Brown v. Rivard et al
OPINION and ORDER Adopting the 33 Report and Recommendation, Denying Defendants' 34 Objections, Denying Plaintiff's 38 Objections, and Granting In Part and Denying In Part Defendants' 25 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-12362
Judith E. Levy
United States District Judge
S. Rivard, M. McCullick, K.
Parsons, F. Williams, and S.
Mag. Judge Anthony P. Patti
OPINION AND ORDER ADOPTING THE REPORT &
RECOMMENDATION , DENYING DEFENDANTS’
OBJECTIONS , DENYING PLAINTIFF’S OBJECTIONS ,
AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 
Plaintiff, proceeding pro se, filed his complaint on June 23, 2016.
(See Dkt. 1.)
On January 10, 2017, defendants filed a motion for
summary judgment, which was fully briefed by March 31, 2017. The
Magistrate Judge filed his Report and Recommendation on May 24,
2017, recommending that the motion be granted as to defendants
Rivard, McCullick, Parsons, and Williams, but denied in part as to the
defamation claim against defendant Barnes. For the reasons set forth
Recommendation is adopted in full, and defendants’ motion for
summary judgment is granted in part and denied in part.
The Court adopts the factual background set forth in the Report
and Recommendation, except as otherwise noted. (Dkt. 33 at 1-4.)
By way of summary, plaintiff, an inmate, brings excessive force,
defamation, conspiracy, and retaliatory transfer claims under 42 U.S.C.
He alleges that a footlocker containing legal property was
confiscated without a hearing upon his arrival at Saint Louis
Correctional Facility on March 20, 2014. (On July 10, 2015, he was
granted a replacement footlocker.)
On June 17, 2014, plaintiff was having an altercation in his cell
with his bunkmate, resulting in plaintiff being tasered by defendant
According to plaintiff, defendant Barnes falsified the
misconduct report, stating that plaintiff had his “hands wrapped
around his bunkie’s neck,” even though Barnes later admitted that he
could not see plaintiff’s hands because there was a desk in the way. At
the misconduct hearing, no video of the altercation was shown, but the
hearing officer determined that plaintiff “had to be tazed [sic] by staff.”
And on June 18, 2014, plaintiff alleges that staff from the correctional
contraband), which was destroyed over his protests.
transferred to the Alger Correction Facility on August 20, 2014.
misconduct report by defendant Barnes and for the destruction of his
property. The misconduct report grievance was denied on procedural
grounds (as related to a misconduct hearing), which was affirmed
through the three-step grievance procedure.
The Magistrate Judge recommends that the claims against
defendants Williams, Parsons, McCullick, and Rivard be dismissed
because plaintiff failed to exhaust the claims through the prison’s
administrative procedures, but that the defamation claim against
defendant Barnes was both fully exhausted and properly pleaded, and
should thus be allowed to proceed.
(Dkt. 33 at 11-17.)
objects to the Report and Recommendation, arguing that the due
process defamation claim against defendant Barnes was not properly
exhausted, because the claim pertained to the misconduct process for
which plaintiff was required under Michigan Department of Corrections
(“MDOC”) policy to seek rehearing, not file a grievance. (Dkt. 34 at 2-5.)
recommending that plaintiff’s due process defamation claim against
defendant Barnes is sufficiently pleaded. (Id. at 5-7.)
Plaintiff also filed objections, eleven in total. (See Dkt. 38.) Most
of plaintiff’s objections are based on what plaintiff believes are
mischaracterizations of the facts, and each will be addressed with
In his ninth objection, plaintiff argues that the
Magistrate Judge misconstrues the MDOC grievance process. (Id. at
District courts review de novo those portions of a report and
recommendation to which a specific objection has been made. 28 U.S.C.
§ 636(b)(1)(C). “De novo review in these circumstances entails at least a
review of the evidence that faced the magistrate judge; the Court may
not act solely on the basis of a report and recommendation.” Spooner v.
Jackson, 321 F. Supp. 2d 867, 869 (E.D. Mich. 2004). But objections to
the Report and Recommendation must not be overly general, such as
Recommendation but fail to specify findings believed to be in error.
Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006); see also Howard
v. Sec’y of HHS, 932 F.2d 505, 509 (6th Cir. 1991). “The objections must
be clear enough to enable the district court to discern those issues that
are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th
Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
a. Defendants’ objections
i. Objection No. 1
In defendants’ Objection No. 1, they argue that the Magistrate
Judge erred by finding that the due process defamation claim pleaded
against defendant Barnes was properly exhausted. (Dkt. 34 at 2-5.)
After defendant Barnes tasered plaintiff, defendant Barnes allegedly
filed an incident report in which he states plaintiff had his hands
around his bunkmate’s neck, but defendant Barnes later revealed that
he could not actually see plaintiff’s hands. As noted by the Magistrate
Judge, neither plaintiff nor defendant Barnes gave sworn testimony
regarding the allegation, because the Step I grievance was denied as a
non-grievable issue related to a misconduct ticket.
decision was upheld at Steps II and III.
Defendants’ objection misconstrues plaintiff’s claim and the
Magistrate Judge’s recommendation. Plaintiff’s due process defamation
claim does not take issue with the misconduct decision itself, which, as
defendants argue, could only be administratively exhausted by
requesting a rehearing.
Rather, plaintiff’s claim is that defendant
Barnes defamed him and deprived him of due process by falsifying the
misconduct report, resulting in a fine of nearly $9000.
Under Michigan law, “[a] prisoner aggrieved by a final decision or
order of a hearings officer shall file a motion or application for
rehearing in order to exhaust his or her administrative remedies before
seeking judicial review of the final decision or order.”
LAWS § 791.255. And defendants argue that under MDOC policy, any
“issues pertaining to the misconduct process are not grievable.” (Dkt.
34 at 2.) But per the terms of the cited policy, non-grievable issues
include “[d]ecisions made in hearings” and “[d]ecisions made in minor
misconduct hearings.” (Dkt. 25-2 at 2-3.)
The policy is not so broad that all “issues pertaining to the
misconduct process are not grievable,” as defendants argue. Rather,
plaintiffs cannot grieve the decisions of hearing officers made in
misconduct hearings. Defendants cite Siggers v. Campbell to support
their argument, but that case is not helpful. Plaintiff does not seek to
have the misconduct decision overturned.
He seeks damages from
defendant Barnes for defaming him in an allegedly falsified misconduct
report, which is collateral to the misconduct decision itself. See, e.g.,
Anthony v. Ranger, No. 11-2199, 2012 U.S. App. LEXIS 27031, at *4-5
(6th Cir. June 19, 2012) (claim relating to defendant’s decision to “file a
misconduct report rather than a decision made by a hearing officer”
must be exhausted through administrative grievance procedure)1 (citing
The Sixth Circuit affirmed the district court’s dismissal of the claim as
unexhausted, which in turn had adopted the Magistrate Judge’s recommendation
that the claim be dismissed for failure to exhaust. To add clarity, the relevant part
of that Report and Recommendation is as follows:
Plaintiff argues that because a major misconduct report starts the
disciplinary hearing process and is the document upon which the
hearing officer bases his decision, a grievance against a prison official
based on a misconduct report is akin to a grievance of the hearing
officer’s decision on the misconduct itself. . . .
Plaintiff has not shown that his retaliation claim against [d]efendant
. . . was non-grievable.
The fact that the MDOC rejected [his
grievance] for raising non-grievable issues when it was filed against a
hearing officer and hearing investigator has no bearing on whether
[p]laintiff could have grieved his retaliation claim against [d]efendant
Williams. The affidavit of Richard Stapleton states that a prisoner
may file a grievance against an MDOC staff person for retaliation,
including an allegedly retaliatory major misconduct ticket, as long as
the prisoner grievance indicates that it is for the alleged retaliation
and is not attacking a guilty finding on the ticket itself. Defendant
Williams’ decision to issue major misconduct tickets to [p]laintiff . . .
was not a “decision made in hearings conducted by hearing officers.”
Therefore, Policy Directive 03.02.130(F)(1) does not preclude [p]laintiff
from filing grievances against [d]efendant Williams for issuing
retaliatory major misconduct reports. Plaintiff’s argument that it
would have been futile to file a grievance does not excuse him from
exhausting his administrative remedies as required under 42 U.S.C.
Anthony v. Ranger, No. 08-CV-11436, 2011 U.S. Dist. LEXIS 97129, at *7-9 (E.D.
Mich. May 9, 2011) (citations to the docket omitted). MDOC would like to have it
both ways: to have these claims dismissed when grieved, because they are non-
Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011)); Green v. Messer,
No. 12-12319, 2013 U.S. Dist. LEXIS 129327, at *4-5 (E.D. Mich. Sep.
11, 2013) (plaintiff required to exhaust claim related to issuance of
misconduct report because issue was grievable); Green v. Lennox, No.
12-14003, 2013 U.S. Dist. LEXIS 132761, at *8-9 (E.D. Mich. Aug. 28,
2013) (retaliatory misconduct claim must be exhausted through
administrative grievance process). For these reasons and those set out
in the Magistrate Judge’s Report and Recommendation, defendants’
Objection No. 1 is denied.
ii. Objection 2
In defendants’ Objection No. 2, they argue that the Magistrate
Judge erred by finding that plaintiff established a due process
defamation claim against defendant Barnes.
(Dkt. 34 at 5-7.)
Magistrate Judge held that plaintiff established the claim by alleging
that defendant Barnes “lied and defamed him on his misconduct
report,” and that as a result he was “improperly found guilty of the
misconduct charge, and required to pay restitution in the amount of
$8,936.63.” As the Magistrate Judge noted, “a prisoner has a liberty
grievable, and dismissed when ungrieved, for failure to exhaust them through the
grievance process. MDOC cannot.
interest in his good reputation” and a “right to be free from false
accusations by public officials.” (Dkt. 33 at 14-18.)
Defendants argue that even if plaintiff has a liberty interest in
being free from defamation by a public official, the claim must be
dismissed because plaintiff “failed to demonstrate how the sanction that
flowed from Barnes’ alleged misstatement on the misconduct report
inevitably affected the duration of [plaintiff]’s sentence or imposed an
atypical and significant hardship on [him].” (Dkt. 34 at 8-9 (quoting
Ellington v. Karkkila, No. 2:16-CV-230, 2017 WL 1531879, at *5 (W.D.
Mich. Apr. 28, 2017).) Rather, defendants imply, the nearly $9000 fine
is insufficient to meet the atypical and significant hardship standard as
set forth in Sandin v. Conner, 515 U.S. 472, 484 (1995).
Although the Sixth Circuit has previously held that “a $4.00 fine
do[es] not constitute an atypical and significant hardship in the context
of prison life,” see McMillan v. Fielding, 136 F. App’x 818, 820 (6th Cir.
2005), the same cannot be said for a disciplinary fine of nearly $9000.
To be sure, a monetary fine will generally not implicate an inmate’s due
process rights. See Wheeler v. Hannigan, 37 F. App’x 370, 372 (10th
Cir. 2002) (“[N]either placement in disciplinary segregation, nor the
extraction of a monetary fine, generally implicate[s] an inmate’s due
process rights.”). But the fine in this case is so atypical that the Court
could not find any cases in which a plaintiff challenged prison
disciplinary sanctions anywhere near that amount. See, e.g., Gard v.
Kaemingk, No. 4:13-CV-04062-LLP, 2015 U.S. Dist. LEXIS 131424, at
*37-38 (D.S.D. Jan. 30, 2015) ($99 fine imposed within prison
disciplinary system not atypical); Green v. Howard, No. 3:13-cv-0020,
2013 U.S. Dist. LEXIS 4406, at *19 (M.D. Tenn. Jan. 10, 2013) ($4 fine
does not “exceed the basic discomforts indicative of the ‘ordinary
incidents of prison life.’”) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)); Henderson v. Virginia, Civil Action No. 7:07-cv-00266, 2008
U.S. Dist. LEXIS 5230, at *33-34 (W.D. Va. Jan. 23, 2008) ($12 fine does
not constitute atypical and significant hardship).
For these reasons and those set forth in the Magistrate Judge’s
Report and Recommendation, defendants’ Objection No. 2 is denied.
b. Plaintiff’s objections
i. Objection No. 1
Plaintiff’s first objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization that “[a]ccording to
[p]laintiff, staff did not conduct a hearing on excess legal property.”
(See Dkt. 33 at 2.)
Because plaintiff’s objection has no bearing on
whether the claim was exhausted, the objection is denied.
ii. Objection No. 2
Plaintiff’s second objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization that “[d]uring the
misconduct hearing, a video of the altercation was not shown, but the
hearing officer determined that [p]laintiff was on top of his bunkmate
and ‘had to be tazed by staff.’” (See Dkt. 33 at 3.) Because plaintiff’s
objection has no bearing on whether the claim was exhausted, the
objection is denied.
iii. Objection No. 3
Plaintiff’s third objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization that “[o]n June 18,
2014, just after the tasing incident, unnamed staff packed up
[p]laintiff’s property and confiscated several items as contraband.” (See
Dkt. 33 at 3.) Because plaintiff’s objection has no bearing on whether
the claim was exhausted, the objection is denied.
iv. Objection No. 4
Plaintiff’s fourth objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization that plaintiff
“asserts that [d]efendant Parsons informed him that a hearing on this
issue would be held on August 18, 2014. The hearing was postponed,
however, and [p]laintiff was transferred to the Alger Correctional
Facility (“LMF”) on August 20, 2014.”
(See Dkt. 33 at 3-4.) Because
plaintiff’s objection has no bearing on whether the claim was exhausted,
the objection is denied.
v. Objection No. 5
Plaintiff’s fifth objection to the Report and Recommendation
challenges the Magistrate Judge’s “partial quoting” (Dkt 38 at 9), when
the Magistrate Judge writes that “if a particular Defendant was not
named in a specific claim, it was because that person was ‘not intended
to be held liable’ for that claim.”
(See Dkt. 33 at 4 (quoting Dkt. 28 at
57).) Because plaintiff’s objection has no bearing on whether the claim
was exhausted, the objection is denied.
vi. Objection No. 6
Plaintiff’s sixth objection to the Report and Recommendation
“expressly contends through clarification” that when the Magistrate
Judge writes “[g]rievant states excess pro-party is result and SLF
[unreadable] is getting my footlocker,” it should read “[g]rievant states
excess property is result of SLF confiscating my footlocker.”
38 at 11.) Because plaintiff’s objection has no bearing on whether the
claim was exhausted, the objection is denied.
vii. Objection No. 7
Plaintiff’s seventh objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization that “[i]n his Step II
grievance, [plaintiff] mentions that Parsons’ Step I response was tardy.”
(See Dkt. 33 at 10.)
Because plaintiff’s objection has no bearing on
whether the claim was exhausted, the objection is denied.
viii. Objection No. 8
Plaintiff’s eighth objection to the Report and Recommendation
challenges the Magistrate Judge’s characterization:
Later, [p]laintiff indicates that he overheard Barnes stating
that he “couldn’t see” where his hands were located because
there was a desk in the way. Plaintiff mentions that Rivard
questioned Barnes about his statement. The grievance was
denied and [p]laintiff filed a Step II appeal on July 31, again
noting that Barnes filed “an intentionally false/misleading
conduct report,” and later admitted that he could not see
[p]laintiff’s hands to Rivard and McCullick. His Step II
grievance was denied and Plaintiff appealed to Step III,
which was also denied.
(See Dkt. 33 at 10 (citations omitted).) Because plaintiff’s objection has
no bearing on whether the claim was exhausted, the objection is denied.
ix. Objection No. 9
Plaintiff’s ninth objection to the Report and Recommendation
challenges the Magistrate Judge’s finding that plaintiff failed to
exhaust his claims by failing to specifically name defendants Rivard,
McCullick, Parsons, and Williams.
According to plaintiff, because the Magistrate Judge quoted the
policy and added the words “at Step I,” the Magistrate Judge erred as a
matter of law. (Dkt. 38 at 16.) Plaintiff is incorrect. The Magistrate
Judge did not err in quoting the MDOC policy in this a manner. The
policy requires plaintiff “to file a Step I grievance,” and “[d]ates, times,
places, and names of all those involved in the issue being grieved are to
MDOC Policy Directive 03.02.130, ¶ R, available at
df. The Magistrate Judge thus correctly described the policy.
Plaintiff similarly argues that the Magistrate Judge erred by
stating “inmates must include the ‘[d]ates, times, places and names of
all those involved in the issue being grieved’ in their initial grievance.”
(Dkt. 33 at 11 (quoting Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th
Cir. 2010)). In fact, the Magistrate Judge quoted directly from a Sixth
Circuit case, which binds this Court. The Magistrate Judge did not err
by quoting a recent and binding case on point. Plaintiff’s objection is
x. Objection No. 10
Plaintiff’s ninth objection to the Report and Recommendation
challenges the Magistrate Judge’s finding that “[p]laintiff does not
mention [d]efendants Rivard, McCullick, Parsons, and Williams in his
Step I grievances.” (Dkt. 33 at 11.) Plaintiff cites one of his Step I
grievances, in which plaintiff had written:
Shortly following the . . . exchange, Warden B. Rivard . . .
questioned officer Barnes about statement in question. Said
officer against admitted he couldn’t see. And when asked
why he stated that he saw grievant’s hands around another
inmate’s neck, officer Barnes replied, “the sergeant told me
(See Dkt. 25-3 at 19.)
Plaintiff is technically correct that defendant Rivard was
“mentioned” in the Step I grievance. But, as noted in the case cited by
plaintiff, the purpose of the exhaustion requirement of the Prison
Litigation Reform Act of 1995 “is to allow prison officials ‘a fair
opportunity’ to address grievances on the merits, to correct prison
errors that can and should be corrected[,] and to create an
administrative record for those disputes that eventually ended up in
court.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010).
In this particular grievance, plaintiff sought an “[i]investigat[ion]
and reprimand [of] c/o Barnes and Sgt. Sevenson.” (Dkt. 25-3 at 19.)
The only defendant in this case against whom a claim was exhausted
through Step III was thus defendant Barnes. Plaintiff must first take
his specific claim against defendant Rivard through the grievance
procedure. Because he did not, plaintiff’s objection is denied.
xi. Objection No. 11
Plaintiff’s eleventh objection to the Report and Recommendation
challenges the Magistrate Judge’s finding that plaintiff’s “grievance
against [d]efendant Barnes properly addresses his allegations that
[d]efendant Barnes defamed him by filing a false report, but does not
address the alleged excessive force used in the tasering incident.” (Dkt.
38 at 16.)
Plaintiff first argues that because he is not a physician or
attorney, he did not “fully realize” the “magnitude of [d]efendant
Barnes’ tasing . . . before [plaintiff’s] Step I grievance submission.”
(Dkt. 38 at 24.) He also argues that a video showed what defendant
Barnes did, and in any case, defendants waived the issue of nonexhaustion due to lack of specificity when they did not raise the issue
during the administrative process. (Id. at 24-25.) But defendants could
not have known to make such a defense during the administrative
process because plaintiff did not specify that he wished to bring an
excessive force claim. (Id. at 25.) These arguments do not excuse the
requirement that plaintiff raise and exhaust his excessive force claim
before proceeding on such a claim here.
Finally, plaintiff argues that this Court should not dismiss his
Eighth Amendment excessive force claim before reviewing the video
footage of the incident, as “requested in [p]laintiff’s comprehensive
complaint.” (Id. at 25.) Plaintiff misunderstands that the exhaustion
requirement precludes the Court from doing so until he proceeds with
his claim through the prison grievance procedure. For these reasons,
plaintiff’s objection is denied.
For the reasons set forth above, defendants’ objections (Dkt. 34)
are DENIED, plaintiff’s objections (Dkt. 38) are DENIED, the Report
and Recommendation (Dkt. 33) is ADOPTED, and defendants’ motion
for summary judgment (Dkt. 25) is GRANTED IN PART AND DENIED
Plaintiff’s claims against defendants Rivard, McCullick, Parsons,
and Williams are dismissed for failure to exhaust. Plaintiff’s excessive
force claim against defendant Barnes is dismissed for failure to describe
that event in his grievances, and thus failure to exhaust the claim.
Plaintiff’s due process defamation claim against defendant Barnes may
The case is referred back to the Magistrate Judge for all
IT IS SO ORDERED.
Dated: August 9, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 9, 2017.
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