Jackson #477836 et al v. Snyder et al
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 107 ; Defendants' motions for summary judgment 61 , and 79 are GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART; the motions are granted as to Plaintiff J ackson, but denied without prejudice as to Plaintiff Richards; Plaintiff Richards' motion for exemption from exhaustion requirement 77 is denied without prejudice; Plaintiff Richards' motion for summary judgment 89 and the supplemental motion for summary judgment 104 are denied; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
JAMES JACKSON et al.,
Case No. 1:12-cv-1134
HON. JANET T. NEFF
RICK SNYDER et al.,
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, in which Plaintiffs
Jackson and Richards claim that they have received inadequate food portions, and been subjected
to threats and mistreatment by prison officials in retaliation for Plaintiffs’ complaints about prison
conditions. Defendants filed motions for summary judgment, arguing that Plaintiffs failed to
exhaust their administrative remedies (Dkts 61, 79). Plaintiff Richards filed a motion requesting an
exemption from the exhaustion requirement (Dkt 77), a motion for summary judgment (Dkt 89), and
a supplemental motion for summary judgment (Dkt 104). The matter was referred to the Magistrate
Judge, who issued a Report and Recommendation (R&R), recommending that this Court deny
Defendants’ motions and Plaintiff Richards’ motions (R&R, Dkt 107).
The matter is presently before the Court on Defendants’ and Plaintiff Richards’ objections
to the Report and Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P.
72(b)(3), the Court has performed de novo consideration of those portions of the Report and
Recommendation to which objections have been made. The Court denies the objections in part and
grants the objections in part and issues this Opinion and Order.
Defendants’ Objections to the Rejection of Unauthenticated Evidence
Defendants argue that the Magistrate Judge erred in rejecting their unauthenticated evidence,
and denying their motions for summary judgment, because Plaintiffs never challenged the evidence
(Defs. Obj., Dkt 111 at 2). In the alternative, Defendants argue that the Magistrate Judge should
have allowed them an opportunity to authenticate the documents rather than deny the motions (id.).
In effect, Defendants contend that because this Court “may . . . receive further evidence” when
reviewing a magistrate judge’s disposition to which a proper objection has been made, FED. R. CIV.
P. 72(b)(3), Defendants should be given a “pass” when evidence is initially submitted in an
inadmissible manner, and should be permitted to submit proper evidence in objection to the Report
The Court emphasizes that the better, and more efficient, practice is for counsel to simply
submit properly authenticated evidence to accompany summary judgment motions in the first
It is not in the interest of justice to allow a party to wait until the Report and
Recommendation . . . has been issued and then submit evidence that the party had in
its possession but chose not to submit. Doing so would allow parties to undertake
trial runs of their motion, adding to the record in bits and pieces depending upon the
rulings or recommendation they received.
Direct Line Corp. v. Carrington, No. 3:10-0423, 2013 WL 2456712, at *1 (M.D. Tenn. June 6,
2013) (quoting Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998), cert. denied, 525 U.S. 907
Defense counsel asserts that the Magistrate Judge’s sua sponte rejection of the evidence was
“draconian,” since in another case, a different magistrate judge adopted the practice of reviewing
motions for unauthenticated documents and took an approach allowing the parties to authenticate
the documents before the report and recommendation issued (Defs. Obj. at 2). That defense counsel
points out an accommodation of the same deficiency in another of his cases is hardly a persuasive
However, in light of the other circumstances present in this particular case, the Court will
accept the affidavit submitted by Defendants to cure the evidentiary defect. But the Court cautions
that this should not be the ordinary practice.
The Court will address the effect of Defendants’ evidence as to each Plaintiff’s claims.
In moving for summary judgment, Defendants argued that Plaintiffs’ claims must be
dismissed because Plaintiffs failed to exhaust their administrative remedies before filing this lawsuit
(Defs. Br., Dkt 62 at 7-8). Defendants now contend, given the affidavit submitted in support of their
exhaustion argument, which cured the technical deficiency in their evidence, that they are entitled
to summary judgment of Plaintiff Jackson’s claims. This Court agrees.
First, Plaintiff Jackson’s own evidences makes it clear that he did not exhaust his
administrative remedies. The Supreme Court has defined “proper exhaustion,” under the PLRA, as
“‘compliance with an agency’s deadlines and other critical procedural rules’” (R&R, Dkt 107 at 6,
quoting Woodford v. Ngo, 548 U.S. 81, 90-93 (2006)). MDOC Policy Directive 03.02.130 provides
inmates with a three-step process for addressing issues during their confinement. Here, Plaintiff
Jackson fully admitted in his Amended Complaint that he filed the lawsuit before completing the
MDOC’s three-step process (Dkt 31 at 7). Plaintiff then submitted copies of relevant grievances that
he filed in an effort to show that he had exhausted his administrative remedies. However, while he
initiated this action in federal court on September 28, 2012, his Step I grievance is dated October
10, 2012. Therefore, it is impossible for Plaintiff Jackson to have pursued his claim through the
entire grievance process before filing this current action, as is required under 42 U.S.C. § 1997e(a).
Second, the evidence submitted by Defendants confirms that Plaintiff Jackson did not
exhaust his administrative remedies. This Court may accept additional evidence when considering,
on a proper objection, any portion of a magistrate judge’s disposition. FED. R. CIV. P. 72(b)(3).
Considering Plaintiff Jackson’s admissions, this Court will accept the affidavit of Richard Russell,
Manager of the MDOC Grievance Section (Dkt 111-3, Ex. 2). Russell states that the MDOC
Prisoner Step III Grievance Report for Plaintiff Jackson, submitted by Defendants (Dkt 62-4, Ex.
3), is an accurate copy of the report generated to identify Plaintiff Jackson’s Step III grievance
submissions from May 2009 through May 14, 2013 (Dkt 111-3, Ex 2 at 2). The report does not
show a single Step III grievance, filed by Plaintiff Jackson, that was received by the MDOC before
October 24, 2012—almost one month after Plaintiff Jackson filed this action in federal court.
Failure to exhaust administrative remedies is an affirmative defense for which Defendants
have the burden of proof. Surles v. Andison, 678 F.3d 452, 455 (6th Cir. 2012) (citing Napier v.
Laurel Cnty., Ky., 636 F.3d 218, 225 (6th Cir. 2011)). Plaintiff is not required to demonstrate
exhaustion in his complaint (R&R, Dkt 107 at 5, citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Considering the facts outlined supra, there clearly is no factual dispute that Plaintiff Jackson filed
this lawsuit before he pursued his claim through the MDOC grievance process. Therefore, because
Plaintiff Jackson failed to properly exhaust his administrative remedies, this Court grants
Defendants’ motion for summary judgment as to Plaintiff Jackson.
Defendants argue that they are also entitled to summary judgment on Plaintiff Richards’
claims because he failed to exhaust his administrative remedies before filing this lawsuit (Defs. Br.,
Dkt 62 at 7-8). Like Plaintiff Jackson, Plaintiff Richards fully admits that he did not exhaust his
administrative remedies (Pl. Obj., Dkt 113 at 3). However, Plaintiff Richards has alleged that prison
officials obstructed his attempts to comply with the MDOC grievance process (Pl. Mot., Dkt 77 at
1). Based on that allegation, Plaintiff Richards filed a motion for exemption from the exhaustion
requirement (id.). The Court denies both Defendants’ and Plaintiff Richards’ motions without
prejudice because there are genuine issues of material fact concerning the issue of exemption, i.e.,
why Plaintiff Richards has not filed any Step III grievances.
The burden is on Defendants to prove that an inmate did not exhaust administrative remedies.
See Surles, 678 F.3d at 455. Once the defendants properly assert that the plaintiff failed to exhaust
administrative remedies, the plaintiff must then “present ‘significant probative evidence’ to defeat
the motion for summary judgment on this ground.” Napier, 636 F.3d at 225 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Exhaustion may be demonstrated by an inmate if
prison officials actively prevent the inmate from complying with the prison grievance procedures,
effectively making administrative remedies unavailable. See Risher v. Lappin, 639 F.3d 236, 240
(6th Cir. 2011). The Sixth Circuit “requires an inmate to make ‘affirmative efforts to comply with
the administrative procedures,’ and analyzes whether those ‘efforts to exhaust were sufficient under
the circumstances.’” Id. (quoting Napier, 636 F.3d at 224). An inmate is required to exhaust
administrative remedies “even if the prisoner subjectively believes the remedy is not available . . .
and ‘even where [the prisoners] believe the procedure to be ineffectual or futile ….’” Napier, 636
F.3d at 222 (citations omitted).
Here, Plaintiff Richards claims that he was prevented from exhausting his administrative
remedies because prison officials ignored his requests for grievance forms, refused to provide
grievance forms, and were raiding his cell and destroying legal materials (Pl. Mot., Dkt 77 at 1-2).
Defendants have provided no evidence that directly responds to these claims, and the Magistrate
Judge did not address this issue (R & R at 9, recommending Plaintiff Richards’ motion be denied
as moot since Defendants failed to carry their burden on the exhaustion question). The lack of Step
III grievances filed by Plaintiff Richards could demonstrate that he failed to comply with the
grievance process or it could demonstrate that he properly pursued all available remedies (see R &
R at 9).
Because there are genuine issues of material fact as to why Plaintiff Richards failed to
exhaust his administrative remedies, summary judgment is properly denied. Defendants’ motion
for summary judgment and Plaintiff Richards’ motion for exemption from the exhaustion
requirement are both denied without prejudice.
B. Plaintiff Richards’ Motion for Summary Judgment
Finally, Plaintiff Richards also objects to the Magistrate Judge’s recommendation that the
Court deny Plaintiff Richards’ motion for summary judgment of his remaining claims. Plaintiff
Richards’ argument, which does not cite any legal authority, is entirely without merit. The
Magistrate Judge noted that “Plaintiff’s motions for summary judgment are premised primarily upon
conjecture and argument rather than evidence. Moreover, to the extent that Plaintiff has submitted
evidence in support of his motions, such falls far short of the demanding standard [for summary
judgment]” (R & R at 10). Plaintiff Richards does not demonstrate any legal or factual error in the
Magistrate Judge’s analysis or conclusion. Plaintiff Richards’ motion for summary judgment is
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation, as
modified herein on objection, as the Opinion of this Court. Because this action was filed in forma
pauperis, this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision
would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007).
IT IS HEREBY ORDERED that the Objections (Dkts 111, 113) are DENIED IN PART
and GRANTED IN PART as stated herein, and the Report and Recommendation (Dkt 107), as
modified herein on objection, is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motions for Summary Judgment (Dkts 61,
79) are GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART; the motions are
granted as to Plaintiff Jackson, but denied without prejudice as to Plaintiff Richards.
IT IS FURTHER ORDERED that Plaintiff Richards’ Motion for Exemption from
Exhaustion Requirement (Dkt 77) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff Richards’ Motion for Summary Judgment (Dkt
89) and the Supplemental Motion for Summary Judgment (Dkt 104) are DENIED.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the decision would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: September ___, 2014
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