Owusu v. Michigan Department of Corrections Pain Management Committee et al

Filing 211

OPINION AND ORDER denying 210 Motion for Reconsideration. Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Nathaniel K. Owusu,
a.k.a. Nathaniel Porter,
Case No. 16-cv-12490

Plaintiff,

Judith E. Levy
United States District Judge

v.
Michigan Department of
Corrections Pain Management
Committee, et al.,

Mag. Judge Mona K. Majzoub

Defendants.
________________________________/
OPINION AND ORDER DENYING MOTION FOR
RECONSIDERATION [210]
Before the Court is Plaintiff Nathaniel K. Owusu’s post-judgment
motion for reconsideration of the Court’s order adopting the Report and
Recommendation and denying Plaintiff’s objections. (ECF No. 210.)
In 2017, Plaintiff filed this pro se suit against defendants Corizon
Health, Inc., Keith Papendick, M.D., Susan Wilson, N.P., Bryan Buller,
M.D., Corey Grahn, N.P., Danielle Paquette, P.A., Michael Milette, P.A.,
Craig Hutchinson, M.D., and Oliver Johnson, M.D. (together, the
“Corizon Defendants”), as well as the Michigan Department of
Corrections

(“MDOC”)

Pain

Management
1

Committee,

William

Borgerding, Gary Kerstein, Teri Byrne, Theresa Merling, and Michael
Brown (together, the “MDOC Defendants”). Plaintiff alleged violations of
his First, Eighth, and Fourteenth Amendment rights stemming from his
medical treatment while in prison. (ECF No. 1.) Plaintiff alleged that he
suffers from, among other conditions, degenerative musculoskeletal
disease that causes him chronic pain. (ECF No. 1, PageID.7–9.)
Both the MDOC and Corizon Defendants moved for summary
judgment in 2018. (ECF Nos. 155, 185.) Magistrate Judge Mona K.
Majzoub issued a report and recommendation on July 19, 2019 (“R&R”),
recommending that Defendants’ motions for summary judgment be
granted and the case be dismissed. (ECF No. 194.) Plaintiff objected to
the R&R, and, after careful consideration, the Court denied his objections
and adopted the R&R. (ECF No. 208.) The Court also denied as moot
Plaintiff’s motion to expand the record in the same opinion and order. A
final judgment was issued on September 24, 2019. (ECF No. 209.) Now,
Plaintiff moves for reconsideration of those decisions. For the reasons set
forth below, Plaintiff’s motion for reconsideration is denied.
I.

Legal Standard

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A motion under Federal Rule of Civil Procedure 59(e) may be
utilized in timely attempts to alter or amend a judgment.1 Huff v.
Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982) (citing
Foman v. Davis, 371 U.S. 178, 181 (1962)). A Rule 59(e) motion is
properly analyzed as a motion for reconsideration. United States v.
Savage, 99 Fed. App’x 583, 583 (6th Cir. 2004).
To prevail on a motion for reconsideration under Eastern District
of Michigan Local Rule 7.1, a 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.” E.D.
Mich. LR 7.1(h)(3). “A palpable defect is a defect that is obvious, clear,
unmistakable, manifest or plain.” Witzke v. Hiller, 972 F. Supp. 426, 427
(E.D. Mich. 1997). A movant demonstrates a “palpable defect” if they are
able to prove a “(1) a clear error of law; (2) newly discovered evidence; (3)

As a threshold issue, motions to alter or amend a judgment “must be filed no
later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). Here, the
judgment was entered on September 24, 2019. (ECF No. 209.) Plaintiff’s motion is
dated October 22, 2019 (ECF No. 210) and is therefore timely under the prisoner’s
mailbox rule. See Houston v. Lack, 487 U.S. 266, 273 (6th Cir. 2002).
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3

an intervening change in controlling law; or (4) a need to prevent
manifest injustice.” Henderson v. Walled Lake Consol. Schs., 469 F.3d
479, 496 (6th Cir. 2006).
Motions for reconsideration should not be granted if they “merely
present the same issues ruled upon by the court, either expressly or by
reasonable implication,” E.D. Mich. LR 7.1(h)(3), or if the “parties use . .
. a motion for reconsideration to raise new legal arguments that could
have been raised before a judgment was issued.” Roger Miller Music, Inc.
v. Sony/ATV Publ’g, 477 F.3d 383, 395 (6th Cir. 2007).
II. Analysis
Plaintiff

presents

three

arguments

in

his

motion

for

reconsideration. First, he argues that the Court erred in rejecting as
untimely the documents he submitted in support of his argument that he
exhausted grievances 3047,2 3275, 0269, 1247, 0817, and 1208.
Specifically, Plaintiff argues that he was not required to submit
documentary evidence that these grievances were exhausted earlier in

As in the opinion and order adopting the R&R (ECF No. 204), the Court adopts
the parties’ short-hand manner of referring to grievances by their middle four digits.
For example, grievance 15-3047-28E is referred to as grievance 3047, grievance 143275-12F as grievance 3275, and so on.
2

4

the case because the Corizon Defendants never raised exhaustion as an
affirmative defense until their reply in support of their motion for
summary judgment. Alternatively, Plaintiff argues that he was not
required to submit documentary evidence of exhaustion because he had
already submitted a declaration on this issue in the form of his verified
complaint. He also argues that the Court should take judicial notice of
his argument that MDOC has interfered with his ability to exhaust these
grievances and bring suit on the subject matter of those grievances.
Second, Plaintiff argues that the Court erred in determining that
he was required to exhaust all grievances through Step III of the MDOC
Grievance Policy Directive 03.02.130 (the “Grievance Policy”) (ECF No.
125-2, PageID.1284–1290), before bringing suit. Specifically, he argues
that because he was satisfied with the outcome of certain grievances at
Step II, he was not required to appeal those grievances through Step III
in order to fully exhaust them.
Third, he argues that the Court erred when it denied his objection
regarding MDOC’s name-change policy. Specifically, Plaintiff argues that
the MDOC Defendants violated their own policy when they allegedly
added his committed name to an envelope he received in the mail.
5

For the reasons set forth below, the Court denies Plaintiff’s motion
for reconsideration.
A. Exhaustion of Grievances 3047, 3275, 0269, 1247, 0817, and
1208
1. Timing
Plaintiff argues that the Corizon Defendants did not raise the
exhaustion defense regarding grievances 3047, 3275, 0269, 1247, 0817,
and 1208 until their reply in support of their summary judgment motion.
He argues that this left him with no opportunity to provide support for
his argument that they were exhausted until he filed his objections to the
R&R, at which point the Court declined to accept new evidence of
exhaustion. (ECF No. 210, PageID.4390.) However, Plaintiff’s timing
argument regarding when the exhaustion defense was first raised in this
case is not accurate, as set forth below.
Plaintiff first raised the issue of exhaustion in his complaint, where
he states, “[a]ll administrative remedies have been exhausted through
Step III, as required.”3 (ECF No. 1, PageID.3.) The first time the Corizon

Plaintiff’s pro se complaint is 170 pages long and cited to nearly thirty
grievances. While it raised concerns regarding his various medical conditions and
attempts to obtain medical care in the manner he believed appropriate, it was also,
at times, difficult to follow and has been construed liberally throughout this case.
3

6

Defendants raised the exhaustion defense was in their motion for
summary judgment.4 (ECF No. 155.) They argued that Plaintiff failed to
exhaust generally. They also specifically referenced grievances 2297,
2016, 2160, 0567, 2902, 3208, 3315, 3377, 0007, 3048, 0246, 0192, 0104,
and 0598. (ECF No. 155, PageID.2001–2006.)
In Plaintiff’s opposition to the Corizon Defendants’ summary
judgment motion, he addressed the grievances set forth above, and for
the first time, asserted that he exhausted grievances 3047, 3275, 0269,
1247, 0817, and 1208. (ECF No. 172.) Plaintiff could have submitted
documentary evidence of their exhaustion with his opposition, but he did
not do so.
In their reply, the Corizon Defendants opposed Plaintiff’s assertion
that grievances 3047, 3275, 0269, 1247, 0817, and 1208 were exhausted.
(ECF No. 173.) After Magistrate Judge Majzoub recommended finding in

The Corizon Defendants did not file a responsive pleading in this case and
were not required to do so, given the nature of the case. See 42 U.S.C. §1997e(g)(1)
(“[a]ny defendant may waive the right to reply to any action brought by a prisoner
confined in any jail, prison, or other correctional facility under section 1983 of this
title or any other Federal law. . . such waiver shall not constitute an admission of the
allegations contained in the complaint.”).
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7

favor

of

Defendants,

Plaintiff

submitted

documentary

evidence

purporting to show exhaustion of grievances 3047, 3275, 0269, 1247,
0817, and 1208 along with his objections to the R&R.
Although the Court has liberally construed Plaintiff’s filings
throughout this case due to his pro se status, it is not obligated to consider
untimely-filed documents accompanying his objections. See Muhammad
v. Close, No. 08-1944, 2009 WL 8755520, at *2 (6th Cir. Apr. 20, 2009);
United States v. Howell, 231 F.3d 614, 621 (9th Cir. 2000). The Court
ordered Defendants to respond to Plaintiff’s objections by addressing
whether the Court should consider the late-submitted items. After
careful consideration, the Court determined that it need not consider
those documents, and the Court granted summary judgment in favor of
Defendants.
In sum, Plaintiff’s characterization of when the exhaustion defense
was raised is not accurate.5 Plaintiff’s decision not to fully present his

Plaintiff cites to Hudson-Bey v. Martin, No. 00-389, 2002 U.S. Dist. LEXIS
9275 (W.D. Mich. May 23, 2002), as an example of a case where the defendant raised
the exhaustion defense for the first time in his objections to an R&R, and the court
considered the documents. But the timing in this case is different.
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8

exhaustion argument at the appropriate time does not result in a
palpable error requiring reversal.
a.

Consideration of the documents does not result in a
different disposition

Even if the Court had considered the documents Plaintiff submitted
with his objections to the R&R, a different disposition of the case would
not result. The Corizon Defendants argued that Plaintiff did not exhaust
grievances 3047, 3275, 0269, 1247, 0817, and 1208. They relied on Ms.
Carolyn Nelson’s and Mr. Richard Russell’s affidavits in support of their
arguments. (ECF No. 125-3, PageID.1293; ECF No. 203-1, PageID.4302–
4306) This evidence sufficiently met the Corizon Defendants’ burden of
demonstrating that Plaintiff did not fully exhaust those grievances. The
documents Plaintiff submitted with his objections to rebut that burden
do not contain any indication on their face or otherwise that they were
exhausted. For example, there are no indications that Plaintiff properly
submitted them or attempted to submit them to MDOC for a Step III
appeal. Nor do they demonstrate that Plaintiff received a Step III
response from MDOC. (See ECF No. 198, PageID.4208–4211, 4217–4220,
4221–4225, 4226–4229, 4230–4233, 4238–4241.) Failure to exhaust
through Step III is a bar to suit. Jones v. Bock, 549 U.S. 199, 211 (2007)
9

(“There is no question that exhaustion is mandatory under the PLRA and
that unexhausted claims cannot be brought in court”). Accordingly, the
documents do not demonstrate exhaustion, and reconsideration is not
warranted.
2.

Verified Complaint as Evidence of Exhaustion

Plaintiff next argues that the Court committed a palpable error
when it did not consider his verified complaint as sufficient evidence of
exhaustion. A verified complaint carries the same weight as an affidavit
for the purposes of summary judgment. El Bey v. Roop, 530 F.3d 407, 414
(6th Cir. 2008). Plaintiff argues that a prisoner need only rely on either
an affidavit or documentary evidence of exhaustion, and that he was not
required to provide both. Thus, the argument goes, he created a genuine
issue of material fact from the start of the litigation because his verified
complaint alleged that he exhausted his grievances.
However, the statement in Plaintiff’s verified complaint, even when
viewed in the light most favorable to Plaintiff, is not enough evidence to
overcome summary judgment in favor of Defendants. Plaintiff’s verified
complaint states, “[a]ll administrative remedies have been exhausted
through Step III, as required.” (ECF No. 1, PageID.3.) Yet, “affidavits
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containing mere conclusions have no probative value” in summary
judgment proceedings. Powell-Pickett v. A.K. Steel, Corp., 549 Fed App’x
347, 354 (6th Cir. 2013) (citing Bsharah v. Eltra Corp., 394 F.2d 502, 503
(6th Cir. 1968)).
The party opposing a summary judgment motion “may not rest on
the mere allegations or denials of his pleading, but . . . must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under the “substantive
evidentiary standard that applies to the case,” Plaintiff’s single
conclusory sentence does not create a factual dispute that “requires
submission to a jury.”6 Id. at 256–257. See also Williams v. Browman,
981 F.2d 901, 904 (6th Cir. 1992) (finding that for evidentiary purposes,
plaintiff’s verified complaint, which contained “nothing but mere

Plaintiff cites to Boyd v. Corrections Corp. of America, 380 F.3d 989 (6th Cir.
2004), in support of his argument that the allegations in his verified complaint should
have been enough evidence to overcome summary judgment in the Corizon
Defendants’ favor. But Boyd is distinguishable. The Boyd plaintiff’s exhaustion
allegation in his complaint was sufficiently detailed to satisfy his burden of describing
the administrative proceedings and outcomes in absence of documentary evidence.
Id. at 996. Moreover, Boyd addressed a motion to dismiss, which applies a different
legal standard.
6

11

conclusory allegations” could not survive a motion for summary
judgment” in favor of the defendants).
This case is distinguishable from the facts of Ford v. Smith, to
which Plaintiff cites. No. 17-164, 2019 WL 4316163 (W.D. Mich., Sept.
12, 2019). In Ford, the plaintiff argued and presented evidence that
MDOC refused to process his grievance through no fault of his own, and
the defendants never opposed this allegation. The court found this was
an issue of material fact that precluded summary judgment in the
defendant’s favor. Here, no such arguments or evidence was presented.
Similarly, the allegations in the plaintiff’s complaint in Lowe v.
Prison Health Services, No. 13-10058, 2014 WL 4605285 (E.D. Mich.
Sept. 15, 2014) (Berg, J.), to which Plaintiff also cites, were more detailed
than here. In Lowe, the plaintiff attached his grievance form along with
an affidavit stating he never received a response earlier in the disposition
of the case. This created an issue of material fact with respect to
exhaustion. Id. at *2. No similar circumstances or arguments are present
here.
In sum, Plaintiff’s single conclusory statement in his verified
complaint is not enough to overcome summary judgment in favor of the
12

Corizon

Defendants.

There

is

no

palpable

error

requiring

reconsideration, and therefore summary judgment in favor of the Corizon
Defendants was appropriate.
3. Interference with Exhaustion
Plaintiff also asks that the Court consider an argument he presents
for the first time on reconsideration. He argues that prison mailroom
staff interfered with mailing his Step III appeals for grievances 0347,
3275, 0269, 1247, 0817, and 1208 for retaliatory reasons. (ECF No. 210,
PageID.4383–4384.) The Court declines to consider this argument, as it
is untimely and has been waived. See Am. Family Prepaid Legal Corp. v.
Columbus Bar Assoc., 498 F.3d 328, 335 (6th Cir. 2007) (finding
arguments not raised during previous proceedings were later waived);
Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir.1984) (finding that
issue raised for the first time in motion to reconsider issuance of
injunction was untimely and waived). Accordingly, Plaintiff’s request is
denied.
B. Satisfaction with the Outcome at Step Two

13

Plaintiff next argues that because he was satisfied with the Step II
outcome of certain of his grievances, he was not required to exhaust those
grievances through Step III before bringing suit. Plaintiff is incorrect.
The Grievance Policy states, “[c]omplaints filed by prisoners
regarding grievable issues as defined in this policy serve to exhaust a
prisoner’s administrative remedies only when filed as a grievance
through all three steps of the grievance process in compliance with this
policy.” (ECF No. 125-2, PageID.1284 (emphasis added).) If prisoners
were permitted to bring suit despite being satisfied with an earlier step
in the grievance process, the purpose behind any grievance procedure,
which is to resolve and reduce prisoner litigation, would be thwarted.
Accordingly, Plaintiff’s admission that he was satisfied with the outcome
of certain grievances and did not pursue them through Step III is a bar
to litigation of the issues set forth in those grievances. Therefore, there
is no palpable defect requiring a different outcome and Plaintiff’s motion
for reconsideration is denied.
D. Legal Name Change
Plaintiff raises the same argument he raised earlier in this case
regarding his legal name change. Plaintiff’s argument regarding his legal
14

name change was difficult to discern in his objections and, although
presented slightly differently now, is still unclear and undeveloped. From
what the Court understands, Plaintiff argues that he received a piece of
mail in prison from Michigan’s 30th Judicial Circuit Court, on which he
states his name was written “Nathaniel Owusu,” which is Plaintiff’s legal
name. Then, he argues that a sticker was placed on top of the address
label, which states “Nathaniel Porter,” which is Plaintiff’s commited
name. Plaintiff argues that the prison mail staff added the sticker stating
“Nathaniel Porter” to the envelope in violation of the MDOC name
change policy, and that this act also constitutes fraud. Plaintiff presents
the same argument as he made earlier in this case, without identifying a
palpable defect warranting a different outcome. For this reason,
Plaintiff’s motion for reconsideration is denied.
III. Conclusion
For

the

reasons

set

forth

above,

Plaintiff’s

motion

reconsideration (ECF No. 210) is denied.
IT IS SO ORDERED.
Dated: February 4, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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for

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 February 4, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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