ Mot. to Dismiss, MDOC Policy
Directive 03.02.130 at ¶ P. If the issue is not resolved, the inmate must then file a written Step I
grievance within five days of the attempted oral resolution. Id. at ¶ V. If the inmate is not satisfied
with the response to his Step I grievance, he may appeal to Step II by requesting an appeal within
five days of receiving his Step I response. Id. at ¶ BB. If still dissatisfied with the Step II response,
an inmate may file a Step III grievance within ten days after receiving the response. Id. at ¶ FF.
Additionally, Policy Directive 03.02.130 requires that grievances contain “[d]ates, times, places, and
names of all those involved in the issue being grieved . . . .” Id. at ¶ R.
Here, the Magistrate Judge reached the correct conclusion regarding Plaintiff’s failure to
exhaust administrative remedies because he failed to submit a Step III grievance appeal in
accordance with the MDOC’s grievance procedure. Plaintiff’s objections mainly address the
substantive merits of his Eighth Amendment claim. Such objections are OVERRULED as irrelevant
to the issue presently before this Court. See Fed. R. Civ. P. 72 (b)(3) (requiring the district judge
to conduct de novo review of any portion of a Report and Recommendation “that has been properly
objected to.”) (emphasis supplied). Plaintiff’s objection concerning the exhaustion issue states that
“[t]here was an effort to complete a Step III Grievance[,]” however “[t]he Grievance Coordinator
. . . never responded to my Kite that was sent.” See Objs. at 3. Plaintiff’s objection is without
merit. Plaintiff admits he did not file a Step III grievance appeal, rather he apparently submitted
kites in lieu of his Step III appeal. This is not proper exhaustion under Woodford v. Ngo, 548 U.S.
81 (2006). Moreover, Plaintiff’s assertion that complete exhaustion would have failed to remedy
his complaints is also without merit. A prisoner’s subjective belief that the grievance process would
be ineffective cannot excuse failure to exhaust the prison grievance procedure prior to filing suit.
Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011) (“To further the purposes behind
the PLRA, exhaustion is required even if the prisoner subjectively believes the remedy is not
available, even when the state cannot grant the particular relief requested, and even where the
prisoner believes the procedure to be ineffectual or futile.”) (internal quotations and citations
omitted.) As such, Plaintiff’s objection relating to exhaustion of administrative remedies is also
Accordingly, Plaintiff’s objections are OVERRULED. Consistent with the analysis herein,
the court hereby ACCEPTS Magistrate Judge Patricia Morris’s June 26, 2014 Report and
Recommendation, GRANTS Defendant’s Motion to Dismiss [#17], DENIES Plaintiff’s Motion to
Appoint Counsel [#27] and DISMISSES Plaintiff’s Complaint.
Dated: August 14, 2014
/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 14, 2014, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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