Cary v. Stewart et al
Filing
55
OPINION AND ORDER DENYING 46 Response (Motion for Reconsideration) filed by Bryan Cary. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRYAN CARY,
Plaintiff,
v.
Case No. 17-13632
ANTHONY STEWART, et al.,
Defendants.
/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
On September 25, 2018, the court issued a ruling adopting and affirming the
Report and Recommendation by Magistrate Judge Dawkins Davis and dismissing
Plaintiff’s civil rights complaint. (Dkt. #44.) The complaint asserted several claims
related to Defendants’ alleged interference with Plaintiff’s ability to practice his chosen
religion—Native American Traditional Ways. Plaintiff filed a “response” to the court’s
order, which the court will construe as a motion for reconsideration.
I. DISCUSSION
To prevail on a motion for reconsideration, Plaintiff “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.” E.D. Mich. LR 7.1(h)(3); see also Indah v.
U.S. Sec. & Exch. Comm’n, 661 F.3d 914, 924 (6th Cir. 2011) (explaining that a motion
for reconsideration in the Eastern District of Michigan requires “the movant [to] show
both that there is a palpable defect in the opinion and that correcting the defect will
result in a different disposition of the case”). “A ‘palpable defect’ is a defect which is
obvious, clear, unmistakable, manifest, or plain.” Hawkins v. Genesys Health Systems,
704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (Borman, J.) Plaintiff’s motion points to two
asserted errors.
First, Plaintiff argues that the court incorrectly stated that he had failed to file
discovery timely. (Dkt. #46, PageID 501.) Plaintiff misinterprets the court’s order. The
court stated that Plaintiff failed to timely supplement his response to Defendants’ motion
to dismiss after the court permitted additional discovery on the limited issue of
administrative exhaustion (Dkt. #25.) Regardless, Plaintiff fails to explain how altering
the court’s summary of this case’s procedural history would impact the court’s final
ruling—it would not.
Plaintiff’s second argument relates to the issue of exhaustion. It appears that
Plaintiff bases his retaliation claim on grievance JCF-17-07-1561-17G. (Dkt. #24,
PageID 272.) Plaintiff is correct that the court erred in stating that grievance JCF-17-071561-17G did not appear on the Step III Grievance Report. (Dkt. #44, PageID 496.) This
grievance in fact does appear on the updated Step III Grievance Report, which states
that it was denied and closed. (Dkt. #19, PageID 182.) Based on Plaintiff’s own
statements, however, grievance JCF-17-07-1561-17G does not state a retaliation claim.
Plaintiff’s response explains: “Plaintiff filed grievance #1707159117g about his sacred
herbs being taken, and some destroyed. The herbs were returned. However during the
investigation of Step II MDOC officials in response to the grievance, had the herbs
retaken.” (Dkt. #24, PageID 272.) Based on Plaintiff’s own version of events, which the
court credits for these purposed, his retaliation claim did not arise until after he filed
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grievance JCF-17-07-1561-17G.
To properly exhaust a claim, Defendant must exhaust his administrative
remedies for each discrete grievance. See Bean v. Tribley, 2013 WL 3755768, *2 (W.D.
Mich. 2013) (summarizing Sixth Circuit precedent that administrative exhaustion
requires inmates to file grievances for each discrete event forming the basis of a
complaint). Grievance JCF-17-07-1561-17G was filed before the alleged retaliation—the
re-confiscation of herbs after they had earlier been returned—occurred. Therefore, the
initial taking of Plaintiff’s herbs, the basis of grievance JCF-17-07-1561-17G, and the
retaking of Plaintiff’s herbs constitute separate actions and require Plaintiff to exhaust
the grievance process for each claim. See Siggers v. Campbell, No. 07-12495, 2008 WL
5188791, at *4 (E.D. Mich. Dec. 10, 2008) (“In order to have exhausted such retaliation
claims, [plaintiff] must have indicated that he was complaining of retaliation when he
exhausted his administrative remedies at the prison.”), aff’d 652 F.3d 681 (6th Cir.
2011). Plaintiff does not allege that he exhausted a separate grievance related to the
retaking of his herbs. Contrary to Plaintiff’s assertion, filing a grievance for retaliation
based on the retaking of his herbs would not constitute a duplicative grievance.
In sum, Plaintiff is correct that grievance JCF-17-07-1561-17G appears on the
updated Step III Grievance Report. Nevertheless, taking Plaintiff’s version of events as
true, grievance JCF-17-07-1561-17G does not form the basis for a retaliation claim. Its
inclusion on the Step III Grievance Report does not change the court’s conclusion that
Plaintiff failed to exhaust administrative remedies on his retaliation claim.
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II. CONCLUSION
Plaintiff does not show that the court’s order adopting the Report and
Recommendation contains a palpable defect that impacted the resolution of
Defendants’ motion for judgment.
Accordingly, IT IS ORDERED that Plaintiff’s motion for reconsideration (Dkt. #46)
is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: December 18, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, December 18, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(810) 292-6522
S:\Cleland\Cleland\HEB\Civil\17-13632.CARY.deny.reconsideration.HEB.docx
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