Jackson #282320 v. Hogle et al

Filing 88

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 83 ; Defendants' motion for summary judgment 21 is GRANTED; Plaintiff's motion to file supplemental complaint 85 is DENIED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS O. JACKSON,
Plaintiff,

Case No. 1:13-cv-475

v

HON. JANET T. NEFF

F. HOGLE, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Plaintiff filed this prisoner civil rights action on May 2, 2013, alleging retaliation and denial
of medical treatment. Defendants filed a “Motion for Summary Judgment Based on Plaintiff’s
Failure to Exhaust Administrative Remedies” (Dkt 21), and the matter was referred to the Magistrate
Judge. On August 7, 2014, the Magistrate Judge issued a Report and Recommendation (R&R),
recommending that this Court grant Defendants’ motion. The matter is presently before the Court
on Plaintiff’s 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. On August 22,
2014, Plaintiff also filed a Motion to File Supplemental Complaint (Dkt 85), to which Defendants
have not responded. For the following reasons, the Court denies the objections, denies the motion,
and issues this Opinion and Order.

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In support of their “Motion for Summary Judgment Based on Plaintiff’s Failure to Exhaust
Administrative Remedies,” Defendants argued that Plaintiff had not exhausted the grievance process
through Step III as to any Defendant (Defs.’ Br., Dkt 22 at 2, 9). Defendants pointed out that the
MDOC Prisoner Step III Grievance Report for Plaintiff confirms that he has filed numerous Step III
grievances but all of the Step IIII grievances pertained to issues that occurred in mid-2012 or earlier,
i.e., issues that occurred before the events in this case, which took place from late January of 2013
through April 23, 2013 (id. at 10). Indeed, Defendants asserted that Plaintiff simply “could not have
gone through all three steps of the grievance process before filing his complaint on May 2,
2013—just over a week after the last incident” (id.).
In response to Defendants’ motion, Plaintiff attached certain grievance appeal receipts,
arguing that the issues were, in fact, exhausted, albeit conceding that he “did not receive a response
to his Step III grievance until January 21, 2014” (Pl.’s Resp., Dkt 59 at 1).
In the Report and Recommendation, the Magistrate Judge addressed the grievances Plaintiff
identified. Regarding ICF-1304-0905-17c, the Magistrate Judge determined that “the evidence
submitted by Plaintiff indicates [] his Step II grievance was denied on May 30, 2013, almost one
month after the present action was initiated. Because Plaintiff initiated the present action before the
prison grievance process was completed, this grievance cannot serve to exhaust any of the claims
asserted herein” (R&R, Dkt 83 at 6). The Magistrate Judge determined that Plaintiff initiated the
other grievance, ICF-1305-0946-28e, on April 29, 2013, and that Plaintiff’s Step I grievance was
denied on May 3, 2013, one day after the present action was initiated (id.). The Magistrate Judge
therefore recommends that this Court grant Defendants’ motion because “Defendants have carried

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their burden of demonstrating that Plaintiff has failed to properly exhaust any of the claims asserted
in this matter” (id. at 7).
In his objections, Plaintiff contends that the Magistrate Judge issued a “bias[ed] Report and
Recommendation” (Objs., Dkt 84 at 1). He asserts that her “decision is prejudicial because the
defendants made no such argument in their summary judgment motion” and that the Magistrate
Judge “made her own independent and personal decision outside of the record” (id.). According to
Plaintiff, his “response ... clearly supports that he did in fact submit a Step III grievance, which was
not timely answered” (id. at 2).
Plaintiff’s argument lacks merit.
The Magistrate Judge did not sua sponte raise the exhaustion issue but resolved the
arguments Defendants made in their summary judgment motion that Plaintiff had failed to exhaust
his administrative remedies before filing suit. Moreover, Plaintiff’s argument emphasizing that he
“did in fact submit a Step III grievance” overlooks the Magistrate Judge’s determination that Plaintiff
initiated the present action before the prison grievance process was completed. Plaintiff’s argument
therefore fails to demonstrate any factual or legal error in the Magistrate Judge’s analysis or
conclusion. As for the charge of bias, “judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). See, e.g.,
Traficant v. C.I.R., 884 F.2d 258, 267 (6th Cir. 1989) (holding that the plaintiff failed to demonstrate
bias where the plaintiff pointed to episodes that were “nothing more than the Judge’s rulings against
Traficant on the merits”).
Plaintiff also argues, as an additional “objection” to the Report and Recommendation, that
the Magistrate Judge erred in “fail[ing] to address Plaintiff’s supplemental complaint which
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addressed issues that occurred during the case and was exhausted through all three steps of the
grievance process” (Objs., Dkt 84 at 2). According to Plaintiff, “[t]he supplemental issues relate[]
to First Amendment violations in which the defendants began to destroy all plaintiff’s incoming mail
at the facility” (id.).
Plaintiff did not file his Motion to File Supplemental Complaint (Dkt 85) until after the
Magistrate Judge issued the Report and Recommendation. In any event, both Plaintiff’s “objection”
to the Report and Recommendation and his pending motion suffer from the same flaw as his
response to Defendants’ motion. Specifically, Plaintiff seeks to supplement his complaint to add
“additional issues that occurred since the filing of the original complaint” concerning Defendant’s
destruction of both his incoming and outgoing mail (Dkt 85 at 1-2).
When considering whether to grant leave to amend a complaint, the court considers “[u]ndue
delay in filing, lack of notice to the opposing party, bad faith by the moving party, ... and futility....”
Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.
1994)). Plaintiff’s grievances, which cannot serve to exhaust any of the claims asserted in the
current version of his complaint, likewise cannot serve to exhaust Plaintiff’s proposed claims, arising
from conduct that occurred after he filed his complaint. The amendments he proposes would be
futile. See, e.g., Carney v. Christiansen, 375 F. App’x 494, 497 (6th Cir. 2010) (“Carney’s failure
to exhaust his administrative remedies rendered his second amended complaint futile.”); Harris v.
Errkila, 48 F. App’x 978, 980 (6th Cir. 2002) (affirming the district court’s decision to dismiss the
complaint and deny the motion to amend the complaint, “as any amendment would be futile where
it was clear that administrative remedies had not been exhausted”). Therefore, Plaintiff’s Motion
to File Supplemental Complaint and his related “objection” are denied.
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Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Because this Opinion and Order resolves the last pending claim in this case,
the Court will also enter a Judgment. See FED. R. CIV. P. 58. This action was filed in forma
pauperis, and this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of the Judgment
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). Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 84) are DENIED, and the Report and
Recommendation (Dkt 83) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt 21)
is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to File Supplemental Complaint (Dkt
85) is DENIED.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the Judgment would not be taken in good faith.

Dated: September ___, 2014
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/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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