Greene v. LeDuc
OPINION and ORDER Denying 20 Objections, Adopting 19 Report and Recommendation, Granting 14 Motion for Summary Judgment, and Dismissing 1 Complaint without Prejudice. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Darrius D. Greene,
Case No. 16-cv-14240
Judith E. Levy
United States District Judge
Mag. Judge Patricia T. Morris
OPINION AND ORDER DENYING OBJECTIONS ,
ADOPTING REPORT AND RECOMMENDATION ,
GRANTING MOTION FOR SUMMARY JUDGMENT , AND
DISMISSING COMPLAINT WITHOUT PREJUDICE 
Before the Court are plaintiff Darrius Greene’s objections to the
Magistrate Judge’s Report and Recommendation that recommends
granting defendant Robert LeDuc’s motion for summary judgment. (Dkt.
For the reasons set forth below, plaintiff’s objections are denied, the
Report and Recommendation (“R&R”) is adopted, and the motion for
summary judgment is granted.
A detailed recitation of the background of this case is included in
the Magistrate Judge’s R&R (Dkt. 19), and is adopted here. That said,
this case results from plaintiff allegedly being denied his mail by prison
officials, and retaliation from those officials after he complained.
Plaintiff alleges that in June of 2015 he was not receiving mail from
family and friends “who sent mail for certain.” (Dkt. 1 at 7.) He wrote
letters to the mailroom, and also to defendant via the paper kite system
to ask why he was not receiving his mail.
On August 18, 2016, plaintiff spoke with “Couns[elor] Herron” who
told him that he would look into the situation. (Dkt. 1 at 8.) When he
spoke with Herron on August 22, 2016, Herron said “your problem is in
the hands of the upper echelon. I don’t want anything to do with it from
this point forward. If I were you I would leave it alone. But if you insist,
write a paper kite to [defendant].” (Id.) Plaintiff then sent another kite
to defendant. (Id.)
On August 25, 2016, plaintiff confronted defendant about the
situation, stating that if he didn’t receive his mail he would be “forced to
grieve.” (Dkt. 1 at 8-9.) Defendant allegedly replied that he had seen the
kites and that if he continued to send them, “Pretty soon you[‘re] gonna
get a response that will change your life. Not in a good way.” (Dkt. 1 at
9.) The next day, defendant allegedly sent an email “to the entire [prison]
population” saying plaintiff was a suspected drug smuggler and that his
family was sending other prisoners money. (Id.) The prisoners then
began harassing him and asking him for drugs and money.
11.) After a group ambushed plaintiff in the yard, he was transferred to
Gus Harrison Correctional Facility. (Id.)
Following these events, plaintiff initiated the grievance process
pursuant to the Michigan Department of Correction (“MDOC”) policy.
Under this policy, No. 03.02.130 (effective July 9, 2007), after a prisoner
files a Step I grievance, the form is logged and assigned a unique
identifying number, and the Grievance Coordinator must determine
whether to accept or reject the grievance “within 15 business days after
receipt.” (Dkt. 14-2 at 5 (paras. W, X).) A prisoner may file a Step II
grievance “if s/he is dissatisfied with the response . . . or if s/he did not
receive a timely response.”
(Id. at 6 (para. BB).)
Coordinator must respond “within 15 business days after receipt.” (Id.
(para. CC).) A prisoner may file a Step III grievance “if s/he is dissatisfied
with the response . . . or if s/he did not receive a timely response.” (Id. at
7 (para. FF).) The Grievance and Appeals Section must investigate and
respond to the Step III grievance “in a timely manner,” (id. (para. GG)),
and the grievance process “shall generally be completed within 120
calendar days unless an extension has been approved in writing.” (Id. at
5 (para. S).)
In this case, plaintiff submitted two Step I grievances on September
8, 2016. (Dkt. 1 at 20; Dkt. 14-3 at 3; Dkt. 20 at 15–16.) They were
denied, and he submitted a Step II grievance on October 6, 2016. (Dkt. 1
at 20; Dkt. 20 at 18–19.) Plaintiff argues he never received a response,
and so sent a Step III grievance on October 10, 2016. (Id.)
Plaintiff alleges that he then received the Step II responses, and
submitted two additional Step III grievances. (Dkt. 1 at 20.) And all four
Step III grievances were returned to him on November 16, 2016, with two
of them stamped October 13 and 20, 2016. (Id.) Records reflect that the
prison returned two Step III grievances on October 20, and 31, 2016 for
failure to include the Step I and II documents.
(Dkt. 14-3 at 3–4.)
Plaintiff claims he did not know he was required to include the Step I and
II documents, and, in any event, could not have done so with the first two
Step III grievances because he did not have the documents at that time.
(Dkt. 1 at 20.) Ultimately, the Step III responses were mailed to plaintiff
on December 2, 2016. (Dkt. 14-3 at 3.) The record does not reflect if or
when plaintiff received them.
On December 1, 2016, plaintiff filed this complaint stemming from
the holding of his mail and the email that was sent to the prison
population. (Dkt. 1 at 17.) He argues that defendant violated his First
and Eighth Amendment rights.
Specifically, defendant violated his
rights to “Freedom of Speech, Privileged Correspondence, and . . .
Freedom of Expression” by withholding his mail. Further, defendant
violated the Eighth Amendment by “Placing [his] life in danger, creating
a hostile living environment, disclosing [his] personal information to
other prisoners, resulting in injury and mental anguish.” (Id. at 4.)
On February 6, 2017, defendant filed a motion for summary
judgment, arguing that plaintiff failed to exhaust all administrative
remedies. (Dkt. 14.)
In the R&R, the Magistrate Judge recommends that defendant’s
motion for summary judgment be granted “[b]ecause plaintiff filed his
complaint before completing the grievance process.” Plaintiff filed the
complaint before receiving the Step III responses and before 120 days had
lapsed since filing the Step I grievance. (Dkt. 19 at 9–10.)
Plaintiff filed an objection to the Magistrate’s R&R on June 5, 2017,
claiming that prison officials rendered the administrative remedies of
grievance procedure functionally unavailable to him. (Dkt. 20 at 8.)
A magistrate judge’s Report and Recommendation is made
pursuant to 28 U.S.C. § 636(b)(1).
“[T]his recommendation has no
presumptive weight,” and the district judge “has the responsibility of
making the final determination.” Patrick Collins, Inc. v. John Does 1-21,
286 F.R.D. 319, 320 (E.D. Mich. 2012). If a party objects to part or all of
the R&R, the district judge must review de novo those parts to which the
party has objected. Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D.
Mich. 2002); Fed. R. Civ. P. 72(b)(3). De novo review “entails at least a
review of the evidence that faced the Magistrate Judge.” Lardie, 221 F.
Supp. 2d at 807. After reviewing an R&R, a court may “accept, reject, or
modify the findings or recommendations.” Id.
Plaintiff objects to the R&R on the grounds that he complied with
the MDOC grievance policy as far as possible. Specifically, he submitted
the only copy of the Step I grievances he had with his Step II grievances,
and because he never received a timely response, he had no additional
copies to submit with his Step III grievances. (Dkt. 20 at 3.) Further,
because defendant improperly failed to respond and therefore prevented
him from complying, defendant cannot be granted summary judgment.
(Id. at 10.)
Under the Prison Litigation Reform Act (“PLRA”), “No action shall
be brought . . . by a prisoner . . . until such administrative remedies as
are available are exhausted.” Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850,
1856 (2016) (quoting 42 U.S.C. § 1997(e)(a)). In other words, a prisoner
“may not bring any action absent exhaustion of available administrative
Id. (internal quotations and punctuation omitted).
exhaustion requirement is “mandatory” and “a court may not excuse a
failure to exhaust, even to take such circumstances into account.” Id.
(citing Miller v. French, 530 U.S. 327, 337 (2000)).
The Sixth Circuit has “analyz[ed] whether the facility rendered
these remedies unavailable,” in which case the exhaustion requirement
would be excused. Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). But
a prisoner must make “affirmative efforts to comply,” and the court will
then analyze “whether these efforts to exhaust were sufficient under the
circumstances.” Id. (quoting Risher v. Lappin, 639 F.3d 236, 240 (6th
Cir. 2011)). And “[w]hether a process is ‘available’ under the PLRA
frequently turns on whether a grievance procedure was available on its
face even if the prisoner subjectively believes that the procedure would
be futile.” Reynolds v. Smith, Case No. 11-cv-277, 2015 WL 1968867, at
*9 (S.D. Ohio May 1, 2015) (quoting Napier, 636 F.3d at 224).
Objection 1: Substantial Compliance
Plaintiff objects to the R&R, claiming that he substantially
complied with the grievance process, and should therefore be excused
from any alleged failure.
Here, plaintiff was permitted to file Step I, II, and III grievances
pursuant to the policy. But he had not received the Step III grievance
responses prior to filing this lawsuit on December 1, 2016. Further, as
the R&R highlights, less than the 120 days allotted for the entire
administrative process had elapsed before the complaint was filed. In
other words, the Step III responses were due at any time prior to January
Given these facts, plaintiff did not substantially comply with the
grievance process. Instead, he failed to complete the administrative
process prior to filing the lawsuit, and failed to exhaust the available
Objection 2: Unavailability of Administrative Remedies
Plaintiff next objects to the R&R on the ground that he was
effectively prevented from exhausting his administrative remedies
because the Step III grievances were rejected for failure to include the
Step I and II grievance documents.
First, he argues that he did not include the paperwork because he
was not informed he needed to include the Step I and II paperwork. But
“[a] plaintiff’s failure to exhaust cannot be excused by his ignorance of
the law or the grievance policy.” Napier, 636 F.3d at 221 n.2 (internal
Next, he claims not to have received responses to the Step II
grievances and therefore did not have copies to submit with the Step III
grievances. But plaintiff admits in the complaint that he did receive
responses to the Step II grievances, just not before he filed his first two
Step III grievances. Thus, he had the paperwork prior to filing the second
set of Step III grievances, and admits in the complaint that he submitted
this documentation with those grievances. And the record shows that the
Grievance and Appeals Section mailed responses to the Step III
grievances on December 2, 2016. In sum, the record demonstrates that
there is no genuine dispute of material fact that the administrative
remedies process was functionally available to plaintiff.
Accordingly, the R&R correctly recommended a finding that
plaintiff failed to exhaust his administrative remedies, and plaintiff’s
objections are denied.
For the reasons set forth above, plaintiff’s objections (Dkt. 20) are
The Report and Recommendation (Dkt. 19) is ADOPTED.
Defendant’s motion for summary judgment (Dkt. 14) is GRANTED,
and the complaint (Dkt. 1) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: July 31, 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 July 31, 2017.
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