Harp v. Hallett et al
OPINION AND ORDER Adopting in Part 44 Report and Recommendation, Denying 33 Motion for Summary Judgment; Adopting in Part 46 Report and Recommendation, Granting in Part and Denying in Part 35 Motion for Summary Judgment; and Adopting in Part 51 Report and Recommendation, Signed by District Judge Judith E. Levy. (WBar)
Case 5:19-cv-13789-JEL-PTM ECF No. 53, PageID.410 Filed 11/17/22 Page 1 of 19
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 19-cv-13789
Judith E. Levy
United States District Judge
Victoria Hallett, Lashley, Drum,
Ladd, and Transportation Officers, Mag. Judge Patricia T. Morris
OPINION AND ORDER ADOPTING IN PART REPORT AND
RECOMMENDATION , DENYING HALLETT’S MOTION FOR
SUMMARY JUDGMENT ; ADOPTING IN PART REPORT
AND RECOMMENDATION , GRANTING IN PART AND
DENYING IN PART THE MDOC DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ; AND ADOPTING IN PART
REPORT AND RECOMMENDATION  AND
ORDERING LIMITED DISCOVERY
Before the Court are three Reports and Recommendations (“R&Rs”)
from Magistrate Judge Patricia Morris. The first R&R was issued on
January 27, 2022 (hereinafter referred to as the “Hallett R&R”). (ECF
No. 44.) The Hallett R&R recommends that this Court grant Defendant
Victoria Hallett’s motion for summary judgment (ECF No. 33). (Id.)
Plaintiff filed four timely objections to the Hallett R&R. (ECF No. 45,
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PageID.346.) Hallett responded to the objections. (ECF No. 47,
PageID.377.) For the reasons set forth below, Plaintiff’s objections to the
Hallett R&R are granted. The Hallett R&R is adopted in part and
Hallett’s motion for summary judgment on the basis of exhaustion is
On February 15, 2022, Judge Morris issued the second of the three
pending R&Rs (hereinafter referred to as the “MDOC R&R”). This R&R
relates to certain named and unnamed Michigan Department of
Corrections (“MDOC”) staff’s motion for summary judgment as to
exhaustion only. (ECF No. 46.) The MDOC R&R recommends that the
Court grant in part and deny in part Defendants Ladd, Lashley, and
Drum’s motion for summary judgment (ECF No. 35). Plaintiff filed four
timely objections to the MDOC R&R, which are granted in part and
denied in part. (ECF No. 48.) For the reasons set forth below, the MDOC
R&R is adopted in part and summary judgment is granted in part and
denied in part on Ladd, Lashley, and Drum’s motion.
Judge Morris’s third R&R was issued on October 6, 2022
(hereinafter referred to as the “John Doe R&R”). (ECF No. 51.) The John
Doe R&R recommends dismissing Plaintiff’s claims against John Does.
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(Id.) Plaintiff filed timely objections to the John Doe R&R. (ECF No. 52.)
For the reasons set forth below, the John Doe R&R is adopted in part,
but only after Defendants provide limited discovery, in the manner and
within the limitations set forth below.
The Court adopts by reference the background set forth in the
Hallett R&R and MDOC R&R, having reviewed both and finding them to
be accurate and thorough. (ECF No. 44, PageID.329–332; ECF No. 46,
A party may object to a magistrate judge’s report and
recommendation on dispositive motions, and a district judge must resolve
proper objections under a de novo standard of review. 28 U.S.C. §
636(b)(1)(B)–(C); Fed. R. Civ. P. 72(b)(1)–(3). “For an objection to be
proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires
recommendations, or report to which [the party] objects’ and to ‘state the
basis for the objection.’” Pearce v. Chrysler Group LLC Pension Plan, 893
F.3d 339, 346 (6th Cir. 2018). Objections that restate arguments already
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presented to the magistrate judge are improper, Coleman-Bey v.
Bouchard, 287 F. App’x 420, 422 (6th Cir. 2008) (citing Brumley v.
Wingard, 269 F.3d 629, 647 (6th Cir. 2001)), as are those that dispute the
general correctness of the report and recommendation. Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995).
Moreover, objections must be clear so that the district court can
“discern those issues that are dispositive and contentious.” Id. (citing
Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir.
1991)); see also Thomas v. Arn, 474 U.S. 140, 147 (1985) (explaining that
objections must go to “factual and legal” issues “at the heart of the
parties’ dispute”). In sum, Plaintiff’s objections must be clear and specific
enough that the Court can squarely address them on the merits. See
Pearce, 893 F. 3d at 346.
Objections to Hallett R&R
All four of Plaintiff’s objections to the Hallett R&R address
overlapping subject matter. Specifically, Plaintiff’s objections relate to
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the rejection of Plaintiff’s Step II grievance as untimely.1 The Hallett
R&R sets forth the background of the timing issue as follows:
. . . Plaintiff attempted to request pain medication from his
health care provider. (ECF No. 33-1, PageID.154.) After his
requests were denied, Plaintiff filed a timely step one
grievance which was denied on the merits. (Id.) The MDOC’s
response to Plaintiff’s step one grievance was returned to him
on June 13, 2019. (Id.) However, Plaintiff was placed in
administrative segregation at that time and did not receive
the response until the evening of June 17. (ECF No. 33-1,
PageID.152; ECF No. 40, PageID.312.) On June 19, Plaintiff
requested a step two appeal form, and on June 25, Plaintiff
sent a second request for an appeal form. (ECF No. 40,
Plaintiff did not receive an appeal form until July 5 (ECF No.
33-1, PageID.152.) Although Plaintiff’s step two grievance
was due on July 1, he never requested an extension. (See id.
at PageID.152–53; ECF No. 40, PageID.312.) Instead,
Plaintiff filed his step two grievance on the same day that he
received his form. (ECF No. 33-1, PageID.152.) In his step two
grievance, Plaintiff explained that he did not receive the form
until July 5. (ECF No. 33-1, PageID.152.)
Nonetheless, the step two grievance coordinator denied
Plaintiff’s appeal as untimely. (Id. at PageID.152–53.)
(ECF No. 44, PageID.331 (footnotes omitted).)
The grievance in which Hallett is named contains the identifier JCF-19-060982-28E (hereinafter referred to as grievance “0982”).
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The specific portions of the R&R that Plaintiff objects to include the
following references to his failure to seek an extension:
Plaintiff could have submitted his step two grievance on time
if he had requested an extension. Plaintiff alleges that he
received his step one response on June 17, making the
deadline for his step one grievance July 1—ten business days
after he received his step one response. (ECF No. 40,
PageID.312.) Had Plaintiff requested an extension, his due
date could have been extended to July 22, at the latest. (See
ECF No. 33-2, PageID.163.) This would have given Plaintiff
enough time to submit the forms he received on July 5.
Plaintiff’s administrative remedy simply was not unavailable
if the MDOC’s policies provided a mechanism which he could
have used to submit this grievance on time.
(Id. at PageID.336–337.)
Plaintiff argues that “there is no place in [the MDOC Policy
Directive 03.02.130] that allows the grievant . . . to ask for any
‘extension.’” (ECF No. 45, PageID.340.) He argues that his untimeliness
was not his fault, because: “MDOC did not provide Plaintiff with the
materials necessary for him to file his appeal until four days after
Plaintiff[’s] appeal was due.” (ECF No. 45, PageID.341.) Plaintiff argues
that it would be unfair to dismiss his case under these circumstances.
(ECF No. 45, PageID.344.)
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Plaintiff is correct that there is nothing in MDOC Policy Directive
03.02.130 that permits a prisoner to request an extension of time to
submit a grievance at any of the three steps. See MDOC Policy Directive
03.02.130.2 MDOC Policy Directive 03.02.130, authorized by Mich. Comp.
Laws § 791.203 states that a grievance at any step “shall be rejected” by
the Grievance Coordinator3 “if . . . [t]he grievance is filed in an untimely
manner.” Id. at ¶ J5. The policy directive addresses the possibility that
there may be a valid reason for a delay where it states: “The grievance
shall not be rejected if there is a valid reason for the delay, e.g., transfer.”
Id. at ¶ J5. The policy directive does not set forth a procedure for a
prisoner to take affirmative steps to obtain an extension.4 See id.
Grievance Coordinators are MDOC staff designated by each warden. See
Policy Directive 03.02.130, ¶ O.
The policy directive does, however, set forth a process for the Respondent to
obtain an extension of time. “Respondent” is defined in the directive as “[t]he staff
person who investigates and responds to a grievance.” Policy Directive 03.02.130, ¶
B. The policy directive states: “Time frames for responding to grievances are set forth
in this policy directive. An extension may be granted at the discretion of the grievance
Coordinator for a Step I or II response.” Id. at ¶ T (emphasis added).
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When a prisoner fails to exhaust his administrative remedies and
argues that his efforts to do so were thwarted, the Sixth Circuit requires
that the district court analyze whether the prisoner’s efforts to comply
circumstances.” Napier v. Laurel County, Ky., 636 F.3d 218, 224 (6th Cir.
2011). In determining sufficiency under the circumstances, this Circuit
has differentiated between situations where the prisoner does nothing to
comply with exhaustion requirements and situations where the prisoner
makes “some affirmative efforts,” but is still unsuccessful. Id. at 223.
On the “do nothing” end of the spectrum is Napier v. Laurel County,
Ky. Id. There, the defendant argued that the plaintiff prisoner’s case
should have been dismissed because the plaintiff failed to exhaust the
prison’s grievance process before filing a lawsuit. The plaintiff argued
that he was not required to exhaust because the prison’s grievance
process became “unavailable” to him after he was transferred to a
different, private prison facility. Id. at 223. Based on the plaintiff’s
(incorrect) assumption that his transfer rendered the grievance process
of his previous facility unavailable to him, he did not take any steps to
comply with the grievance process. Id.
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The Sixth Circuit upheld the district court’s dismissal of the
plaintiff’s case for failure to exhaust. A prisoner must take affirmative
steps in an effort to follow the grievance process before filing suit: “The
Sixth Circuit requires some affirmative efforts to comply with the
administrative procedures before analyzing whether the facility rendered
these remedies unavailable.” Id. at 224 (internal citations omitted). The
Court explained that, when a prisoner is “[f]aced with a policy that was
not clearly unavailable, the only way to determine if the process [i]s
available, or futile, [i]s to try.” Id.
To be clear, the Sixth Circuit does not require a prisoner to “utilize
every conceivable channel to grieve their case.” Id. But if he “entirely
fails” to invoke the grievance procedure before filing a lawsuit, the suit
should be dismissed for failure to exhaust. Id. at 225.
On the other end of spectrum is Peterson v. Cooper, 463 F. App’x
528 (6th Cir. 2012). There, the district court dismissed the plaintiff’s
lawsuit for failure to exhaust administrative remedies. Id. at 529. Similar
to this case, the plaintiff in Peterson was a Michigan prisoner subject to
the Policy Directive 03.02.130. Id.
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Peterson involved an allegation that, while removing the plaintiff’s
handcuffs, the defendant prison staff pulled the plaintiff’s arms through
the food slot in his cell door and injured him. Id. at 529. The plaintiff filed
a timely Step I grievance, which was denied. Id. The plaintiff requested
a Step II grievance form in accordance with the policy directive. He did
not receive the form. The plaintiff then sent two more written messages
to the grievance coordinator indicating that he needed and had not yet
received a Step II form. Id. Both times, the grievance coordinator
responded that she had already sent a Step II form to the plaintiff. Id.
The grievance coordinator did not send the plaintiff the form again. Id.
After some time had passed, the plaintiff used a Step I form to appeal his
grievance to Step III. The prison rejected the plaintiff’s appeal because
he had not properly exhausted his grievance at Step II.
The plaintiff filed a lawsuit in federal court. The defendant
successfully moved to dismiss based on the plaintiff’s failure to exhaust.
On appeal, Sixth Circuit reversed, finding that, “[u]nder the
circumstances [the plaintiff’s] efforts to exhaust were sufficient . . . with
regard to the . . . staff members identified in his Step I grievance.” Id. at
530. Those efforts included asking for a Step II form “on three occasions
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and inform[ing] the grievance coordinator that he did not receive the
form. . . but she did not send him another copy.” Id. This excused
Plaintiff’s exhaustion requirement. Id.
As set forth in Peterson: “When a prisoner makes affirmative efforts
to comply with the administrative grievance process but does not succeed,
we analyze whether those efforts to exhaust were sufficient under the
circumstances.” Id. at 530 (internal quotations omitted). In the present
case, Plaintiff requested the Step II grievance form twice before receiving
it: first on June 19, 2019 and again on June 25, 2019.5 Despite asking for
the form twice, Defendants provided the form after Plaintiff’s deadline
had passed. Plaintiff’s efforts to request the form twice makes the
circumstances here similar to those in Peterson—where the plaintiff
made an effort to exhaust but was still unsuccessful.
Plaintiff did not address his delay at Step II when he submitted his
Step II grievance. (See ECF No. 35-3, PageID.232 (providing for the Step
II reason for appeal discussion, which does not address the late-received
It is possible that, if Plaintiff requested his Step II form on the evening of
June 17, 2019 or on June 18, 2019, he could have received it and submitted it before
the July 1, 2019 deadline. However, without knowing more about the reasons why
the grievance coordinator was delayed in sending Plaintiff a Step II form, it is unclear
whether the outcome would be different if Plaintiff had requested it a day earlier.
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form).) It is unclear under the Sixth Circuit case law whether Plaintiff
was required to raise the reasons for his delay at Step II in anticipation
of rejection. Regardless, Plaintiff addressed the issue briefly in his Step
III grievance (after learning that his Step II appeal was rejected on
timeliness grounds). At Step III, he stated: “The three grievances6 w[ere]
submitted and answered at the same time, so the same request is evident
that, it was not my fault for the untimely submission of the 3 step II
forms.” (Id. at PageID.232.) (emphasis added)) Defendants did not
address this in their Step III response. (Id. at PageID.231.)
Under these facts, Plaintiff made sufficient efforts to exhaust his
administrative remedies under the circumstances, and his failure to
exhaust at Step II is excused. Plaintiff’s objection is granted and Hallett’s
motion for summary judgment on exhaustion grounds is denied.
Objections to MDOC R&R
As set forth above, Plaintiff filed four timely objections to the
MDOC R&R. (ECF No. 48.) Plaintiff’s fourth objection is addressed first
Plaintiff submitted three grievances at the same time, but the only grievance
relevant to Hallett is grievance 0982 so that is the only grievance relevant to this
analysis. Other grievances are discussed further below.
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because it relates to an error in the MDOC R&R that is nearly identical
to the error identified in the Hallett R&R, above.
Relevant to the discussion of the MDOC R&R is grievance JCF-1905-0983 (hereinafter grievance “0983”).7 Grievance 0983 regards the
following. MDOC staff was responsible for transporting Plaintiff to his
radiation appointments. Often, due to his visual impairment, Plaintiff
would bring visual aids8 with him to his radiation appointments so that
he could read and sign any paperwork. (See ECF No. 33-1, PageID.157,
159.) Plaintiff alleged in his grievance that the transportation staff
treated him with hostility and called him names. (ECF No. 35-3,
PageID.234.) Plaintiff refused to attend his radiation treatment because
he did not want to ride with the officers who subjected him to
transportation officers, MDOC staff wanted Plaintiff to sign a release of
liability form based on his refusal to obtain treatment. Plaintiff declined
The MDOC R&R also discusses the 0982 grievance. Grievance 0982 was
thoroughly addressed above. Accordingly, the R&R’s discussion of the timeliness
issue related to 0982, and Plaintiff’s objection to it, need not be repeated in this
section of the Opinion.
Plaintiff describes the following items as his “visual aids”: “monoscope,
talking watch, blind canes, and solar shields.” (ECF No. 33-1, PageID.159.)
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to sign it, stating he was not refusing treatment but rather was refusing
to be mistreated in transit to his appointments. (Id.)
A day after filing the grievance, Plaintiff had another radiation
appointment. (ECF No. 35-3, PageID.244.) When it was time to be
transported to his appointment, MDOC staff refused to allow him to
bring his visual aids with him. (Id.) Plaintiff refused to go to treatment if
he could not bring his visual aids, and then filed a grievance against the
transportation officers, alleging that the officers’ refusal was in
retaliation for his earlier-filed grievance. (Id.)
Similar to grievance 0982, discussed above, Defendants’ grievance
response to grievance 0983 did not arrive until after Plaintiff was
released from segregation, on June 18, 2019. (Id. at PageID.244.) As set
forth above, Plaintiff requested a Step II grievance form on June 19, 2019
and again on June 23, 2019. As set forth above, he did not receive the
forms until after the deadline for filing his Step II grievance had passed.
(ECF No. 40, PageID.313.) Grievance 0983 was rejected for being
Similar to the Hallett R&R, the MDOC R&R indicates that Plaintiff
“could have requested an extension that would have allowed him . . . to
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file the grievance on time.” (Id. at PageID.365.) Plaintiff objects, stating
that the MDOC policies “[do] not provide for an extension.” (ECF No. 48,
Plaintiff’s objection is granted. As with grievance 0982, Plaintiff
made sufficient efforts to exhaust his administrative remedies when he
requested the Step II form twice. In Plaintiff’s Step III grievance to 0983,
he addressed the timeliness issue where he indicated “see attached step
2 grievance request and the date it was delivered by unit staff,” which,
although not a model of clarity, is most likely addressing his requests for
the form and Defendants’ delayed response. (ECF No. 35-3, PageID.242.)
Accordingly, Plaintiff’s fourth objection is granted.
Plaintiffs first three objections to the MDOC R&R are denied.
Plaintiff’s first objection argues that “it is very convenient that on the day
the grievance was reviewed that I was being harassed and had a false
misconduct ticket written. . .” (ECF No. 48, PageID.382–383.) This
argument does not address an error with the R&R; rather, it expresses a
disagreement with its result. This is not a proper objection to an R&R
and it is therefore denied.
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Plaintiff’s second objection to the MDOC R&R states that he
disagrees with the R&R’s characterization of Plaintiff’s actions in
response to the alleged harassment. He states that he “never refused
[r]adiation treatment” but rather, was “prevented from attending
treatment by the harassment and threats of further retaliation by
[pursuing] the grievance process.” (Id. at PageID.383.) Here, Plaintiff
characterizes the events differently from the R&R. However, he does not
identify a legal error and this issue has no impact on the outcome of the
motion. Accordingly, Plaintiff’s second objection is denied.
Plaintiff’s third objection to the MDOC R&R states that he was “not
present during the guilty verdict” from the ALJ. (Id.) Plaintiff disputes
whether the ALJ requested that Plaintiff make a statement at an
administrative hearing. (Id.) This factual discrepancy does not impact
the outcome. Moreover, the objection is improper because it does not
identify a legal error set forth in the R&R. Accordingly, Plaintiff’s third
objection is denied.
As to the remainder of the MDOC R&R, although neither party
objected to it, the Court has reviewed it carefully and agrees that Plaintiff
exhausted grievance 0456 as to Lashley, Drum, and Ladd. The Court also
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agrees with the R&R’s conclusion that summary judgment is granted in
favor of Defendant Drum as to Plaintiff’s retaliation claim against him
because Plaintiff’s request for a rehearing was filed after the deadline
and without any explanation. And finally, the Court agrees with the R&R
that Plaintiff’s claims against Ladd, Drum, Lashley and unknown officers
in their official capacities for monetary damages should be dismissed for
the reasons set forth in the R&R. Accordingly, the MDOC R&R is adopted
in part and the MDOC Defendants’ motion to dismiss is granted in part
and denied in part.
Objections to John Doe R&R
On October 6, 2022, the Magistrate Judge issued the John Doe
R&R. (ECF No. 51, PageID.395.) This R&R recommends that the Court
dismiss the unknown Defendants because Plaintiff failed to identify them
by the September 9, 2022 deadline set forth in the Magistrate Judge’s
separate order. (Id. (citing ECF No. 50).)
Plaintiff objects to the R&R because right after he served a
discovery request on Defendants seeking the identity of the John Does,
Defendants sought a stay of discovery. (ECF No. 36 (motion to stay
discovery).) The Magistrate Judge granted a stay until after the
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summary judgment decisions were made, and Defendants never
responded to Plaintiff’s discovery requests. (ECF No. 52, PageID.398–
399; ECF No. 42 (order granting motion to stay discovery).)
The summary judgment motions were not fully resolved until today
with the issuance of this Opinion and Order. Accordingly, the stay
prevented Plaintiff from conducting discovery regarding the John Does’
The stay on discovery is now lifted and Plaintiff has 45 days from
today’s date to identify the John Does or voluntarily dismiss them from
the case. Assuming that the John Does are identified through the
discovery process, Plaintiff must serve them within 90 days of learning
their identities. Otherwise, the claims against them will be dismissed for
failure to prosecute, as set forth in the R&R.
For the reasons set forth above, the Court denies Hallett’s motion
for summary judgment based on exhaustion. The Court grants in part
and denies in part the MDOC Defendants’ motion for summary judgment
based on exhaustion. And the Court adopts in part and rejects in part the
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R&R regarding the John Doe Defendants and permits discovery as to
their identities in the manner set forth above.
IT IS SO ORDERED.
Dated: November 17, 2022
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 November 17, 2022.
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