Draughn v. Bouchard et al
OPINION AND ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATION 71 , OVERRULING IN PART AND SUSTAINING IN PART DEFENDANT'S OBJECTIONS TO THE REPORT AND RECOMMENDATION [66, 67], ACCEPTING MAGISTRATE JUDGE DAWKINS DAVIS 9;S RECOMMENDATION 65 , GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PURSUANT TO RULE 12(B)(6) 28 , GRANTING DEFENDANT'S MOTION TO COMPEL 32 , AND DENYING DEFENDANT'S MOTION TO DISMISS UNDER RULE 41(B) 35 AS MOOT. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-14446
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
MICHAEL BOUCHARD, ET AL.,
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
OPINION AND ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION , OVERRULING IN PART AND SUSTAINING IN PART
DEFENDANT’S OBJECTIONS TO THE REPORT AND RECOMMENDATION [66, 67],
ACCEPTING MAGISTRATE JUDGE DAWKINS DAVIS’S RECOMMENDATION ,
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS
PURSUANT TO RULE 12(B)(6) , GRANTING DEFENDANT’S MOTION TO
COMPEL , AND DENYING DEFENDANT’S MOTION TO DISMISS UNDER
RULE 41(B)  AS MOOT
This matter is before the court on Defendant Michael Bouchard’s Motions to
Dismiss [28, 35] and Motion to Compel . Defendant Bouchard moves to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 41(b), as well as
to compel Plaintiff Ronald Mark Draughn to provide discovery. See Dkt. Nos. 28,
Magistrate Judge Stephanie Dawkins Davis issued a Report and
Recommendation that Defendant Bouchard’s Motion to Dismiss under Rule
12(b)(6) be granted in part and denied in part, that his Motion to Dismiss under
Rule 41(b) be denied as moot, and that his Motion to Compel be granted. Dkt. No.
65. Both Defendant Bouchard and Plaintiff objected to Magistrate Dawkins
Davis’s recommendation. See Dkt. Nos. 66–67, 71.
After reviewing the record, and the arguments put forth by the parties, the
Court will overrule the parties objections and ACCEPT Magistrate Judge Dawkins
Davis’s Recommendation , GRANT in part and DENY in part Defendant
Bouchard’s Motion to Dismiss under Rule 12(b)(6) , GRANT Defendant
Bouchard’s Motion to Compel , and DENY as moot Defendant Bouchard’s
Motion to Dismiss under Rule 41(b) .
On November 8th, 2015, the Oak Park police arrested Plaintiff. Dkt. No. 1,
p. 3 (Pg. ID 3). Plaintiff alleges that at the time of his arrest, he was suffering from
several prior injuries for which he was undergoing active treatment. Id. He claims
that he informed booking staff at the Oak Park police station that he suffered from
two herniated discs, severe osteoarthritis, and degenerative bone disease in his
knees, feet, spine, and other parts of his body. Id. at 3–4. He alleges that he also
suffers from hypertension and other illnesses. Id. at 4.
Plaintiff states that he informed the booking officer that he was on
medication for his illnesses and would suffer pain, a worsening of his condition,
and possibly death if he did not receive his prescribed medications. Id. He alleges
that the booking officer stated that Plaintiff would need to wait three days, until his
arraignment and transportation to Oakland County Jail to receive medical
treatment and medication. Id. At the Oak Park facility, Plaintiff claims he was
forced to sleep on the concrete floor for three days. Id.
On November 11, 2015, Plaintiff was transferred to the Oakland County Jail,
where he again had to sleep on the concrete floor for two or three additional days
in a “holding cell/bullpen.” Id. Plaintiff alleges that he informed several deputies at
the Oakland County Jail that he was ill and had not taken his prescribed
medications in three days. Id. at 4–5. He states that he was told he could submit a
written “kite” to medical staff once he was moved from the holding cell to an
upstairs cell in approximately three to seven days. Id. at 5.
Plaintiff states that cockroaches and mice crawled on him while he was
sleeping on the concrete floor of the holding cell for the following three days. Id.
When he complained, Plaintiff alleges he was told that he would be moved upstairs
in a few days. Id.
On November 14, 2015, Plaintiff was moved from the holding cell to a tenman cell upstairs. Id. He claims that he was told he had to sleep on the floor on a
thin mattress. Id. Plaintiff alleges he informed the deputies that he was in pain and
had not received his medication in nearly a week. Id.
On November 15, 2015, Plaintiff was called to the jail healthcare station
where he was allegedly told by a nurse that he could not be given his pain
medications because the jail had a policy banning those specific medications. Id. at
5–6. On Friday, December 11, 2015, Plaintiff was again called out to the jail
healthcare station, where a physician allegedly told him the medical services
contractor had a policy of forbidding any of the medications prescribed by his
physician. Id. at 6.
On July 14, 2016, an Oakland County jury found Plaintiff guilty of felonious
assault and four weapons charges from an offense that took place on November 8,
2015. People v. Draughn, No. 2015–256768 (Oakland Cnty. Cir. Ct. July 14,
2016) (unpublished). Plaintiff was sentenced on September 1, 2016 and is currently
incarcerated at Lakeland Correctional Facility. See Offender Tracking Information
System (OTIS) at http://mdocweb.state.mi.us/OTIS2/otis2.html.1
Plaintiff claims he filed numerous grievances while in jail, which have either
been destroyed by jail staff or gone unanswered. Dkt. No. 1, p. 6 (Pg. ID. 6).
Plaintiff argues that defendants have shown deliberate indifference to his medical
needs, have permitted a vermin infestation in his cell, and denied him hygiene
products and changes of clothing. Id. Plaintiff alleges that Defendant Bouchard is
The Court is permitted to take judicial notice of the Michigan Department of
Corrections’ Offender Tracking Information System (OTIS). See Ward v.
Wolfenbarger, 323 F. Supp. 2d 818, 821, n.3 (E.D. Mich. 2004).
the “supervising sheriff” of the facility where he was housed and the deputies and
medical staff are following his express directives, policies, and orders, which have
deprived plaintiff of his constitutional rights. Id. at 7.
III. LEGAL STANDARD
When a party files timely objections to a report and recommendation, the
Court must “make a de novo determination of those portions of the report or
specified findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). “This de novo review requires the court to re-examine all of the
relevant evidence previously reviewed by the magistrate judge in order to
determine whether the recommendation should be accepted, rejected, or modified
in whole or in part.” Cole v. Comm’r of Soc. Sec., 105 F. Supp. 3d 738, 741 (E.D.
Mich. 2015) (citing 28 U.S.C. § 636(b)(1)).
“The filing of objections provides the district court with the opportunity to
consider the specific contentions of the parties and to correct any errors
immediately,” United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981),
enabling the court “to focus attention on those issues—factual and legal—that are
at the heart of the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985).
“[O]nly those specific objections to the magistrate’s report made to the district
court will be preserved for appellate review; making some objections but failing to
raise others will not preserve all the objections a party may have.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit
Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)) (alteration in
A. Defendant’s Objections
The Magistrate’s refusal to consider Plaintiff’s grievance records
frustrates the purpose of the PLRA
Defendant’s first objection relates to the Magistrate’s determination that the
exhibits attached to Defendant’s Motion to Dismiss should not be considered in
light of the Rule 12(b)(6) standard. [cite]. The Sixth Circuit has stated, that
“[w]hen a court is presented with a Rule 12(b)(6) motion, it may consider the
Complaint and any exhibits attached thereto, public records, items appearing in the
record of the case and exhibits attached to defendant’s motion to dismiss so long as
they are referred to in the Complaint and are central to the claims contained
therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.
2008). Magistrate Dawkins Davis determined in reliance on Jones v. Bock, 549
U.S. 199, 216 (2007) that Plaintiff was not required to demonstrate he had
exhausted his administrative remedies in his complaint. Dkt. No. 65, p .11 (Pg. ID
Rather, “a prisoner’s failure to exhaust administrative remedies is an
affirmative defense, which a defendant must plead and prove.” Anderson v. Jutzy,
175 F. Supp. 3d 781, 786 (E.D. Mich. 2016) (citing Jones, 549 U.S. at 216). This
affirmative defense may be raised by a motion for summary judgment if the
defendant successfully demonstrates that no genuine issue of material fact exists
and the defendant is entitled to judgment as a matter of law on that defense. Id. at
Plaintiff has alleged that Defendants have not submitted to the Court all of
the grievances that he filed concerning his claims. See Dkt. No. 52. The Court will
not make a determination regarding exhaustion of administrative remedies on a
Rule 12(b)(6) motion containing what is alleged to be an incomplete record. See
Passa v. City of Columbus, 123 F. App’x 694, 697 (6th Cir. 2005) (“Further, in
general a court may only take judicial notice of a public record whose existence or
contents prove facts whose accuracy cannot reasonably be questioned.”). The
Court lacks evidence that definitively proves that the grievances Defendant
attached are the complete and accurate record of all grievances he filed on these
issues. Further discovery may elucidate whether Plaintiff filed grievances other
than those attached to the 12(b)(6) motion and whether jail staff took any action
that prevented Plaintiff from exhausting his administrative remedies. Defendant is
free to reassert this affirmative defense on summary judgment.
The Court overrules Defendant Bouchard’s first objection.
Undertaking the Ross analysis is unnecessary if Plaintiff’s
grievance records are considered
This second objection essentially reiterates Defendant’s prior objection to
the Magistrate’s refusal to consider evidence outside of the Complaint on a Rule
12(b)(6) motion. The Court agrees with Magistrate Dawkins Davis that the parties
did not have an opportunity to brief the issues that the Supreme Court raised in
Ross v. Blake, 136 S. Ct. 1850 (2016), and that those issues would be better
addressed in a motion for summary judgment.
Accordingly, the Court overrules Defendant Bouchard’s second objection.
The Magistrate did not address Plaintiff’s complaints regarding
Defendant Bouchard’s third objection argues that the Magistrate failed to
address Plaintiff’s claims regarding jail conditions within the evaluation of the
official capacity claim, citing only his medical claim. Dkt. No. 67, p. 9 (Pg. ID
The Eighth Amendment can be violated by conditions of confinement in a
jail when (1) there is a deprivation that is, from an objective standpoint,
sufficiently serious that it results “in the denial of ‘the minimal civilized measure
of life’s necessities,’ ” and (2) where prison officials are deliberately indifferent to
this state of affairs. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Plaintiff’s Complaint mentions a policy or custom prohibiting him from
accessing pain medications prescribed by his former physician. Dkt. No. 1, p. 6
(Pg. ID 6). Plaintiff’s Complaint lacks similar allegations regarding a policy or
custom as to the jail conditions. Plaintiff alleges that while sleeping on the floor of
the holding cell, mice and cockroaches crawled over him and into his clothing. Id.
at 5. He does not allege that the problem continued when he was moved upstairs to
a different cell. See id. He does not allege that Defendant Bouchard instituted any
policies or customs regarding the vermin infestation. Plaintiff briefly mentions that
he was denied hygiene products and a change of clothing, id. at 6, but similarly
does not allege that this was the result of a custom or policy. Thus, Plaintiff has not
pled that Defendant Bouchard had a policy or custom that resulted in a violation of
Plaintiff’s constitutional rights regarding the condition of his confinement, other
from the medication policy.
The Court will sustain Defendant Bouchard’s third objection, and dismiss
any official capacity claims against Bouchard related to the jail conditions without
B. Plaintiff’s Objections
Plaintiff wants to pursue discovery to establish individual capacity
claims against Defendant Bouchard
In his first objection, Plaintiff argues that the Magistrate erred in finding that
his individual capacity claims against Defendant Bouchard should be dismissed.
Dkt. No. 71, p. 2 (Pg. ID 564). Plaintiff cites to three opinions from other circuits
for the principle that he should be allowed to pursue limited discovery to establish
the factual predicates of his claim against Defendant Bouchard. Id.
Review of Plaintiff’s Complaint verifies that the Magistrate was correct in
determining that Plaintiff has not pled any facts showing that Defendant Bouchard
was personally involved in the deprivation of Plaintiff’s civil rights. Dkt. No. 65, p.
15 (Pg. ID 500). Plaintiff’s allegations rest on the fact that Defendant Bouchard
was the supervising sheriff of Oakland County, and that staff members were
following his “express directives, policies, and orders of this defendant in
depriving [P]laintiff of his constitutional rights.” Dkt. No. 1, p. 7 (Pg. ID 7).
Plaintiff’s broad and conclusory allegation that Defendant personally directed and
promulgated unconstitutional policies does not include facts indicative of direct
participation or encouragement that is necessary for an individual capacity claim.
See Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) (“Supervisory
officials are not liable in their individual capacities unless they ‘either encouraged
the specific incident of misconduct or in some other way directly participated in
Plaintiff failed to supply facts in his Complaint that supported his legal
conclusions regarding Defendant Bouchard’s personal involvement in the alleged
deprivation of Plaintiff’s rights. Thus, the Court will overrule Plaintiff’s first
Plaintiff wants Defendant to provide him a new medical release
form and to be provided with a notary fee waiver and free paper,
envelopes, and stamps due to his indigent status
In his second objection, Plaintiff requests that Defendant mail him another
medical release form, and that the Michigan Department of Corrections (MDOC)
provide him with free notary services and legal materials. Dkt. No. 71, p. 3 (Pg. ID
565). To the extent that Plaintiff seeks free notarization services, envelopes,
stamps, or photocopies, his objection is overruled.
It is well established that prisoners have a constitutional right of access to
the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). Bounds ordered the states to
provide indigent inmates with paper and pen to draft legal documents, notarial
services, and stamps. Id. at 824–25. Michigan’s Department of Corrections
(MDOC) policy directives state that all facilities “shall have available a reasonable
quantity of free writing materials (i.e., pencils or pens; paper) for use by
prisoners.” MDOC Policy Directive 05.03.118(G). Where a prisoner qualifies for
indigent status, that prisoner is to be loaned the funds to purchase envelopes and
the postage equivalent for mailing a maximum of ten one-ounce first class letters
during each month he is on indigent status. MDOC Policy Directive 04.02.120(H).
The Sixth Circuit has held that prisoners are not prevented from accessing the
courts by this policy, which allows indigent prisoners ten stamps per month to
apply to uninspected, sealed letters. Bell-Bey v. Williams, 87 F.3d 832, 838–39 (6th
Cir. 1996). Policy directives also instruct that prisoners shall have access to a
notary public, for a charge of $1.00 for each document notarized. MDOC Policy
Directive 05.03.116(G). Should a prisoner lack the funds to pay for the notary
service, the indigent prisoner shall receive a loan from the Prisoner Benefit Fund.
Accordingly, Plaintiff’s indigence does not prevent his compliance. Plaintiff
may apply to his Warden to request placement on the indigent list, so that he can
secure loans to pay for notarization of documents and necessary legal materials,
including envelopes and stamps.
Plaintiff’s second objection is overruled in part. Defendants are ordered to
provide Plaintiff with a new medical release form. Plaintiff is ordered to submit a
signed and notarized copy of the medical release form within 21 days of this order.
IT IS HEREBY ORDERED that Plaintiff’s  Objections to the
Magistrate’s Report and Recommendation are OVERRULED.
IT IS FURTHER ORDERED that Defendant Bouchard’s [66, 67]
Objections to the Magistrate’s Report and Recommendation are OVERRULED in
part and SUSTAINED in part.
IT IS FURTHER ORDERED that the Magistrate’s Report and
Recommendation  is ACCEPTED.
IT IS FURTHER ORDERED that Defendant Bouchard’s Motion to
Dismiss Pursuant To Rule 12(b)(6)  is GRANTED in part and DENIED in
IT IS FURTHER ORDERED that Plaintiff’s official capacity claim
against Defendant Bouchard as to jail conditions, including allegations of vermin
infestation, insufficient hygiene products, and lack of extra clothing, is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that Defendant Bouchard’s Motion to
Dismiss Pursuant To Rule 41(b) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendant Bouchard’s Motion to
Compel  is GRANTED.
IT IS FURTHER ORDERED that Defendant Bouchard shall mail Plaintiff
a new copy of the medical release form.
IT IS FURTHER ORDERED that Plaintiff shall serve to Defendant
Bouchard’s counsel a signed and notarized copy of the medical release within 21
days of the entry of this order, or sanctions may follow.
IT IS SO ORDERED.
March 30, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
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