Mann v. Straub et al

Filing 82

ORDER Vacating in Part 30 Order Reflecting Substitution of United States as Defendant; Adopting 70 REPORT AND RECOMMENDATION and 73 REPORT AND RECOMMENDATION; Granting 28 MOTION to Dismiss and/or for Summary Judgment; Denying Plaintiff's Pending Motions 36 , 59 , 68 , 78 and Dismissing Case Without Prejudice. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JACK MANN,
Case No. 14-13439
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
UNITED STATES OF AMERICA,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant.
/

ORDER VACATING IN PART THE COURT’S ORDER REFLECTING SUBSTITUTION OF
UNITED STATES AS DEFENDANT [30]; ADOPTING REPORTS AND
RECOMMENDATIONS [70, 73], GRANTING DEFENDANT’S MOTION TO DISMISS
AND/OR FOR SUMMARY JUDGMENT [28], DENYING PLAINTIFF’S PENDING
MOTIONS [36, 59, 68, 77, 78]; AND DISMISSING CASE WITHOUT PREJUDICE

On January 27, 2016, the Magistrate Judge issued a Report and
Recommendation (R&R) [70], recommending that the Court deny Plaintiff’s Motions
for Summary Judgment [Dkt. #36, 68], grant Defendant’s Motion to Dismiss and/or
for Summary Judgment [28] as an unenumerated motion under Federal Rule of Civil
Procedure 12(b), and dismiss the case without prejudice for failure to exhaust
administrative remedies. On January 28, 2016, the Magistrate Judge issued a second
R&R [73], recommending that the Court deny Plaintiff’s Motion for Default
Judgment [59] as moot. On February 1, 2016, the Court received Plaintiff’s Motion to
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Stay [74]. On March 2, 2016, the Court issued an Order [76] denying Plaintiff’s
Motion to Stay but granting Plaintiff an extension of time in which to file objections
to the R&R. On March 11, 2016, the Court received Plaintiff’s Motion for Request of
Recommendation of Findings in King v. Zamiara and Motion for Damages Hearing
[77], as well as his Motion for Default Judgment [78]. On March 22, 2016, the Court
received Plaintiff’s Objections to the R&R [79]. On March 24, 2016, Defendant filed
Responses [80, 81] to Plaintiff’s Motion for Default Judgment and Motion for
Request.
For the reasons stated below, the Court’s Order Reflecting Substitution of
United States as Defendant [30] is VACATED with respect to its dismissal of
Plaintiff’s Bivens claim against former defendants Straub, Calvird, and Calvird. The
Magistrate Judge’s Reports and Recommendations [70, 73] are ADOPTED.
Defendant’s Motion to Dismiss and/or for Summary Judgment [28] is GRANTED as
an unenumerated motion under Federal Rule of Civil Procedure 12(b). Plaintiff’s
pending motions [36, 59, 68, 77, 78] are DENIED as moot. The case is DISMISSED
without prejudice.
FACTUAL BACKGROUND
In April 2013, while imprisoned at the Federal Correctional Institution in
Milan, Michigan (FCI Milan), Plaintiff sent a letter to Charles Samuels, Director of
the Federal Bureau of Prisons (BOP). In the letter, he accused former defendant

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Hillary Calvird of disrespectful behavior towards himself and other prisoners. He
speculated that other prison staff permitted her to act his way because her father,
former defendant Douglas Straub, was also a corrections officer at FCI Milan. He
mentioned that he had a pending administrative claim under the Federal Tort Claims
Act (FTCA) against Ms. Calvird for mishandling some of his property, resulting in its
theft by other prisoners.
As a result of Plaintiff’s letter, the BOP investigated Ms. Calvird’s behavior
and sanctioned her in May 2013. Plaintiff alleges that his role in causing the
investigation sparked retaliatory animus in Straub, Ms. Calvird, and former defendant
Michael Calvird (Ms. Calvird’s husband, also a corrections officer at FCI Milan). He
alleges that Straub and the Calvirds “use their contacts, friendships, and acquaintances
to retaliate against” him. He alleges that the former defendants have tainted his
relationship with his unit team, causing him to be denied access to programs and the
good time credits available through those programs.
Plaintiff further alleges that in November 2013, Straub, accompanied by Mr.
Calvird and a third corrections officer, confronted Plaintiff.1 Straub allegedly stepped
in close to Plaintiff, pointed in his face, asked if he thought he was “running
something,” and screamed that Plaintiff was an inmate. Plaintiff claims he was
certain Straub was going to strike him. Also in November 2013, Straub allegedly
1

In his Complaint, Plaintiff mentions that he is unsure if this incident occurred in
November 2013, attributing his uncertainty to a traumatic brain injury.
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threatened to have another corrections officer “handle” Plaintiff if he “made a peep”
about Straub’s conduct.
Plaintiff was later placed in the Special Housing Unit (SHU) as punishment for
allegedly minor conduct. He alleges that the former defendants caused him to be
placed in the SHU and/or caused him to be there longer than he otherwise would have
been. He also alleges that Mr. Calvird harassed him while he was in the SHU by
repeatedly asking if he was nervous in a threating manner. Finally, he alleges that Mr.
Calvird told him that he would “ship” him (transfer him to a different institution) if
instructed to do so.
On April 29, 2014, the BOP issued a final denial of Plaintiff’s administrative
FTCA claim concerning Ms. Calvird’s mishandling of his property. On September 4,
2014, Plaintiff filed his complaint in this case. According to an affidavit executed by
Cynthia Suydam, Legal Assistant at FCI Milan, BOP records show that Plaintiff did
not file a BOP grievance concerning the events underlying this lawsuit until October
2014. Suydamn states that the BOP denied the grievance with instructions to provide
more specific information. She further states that there is no record of an appeal from
the denial of this grievance, or of Plaintiff filing a subsequent grievance concerning
the same subject matter.

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ANALYSIS
The Court must review de novo those portions of a Magistrate Judge’s Report
and Recommendation on a dispositive motion to which a party timely objects. 28
U.S.C. § 636(b)(1)(c).
As a preliminary matter, the Court notes that it dismissed former defendants
Straub, Calvird, and Calvird from this case in error. On November 19, 2014, the
Court issued an Order [11] dismissing several former defendants from the case for
Plaintiff’s failure to state a claim against them, but holding that Plaintiff had stated a
claim for First Amendment retaliation against Straub, Calvird, and Calvird under the
doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). On April 2, 2015, the United States filed a Notice of Substitution
[27], purporting to replace the former defendants, under the FTCA, as the sole
defendant on Plaintiff’s state-law tort claims.
The Notice did not acknowledge that the Court had previously construed
Plaintiffs’ complaint to raise a Bivens claim. Bivens actions and FTCA actions are
parallel and complementary; a federal prisoner may maintain a Bivens suit against
individual federal officers even though the underlying allegations could also support
an FTCA suit against the United States. Left Fork Min. Co., Inc. v. Hooker, 775 F.3d
768, 777 (6th Cir. 2014) (citing Carlson v. Green, 446 U.S. 14, 18–19 (1980)).
Nevertheless, on April 8, 2015, the Court issued an Order [30] dismissing Straub,

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Calvird, and Calvird from the case and recognizing “the substitution of the United
States of America for them as the sole defendant to Plaintiff Jack Mann’s complaint.”
The Court now vacates the portion of its prior Order [30] dismissing Plaintiff’s Bivens
claim against Straub, Calvird, and Calvird, pursuant to its inherent power to
reconsider interlocutory orders. In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008)
(citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)).
Plaintiff’s Bivens claim is not reopened, however, because—as the R&R
concluded—Plaintiff’s complaint must be dismissed without prejudice for failure to
exhaust administrative remedies as required by the Prison Litigation Reform Act
(PLRA). “The PLRA provides that a prisoner may not bring an action under federal
law related to prison conditions ‘until such administrative remedies as are available
are exhausted.’” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (quoting 42
U.S.C. § 1997e(a)). “To exhaust his administrative remedies, a prisoner must adhere
to the institutional grievance policy, including any time limitations.” Id. (citing
Woodford v. Ngo, 548 U.S. 81, 90–91, (2006)). This requires “taking advantage of
each step the prison holds out for resolving the claim internally.” Troche v. Crabtree,
--- F.3d ---, 2016 WL 736312, at *3 (6th Cir. Feb. 25, 2016) (quoting Reed–Bey v.
Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)). The PLRA’s exhaustion
requirements apply to Bivens claims. Porter v. Nussle, 534 U.S. 516, 524 (2002);
Wilson v. United States, 93 F. App’x 53, 54 (6th Cir. 2004) (“To raise a Bivens claim,

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a federal prisoner must first raise his grievance through the BOP’s Administrative
Remedy Program.”) (citing 28 C.F.R. §§ 542.10 et seq.).
Plaintiff does not contest Defendant’s assertion that he failed to file a grievance
concerning the alleged incident(s) of retaliation within 20 days of the incident(s), as
required by 28 C.F.R. § 542.14. Nor does he contest Defendant’s assertion that after
he eventually filed such a grievance in an untimely manner, he failed to appeal its
denial.
In his Objections, Plaintiff asserts that he “did, in fact, exhaust his remedy
under the PLRA in the SHU at FCI Allenwood by giving the Remedy to Corrections
Officers in the SHU, thus satisfying the Mailbox Rule.” However, Plaintiff was
imprisoned at FCI Milan when he filed his complaint, and transferred to FCI
Allenwood after. Thus, any administrative remedy he filed at FCI Allenwood was
necessarily filed after he brought this suit, and could not satisfy the requirement that
he exhaust his remedies prior to suit.
Plaintiff states that “[t]he only remedy that is PROVEN to have been exhausted
is the FTCA remedy.” It is unclear if Plaintiff is referring to an administrative FTCA
claim concerning the events at issue in this suit, or to his administrative FTCA claim
concerning Ms. Calvird’s unrelated mishandling of his property. In any event,
Plaintiff does not challenge the R&R’s conclusion that exhaustion of an

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administrative FTCA claim cannot satisfy the PLRA’s separate exhaustion
requirements.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that the Court’s Order Reflecting Substitution of United
States as Defendant [30] is VACATED with respect to its dismissal of Plaintiff’s
Bivens claim against former defendants Straub, Calvird, and Calvird.
IT IS FURTHER ORDERED that the Magistrate Judge’s Reports and
Recommendations [70, 73] are ADOPTED.
IT IS FURTHER ORDERED that Defendant’s unenumerated Motion to
Dismiss under Rule 12(b) [28] is GRANTED. This case is DISMISSED without
prejudice.
IT IS FURTHER ORDERED that Plaintiff’s pending motions
[36, 59, 68, 77, 78] are DENIED as moot.
SO ORDERED.

Dated:

_______________________________
Arthur J. Tarnow
Senior United States District Judge

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