Heard #252329 et al v. Finco et al
Filing
204
ORDER ADOPTING IN PART AND REJECTING IN PART 3/27/15 REPORT AND RECOMMENDATION 188 , 181 , 75 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________
LAMONT HEARD, et al.,
Plaintiffs,
v.
Case No. 1:13-CV-373
TOM FINCO, et al.,
HON. GORDON J. QUIST
Defendants.
_____________________________/
ORDER ADOPTING IN PART AND REJECTING IN
IN PART 3/27/15 REPORT AND RECOMMENDATION
On March 27, 2015, Magistrate Judge Hugh Brenneman issued a Report and Recommendation
(R & R) recommending that the Court grant Defendants’ motion for partial summary judgment based
on lack of exhaustion. In particular, the magistrate judge recommended that the Court dismiss all
Plaintiffs’ Ramadan 2011 claims and Plaintiff Nelson’s Ramadan 2012 claim for lack of exhaustion.
With regard to Plaintiff Heard’s Ramadan 2011 claim, the magistrate judge rejected Heard’s
argument that his 2010 grievance concerning Ramadan 2010 also exhausted his Ramadan 2011 claim.
(R & R at 4–5.) With regard to Plaintiff Johnson, the magistrate judge noted that Defendants established
that Johnson failed to exhaust a grievance for Ramadan 2011, and Johnson admitted such fact. Plaintiffs
Moses and Nelson were in a different position than Plaintiffs Heard and Johnson because Moses and
Nelson had not signed the response. (Dkt. # 85 at Page ID#860.) Therefore, the magistrate judge
refused to consider the statements that Plaintiffs Heard and Johnson made on behalf of Plaintiffs Moses
and Nelson. (R & R at 6 nn. 3, 4.) The magistrate judge found that Moses failed to exhaust a grievance
for Ramadan 2011 and that, while Nelson exhausted a grievance through Step III for Ramadan 2011,
he did not name any Defendant in this action in his grievance. (Id.)
Finally, with regard to Ramadan 2012, the magistrate judge concluded that Plaintiffs Heard,
Johnson, and Moses had exhausted their claims, but Plaintiff Nelson did not exhaust his claim.
In response to the R & R, Plaintiffs have filed a motion pursuant to Federal Rules of Civil
Procedure 11(a) and 15(c) to resubmit their response to Defendant’s motion for partial summary
judgment, which all Plaintiffs have now signed. In addition, all Plaintiffs have signed and submitted
a partial Objection to the R & R. Finally, Plaintiff Nelson has filed his own Objection to the R & R with
regard to his Ramadan 2011 claim.
Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to a report and recommendation,
the district judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” After conducting a de novo review
of the R & R, Plaintiffs’ Objections, and the pertinent portions of the record, the Court concludes that
the R & R should be adopted in part and rejected in part. In addition, the Court will grant Plaintiffs’
motion to resubmit their fully-signed response to Defendants’ motion for partial summary judgment.
Plaintiffs’ Motion to Resubmit Their Response
Having reviewed Plaintiffs’ motion to resubmit their response to Defendants’ motion for partial
summary judgment, that is now signed by all Plaintiffs, the Court concludes that the motion should be
granted. In their response, Plaintiffs concede that Plaintiffs Johnson and Moses did not exhaust a
grievance through Step III for Ramadan 2011 and that such claims should be dismissed. Therefore,
Johnson’s and Moses’s Ramadan 2011 claims will be dismissed.
Plaintiffs’ Objections
I.
Ramadan 2011—Plaintiff Heard
Plaintiff Heard contends that, although he did not exhaust a grievance for Ramadan 2011, the
magistrate judge erred in concluding that Heard’s grievance for Ramadan 2010 did not exhaust his claim
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for Ramadan 2011. The magistrate judge concluded that Heard’s Ramadan 2010 grievance could not
have exhausted his claim for Ramadan 2011 because the violation that occurred during Ramadan 2011
was a discrete event that required Heard to identify the particular MDOC employees responsible for the
violation, the date of the occurrence, and the alleged wrongful conduct. Heard contends that the 2011
Ramadan violation resulted from a continuation of the same policy (providing Ramadan observants
significantly fewer calories than what they received on the regular diet) that caused the violation for
Ramadan 2010. Heard thus contends that because the Ramadan 2011 violation resulted from the
application of the same unconstitutional policy, he was not required to file a new grievance. In support
of his contention, Heard relies on Ellis v. Vadlamudi, 568 F. Supp. 2d 778 (E.D. Mich. 2008), and
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), both of which the Sixth Circuit discussed in Siggers
v. Campbell, 652 F.3d 681 (6th Cir. 2011).
In Siggers, the plaintiff alleged that the defendants violated his First Amendment rights by
improperly rejecting his incoming mail on several occasions. The Sixth Circuit held that the plaintiff’s
filing of a single September 16, 2006 grievance was insufficient to exhaust claims relating to several
previous mail rejections that occurred many months before the grievance was filed and that the
grievance was also insufficient to exhaust mail rejections that occurred after the plaintiff filed the
grievance. Siggers, 652 F.3d at 690. Citing both Ellis and Johnson, the plaintiff argued that his
grievance put the defendants on notice of a continuing violation. The Sixth Circuit distinguished both
cases. It noted that the plaintiff in Ellis complained of the defendants’ deliberate indifference in failing
to treat his chronic medical condition that caused pain, and that the defendants’ alleged failure to treat
the plaintiff’s “ongoing medical condition” was not “one discrete harm-causing act by the government.”
Id. at 692–93. In contrast to Ellis, the Sixth Circuit said that each of the mail rejections of which Siggers
complained was a discrete event that required a separate grievance. Id. at 693. The Sixth Circuit noted
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that the Fifth Circuit’s decision in Johnson was distinguishable because the plaintiff in that case alleged
that the defendants failed to protect him from repeated sexual assaults that occurred over the course of
eighteen months. The Sixth Circuit noted that the plaintiff in Johnson complained of a single
government failure (to protect the plaintiff) and that his grievance “properly sufficed to exhaust
subsequent harms because the government was put on notice of its failure, and any subsequent grievance
filed would have complained of the exact same government failing.” Id. The Sixth Circuit found that
the subsequent violations that Siggers alleged were not based on a single government failure, because
two of the three subsequent violations were based on different MDOC policy directives than the
violation alleged in the plaintiff’s sole grievance. Id.
In the Court’s judgment, Plaintiffs’ claims in this case are not based on discrete events, but
instead upon Defendants’ alleged policy of providing Ramadan observers significantly fewer calories
in the Ramadan diet than they would have received in the regular diet. In other words, as the Court
understands Plaintiffs’ claims, the injury they claim resulted from an MDOC-wide policy that
significantly reduced the calories that Ramadan observers received rather than from discrete deviations
that occurred from prison to prison. This fact renders the instant case more like Johnson rather than
Siggers, because Plaintiffs’ claims for each Ramadan celebration arise from “a single government
failure.” Siggers, 652 F.3d at 693; see also Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“In
order to exhaust their remedies, prisoners need not file multiple, successive grievances raising the same
issue (such as prison conditions or policies) if the objectionable condition is continuing.”).
Although the Court disagrees with the magistrate judge that Heard’s 2010 grievance could not
have exhausted his 2011 claim, the Court nonetheless concludes that the magistrate judge did not err
in recommending dismissal. As the party opposing Defendants’ motion for partial summary judgment,
Heard was obligated to produce evidence showing that he actually exhausted a grievance for Ramadan
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2010. See Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000) (noting that after the moving
party carries its initial burden on summary judgment, “[t]he burden then shifts to the nonmoving party
to come forward with evidence showing that there is a genuine issue [of material fact].”). Heard failed
to attach copies of his 2010 grievance through Step III to Plaintiffs’ initial response, to Plaintiffs’ motion
to resubmit their response, or to Plaintiffs’ partial Objection. Moreover, although not obligated to do
so, the Court searched the record for evidence pertaining to Heard’s 2010 grievance, but it found no
such evidence. Accordingly, Heard failed to meet his burden of demonstrating a genuine issue of
material fact that he exhausted his Ramadan 2011 claim.
II.
Ramadan 2011 and 2012—Plaintiff Nelson
Plaintiff Nelson contends that the magistrate judge erred in concluding that Nelson failed to
exhaust his claims for Ramadan 2011 and 2012. The Court agrees.
With regard to Ramadan 2011, the magistrate judge noted that while Nelson did exhaust a
grievance through Step III for Ramadan 2013, he did not name any Defendant in this case in the
grievance. While such failure would normally be a basis for concluding that the prison failed to
properly exhaust his claim, Nelson notes that prison officials addressed his grievance through all steps
without enforcing the rule requiring the grievant to identify the individuals involved in the issue. As
the Sixth Circuit has observed, “[w]hen prison officials decline to enforce their own procedural
requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we.”
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). Thus, because the MDOC failed to enforce
its own rules in considering Nelson’s grievance and instead ruled on the merits, Defendants may not
now claim that Nelson failed to properly exhaust.
Following Heard’s lead, Nelson argues that his 2011 grievance properly exhausted his 2012
Ramadan claim. For the reasons set forth above, the Court concludes that a grievance for Ramadan
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2011 would exhaust a claim for Ramadan 2012. In contrast to Heard, however, Nelson has attached
copies of his 2011 grievance to Plaintiffs’ partial Objection. Therefore, Nelson has carried his burden
of producing evidence that he actually exhausted his Ramadan 2011 claim. Therefore, Nelson’s
Ramadan 2012 claim may proceed.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation issued
March 27, 2015 (dkt. # 181) is ADOPTED IN PART AND REJECTED IN PART.
IT IS FURTHER ORDERED that Defendants’ Motion For Partial Summary Judgment (dkt
# 75) is GRANTED IN PART AND DENIED IN PART. Defendants’ motion is granted with regard
to Plaintiffs Heard’s, Moses’s, and Johnson’s claims based on Ramadan 2011. The motion is denied
with regard to Plaintiff Nelson’s claims for Ramadan 2011 and 2012. Therefore, the case will proceed
on Plaintiff Nelson’s Ramadan 2011 claim and on Plaintiff Heard’s Moses’s, Johnson’s, and Nelson’s
claims for Ramadan 2012.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Re-Submit Signed Plaintiffs’ Response
Partially Opposing Motion for Partial Summary Judgment (dkt. # 188) is GRANTED.
Dated: June 26, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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