Jackson #477836 v. Wise et al

Filing 49

REPORT AND RECOMMENDATION that Defendants' Motion for Summary Judgment 41 be granted, that Plaintiff's claims against Defendant Weston be dismissed without prejudice for failure to timely effect service, and this matter terminated; objections to R&R due within 14 days; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES JACKSON,
Plaintiff,

Hon. Gordon J. Quist

v.

Case No. 1:12-cv-1104

UNKNOWN WISE, et al.,
Defendants.
_________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Summary Judgment. (Dkt.
#41). In accordance with 28 U.S.C. § 636(b), authorizing United States Magistrate Judges to submit
proposed findings of fact and recommendations for resolution of dispositive motions, the undersigned
recommends that Defendants’ motion for summary judgment be granted, Plaintiff’s claims against the
yet unserved Defendant be dismissed without prejudice, and this matter terminated.

BACKGROUND
Plaintiff is incarcerated at the Bellamy Creek Correctional Facility (IBC). Plaintiff
initiated this matter on October 1, 2012, against Michigan Governor Rick Snyder; Michigan Lieutenant
Governor Brian Calley; Michigan Attorney General Bill Schuette; MDOC Director Daniel Heyns; the
Michigan State Police; and the following IBC employees: Lieutenant Wise; Officer Burton; Officer
Weston; Officer Ball; Warden McKee; RUM Mote; ARUS Hadden; ADW Trieweller; and Sergeant
Bennickson.

The following allegations are contained in Plaintiff complaint. (Dkt. #1). On September
24, 2012, a group of prisoners in Plaintiff’s housing unit withheld their meal trays in protest of their
treatment by prison officials. In response, Defendants Bennickson and Wise prepared to administer tear
gas within the housing unit. Plaintiff informed Bennickson and Wise that “he has asthma and cannot
tolerate tear gas.” Plaintiff requested that he receive protective measures before tear gas was
administered. Bennickson and Wise ignored Plaintiff’s request and instead told Plaintiff to “shut up.”
Tear gas was thereafter administered causing Plaintiff to experience an asthma attack. Plaintiff passed
out after which he was denied medical treatment.
Plaintiff’s claims against Defendants Snyder, Calley, Schuette, Heyns, and the Michigan
State Police were previously dismissed. Service has yet to be effected on Defendant Weston.
Defendants Wise, Burton, Ball, McKee, Mote, Hadden, Trieweller, and Bennickson now move for
summary judgment on the ground that Plaintiff has failed to properly exhaust his administrative
remedies.

SUMMARY JUDGMENT STANDARD
Summary judgment “shall” be granted “if 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). A party moving for summary judgment can satisfy its burden by demonstrating “that the
respondent, having had sufficient opportunity for discovery, has no evidence to support an essential
element of his or her case.” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005); see also, Amini
v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986)). The fact that the evidence may be controlled or possessed by the moving party does not

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change the non-moving party’s burden “to show sufficient evidence from which a jury could reasonably
find in her favor, again, so long as she has had a full opportunity to conduct discovery.” Minadeo, 398
F.3d at 761 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)).
Once the moving party demonstrates that “there is an absence of evidence to support the
nonmoving party’s case,” the non-moving party “must identify specific facts that can be established by
admissible evidence, which demonstrate a genuine issue for trial.” Amini, 440 F.3d at 357 (citing
Anderson, 477 U.S. at 247-48; Celotex Corp. v. Catrett, 477 U.S. at 324). While the Court must view
the evidence in the light most favorable to the non-moving party, the party opposing the summary
judgment motion “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Amini, 440 F.3d at 357. The existence of a mere “scintilla of evidence” in support of
the non-moving party’s position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir.
2005) (quoting Anderson, 477 U.S. at 252). The non-moving party “may not rest upon [his] mere
allegations,” but must instead present “significant probative evidence” establishing that “there is a
genuine issue for trial.” Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir. 2006) (citations omitted).
Moreover, the non-moving party cannot defeat a properly supported motion for summary
judgment by “simply arguing that it relies solely or in part upon credibility determinations.” Fogerty
v. MGM Group Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather, the non-moving party
“must be able to point to some facts which may or will entitle him to judgment, or refute the proof of
the moving party in some material portion, and. . .may not merely recite the incantation, ‘Credibility,’
and have a trial on the hope that a jury may disbelieve factually uncontested proof.” Id. at 353-54. In
sum, summary judgment is appropriate “against a party who fails to make a showing sufficient to

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establish the existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Daniels, 396 F.3d at 735.
While a moving party without the burden of proof need only show that the opponent
cannot sustain his burden at trial, see Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th
Cir. 2000); Minadeo, 398 F.3d at 761, a moving party with the burden of proof faces a “substantially
higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist.,
270 F.3d 1036, 1056 (6th Cir. 2001). “Where the moving party has the burden -- the plaintiff on a claim
for relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to
hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United
States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary Judgment Under the
Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Sixth
Circuit has repeatedly emphasized that the party with the burden of proof “must show the record contains
evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury
would be free to disbelieve it.” Arnett, 281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE, ET AL.,
MOORE’S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same).
Accordingly, summary judgment in favor of the party with the burden of persuasion “is inappropriate
when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v.
Cromartie, 526 U.S. 541, 553 (1999).

ANALYSIS
Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action with respect to prison
conditions under 42 U.S.C. § 1983 must first exhaust all available administrative remedies. See Porter

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v. Nussle, 534 U.S. 516, 524 (2002). Prisoners are no longer required to demonstrate exhaustion in their
complaints. See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, failure to exhaust administrative
remedies is “an affirmative defense under the PLRA” which the defendant bears the burden of
establishing. Id. With respect to what constitutes proper exhaustion, the Supreme Court has stated that
“the PLRA exhaustion requirement requires proper exhaustion” defined as “compliance with an agency’s
deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90-93 (2006). In Bock,
the Court reiterated that
Compliance with prison grievance procedures, therefore, is all that is
required by the PLRA to ‘properly exhaust.’ The level of detail necessary
in a grievance to comply with the grievance procedures will vary from
system to system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper exhaustion.
Bock, 549 U.S. at 218.
When assessing whether a prisoner has properly exhausted his claims as required by the
PLRA, it is appropriate to seek guidance from the substantively similar exhaustion rules applicable to
petitions for writ of habeas corpus. See Woodford, 548 U.S. at 88. In the habeas context, a petitioner
is required to properly present his federal claims through one complete round of the State’s established
appellate review process. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To “‘protect the
integrity’ of the federal exhaustion rule, we ask not only whether a prisoner has exhausted his state
remedies, but also whether he has properly exhausted those remedies.” Id. at 848 (citation omitted).
The Supreme Court has stated that in the habeas context, “the sanction for failing to exhaust properly
(preclusion of federal review) is called procedural default.” Woodford, 548 U.S. at 92. To determine
whether a habeas petitioner procedurally defaulted a federal claim in state court, the Court must consider
whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the last state

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court rendering judgment on the claim at issue actually enforced the state procedural rule so as to bar
that claim; and (3) the state procedural default is an “independent and adequate” state ground properly
foreclosing federal habeas review of the federal constitutional claim. See Hicks v. Straub, 377 F.3d 538,
551 (6th Cir.2004), cert. denied,544 U.S. 928 (2005); accord Lancaster v. Adams, 324 F.3d 423, 436-37
(6th Cir.2003).
Under the procedural default component of § 1997e(a), a prisoner’s claims are
procedurally defaulted if he fails to complete the administrative review process in accordance with the
deadlines and other applicable procedural rules and prison officials actually relied upon the procedural
rule to bar review of the grievance. See Johnson v. Meadows, 418 F.3d 1152, 1159 (11th Cir.2005), cert.
denied,126 S.Ct. 2978 (2006); Spruill v. Gillis, 372 F.3d 218, 222 (3rd Cir.2004) (holding that “the
determination whether a prisoner has ‘properly’ exhausted a claim (for procedural default purposes) is
made by evaluating the prisoner’s compliance with the prison’s administrative regulations”). Moreover,
just as procedural default in the federal habeas corpus context must be predicated on an adequate and
independent state ground, the procedural requirements of a prison grievance system may not be imposed
in a way that offends the United States Constitution or the intended purposes of § 1997e(a). See Spruill,
372 F.3d at 232.
In support of their motion for summary judgment, Defendants have submitted evidence
that during the relevant time period Plaintiff has pursued only one grievance through all three steps of
the grievance process. (Dkt. #42, Exhibit 2). A review of this grievance reveals that it does not concern
the matters giving rise to the present action, but instead concern Plaintiff’s allegation that his therapist
improperly revealed confidential information related to his treatment. (Dkt. #42, Exhibit 2). Plaintiff

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has submitted certain items of evidence in opposition to Defendants’ motion none of which, however,
advance his position.
Plaintiff has submitted evidence concerning three additional grievances that he pursued:
(1) IBC-13-01-0005-17z; (2) IBC-13-01-0113-28e; and (3) IBC-13-02-0495-28e. (Dkt. #44, Exhibit 2;
Dkt. #45, Exhibit 1; Dkt. #46). Grievance IBC-13-01-0005-17z concerns an incident that occurred on
December 23, 2012. (Dkt. #45, Exhibit 1). The incident giving rise to the present action occurred on
September 24, 2012. Thus, this grievance fails to create an issue of fact as to whether Plaintiff properly
exhausted the claims asserted herein.
While grievance IBC-13-01-0113-28e appears to concern the events giving rise to this
action, it nevertheless fails to advance Plaintiff’s cause. First, as the evidence submitted by Plaintiff
reveals, this particular grievance was rejected because it was not timely filed. (Dkt. #44, Exhibit 2 at
3 of 16). Furthermore, Plaintiff has failed to include a copy of his Step I grievance or submit other
evidence indicating the nature of his Step I grievance or the individuals against whom such was asserted.
(Dkt. #44, Exhibit 2; Dkt. #45, Exhibit 1). Thus, Plaintiff has failed to create an issue of fact as to
whether he properly exhausted the claims in question.
Grievance IBC-13-02-0495-28e likewise appears to concern the events giving rise to this
action. However, this grievance was also rejected because it was not timely filed. (Dkt. #46). Plaintiff
has also failed to include a copy of his Step I grievance or submit other evidence indicating the nature
of his Step I grievance or the individuals against whom such was asserted. (Dkt. #46). Plaintiff has
failed, therefore, to create an issue of fact as to whether he properly exhausted the claims in question.
Plaintiff has also submitted an affidavit in support of his position. (Dkt. #44, Exhibit 2
at 15 of 16). In his affidavit, Plaintiff asserts that he attempted to properly exhaust the claims in

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question, but did not timely receive responses thereto. According to MDOC policy, prisoners can
proceed to the next step of the grievance process if prison officials fail to timely respond to a grievance.
See Michigan Department of Corrections, Policy Directive 03.02.130 ¶¶ BB, FF (effective July 9, 2007).
Thus, the alleged failure by prison officials to timely respond to Plaintiff’s grievances does not absolve
Plaintiff of the obligation to properly exhaust his claims (i.e., pursue his allegations through all three
steps of the prison grievance process) prior to initiating legal action in this Court. Finally, Plaintiff
makes several vague allegations regarding his alleged attempts to properly exhaust certain matters, but
fails to indicate the issues he attempted to exhaust or the individuals against whom such were asserted.
(Dkt. #44). In sum, Plaintiff has failed to demonstrate the existence of a genuine issue of material fact
with respect to whether he has properly exhausted the claims in question. The Court concludes,
therefore, that Defendants Wise, Burton, Ball, McKee, Mote, Hadden, Trieweller, and Bennickson have
satisfied their burden to demonstrate that Plaintiff has failed to properly exhaust his administrative
remedies with respect to the claims against them. Accordingly, the undersigned recommends that
Plaintiff’s claims against Defendants Wise, Burton, Ball, McKee, Mote, Hadden, Trieweller, and
Bennickson be dismissed.

II.

Defendant Weston
Federal Rule of Civil Procedure 4(c) indicates that “[a] summons must be served together

with a copy of the complaint.” The time frame within which service must be effected is articulated in
Rule 4(m), which provides that if service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, “the court - on motion or on its own after notice to the
plaintiff - must dismiss the action without prejudice against that defendant or order that service be made

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within a specified time.” If the plaintiff demonstrates good cause for such failure, however, the court
“must extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).
Plaintiff initiated this action on October 1, 2012. On November 15, 2012, the Court
dismissed many of Plaintiff’s claims, but concluded that Plaintiff’s complaint be served on several
individuals including Defendant Weston. The United States Marshal subsequently attempted to effect
service on Defendant Weston. An attempt was made to effect service on Defendant Weston, but the
summons and waiver of service were returned unexecuted on February 21, 2013. In the ten months
since, Plaintiff has neither requested assistance effecting service on Defendant Weston nor an extension
of time to effect service on him. Considering Plaintiff’s lack of diligence, the Court recommends that
Plaintiff’s claims against Defendant Weston be dismissed without prejudice for failure to timely effect
service.

CONCLUSION
For the reasons articulated herein, the undersigned recommends that Defendants’ Motion
for Summary Judgment, (Dkt. #41), be granted; that Plaintiff’s claims against Defendant Weston be
dismissed without prejudice for failure to timely effect service; and this matter terminated. The
undersigned further recommends that appeal of this matter would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).

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OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within fourteen (14) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,

Date: January 8, 2014

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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