Bennett v. MDOC et al

Filing 74

ORDER granting 63 Motion for reconsideration and denying 37 Motion to dismiss. Signed by District Judge Matthew F. Leitman. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARL BENNETT #298713,
Plaintiff,

Case No. 15-cv-14465
Hon. Matthew F. Leitman

v.
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
_________________________________/
ORDER (1) GRANTING PLAINTIFF’S MOTION FOR
RECONSIDERATION (ECF #63) AND (2) DENYING DEFENDANT
MDOC’S MOTION TO DISMISS (ECF #37)
Plaintiff Carl Bennett is a former inmate of the Michigan Department of
Corrections (the “MDOC”). In this action, Bennett alleges that the MDOC was
deliberately indifferent to his medical needs while he was in its custody. (See Am.
Compl., ECF #34.) The MDOC moved to dismiss Bennett’s claims on the basis that
he failed to exhaust his administrative remedies, as required under 42 U.S.C. §
1997e(a), by not filing a Step III grievance. (See ECF #37.) The Magistrate Judge
issued a Report and Recommendation in which he recommended granting the
MDOC’s motion and dismissing Bennett’s claims (the “R&R”). (See ECF #52.)
Bennett filed objections. (See ECF #50.) The Court thereafter entered an order
overruling Bennett’s objections and dismissing Bennett’s claims against the MDOC.

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(See ECF #61.) Bennett has now filed a motion for reconsideration of that order.
(See ECF #63.) For the reasons stated below, the Court GRANTS Bennett’s Motion
for Reconsideration and DENIES the MDOC’s Motion to Dismiss.
I
A
On December 24, 2015, Bennett filed a pro se prisoner civil-rights Complaint
in which he alleged, among other things, that the MDOC was deliberately indifferent
to his medical needs. (See Compl., ECF #1.) Bennett subsequently obtained counsel,
and his counsel filed an Amended Complaint on his behalf. (See Am. Compl., ECF
#34.)
On December 19, 2016, the MDOC moved to dismiss Bennett’s Amended
Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. (See ECF
#37.)

In its motion, the MDOC argued that Bennett failed to exhaust his

administrative remedies by not filing a Step III grievance. (See id.) In support of its
motion, the MDOC attached a search result report generated by its Step III grievance
database (the “Step III Grievance Report”). (See ECF #37-3.) According to the
MDOC, the Step III Grievance Report reflected that Bennett had not filed a Step III
grievance. (See ECF #37 at Pg. ID 315.)

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Bennett filed a response in opposition to the motion on January 9, 2017. (See
ECF #39.) In the response, Bennett argued, among other things, that the Court
should deny the motion because the MDOC “failed to specify the Rule 12 subsection
that forms the basis for its motion and failed to supply this Court with any legal
analysis demonstrating that its motion meets the applicable Rule 12 standard.” (Id.
at Pg. ID 363.) Bennett next argued that the Step III Grievance Report, standing
alone, failed to establish the MDOC’s failure-to-exhaust defense. (See id. at Pg. ID
364-65.) Bennett cited two district court opinions to support his argument that a
search report, by itself, does not establish that the inmate failed to file a Step III
appeal form. (See id. (citing Jackson v. Snyder, 2014 U.S. Dist. LEXIS 136988, at
*8-9 (W.D. Mich. Sept. 29, 2014) and Harris v. Scott, 2016 U.S. Dist. LEXIS
112393, at *10-11 (W.D. Mich. July 26, 2016)).) In Harris, the Magistrate Judge
concluded that a single “MDOC Prisoner Step III Grievance Report” – unsupported
by any explanatory affidavit – was insufficient to establish the failure-to-exhaust
defense. 2016 U.S. Dist. LEXIS 112393 at *10-11.
The MDOC then filed a reply brief (see ECF #43), and it attached to that brief
an affidavit from Richard D. Russell, Manager of the Grievance Section of the
MDOC. (See Aff. of Richard D. Russell (“Russell Aff.”), ECF #43-2.) In that
affidavit, Russell averred that the Step III Grievance Report was an accurate copy
and that Bennett had not filed any Step III grievance appeals. (See id.)

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The Court referred the MDOC’s motion to the assigned Magistrate Judge. On
July 24, 2017, the Magistrate issued the R&R in which he recommended that the
Court grant the MDOC’s motion and dismiss Bennett’s claims without prejudice due
to Bennett’s failure to exhaust his administrative remedies. (See R&R, ECF #50.)
The Magistrate Judge first found “no fault in Defendant not citing a specific
provision of Fed.R.Civ. P. 12.” (Id. at Pg. ID 681.) The Magistrate Judge then
concluded that the motion was properly brought as an unenumerated Rule 12 motion.
(See id.) The Magistrate Judge finally concluded that “the Step III Grievance Report,
along with Mr. Russell’s affidavit, supports Defendant’s allegation that Plaintiff did
not exhaust any grievance through Step III of the administrative process.” (Id. at
682-83.)
B
On August 7, 2017, Bennett filed timely objections to the R&R (the
“Objections”). (See ECF #52.) In the Objections, Bennett made two primary
objections:
(1) Bennett argued that the MDOC prevented him from exhausting his
administrative remedies. (See id.) In support of that claim, Bennett submitted
an affidavit from his counsel. (See Affidavit of Attorney Carla D. Aikens Esq.
(“Aikens Aff.”), ECF #52-3.) In that affidavit, Bennett’s counsel recounted a

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communication from Bennett in which Bennett told her that the MDOC
frustrated his efforts to exhaust his administrative remedies. (See id.)
(2) Bennett contended that the Magistrate Judge should not have considered
the Russell Affidavit because the MDOC first submitted it as an exhibit to a
reply brief to which Bennett had no opportunity to respond. (See Obj., ECF
#52 at Pg. ID 700.)
On September 25, 2017, the Court entered an order in which it overruled
Bennett’s Objections to the R&R, granted the MDOC’s Motion to Dismiss, and
dismissed Bennett’s claims against the MDOC without prejudice (the “Order”). (See
Order, ECF #61.) The Court overruled Bennett’s Objections for two main reasons.
First, the Court concluded that the Step III Grievance Report and the Russell
Affidavit were sufficient to show that Bennett failed to file the required Step III
grievance. (See id. at Pg. ID 914.) Second, the Court concluded that Bennett had not
submitted any competent evidence that the MDOC frustrated his ability to file a Step
III grievance. (See id. at Pg. ID 915.)

The Court determined that Bennett’s

“counsel’s affidavit – relaying Bennett’s unsworn hearsay statement – is not
competent evidence of what happened to Bennett.” (Id. at Pg. ID 916.)
C
On October 9, 2017, Bennett filed a motion for reconsideration of the Order.
(See ECF #63.) Bennett makes three arguments in the motion. First, Bennett argues

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that the “Court erred when construing Defendant’s FRCP 12 motion as an
‘unenumerated 12(b) motion.’” (Mot. for Reconsid., ECF #63 at Pg. ID 923.)
Bennett contends that a motion based upon a failure to exhaust may not be
characterized as an “unenumerated Rule 12 motion” nor adjudicated within the Rule
12 framework. He directs the Court to Anderson v. Jutzy, 175 F. Supp. 3d 781 (E.D.
Mich. 2016), in which another Judge of this Court rejected the assertion that a motion
based on a failure-to-exhaust-remedies defense may be treated an unenumerated
Rule 12(b) motion and decided within the Rule 12 framework. (See id. at Pg. ID 923,
933-34.)
Second, Bennett contends that the Court should not have considered the
Russell Affidavit because the MDOC submitted it as part of a reply brief and failed
to include the affidavit with its original motion, as required by Federal Rule of Civil
Procedure 6(c)(2). (See id. at 924, 939.) Bennett argues that, without the Russell
Affidavit, the MDOC cannot not meet its burden to show that Bennett failed to
exhaust his remedies. (See id.)
Finally, Bennett contends that the Court erred in (1) refusing to consider his
counsel’s affidavit describing Bennett’s account of his efforts to exhaust and (2) then
concluding, based upon that refusal, that there was no evidence that Bennett had
attempted to exhaust his remedies but was frustrated in that attempt. (See id.at Pg.
ID 936-38.) Bennett submitted his own affidavit with his motion for reconsideration.

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In the affidavit, he states that he informed his counsel that he “was only given the
Step I grievance form” by the MDOC and that “when I asked for the form to proceed
to the next level, instead of giving me the correct form to proceed through the
grievance process, I was told by MDOC that I had made some sort of mistake and I
was given the run-around.” (Affidavit of Carl Bennett (“Bennett Aff.”) at ¶¶ 3-4,
ECF #63-1 at Pg. ID 945.)
After reviewing the motion for reconsideration, the Court entered an order in
which it required the MDOC to respond to the motion. (See ECF #64.) The MDOC
thereafter responded. (See ECF #65.)
On February 12, 2018, the Court held a telephone conference with counsel for
Bennett and the MDOC concerning the motion for reconsideration. During the
telephone conference, the Court expressed concern that the Bennett Affidavit
(submitted in support of the motion) contained numerous errors and vague factual
allegations. The Court then provided Bennett with one final opportunity to submit
an affidavit explaining his attempts to file a Step III grievance and how the MDOC
frustrated those attempts.
On February 21, 2018, Bennett filed a second affidavit in support of his
motion for reconsideration (the “Second Bennett Affidavit”). (See ECF #72.) In the
Second Bennett Affidavit, Bennett swears under oath in relevant part that:

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4. My Step I and Step II grievance forms were repeatedly
submitted but were denied as untimely each time.
5. At the bottom of one of the Step II grievance forms that
was denied, I filled out information to submit a Step III
grievance, and I gave it to the grievance coordinator.
6. The Step II grievance forms are supposed to be sent to
Lansing. I had the correct address but they kept getting
returned to me without even having been opened. I have a
copy of the Step II grievance that I filed with my
complaint. This was never sent to Lansing.
(Second Bennett Aff. at ¶¶ 4-6, ECF #72 at Pg. ID 1027.) On March 5, 2018, the
MDOC filed a response to that affidavit. (See Resp. to Second Bennett Aff., ECF
#73.)
II
To succeed on a motion for reconsideration, “[t]he 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.” Local Rule 7.1(h).
III
Bennett has demonstrated both palpable defects in the Order and that
correcting those defects will result in a different disposition of this case.
Specifically, the Court is persuaded that it erred in treating the MDOC’s motion as
an unenumerated motion to dismiss. Instead, the motion should have been treated
as one for summary judgment. See Anderson, 175 F. Supp. 3d at 788 (concluding
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that motion to dismiss on the basis of failure to exhaust administrative remedies was
improperly brought under Rule 12(b) rather than Rule 56). In addition, the Court
should not have considered the Russell Affidavit because the MDOC first submitted
it as part of a reply brief to which Bennett had no opportunity to respond. See Seay
v. Tennessee Valley Auth., 339 F.3d 454, 481 (6th Cir. 2003).
Bennett has also demonstrated that the correction of these defects would have
resulted in a different disposition of the MDOC’s motion. Without the Russell
Affidavit, the MDOC is not entitled to judgment on its failure-to exhaust defense.
See Harris, 2016 U.S. Dist. LEXIS 112393 at *10-11; see also Jackson, 2014 U.S.
Dist. LEXIS 136988 at *8-9. Moreover, Bennett has presented at least some
evidence that the MDOC may have interfered with his ability to file a Step III
grievance, and under these circumstances – including the lack of an affidavit in the
MDOC’s moving papers and the fact that Bennett has not yet conducted any
discovery – the Court is not inclined to grant summary judgment on the failure-toexhaust defense. The MDOC may ultimately be entitled to summary judgment on
this defense, but the Court will not enter such a judgment now.

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IV
For the reasons described above, the Court GRANTS Bennett’s Motion for
Reconsideration (ECF #63) and DENIES the MDOC’s Motion to Dismiss (ECF
#37). The MDOC shall answer the Amended Complaint by no later than April 18,
2018.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 28, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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