Stevens v. Potila et al

Filing 23

OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION [#20], OVERRULING PLAINTIFFS OBJECTION [#21], GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT [#12], AND DISMISSING COMPLAINT WITHOUT PREJUDICE. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROLAND STEVENS,
Plaintiff,

v.

Case No. 14-cv-10863
Honorable Gershwin A. Drain

DEAN POTILA, ET AL.,
Defendants.
/
OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION [#20],
OVERRULING PLAINTIFF’S OBJECTION [#21], GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [#12],
AND DISMISSING COMPLAINT WITHOUT PREJUDICE
I. INTRODUCTION
Plaintiff is an inmate who filed a prisoner civil rights action challenging the conditions of
his confinement on February 25, 2014. See Dkt. No. 1. Specifically, Plaintiff asserts that
Defendant Potila, a Corrections Officer, violated his First Amendment rights by tampering with
his mail, including his legal mail. Additionally, though unclear, it appears that the Plaintiff
alleges a retaliation claim and an Eighth Amendment claim based on alleged harassment by
Defendant Potila. Lastly, Plaintiff alleges that he filed a grievance against Potila on or about
November 11, 2013, but that, as of the date of filing his complaint in this Court, he had not
received a response. See id.
On May 5, 2014, Defendants filed a Motion for Summary Judgment based on Plaintiff’s
failure to fully exhaust his administrative remedies. See Dkt. No. 12. The matter was referred to
Magistrate Judge R. Steven Whalen, who issued a Report and Recommendation on January 23,

-1-

2015. See Dkt. No. 20.

In the Report and Recommendation, Magistrate Judge Whalen

recommended that the Court grant Defendant’s Motion to Dismiss because Plaintiff failed to
exhaust his administrative remedies prior to filing the instant action. See id. On February 5,
2015, Plaintiff submitted his objections to the Report and Recommendation. See Dkt. Nos. 21,
22. The Defendants failed to file a Response to Plaintiff’s objection. Nonetheless, the Court will
ACCEPT Magistrate Judge Whalen’s recommendation and GRANT the Defendants’ Motion
for Summary Judgment for the reasons discussed herein.
II. LEGAL ANALYSIS
The standard of review to be employed by the court when examining a report and
recommendation is set forth in Title 28 Section 636 of the United States Code (“Section 636”).
According to Section 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.
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
Michigan Department of Corrections’ (“MDOC”) grievance policies, including its deadlines and
procedural rules. Woodford, 548 U.S. at 90. Thus, examination of the MDOC’s grievance

-2-

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. Only the first two steps of the
grievance procedure are relevant to the Court’s present analysis. For the first step, a grievant
must attempt to resolve the issue orally within two business days of becoming aware of a
grievable issue, unless prevented by circumstances beyond his or her control. See Dkt. No. 12-2
(“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.
Paragraph BB outlines the steps a grievant must take at Step II and states: “A grievant
may file a Step II grievance if s/he is dissatisfied with the response received at Step I or if s/he
did not receive a timely response.” Dkt. No. 12-2 at ¶ BB (emphasis added). Notably, paragraph
BB states that the grievant must submit a Step II grievance form “within ten business days after
receiving the Step I response or, if no response was received, within ten business days after the
date the response was due, including any extensions.” Id. (emphasis added).
Here, the Magistrate Judge reached the correct conclusion regarding Plaintiff’s failure to
exhaust administrative remedies because the Plaintiff failed to submit a Step II grievance form—
as required—within ten business days after the institutional failure to timely respond to his
grievance. See Dkt. No. 20 at 6-7.
Plaintiff’s Objection to Magistrate Judge Whalen’s Report and Recommendation is not
particularly clear. Plaintiff emphasizes that his Objection is meant to “give [the Court] a clear
view of what the grievance process can do for an inmate challenging prison officials authority.”

-3-

Dkt. No. 21 at 4. It appears that the Plaintiff may be attempting to explain that he failed to
continue using the grievance process either because he was retaliated against or because he
feared retaliation. After reviewing Plaintiff’s papers, however, the Court finds that the Plaintiff’s
Objection is misguided under either theory.
In support of his position, the Plaintiff provides the Court with what he asserts is a
“grievance that was denied” and an explanation of how his “special accommodations were
stripped from [him] because of [the] grievance and the filing of a civil complaint.” Dkt. No. 21 at
4. Upon reviewing what Plaintiff claims to be his denied grievance, however, there does not
appear to be a denial of Plaintiff’s grievance.
The document provided by the Plaintiff was generated by a Ronald M. Mingle on January
30, 2015, which is over a year from the original date—November 11, 2013—Plaintiff filed the
grievance at issue against Defendant Potila. See Dkt. No. 22. The document is labeled as a
“Special Accommodations Order,” but merely contains handwritten complaints by Plaintiff
where Plaintiff, himself, writes that his special accommodations were cancelled. This document
does not show that the MDOC stripped Plaintiff of special accommodations in light of filing his
grievance against Defendant Potila.
The Court fails to see the relevance of the document provided by Plaintiff. To the extent
that this Objection was brought to show that Plaintiff was retaliated against, Plaintiff has
proceeded in an improper manner. Consequently, his objection is 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 added).

-4-

To the extent Plaintiff is attempting to argue he didn’t properly use the grievance system
because he was fearful of retaliation, the Court finds that this objection 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 OVERRULED.
IV. CONCLUSION
For the reasons discussed, Plaintiff’s Objection to Magistrate Judge Whalen’s Report and
Recommendation is OVERRULED. Consistent with the analysis herein, the court HEREBY
ACCEPTS Magistrate Judge R. Steven Whalen’s January 23, 2015 Report and
Recommendation, GRANTS Defendant’s Motion for Summary Judgment [#17], and
DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE for failure to exhaust
administrative remedies.
SO ORDERED.
Dated: March 18, 2015
/s/Gershwin A Drain
Hon. Gershwin A. Drain
United States District Court Judge

-5-