Doe v. Anderson et al

Filing 131

ORDER granting 91 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE, ET AL.,

Case No. 15-13852
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiffs,
v.

U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

ANDERSON, ET AL.,
Defendants.
/

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
RECONSIDERATION [91]
Plaintiffs filed a complaint against Defendants on November 2, 2015 [1],
alleging First Amendment retaliation under §1983. Plaintiffs filed a second
amended complaint on February 18, 2016 [22], adding facts and removing the
Michigan Department of Corrections as a party. Defendants filed a Motion for
Summary Judgment based on a failure to exhaust remedies was filed on March 8,
2016 [29]. Plaintiffs responded on March 29, 2016 [33] and Defendants replied on
April 29, 2016 [40]. The Court held a hearing on the Motion on July 25, 2016. The
Motion for Summary Judgment was granted in part and denied in part on March
31, 2017.

Page 1 of 8

Plaintiffs filed a Motion for Reconsideration on April 14, 2017 [91]. For the
reasons stated below, this Motion is GRANTED in part as to John Doe 2’s RMI1505-10978-19D grievance against Defendants Hoogewind, Rogers and Schooley,
and John Doe 8’s grievance IBC-1511-3121-03B against Arp; and DENIED in
part as to John Doe 2’s ICF 15-1617-03b against Defendants Hoogewind, Rogers
and Schooley and John Doe 12’s grievances against Defendants Stambaugh,
Conklin and Marten.
Local Rule 7.1(h)(3) provides that:
Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or reconsideration
that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the motion
have been misled but also show that correcting the defect will
result in a different disposition of the case.
See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir.
2003). A Motion for Reconsideration “is not properly used as a vehicle to re-hash
old arguments or to advance positions that could have been argued earlier but were
not.” Smith v. Mount Pleasant Schools, 298 F. Supp. 2d 636, 637 (E.D. Mich.
2003) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 357,
374 (6th Cir. 1998); see also Scottsdale Insur. Co. v. Flowers, 513 F.3d 546, 553
(6th Cir. 2008) (“We have found issues to be waived when they are raised for the
Page 2 of 8

first time in motions for reconsideration.”). “The decision whether to grant
reconsideration lies largely within the discretion of the court.” Yuba Natural Res.,
Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990).
Plaintiff requests that the Court reconsider the portion of its opinion and
order dismissing Plaintiff John Doe 2 and Defendants Rogers, Hoogewind and
Schooley; dismissing John Doe 8 as to his claims against Defendant Arp; and
dismissing John Doe 12’s complaints against Defendants Stambaugh, Conklin and
Martens.
1. JOHN DOE 2
The Court determined that John Doe 2 failed to exhaust his administrative
remedies by not appealing grievance RMI-1505-10978-19D to Step III after being
advised that “your grievance is considered resolved at Step II,” and not appealing
grievance ICF-2015-10-1617-03B to Step II after being informed that the
grievance was resolved at Step I. [84 at 14, 16].
While Plaintiff raised this defense in the response brief, there was no
precedent provided to support that position. Now, Plaintiff clearly cites to both
Eastern District cases and several circuit court cases that support the proposition
that a grievance may be deemed exhausted notwithstanding the lack of an appeal.
See, e.g., Yowell v. Booker, 2014 WL 1096398, at *6 (E.D. Mich. Mar. 19, 2014);
Page 3 of 8

Manning v. Dolce, No. CIV.A09-13840, 2010 WL 3515718, at *3 (E.D. Mich. July
12, 2010), report and recommendation adopted, No. 09-CV-13840-DT, 2010 WL
3515715 (E.D. Mich. Sept. 8, 2010) (finding that an appeal beyond Step I was
unnecessary where Plaintiff’s grievance was favorably resolved by prison officials
at Step I); Patterson v. Stanley, 574 Fed. Appx. 510, 513 (5th Cir. 2013); Toomer
v. BCDC, 537 Fed. Appx. 204, 206 (4th Cir. 2013); Davis v. Correctional Medical
Servs., 760 F. Supp. 2d 469, 477, aff’d. 436 Fed. Appx. 52 (3rd Cir. 2011); Brown
v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005); Abney v. McGinnis, 380 F.3d 663, 669
(2nd Cir. 2004); Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th Cir.
2004); Dixon v. Page, 291 F.3d 485, 490-91 (7th Cir. 2002).
The Court agrees with the logic found in the Eastern District cases that if a
grievant is not dissatisfied with the resolution, the grievance is considered
exhausted and there is no need to proceed with any further appeal. See Yowell,
2014 WL 1096398, at *6. Therefore, the Court finds that John Doe 2’s RMI-150510978-19D is deemed properly exhausted as to Defendants Hoogewind, Rogers
and Schooley.
As to grievance ICF 15-1617-03b against Defendants Hoogewind, Rogers
and Schooley, the Court previously stated that John Doe 2 did not exhaust this
grievance because it was resolved and no named Defendants were placed on notice
Page 4 of 8

of any new or continuing grievance. Plaintiff argues that Defendants were placed
on notice because the John Doe 2 states in his grievance that “I reported and made
statements to staff over at RMI” and this sufficiently put Defendants Hoogewind,
Rogers and Schooley on notice. Further, Plaintiff argues that since the grievance
was responded to on the merits, Defendants have waived any procedural objection
to the grievance. Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010).
The Court does not agree with Plaintiff. First, there is no link to Defendants
Hoogewind, Rogers and Schooley to be found in the grievance. If Plaintiff’s
argument is that the Court had previously deemed these Defendants to be on
notice, that argument is unavailing here because the substance of the new
grievance, concerning alleged physical abuse by other prisoners and being denied
protection, has no relation to the grievance concerning missing property at issue at
RMI. There is nothing to suggest that the mere mention of staff at RMI, which
certainly consists of more than Hoogewind, Rogers and Schooley, is sufficient to
place them on notice regarding this grievance. Further, the grievance clearly
concerns the actions at ICF, including specific mention of KITES sent to Miniard
that were ignored. The mention reporting threats to staff at RMI is unrelated to the
specific substance of the grievance at ICF other than to illustrate an on-going
problem. Therefore, there was no reason for the grievance to be considered
Page 5 of 8

procedurally defective given the detailed context of the problem at ICF. Thus, this
grievance is deemed unexhausted as to Defendants Hoogewind, Rogers and
Schooley for failing to place them on notice.
2. JOHN DOE 8
Plaintiff requests that the Court reconsider its dismissal of John Doe 8’s
grievance against Defendant Arp, IBC-1511-3121-03B, filed on November 16,
2015 in light of the recent Sixth Circuit decision Mattox v. Edelman, 851 F.3d 583
(6th Cir. 2017), reh’g denied (Apr. 6, 2017).
The Court found that John Doe 8’s grievance against Defendant Arp, IBC1511-3121-03B, placed Defendant Arp on notice of his retaliatory action and also
found that a question of fact existed as to whether there was adequate exhaustion.
However, the Court ultimately dismissed John Doe 8’s grievance against
Defendant Arp because even if the grievance was found to be exhausted, this
exhaustion did not occur until after the complaint was filed, in fact the grievance
was not even filed under after the complaint was filed.
Mattox found that:
If a prisoner exhausts some of his claims after a proper federal
lawsuit has been filed as to other claims, and then moves to
amend his complaint to add the newly exhausted claims, the
policy behind the PLRA’s exhaustion requirement is still met
because prison officials will have had a fair opportunity to
address the new claims on the merits.
Page 6 of 8

851 F.3d at 592. This case is distinguishable from Mattox because John Doe 8 did
not exhaust any claims before the filing of the complaint. However, the Court is
persuaded by Plaintiff’s argument that since this case concerns multiple Plaintiffs,
many of which had filed grievances and exhausted them against Defendant Arp
prior to the complaint being filed, that the aim of Mattox is served by not
dismissing John Doe 8’s grievance against Arp. Therefore, John Doe 8’s grievance
IBC-1511-3121-03B against Arp is not dismissed.
3. JOHN DOE 12
The Court found that John Doe 12’s grievances against Defendants
Stambaugh, Conklin and Marten were not properly exhausted because they were
filed untimely. Plaintiff argues that John Doe 12’s grievances against Defendants
Stambaugh, Conklin and Martens are not untimely, citing evidence found during
discovery that shows that under federal regulation 28 C.F.R. §115.52(b)(i),
allegations related to sexual abuse, or retaliation stemming from sexual abuse
cannot have a time limit imposed on when they can be brought. Under MDOC
policy P.D. 03.03.140, this waive of a timeliness requirement also applies to claims
for retaliation for the reporting of sexual abuse.
Plaintiff does not attempt to describe why the grievance at issue relates to
retaliation stemming from sexual abuse, and in fact does not even identify the
Page 7 of 8

specific grievance or exhibit that they are requesting the Court reconsider. Upon
reading of the Order granting summary judgment, the Court determines that these
grievances are properly identified as located at docket number 33, exhibit 12-J.
Upon review of these grievances, there is no evidence that there is any mention of
any retaliation due to sexual assault or the reporting of sexual assault. Therefore,
these grievances remain unexhausted and dismissed from the case.
Accordingly,
IT IS ORDERED that the Motion for Reconsideration [91] is GRANTED
in part as to John Doe 2’s RMI-1505-10978-19D grievance against Defendants
Hoogewind, Rogers and Schooley, and John Doe 8’s grievance IBC-1511-312103B against Arp; and DENIED in part as to John Doe 2’s ICF 15-1617-03b
against Defendants Hoogewind, Rogers and Schooley and John Doe 12’s
grievances against Defendants Stambaugh, Conklin and Marten.
IT IS FURTHER ORDERED that Defendants Hoogewind, Rogers and
Schooley are reinstated as Defendants in this matter.
SO ORDERED.

Dated: October 18, 2017

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

Page 8 of 8