Threet v. Phillips et al
Filing
44
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS and ORDER TO SHOW CAUSE WHY THE CLAIMS AGAINST THE UNKNOWN DEFENDANTS SHOULD NOT BE DISMISSED. Signed by District Judge Bernard A. Friedman. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL THREET,
Plaintiff,
Civil Action No. 14-cv-13345
vs.
HON. BERNARD A. FRIEDMAN
D. PHILLIPS, et al.,
Defendants.
___________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
and
ORDER TO SHOW CAUSE WHY THE CLAIMS AGAINST THE UNKNOWN
DEFENDANTS SHOULD NOT BE DISMISSED
This matter is presently before the Court on defendants’ motion to dismiss [docket
entry 33]. Plaintiff has filed a response in opposition [docket entry 35] and a supplemental brief in
support of plaintiff’s response in opposition to defendants’ motion to dismiss [docket entry 41].
Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion on the briefs. For the
following reasons, the Court shall grant the motion in part and deny it in part.
I. Background
Plaintiff is a pro se prisoner who is currently confined at the Saginaw Correctional
Facility in Freeland, Michigan. On August 26, 2014, plaintiff filed the instant action pursuant to 42
U.S.C. § 1983, alleging various constitutional violations while incarcerated at the Parnall
Correctional Facility (“SMT”) in Jackson, Michigan. Plaintiff alleges that from January to February
2014, defendants Deputy Warden Kenneth Ryan, Clinical Social Worker Noah Bruner, Inspector
Lester Parish, Lieutenant John Hurst, Sergeants Erick Vandenburg and Dawn Jacobson, Corrections
Officers David Phillips, James Richardson, Wesley Jackson, and James Miller, and John and Jane
Doe nurses and x-ray technicians, were deliberately indifferent to his health and safety in violation
of his Eighth Amendment rights.
The relevant events occurred following an assault perpetrated by a prisoner named
Grey on another inmate. Plaintiff alleges that after this assault, Vandenburg approached plaintiff
and his religious group to discuss whether Grey would be assaulted in retaliation. Compl. ¶¶ 1-2.
Plaintiff and his religious group assured Vandenburg that they would not harm Grey. Id. A few
days later, a member of a gang informed plaintiff that Grey was going to be assaulted for an
unrelated issue. Id. ¶ 3. Fearing that he and his religious group would be blamed for the planned
attack on Grey, plaintiff attempted to warn Vandenburg of the assault but was stopped by Miller,
Jackson, and Jacobson. Id. ¶¶ 3-7.
Plaintiff alleges that as a result of attempting to warn SMT employees of the
impending attack on Grey, he was subjected to various forms of harassment. Specifically, he claims
that (1) Richardson and Jackson searched his cell two to three times per day, wrote him misconduct
reports, and confiscated his property; (2) Jacobson coerced him to perform work in violation of his
medical detail; (3) Jacobson threatened to transfer him when he did not sign off on a grievance; (4)
Phillips slammed his left hand in a cell door; (5) John and Jane Doe nurses would not notify
authorities that he had been assaulted by Phillips; (6) John and Jane Doe x-ray technicians would
not show him his x-rays; (7) Hurst, Bruner, and Vandenburg failed to stop the harassment; and (8)
Ryan and Parish would not allow him to use the telephone to call the Michigan State Police. See
id. ¶¶ 14, 16-19, 21-25, 27-28, 30, 32-34, 40-41. Plaintiff asserts Eighth Amendment claims, as well
as state law claims of gross negligence and intentional infliction of emotional distress, against all
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defendants. See Compl., Counts I-XIII. Plaintiff also asserts First Amendment retaliation claims
against Richardson, Jackson, and Jacobson. Id., Counts II-IV. For relief, plaintiff seeks damages
and a declaratory judgment that his constitutional rights were violated. See id., p.13. Defendants
seek dismissal of all claims due to plaintiff’s failure to exhaust his administrative remedies.
II. Legal Standards
The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), provides
that a prisoner bringing an action with respect to prison conditions under § 1983 must first exhaust
available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 519-20 (2002). “Requiring
exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their
responsibilities before being haled into court. This has the potential to reduce the number of inmate
suits, and also improve the quality of suits that are filed by producing a useful administrative
record.” Jones v. Bock, 549 U.S. 199, 204 (2007).
The exhaustion “requirement is mandatory but not jurisdictional, and applies to all
federal claims seeking redress for prison circumstances or occurrences regardless of the type of
relief being sought.” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (citing Porter, 534 U.S. at
532).
“[I]nmates are not required to specifically plead or demonstrate exhaustion in their
complaints.” Jones, 549 U.S. at 216. “Failure to exhaust administrative remedies is an affirmative
defense, which the defendant has the burden to plead and prove by a preponderance of the
evidence.” Lee, 789 F.3d at 677 (citing Jones, 549 U.S. at 216). “However, when faced with a
motion to dismiss or a motion for summary judgment based on a failure to exhaust, a prisoner cannot
just sit on his laurels, but must offer competent and specific evidence showing that he indeed
exhausted his remedies, or was otherwise excused from doing so.” Sango v. Johnson, No. 13-12808,
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2014 WL 8186701, at *5 (E.D. Mich. Oct. 29, 2014). A dismissal for failure to exhaust is without
prejudice. Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2006) (citing Knuckles El v.
Toombs, 215 F.3d 640 (6th Cir. 2000)).
The instant motion was filed as an unenumerated Rule 12(b) motion, which plaintiff
argues is “improperly filed” because defendants never specified “which subdivision they were
applying to their request for dismissal.” See Pl.’s Resp. to Defs.’ Mot. to Dismiss ¶ 2. Courts have
differed in determining which subdivision applies to a motion to dismiss based on failure to exhaust
administrative remedies. This issue was summarized in Magistrate Judge Whalen’s Report &
Recommendation that was adopted in Twohig v. Riley, No.12-11832, 2013 WL 3773365, at *1 (E.D.
Mich. July 17, 2013):
There has been a divergence of viewpoints as to the correct
procedural basis for a dismissal premised on non-exhaustion. In
Jones v. Bock, 127 S.Ct. at 921, the Supreme Court suggested in dicta
that failure to exhaust might be a basis for dismissal under Rule
12(b)(6). However, in Pointe v. Wilkinson, 502 F.3d 369 (6th Cir.
2007), the Sixth Circuit found that a dismissal based on exhaustion
may be distinct from a dismissal for failure to state a claim upon
which relief may be granted. See also Snider v. Melindez, 199 F.3d
108, 112 (2d Cir. 1999) (concluding that failure to state a claim as
used in 1997e(c) and 1915(g) does not include failure to exhaust
administrative remedies). In Melton v. Michigan Corrections
Commission, 2009 WL 722688 (E.D. Mich 2009), the Court granted
a motion for summary judgment, dismissing the complaint without
prejudice for failure to exhaust . . .
In the context of the PLRA, a plaintiff’s failure to exhaust
administrative remedies does not seem to fit within Fed. R. Civ. P.
12(b)(6). After Jones v. Bock, failure to exhaust is not a pleading
requirement, so there is no determination of whether a plaintiff has
stated a claim on the face of the complaint. And unlike the typical
12(b)(6) motion, dismissal is without prejudice. Rule 12(b)(1)
(subject-matter jurisdiction) clearly does not apply, since “the PLRA
exhaustion requirement is not jurisdictional.” Woodford v. Ngo, 548
U.S. 81, 101 (2006). Summary judgment seems inapposite since
there is no determination of the merits of the case, and “judgment” is
4
not entered. See Studio Electrical Technicians Local 728 v.
International Photographers of Motion Picture Industries, Local 659,
598 F.2d 551, 552 (9th Cir. 1979) (“Summary judgment is on the
merits,” and failure to exhaust, as a matter in abatement, “ordinarily”
does “not deal with the merits.”) . . .
Citing the decisions of other circuit courts for support, Magistrate Judge Whalen concluded that the
best approach is to treat a motion to dismiss based on a failure to exhaust as an unenumerated Rule
12(b) motion. Finding this method to be the best course as well, the Court is persuaded that
defendants’ unenumerated Rule 12(b) motion was appropriately filed.
III. Analysis
In order to exhaust administrative remedies, “prisoners must complete the
administrative review process in accordance with the applicable procedural rules[,] . . . rules that are
defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218. An
improperly filed grievance, even though appealed through all steps of a grievance procedure, does
not fulfill the exhaustion requirement. Woodford, 548 US at 97. “The level of detail necessary in
a grievance to comply with the grievance procedures will vary from system to system and claim to
claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218.
Michigan Department of Corrections (“MDOC”) policy requires prisoners to follow
a three-step process to exhaust grievances. See Defs.’ Mot. to Dismiss, Ex. A, Policy Directive
03.02.130 (effective 07/09/2007). A prisoner must first “attempt to resolve the issue with the staff
member involved within two business days after becoming aware of a grievable issue, unless
prevented by circumstances beyond his/her control[.]” Id. ¶ P. If the issue is not resolved to the
prisoner’s satisfaction, he must then file a Step I grievance within five business days after attempting
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to resolve the issue with appropriate staff. Id. ¶ P. If the prisoner is dissatisfied with the Step I
response, or does not receive a timely response, he must file a Step II grievance. Id. ¶ BB. Finally,
if the prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must
file a Step III grievance. Id. ¶ FF. “The total grievance process from the point of filing a Step I
grievance to providing a Step III response shall generally be completed within 120 calendar days
unless an extension has been approved in writing by the Grievance Coordinator at Step I and/or Step
II.” Id. ¶ S.
MDOC policy also states that “[i]nformation provided is to be limited to the facts
involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places,
and names of all those involved in the issue being grieved are to be included.” Id. ¶ R (emphasis
in original). Grievances may be rejected if they are vague, duplicative of issues raised in other
grievances filed by the grievant, or untimely. Id. ¶ G. However, a “grievance shall not be rejected
if there is a valid reason for the delay, e.g., transfer.” Id. ¶ G.4.
Defendants have submitted as an exhibit to their motion a printout entitled “MDOC
Prisoner Step III Grievance Report” (“MDOC Report”), which appears to have been generated on
September 22, 2014. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 236-38. This report indicates that
plaintiff filed eight Step III grievances while incarcerated at SMT. See id. Seven of these
grievances were rejected at Step I for being vague, duplicative, untimely, or non-grievable. As for
the remaining grievance–SMT-14-03-0460-17Z filed against Bruner for failing to help plaintiff
report the Phillips assault–both sides agree this claim has been properly exhausted, so the Court will
assume the same. See Defs.’ Mot. to Dismiss, p.10 (“It would appear that Threet properly exhausted
his administrative remedies as to [SMT-14-03-0460-17Z].”). The Court will examine each of the
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eight grievances, as well as the two additional grievances that plaintiff appears to argue were also
properly exhausted.
A. Grievances Rejected as Untimely
Plaintiff filed a Step I grievance in SMT-14-03-0461-28e on March 1, 2014, against
Hurst for refusing to listen to plaintiff’s complaints about being harassed and threatened by unnamed
officers. See id., Ex. B, Pg ID 247. Plaintiff listed the “Date of Incident” as February 5, 2014. Id.
Recognizing that his grievance was untimely, plaintiff noted that his “grievance is late due to threats
by staff, denial of grievance forms and access to law library, was also transfered [sic] to protect
staff.” Id. The Step I grievance was rejected as untimely and informed plaintiff that he had “not
provided any reasonable circumstance beyond [his] control that would have prevented [him]
from filing this grievance in a timely manner.” See id., Pg ID 248 (emphasis in original).
Plaintiff filed a Step II appeal wherein he noted that he “clearly stated several ‘reasonable
circumstances’ for [his] lateness (see step I)[.]” Id., Pg ID 245. The Step II response affirmed the
Step I response that the grievance was untimely and that plaintiff failed to provide any reasonable
circumstance beyond his control that would have prevented him from filing a grievance in a timely
manner. See id., Pg ID 241. In his Step III appeal, plaintiff stated that he was appealing because
“deliberate indefferance [sic] cover up of corruption which is blatently [sic] obvious.” Id., Pg ID
245. The Step II decision was upheld at Step III. See id., Pg ID 244.
Similarly, plaintiff filed a Step I grievance in SMT-14-03-0455-28e on March 1,
2014, against Phillips for retaliating against him by removing personal items from his cell without
issuing a “written N.O.I[.] or contraband removal.” Id., Pg ID 266. Plaintiff listed the “Date of
Incident” as February 8, 2014. Id. Plaintiff noted in this grievance, too, that his “grievance is late
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due to harrassing [sic], threatening, assaultive behavior of officers in 10 blk, being denied grievance
forms, access to law library, and transfer to new facility.” Id. The Step I response was rejected as
untimely and informed plaintiff that he had “not provided any reasonable circumstance beyond
[his] control that would have prevented [him] from filing this grievance in a timely manner.”
Id., Pg ID 267 (emphasis in original). Plaintiff filed a Step II appeal wherein he noted that he
“clearly stated several ‘reasonable circumstances’ that were out of my control (see step 1).” Id., Pg
ID 264. The Step II response affirmed the Step I response that plaintiff had failed to provide any
reasonable circumstance for his untimely grievance. See id., Pg ID 265. In his Step III appeal,
plaintiff stated that he believes “being threatend [sic] and assaulted are very reasonable
circumstances for fearing to write complaints while still on the same compound as the officers in
question.” Id., Pg ID 264. The Step II decision was upheld at Step III. See id., Pg ID 263.
Defendants argue that plaintiff’s claims as to Hurst and Phillips must be dismissed
because plaintiff’s untimely–and therefore improperly–filed grievances, even though appealed
through all steps of a grievance procedure, does not fulfill the PLRA’s exhaustion requirement. See
Woodford, 548 US at 97. In response, plaintiff argues that his transfer to a new facility on February
28, 2014, prevented him from timely filing his Step I grievances. See Pl.’s Resp. to Defs.’ Mot. to
Dismiss ¶ 14. The Step I, II, and III responses for both grievances stated that plaintiff had failed to
provide any reasonable circumstance for his untimely grievance, but this contention is inaccurate.
Plaintiff stated that he was (1) afraid to file grievances against officers on his block for fear of
retaliation; (2) denied access to the law library; (3) denied grievance forms; and (4) transferred to
a new facility. These facts could have provided a valid explanation for any delay in filing SMT-1403-0461-28e and SMT-14-03-0455-28e, had they been appropriately considered. See, e.g., Coleman
8
v. Gullet, 2013 WL 2634581, at *11 (E.D. Mich. June 10, 2013) (finding plaintiff’s transfer was
conceivably a valid reason for the delay in appealing a grievance). In resolving all reasonable
inferences in favor of plaintiff, as must be done at the motion to dismiss stage, the Court cannot
conclude that plaintiff failed to exhaust his grievances against Hurst and Phillips.
B. Grievances Rejected as Vague
Plaintiff filed three grievances that were rejected as vague. First, plaintiff filed a Step
I grievance in SMT-14-03-0513-28b against Vandenburg for failing to protect plaintiff from the
other officers. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 252-53. The Step I grievance was rejected
as vague, stating “you did not provide the name of the staff that you claim are harassing and
threatening you.” Id., Pg ID 253. Plaintiff appealed this grievance to Step II, arguing that he did
not need to provide the name of the staff members because he was grieving Vandenburg, not the
staff members threatening him. See id., Pg ID 250. The Step II response affirmed the Step I
response. See id., Pg ID 251. Plaintiff filed a Step III appeal, stating “deliberate indifferance [sic]
corruption and cover up” as the reason for his appeal. See id., Pg ID 250. The Step II decision was
upheld at Step III. See id., Pg ID 249.
Defendants argue that plaintiff improperly exhausted his administrative remedies
because, in filing a grievance that was vague, he did not comply with the MDOC’s procedural rules.
See, e.g., Woodford, 548 U.S. at 90; Colston v. Cramer, 2007 WL 1655413, at *2 (E.D. Mich. June
7, 2007). The Court agrees. MDOC policy states that “[d]ates, times, places, and names of all those
involved in the issue being grieved are to be included. See Defs.’ Mot. to Dismiss, Ex. A, Policy
Directive 03.02.130 (effective 07/09/2007) ¶ R (emphasis added). Despite plaintiff’s contention to
the contrary, plaintiff was required to provide the names of all those involved and he failed to do so.
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The claim against Vandenburg is therefore dismissed for failure to properly exhaust administrative
remedies.
Plaintiff also filed a Step I grievance in SMT-14-03-0459-28b against unknown staff
members at Duane L. Waters Hospital in Jackson, Michigan, for their refusal to report to
administration that he was assaulted by an officer. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 242.
The Step I grievance was rejected as vague, stating that plaintiff failed to “provide the name of the
staff that [he] claim[s] refused to report [his] claim.” See id., Pg ID 243. Plaintiff filed a Step II
appeal wherein he stated that he “asked for names and copies of all paperwork,” but was “denied”
and that the “grievance coordinator should have . . . looked that information up as I clearly stated
in step I that that information was denied me.” Id., Pg ID 240. The Step II response affirmed the
Step I response, indicating that “[y]ou need to include who, what, when, where and be specific.”
Id., Pg ID 246 (emphasis in original). Plaintiff appealed this decision to Step III, wherein he simply
stated that the reason for his appeal was “[d]eliberate indifferance [sic] see step I & II.” Id., Pg ID
240. The Step II decision was upheld at Step III. See id., Pg ID 239.
Grievance number SMT-14-03-0458-28b, which also grieved unknown “medical
staff” for refusing to report that plaintiff was assaulted, was also rejected at Step I as vague. See
Pl.’s Resp. to Defs.’ Mot. to Dismiss, Pg ID 300-01. The Step I response stated that plaintiff “did
not provide the name of the staff that [he] claim[s] refused to report [his] claim.” Id., Pg ID 301.
Plaintiff appealed the Step I response to Step II, arguing that he asked for the names of the staff
members but was denied this information. Defs.’ Mot. to Dismiss, Ex. B, Pg ID 255. The Step II
response affirmed the Step I response. See id., Pg ID 256. Plaintiff appealed the response to Step
III, where the prior decisions were upheld. See id., Pg ID 254.
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Defendants argue that SMT-14-03-0459-28b and SMT-14-03-0458-28b were not
properly exhausted because they failed to include the name of the person being grieved. Plaintiff
acknowledges that MDOC procedure requires grievants to include this information, but argues that
the staff members at Duane L. Waters Hospital refused to provide their names and that “every
attempt (even [as of May 2015]) to obtain copies of the medical reports, and thereby discover their
names has been denied,” thereby preventing him from properly exhausting his administrative
remedies. Pl.’s Resp. to Defs.’ Mot. to Dismiss ¶ 11. When a prisoner is unable to exhaust all
available remedies because prison officials have thwarted the inmate’s attempts at exhaustion, then
proper exhaustion should be assumed. See Brock v. Kenton Cnty., 93 F. App’x 793, 798 (6th Cir.
2004). Thus, drawing all inferences in favor of plaintiff, the Court will assume, for purposes of this
motion, that prison officials thwarted plaintiff’s attempt to properly exhaust his administrative
remedies by withholding critical information.
However, an inmate who brings a civil rights complaint must specifically identify
each defendant against whom relief is sought, and he must give each defendant notice of the action
by serving upon him a summons and copy of the complaint. See Feliciano v. DuBois, 846 F. Supp.
1033, 1048 (D. Mass. 1994). In general, “the use of unnamed defendants is not favored in the
federal courts.” Haddad v. Fromson, 154 F. Supp. 2d 1085, 1093 (W.D. Mich. 2001). “Where a
plaintiff is proceeding [in forma pauperis], the district court bears the responsibility for issuing the
plaintiff’s process to a United States Marshal who must effect service upon the defendants once the
plaintiff has properly identified the defendants in the complaint.” Williams v. McLemore, 10 F.
App’x 241, 243 (6th Cir. 2001) (citing Fed. R. Civ. P. 4(c)([3]); Byrd v. Stone, 94 F.3d 217, 219 (6th
Cir. 1996)). Under Rule 4(m), defendants must be served within 120 days of filing the complaint.
11
If defendants are not served during this time, “the court–on motion or on its own after notice to the
plaintiff–must dismiss the action without prejudice against that defendant or order that service be
made within a specified time.” Plaintiff has apparently failed to identify or serve the John and Jane
Doe defendants and this case has been pending for well over 120 days (since August 26, 2014). In
accordance with Rule 4(m), this Opinion and Order shall serve as notice to plaintiff that he has 14
days to show cause why the claims as to the John and Jane Doe defendants should not be dismissed
without prejudice.
C. Grievance Rejected as Non-Grievable
Plaintiff filed a Step I grievance in SMT-14-03-0463-27a against Richardson for
writing him a major ticket in retaliation for attempting to call the Michigan State Police. See Defs.’
Mot. to Dismiss, Ex. B, Pg ID 261. The Step I grievance was rejected as non-grievable, stating that
“[d]ecisions made in hearings conducted by hearing officers of the State Office of Administrative
Hearings and Rules, and decisions made in class II or III hearings, including property disposition,
and issues directly related to the hearing process are non grievable. Your avenue of redress
is through the appeals process.” Id., Pg ID 262 (emphasis in original). In his Step II appeal,
plaintiff argued that he was not grieving that he was found guilty of the ticket, but was grieving that
he was given the ticket in retaliation for attempting to report the assault by Phillips to the Michigan
State Police. See id., Pg ID 259. The Step II response affirmed that plaintiff had grieved a nongrievable issue. See id., Pg ID 260. Plaintiff filed a Step III appeal, which affirmed the Step I and
Step II responses. See id., Pg ID 258-59.
While defendants argue that grievance SMT-14-030463-27a was procedurally
defaulted, and hence not properly exhausted, the Court disagrees because this grievance was not
12
contesting the outcome of a misconduct hearing. The grievance asserted that Richardson wrote
plaintiff a misconduct ticket in retaliation for attempting to contact the Michigan State Police. By
rejecting plaintiff’s grievance for a reason clearly unsupported by the facts presented in the
grievance, prison officials effectively prevented plaintiff from properly exhausting his administrative
remedies. Under these circumstances, the Court cannot conclude that plaintiff has failed to exhaust
his administrative remedies as to his First Amendment retaliation claim against Richardson.
D. Grievance Rejected as Duplicative
Plaintiff filed a Step I grievance in SMT-14-03-0457-28a, indicating that after the
assault, plaintiff asked Phillips for medical treatment for his hand, but instead of helping, Phillips
called him a “whinney [sic] bitch” and walked away.
See Defs.’ Mot. to Dismiss, Ex. B., Pg ID
271, 269. This grievance was rejected as being duplicative of SMT-14-03-0456-26z, which was
pending at the time of the Step I response. See id., Pg ID 272. Plaintiff filed a Step II appeal,
arguing that SMT-14-03-0456-26z complained about Phillips assaulting him, whereas the instant
grievance complained about Phillips refusing to assist him in obtaining medical treatment. See id.,
Pg ID 269. The Step II response affirmed that both grievances were duplicative because they “both
address the claim that Officer Phillips assaulted you.” Id., Pg ID 270. Plaintiff filed a Step III
appeal arguing “reguardless [sic] of me ‘mentioning’ the assault I am grieving the fact that when I
asked for medical attention affter [sic] being assaulted, the officer who assaulted me called me a
whiney [b]itch and walked away.” Id., Pg ID 269. The Step II decision was upheld at Step III. See
id., Pg ID 268.
Although SMT-14-03-0457-28a and SMT-14-03-0456-26z arise from the same
assault, each grievance complains of a separate issue. SMT-14-03-0456-26z deals with the actual
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assault and exhausts plaintiff’s excessive force claim against Phillips. However, SMT-14-03-045728a deals with Phillips’ alleged failure to provide plaintiff medical treatment, thereby exhausting
plaintiff’s deliberate indifference claim against Phillips. By rejecting plaintiff’s grievance for a
reason unsupported by the facts presented in each grievance, prison officials effectively prevented
plaintiff from properly exhausting his administrative remedies. Under these circumstances, the
Court cannot conclude that plaintiff failed to exhaust his administrative remedies as to this claim
against Phillips.
E. Remaining Grievances
In addition to the eight grievances cited by defendants, plaintiff appears to suggest
that he properly exhausted his administrative remedies as to two other grievances. In SMT-14-030456-26z, plaintiff grieved that Phillips assaulted him by slamming his left hand in a cell door. See
Pl.’s Resp. to Mot. to Dismiss, Ex. B, Pg ID 296. The Step I response stated that an investigation
into the assault was being done but that “[n]o violations of staff misconduct are noted as related to
the reporting and investigation of the Grievant’s allegations.” Pl.’s Resp. to Mot. for Summ. J., Pg
ID 149. Plaintiff filed a Step II appeal, grieving that he has “little faith in this so called investigation
as it took 31 days befor [sic] I was even asked any questions, and to the best of my knowledge
Officer Phillips has not been fired, suspended pending outcome[.]” Id., Pg ID 147. The Step II
response reiterated that the assault was being “formally investigated” and denied plaintiff’s Step II
appeal. See id., Pg ID 148. And although the “MDOC Prisoner Step III Grievance Report” does
not show that plaintiff filed a Step III appeal in this matter, plaintiff included a copy of the Step III
appeal in his initial response to defendants’ motion for summary judgment. See id., Pg ID 147. The
MDOC Report does, however, include a notation stating that on July 22, 2014, MDOC returned the
14
Step III appeal to plaintiff “requesting Step I & II documents.” Defs.’ Mot. to Dismiss, Ex. B, Pg
ID 236. Given the inconsistency in the record, it is unclear whether the Step III appeal has been
accepted or decided. However, drawing all inferences in favor of plaintiff, the Court will assume
for purposes of this motion that plaintiff has properly exhausted his grievance remedies as to his
excessive force claim against Phillips.
Finally, plaintiff filed a Step I grievance in SMT-14-03-0462-17z against Jacobson
claiming that she failed to intervene to help plaintiff and that she retaliated against plaintiff by
threatening to transfer him to an undesirable prison facility. See Pl.’s Resp. to Mot. to Dismiss, Ex.
B, Pg ID 313. The Step I response concluded that the allegations in the grievance could not be
substantiated. See id., Pg ID 314. It appears that plaintiff did not file a Step II or III appeal in this
matter because he has not included any documents or exhibits suggesting otherwise. This would
appear to be consistent with the MDOC’s Report, which does not list a Step III appeal in this matter.
Defs.’ Mot. to Dismiss, Ex. B, Pg ID 236-38. Because “a prisoner cannot just sit on his laurels, but
must offer competent and specific evidence showing that he indeed exhausted his remedies,” Sango,
2014 WL 8186701, at *5, and plaintiff has failed to provide such specific evidence, the claims
against Jacobson are dismissed without prejudice for failure to exhaust administrative remedies.
IV. Conclusion
Plaintiff properly exhausted six of the ten aforementioned grievances. These
grievances include SMT-14-03-0461-28e against Hurst, SMT-14-03-0463-27a against Richardson,
SMT-14-03-0460-17Z against Bruner, and SMT-14-03-0456-26z (assault), SMT-14-03-0455-28e
(retaliatory cell searches), and SMT-14-03-0457-28a (deliberate indifference) against Phillips.
However, the grievances against Vandenburg (SMT-14-03-0513-28b) and Jacobson (SMT-14-03-
15
0462-17z ) were not properly exhausted and are therefore dismissed without prejudice. Further,
because none of these ten grievances complained about the actions of Jackson, Miller, Parish, or
Ryan, all claims against these defendants are dismissed without prejudice for failing to exhaust
administrative remedies. Accordingly,
IT IS ORDERED that defendants’ motion to dismiss [docket entry 33] is granted
without prejudice as to all claims against Vandenburg, Jacobson, Jackson, Miller, Parish, and Ryan.
IT IS FURTHER ORDERED that defendants’ motion to dismiss is denied as to the
claims against Phillips, Richardson, Hurst, and Bruner.
IT IS FURTHER ORDERED that plaintiff has 14 days to show cause why the claims
against the John and Jane Doe defendants should not be dismissed without prejudice.
S/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: February 1, 2016
Detroit, Michigan
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