Jones #269229 v. Heyns et al

Filing 65

OPINION and ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 60 as modified by the opinion of the Court; granting 41 Defendants' motion for summary judgment; the Court discerns no good-faith basis for appeal ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY JONES,

Plaintiff,

Case No. 1:12-CV-01341

v.

HON. ROBERT J. JONKER

DANIEL HEYNS, et al.
Respondents,
/
OPINION AND ORDER
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
The matter before the Court is the Magistrate Judge’s Report and Recommendation (docket
no. 60).

The Plaintiff has filed a set of objections to the Magistrate Judge’s Report and

Recommendation (docket no. 62).
Under the Federal Rules of Civil Procedure, where a party has objected to portions of a
Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge’s disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.

FED. R. CIV. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge, the
Report and Recommendation itself, and the Plaintiff’s objections to the Magistrate’s Report and
Recommendation. After its review, the Court finds that Magistrate Judge Brenneman’s Report and
Recommendation is factually sound and legally correct.
Plaintiff Jones is in custody. This dispute concerns his complaint that he was treated
unkindly by a guard, who allegedly made comments suggesting that Jones was a homosexual. After
filing a misconduct ticket, Plaintiff alleges that the guards retaliated against him. Plaintiff asserts
that the MDOC’s Policy Directive 03.02.103 ¶¶ K and L are unconstitutional on both an as-applied
and facial basis on the grounds that the directives are void for vagueness. The R&R, instead of
delving into whether these directives are unconstitutional, focused on whether Plaintiff failed to
properly exhaust his issue within the MDOC. The R&R recommends granting summary judgment
to the Defendants on the basis that Plaintiff has not met the requirement of exhaustion, on both his
as-applied and facial challenges. The Court agrees with the Magistrate Judge as far as the as-applied
challenge is concerned, and for the reasons detailed below, agrees with the result reached by the
Magistrate Judge as far as the facial challenge is concerned. Accordingly, the Court adopts the
Magistrate Judge’s conclusions subject to the observations noted below.
I. JONES’S OBJECTIONS
A. As-Applied Challenge
Plaintiff’s first objection concerns his as-applied challenge, he alleges that there is no record
evidence to support the Magistrate Judge’s contention that he failed to properly exhaust his claim.
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(docket no. 62, Obj. at 1, PageID # 405.) This is incorrect. The Magistrate Judge correctly noted
that the grievances identified by Jones fail to adequately address the First Amendment issue he
pursues before this Court. (docket no. 60, Rep. at 10–11, PageID # 401–02.) It is therefore
unsurprising that Jones, in making his objection, raises no substantive argument for the Court to
address. Accordingly, this objection is overruled.
B. Facial Challenge
Plaintiff’s second objection concerns his facial challenge to the policies. The Report and
Recommendation correctly notes that a prisoner, for purposes of exhaustion, need not go through
the MDOC’s usual three-step grievance process, as must be done with as-applied challenges.
(Docket no. 60, Report at 8, PageID # 399.) Facial challenges instead require that a prisoner direct
comments to the Warden’s Forum. (Docket no. 60, Report at 7, PageID # 398.) The Report &
Recommendation states that “plaintiff has presented no evidence to support the bald assertion that
he addressed concerns with the Warden’s forum or that those concerns specifically addressed his
facial challenge” to the content of the policy. (Docket no. 60, Report at 11, PageID # 402.) On this
basis, the Report and Recommendation finds that Plaintiff has not met the requirement of
exhaustion.
The Court believes that the present record does not establish that summary judgment for the
Defendants is appropriate, at least on the exhaustion issue, because the “burden of establishing the
nonexistence of a genuine issue is on the party moving for summary judgment.” Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). Therefore the initial burden of producing evidence rests with the
Defendants. See id. The absence of an affidavit or other sworn statement could certainly be
significant if the moving party had in the first instance made the necessary showing, however there
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does not appear to be any evidence on this record establishing that Plaintiff did not raise this issue
at the Warden’s forum. It is true that where a plaintiff submits an affidavit that a defendant fails to
dispute, summary judgment for the defendant is not appropriate, see Mario Sentelle Cavin, LLC v.
Heyns, No. 1:11-CV-1370, 2012 WL 5031503, at *6 (W.D. Mich. July 30, 2012), adopted 2012 WL
5002292 (W.D. Mich. Oct. 17, 2012), however the Court is inclined to stop short of granting
summary judgment where the record is silent, and where the defense has the burden of proof on an
affirmative defense such as exhaustion.
In any event, the Court finds that summary judgment is still appropriate on the merits. A
First Amendment facial challenge is “no small matter,” and would require that Jones show either
“(1) that there truly are no or at least few circumstances in which the Act would be valid, or (2) that
a court cannot sever the unconstitutional textual provisions of the law or enjoin its unconstitutional
applications.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (internal
quotation marks and citations omitted). Together, the challenged policies provide that a grievant
shall not be penalized for filing a grievance, unless the filed grievance is meritless. Accordingly, to
succeed on his facial challenge, Jones would effectively have to show that it facially violates the First
Amendment to have a rule that says a prisoner “may be issued a misconduct report” if he
“intentionally files a grievance which is investigated and determined to be unfounded.” See MDOC
Policy Directive 03.02.120 at ¶ L.
This is simply not the case. “Prisoners have a First Amendment right to file institutional
grievances without being subject to retaliation, however, this right only extends to the filing of
non-frivolous grievances.” Walker v. Michigan Dep’t of Corr., 128 F. App’x 441, 445–46 (6th Cir.
2005) (citing Lewis v. Casey, 518 U.S. 343, 352–53 (1996); Herron v. Harrison, 203 F.3d 410, 414
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(6th Cir.2000)). It is therefore well-established that a grievant may be penalized for filing a meritless
grievance, and Plaintiff cannot demonstrate that the policies are facially invalid. Accordingly, the
Court overrules this objection.
II. CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket no. 60) is approved and adopted as modified by the opinion of the Court.
The Defendants’ motion for summary judgment (docket no. 41) is GRANTED.
IT IS FURTHER ORDERED that for the same reasons that the Court denies the motion,
the Court discerns no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3).
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
IT IS SO ORDERED.

Dated: July 9, 2015

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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