Ayotte v. Stemen et al

Filing 119

ORDER Adopting Report and Recommendation; Overruling 118 Objections and Dismissing Defendants Nueberger (Lt.), A. Benson (F/S Director) and Bridges (H/I). Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL AYOTTE,
Case No. 15-13826
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
STEMEN, ET AL.,

U.S. MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [115]; OVERRULING
PLAINTIFF’S OBJECTIONS [118]; AND DISMISSING DEFENDANTS NEUBERGER,
BRIDGES, AND BENSON
Plaintiff Paul Ayotte commenced this prisoner civil rights action on October
26, 2015. Defendants filed a Motion for Summary Judgment Based on Exhaustion
[63] on April 7, 2017. On February 8, 2018, the Court ordered the Magistrate Judge
to conduct a bench trial on the issue of exhaustion. Dkt. #83. The Magistrate Judge
held a bench trial on July 10, 2018 and August 23, 2018.
On February 27, 2019, the Magistrate Judge issued a Report and
Recommendation [115] (“R&R”) recommending that this Court find that
Defendants have not met their burden of establishing that Plaintiff failed to exhaust
his administrative remedies with respect to Defendant Stemen, but that Defendants
have met their burden of establishing that Plaintiff failed to exhaust his
administrative remedies with respect to Defendants Anna Benson, Peter Neuberger,
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and William Bridges. The R&R further recommended dismissing Defendants
Benson, Neuberger, and Bridges from this action.
Plaintiff, through counsel, filed Objections [118] to the R&R on March 13,
2019. This Court reviews de novo the portions of the R&R to which objections have
been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
In Objection No. 1, Plaintiff objects to the R&R’s recommendation to dismiss
Defendants Benson, Neuberger, and Bridges on the grounds that he was not required
to name each individual defendant at the misconduct hearing in order to properly
exhaust. Plaintiff correctly notes that neither the Prison Litigation Reform Act
(“PLRA”) nor Michigan Department of Corrections (“MDOC”) Policy imposes a
“name all defendants” requirement. See Jones v. Bock, 549 U.S. 199, 217 (2007).
But the issue before the Court is whether Plaintiff satisfied the “proper exhaustion”
requirement, not whether he named each defendant at the misconduct hearing. See
id. at 219 (“We do not determine whether the grievances filed by petitioners satisfied
the requirement of ‘proper exhaustion,’ but simply conclude that exhaustion is not
per se inadequate simply because an individual later sued was not named in the
grievances.”).
The Supreme Court has identified two purposes behind the PLRA’s
exhaustion requirement: 1) to give the “agency an opportunity to correct it own
mistakes;” and 2) to promote efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006).
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The Court disagrees with Plaintiff’s claim that his statements to Defendant
Neuberger during the misconduct hearing fulfilled these objectives. As the
Magistrate Judge explained, “[Plaintiff] has consistently made it clear, at every level
of this process, that Stemen is the only person involved in the purported setup.” R&R
at 20. The crux of Plaintiff’s defense at the misconduct hearing was that Stemen had
set him up by putting the hamburgers in his coat. Plaintiff not only failed to name
any other person involved in the setup, but also failed to make any allegations
concerning Stemen’s coordination with other officers for purposes of asserting his
conspiracy claim. Objection No. 1 is overruled.
In Objection No. 2, Plaintiff objects to the R&R’s recommendation to dismiss
Defendants Benson, Neuberger, and Bridges on the grounds that the exhaustion
process was unavailable to him. To support this argument, Plaintiff relies on Ross v.
Blake, 136 S. Ct. 1850 (2016) in which the Supreme Court held that an
administrative procedure may be considered unavailable for purposes of excusing a
prisoner’s failure to exhaust when:
[1] it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates . . . .
[2] [it is] so opaque that it becomes, practically speaking, incapable of
use—i.e., some mechanism exists to provide relief, but no ordinary
prisoner can navigate it . . . . [or] [3] prison administrators thwart
inmates from taking advantage of it through machination,
misrepresentation, or intimidation.
Id. at 1853-54.
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None of the circumstances described in Ross applies here. MDOC procedures,
as interpreted by the Sixth Circuit, provide that in order for a prisoner to exhaust a
claim that he was issued a misconduct ticket based on retaliation, he must raise this
argument at the first misconduct hearing. Siggers v. Campbell, 652 F. 3d 681, 694
(6th Cir. 2011). The fact that Plaintiff successfully raised his retaliation claim as to
Stemen at the hearing wholly undermines his position that MDOC’s exhaustion
procedures “operate as a simple dead end” or are “incapable of use.” Furthermore,
Plaintiff offers no evidence to suggest that MDOC administrators somehow thwarted
him from taking advantage of the opportunity to raise his staff retaliation claim at
the misconduct hearing. That Plaintiff failed to use the exhaustion process presented
to him does not render that process unavailable. Objection No. 2 is overruled.
Accordingly,
IT IS ORDERED that the R&R [115] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections [118] are
OVERRULED.
IT IS FURTHER ORDERED that Defendants Benson, Neuberger, and
Bridges are HEREBY DISMISSED.
SO ORDERED.

Dated: March 26, 2019

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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