Arrington #251318 v. Scott et al

Filing 67

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATIONS 59 and 63 ; denying Plaintiff's motion for temporary restraining order or preliminary injunction 50 ; dismissing without prejudice Plaintiffs claims against Defen dant Wilson; granting Defendants' motions for summary judgment 23 and 40 ; dismissing without prejudice all of Plaintiff's claims against Defendants Scott, Michelin, Grandisher, Rinckey, Woods, Barber, Kemp, Kotowicz, and Gagne; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY ARRINGTON #251318,
Plaintiff,
File No. 1:12-CV-529
v.
HON. ROBERT HOLMES BELL
AMY SCOTT, et al.,
Defendants.
/
MEMORANDUM OPINION AND ORDER
APPROVING AND ADOPTING R&Rs
On May 23, 2012, Plaintiff Anthony Arrington filed a civil rights action pursuant to
42 U.S.C. § 1983 against eleven defendants alleging retaliation and excessive force. (Dkt.
No. 1.) One defendant, Unknown Breedlove, was dismissed on June 11, 2012, for failure to
state a claim. (Dkt. Nos. 4-5.) On January 7, 2013, Magistrate Judge Joseph G. Scoville
issued a Report and Recommendation (“R&R”) recommending that Plaintiff’s motion for a
temporary restraining order or preliminary injunction (Dkt. No. 50) be denied. (Dkt. No. 59.)
The following day, Magistrate Judge Scoville issued an R&R recommending that Plaintiff’s
claims against Defendant Wilson be dismissed without prejudice pursuant to Federal Rule
of Civil Procedure 4(m), that Defendants’ motions for summary judgment (Dkt. Nos. 23, 40)
be granted, and that all claims against defendants be dismissed without prejudice for failure
to exhaust administrative remedies. (Dkt. No. 63.)
Plaintiff has failed to object to the first R&R, and the deadline for doing so has

expired. The Court has reviewed the matter and concludes that the January 7 R&R correctly
analyzes the issues and makes a sound recommendation. Accordingly, the motion for a
temporary restraining order will be denied. Plaintiff has timely filed objections to the
January 8 R&R. The Court will address these objections.
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. 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 Cir. 1995). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.
Plaintiff’s sole objection is that he did exhaust his administrative remedies. He
contends that he mailed several grievances but did not receive any response and that his
attempts to exhaust his administrative remedies were either interfered with or ignored.
Because of this interference and non-response, he contends that he exhausted all “available”
administrative remedies within the meaning of 42 U.S.C. § 1983. He also questions whether
filing a grievance is still an available remedy if the time expires for filing it.
In answer to Plaintiff’s question, exhaustion of administrative remedies requires
proper exhaustion, as the Magistrate Judge noted. Thus, when a prisoner’s grievance is
rejected by the prison as untimely because it was not filed within the prescribed period, the

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prisoner’s claim is not properly exhausted even though the time has expired for filing it. See
Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). The Court further notes that, contrary to
Plaintiff’s assertion in his objections, MDOC Policy Directive 03.02.130 ¶ G (which states
that an untimely grievance will not be rejected if there is a valid reason for delay) applies to
all delays not just short-term causes for delay. Thus, Plaintiff is not precluded from filing
a grievance regarding an incident that occurred months or even years earlier and attempting
to put forth a valid reason for the delay.
As for Plaintiff’s contention that he mailed grievances which were ignored/not
responded to, he never made such arguments in response to the motions for summary
judgment. (See Dkt. No. 28 & Attachs. 1-2; Dkt. No. 40.) “Courts have held that while the
Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court
if timely objections are filed, absent compelling reasons, it does not allow parties to raise at
the district court stage new arguments or issues that were not presented to the magistrate.”
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000). “[I]ssues raised for first time
in objections to magistrate judge’s report and recommendation are deemed waived.” United
States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998) (citing Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir. 1996)). “[A] party is not permitted to raise new arguments, issues, or
evidence in objections to an R & R which he did not raise in his briefs before the Magistrate
Judge.” Searcy v. Corr. Med. Servs., Inc., No. 1:07-CV-838, 2009 WL 910412, at *2 (W.D.
Mich. Mar. 31, 2009) (Maloney, C.J.) (citing Villicana v. Lafler, No. 1:06-CV-96, 2009 WL

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426639, *1 (W.D. Mich. Feb. 19, 2009) (Bell, J.) and Williams v. Allegan Cty. Sheriff’s
Dep’t, No. 1:07-CV-1052, 2008 WL1701649, *2 (W.D. Mich. Apr. 9, 2008) (Maloney, J.)).
Plaintiff has offered no compelling reason for his failure to raise the argument that he
mailed in grievances that went unanswered before the Magistrate Judge, and thus the Court
deems it waived. As for the arguments Plaintiff did raise before – that prison officials at ICF
refused to give him grievance forms and/or to permit him file such forms – the Magistrate
Judge addressed the arguments:
Plaintiff states that he was prevented from filing grievances while he was an
inmate at ICF. Assuming that this assertion is true, it does not excuse
plaintiff’s failure to properly exhaust his claims through the MDOC’s
grievance process. See Solomon v. Michigan Dep’t of Corr., 478 F. App’x 318,
321 (6th Cir. 2012) (prisoner’s claim that the threat of retaliation prevented
him from filing a grievance did not “relieve[] him of his duty to exhaust his
administrative remedies”). It was incumbent upon plaintiff upon his transfer
from ICF to MBP to file grievances corresponding to all the claims he is now
asserting against defendants, including the explanations documenting his
reasons for the delayed filing of each grievance, and to pursue all those
grievances through Step III decisions. Assertions of futility do not excuse
plaintiff from the exhaustion requirement. See Napier, 636 F.3d at 224;
Hartsfield v. Vidor, 199 F.3d at 309 (“[A]n inmate cannot simply fail to file a
grievance or abandon the process before completion and claim that he has
exhausted his remedies or that it is futile for him to do so because his
grievance is now time-barred under the regulations.”); see Booth v. Churner,
532 U.S. at 741 n.6 (“[W]e will not read futility or other exceptions into
statutory exhaustion requirements where Congress has provided otherwise.”).
(Dkt. No. 63, at 9-10.) The Court agrees with this analysis.
The only other issue Plaintiff raises is a vague argument that if the Court had not
dismissed Defendant Breedlove she could verify his claims that he sent in numerous
grievances.

However, Defendant Breedlove was properly dismissed, and Plaintiff’s
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conclusory argument does not rebut Defendants’ showing that Plaintiff did not exhaust his
administrative remedies.
Accordingly,
IT IS HEREBY ORDERED that the January 7, 2013, R&R (Dkt. No. 59) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s motion for temporary restraining order
or preliminary injunction (Dkt. No. 50) is DENIED.
IT IS FURTHER ORDERED that the January 8, 2013, R&R (Dkt. No. 63) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant Wilson are
DISMISSED WITHOUT PREJUDICE under Rule 4(m) of the Federal Rules of Civil
Procedure.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment (Dkt.
Nos. 23, 40) are GRANTED.
IT IS FURTHER ORDERED that all of Plaintiff’s claims against Defendants Scott,
Michelin, Grandisher, Rinckey, Woods, Barber, Kemp, Kotowicz, and Gagne are
DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.

Dated: March 14, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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