Neal v. Fronczak et al

Filing 40

OPINION AND ORDER adopting Magistrate Judge's July 29, 2021 Report and Recommendation and granting motion for summary judgment by defendants Chapman and Golson. Signed by District Judge Linda V. Parker. (TTho)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WESLEY NEAL, JR.,
Plaintiff

,

Civil Case No. 20-12498
Honorable Linda V. Parker

v.
N. FRONCZAK, WILLIS CHAPMAN,
and MONA GOLSON,
Defendants.
__________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S JULY 29,
2021 REPORT & RECOMMENDATION AND GRANTING MOTION FOR
SUMMARY JUDGMENT BY DEFENDANTS CHAPMAN AND GOLSON
Plaintiff, a Michigan Department of Corrections prisoner, commenced this
pro se lawsuit against Defendants on September 3, 2020, alleging that he was
denied access to the prison law library in violation of his constitutional rights. On
March 22, 2021, Defendants Willis Chapman and Mona Golson filed a motion for
summary judgment on the basis of exhaustion. (ECF No. 16.) The late Honorable
Arthur J. Tarnow, to whom the case was then assigned, referred the motion to
Magistrate Judge David R. Grand for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B).
On July 29, 2021, Magistrate Judge Grand issued a report and
recommendation (“R&R”) recommending that the Court grant the motion. (ECF

No. 30.) In the R&R, Magistrate Judge Grand recommends not only the dismissal
of Plaintiff’s claims against Chapman and Golson on exhaustion grounds but also
Plaintiff’s claims against all Defendants related to Plaintiff’s second grievance at
issue: MRF-20-05-730-28e (“MRF-730”). (Id. at Pg ID 234.) At the conclusion of
the R&R, Magistrate Judge Grand advises the parties that they may object to and
seek review of the R&R within fourteen days of service upon them. (Id. at Pg ID
234-35.) He further specifically advises the parties that “[f]ailure to file specific
objections constitutes a waiver of any further right to appeal.” (Id. at Pg ID 234)
Neither party filed objections to the R&R. However, on October 8, 2021,
Plaintiff sent a letter to the Clerk of the Court inquiring about the status of his
claim against Defendant Fronczak, which Magistrate Judge Grand found exhausted
in Plaintiff’s grievance labeled MRF-20-02-182-14e (the “MRF-182 Grievance”).
Thereafter, Magistrate Judge Grand issued a scheduling order (ECF No. 33) and
Plaintiff and Defendant Fronczak appear to have been engaging in discovery. The
matter was reassigned from Judge Tarnow to the undersigned on February 16,
2022, pursuant to Administrative Order 22-AO-007.
The Court has carefully reviewed the R&R and concurs with the conclusions
reached by Magistrate Judge Grand. As Plaintiff concedes in his October 8 letter,
his claim in MRF-730 was untimely and therefore unexhausted. (ECF No. 31 at
Pg ID 236.) With respect to the exhaustion of that grievance as it relates to
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Fronczak, ordinarily a district court should not sua sponte raise and consider an
affirmative defense like exhaustion, see Fitch v. Gonzales, 425 F. App’x 440, 441
(6th Cir. 2011), and Defendant Fronczak was not identified as one of the movants
seeking summary judgment on exhaustion grounds, (see ECF No. 16 at Pg ID 83
(“MDOC Defendants Willis Chapman and Mona Colson . . .bring this motion”);
id. at Pg ID 87 (setting forth the issues to be presented and asking, only: “Should
this Court grant summary judgment for Chapman and Golson and dismiss them
from this lawsuit?”); id. at Pg ID 97 (“Neal filed only two Step II grievances
relevant to this lawsuit, and those grievances exhausted claims against only
Fronczak”); id. at Pg ID 99 (in conclusion, stating that Plaintiff had failed to
exhaust his remedies “against MDOC Defendants Golson and Chapman” and
seeking summary judgment and dismissal of “Golson and Chapman from this
lawsuit”).) Nevertheless, the Sixth Circuit has held that a district court may sua
sponte dismiss a claim against one defendant based on an affirmative defense
where co-defendants raised the issue and therefore put the plaintiff on notice that
he had to come forward with evidence to show that the defense was inapplicable.
See Thomas v. Mahoning Cnty. Jail, No. 16-3495, 2017 WL 3597428, at *2 (6th
Cir. Mar. 21, 2017); see also Moore v. Westcomb, No. 2:20-cv-179, 2021 WL
1851130, at *2 (W.D. Mich. May 10, 2021). Moreover, the dismissal of any claim

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raised in MRF-730 does not appear to substantively impact the claim Plaintiff is
asserting against Defendant Fronczak here. The Court therefore adopts the R&R.
Accordingly,
IT IS ORDERED that the Motion for Summary Judgment on the Basis of
Exhaustion (ECF No. 16) is GRANTED and Plaintiff’s claims against Defendants
Chapman and Golson are DISMISSED. Willis Chapman and M. Golson are
TERMINATED AS PARTIES to this action.
IT IS SO ORDERED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 22, 2022

I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, February 22, 2022, by electronic and/or
U.S. First Class mail.
s/Aaron Flanigan
Case Manager

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