Smith #267009 v. Heyns et al

Filing 94

ORDER ADOPTING IN PART AND MODIFYING REPORT AND RECOMMENDATION 80 ; granting plaintiff's motion for leave to file affidavit 88 ; denying defendant's motion for summary judgment 33 ; ADOPTING REPORT AND RECOMMENDATION 79 ; denying plaintiff's motion for a preliminary injunction 76 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH #267009,
Plaintiff,

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-v)
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W. ALFORD,
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Defendant.
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No. 1:13-cv-694
HONORABLE PAUL L. MALONEY

ORDER MODIFYING REPORT AND RECOMMENDATION REGARDING MOTION
FOR SUMMARY JUDGMENT AND ADOPTING REPORT AND RECOMMENDATION
REGARDING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Derrick Smith, a prisoner under the control of the Michigan Department of
Corrections, filed a pro se complaint pursuant to 42 U.S.C. § 1983. The complaint alleges that
William Alford, a corrections officer, violated Smith’s rights under the Eighth Amendment’s
prohibition of cruel and unusual punishment when he closed a door on Smith’s wrist, arm, and hand
in retaliation for Smith’s filing of legal actions. Defendant filed a motion for summary judgment
alleging the affirmative defense that Smith failed to exhaust administrative remedies. (ECF No. 33.)
Smith filed a response. (ECF No. 38.) Plaintiff later filed a motion for a preliminary injunction
concerning a 30-day phone restriction imposed on him, which he alleges was further retaliation.
(ECF No. 76.)
The magistrate judge issued a Report and Recommendation (R&R) concerning the motion
for summary judgment on January 5, 2015, which recommended that the motion be granted due to
Plaintiff’s failure to exhaust administrative remedies. (ECF No. 80.) The magistrate found that a
grievance against Alford filed more than two months after the incident was untimely and thus did
not exhaust the administrative remedies available to Plaintiff. Also on January 5, 2015, the
magistrate judge issued a Report and Recommendation concerning the motion for a preliminary

injunction, which recommended denying the motion because it is unrelated to any issue pending in
the current lawsuit. (ECF No. 81.) Smith filed objections to both R&Rs, asserting that he did timely
file a grievance against Alford (ECF No. 82) and that Alford contacted staff at the facility where
Smith is now held and instructed them to issue the misconduct report that led to his phone
restrictions (ECF No. 81) in retaliation for the lawsuit against him.
In the interim, Smith has filed several additional motions, including: (1) a motion for
summary judgment on the claims against Defendant Alford (ECF No. 84); and a motion for leave
to file an affidavit in support of his objections to the R&R (ECF No. 88). Smith’s motion for leave
to file the affidavit is GRANTED and the Court will consider the affidavit.
I.

LEGAL FRAMEWORK
After being served with a report and recommendation (R&R) issued by a magistrate judge,

a party has fourteen days to file written objections to the proposed findings and recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de novo the portions of
the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide de novo
review where the objections are frivolous, conclusive or too general because the burden is on the
parties to “pinpoint those portions of the magistrate’s report that the district court must specifically
consider”). Failure to file an objection results in a waiver of the issue and the issue cannot be
appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); see also Thomas v. Arn, 474
U.S. 140, 155 (upholding the Sixth Circuit’s practice). The district court judge may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
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II.

ANALYSIS
A.

Motion for Summary Judgment

Defendant Alford’s motion for summary judgment discusses only grievance number RMI13-01-0035-28e, filed on November 14, 2012, because it is the only grievance relevant to this
complaint that progressed through Step III. The Court finds no defect in the R&R’s discussion of this
grievance. The portion of the R&R that discusses why the November 14, 2012 grievance did not
exhaust Plaintiff’s administrative remedies is ADOPTED.
However, the record contains an additional grievance that deals with the situation at hand,
RMI-12-09-445-12E4, filed by Plaintiff on September 7, 2012. Plaintiff asserts that this grievance
was rejected at Step I and that MDOC employees refused to give him the Step II/III form to appeal.
Plaintiff also asserts that he filed a separate grievance complaining that he had not been provided a
Step II/III appeal form, which was rejected. Smith notes that he filed the November 14, 2012
grievance because his appeal of the September 7, 2012 grievance denial was thwarted.
The PLRA exhaustion requirements are not jurisdictional, so “district courts have some
discretion in determining compliance with the statute.” Sims v. Rewerts, No. 07-12646, 2008 WL
2224132, at *5 (E.D. Mich. 2008) (citing Curry v. Scott, 249 F.3d 493, 501-503 (6th Cir.2001)). The
Sixth Circuit has deemed claims exhausted where inmates attempt to comply with the grievance
system and prison officials fail to timely respond or thwart the exhaustion of remedies through
neglect. See Boyd v. Corrections Corp. of Am., 380 F.3d 989, 996 (6th Cir. 2004); Sims, 2008 WL
2224132, at *4-6. Thus, not every exhausted claim necessarily makes it to Step III of the grievance
procedures, as Defendant’s motion assumes.
Because failure to exhaust administrative remedies is an affirmative defense that must be
proven by defendants and Alford did not address the September 7, 2012 grievance, he has not proven
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that Plaintiff failed to exhaust his administrative remedies. Accordingly, the motion for summary
judgment based solely on failure to exhaust administrative remedies must be DENIED. The Report
and Recommendation is MODIFIED to include the above discussion.
B.

Motion for Preliminary Injunction

Smith’s objections to the R&R recommending his preliminary injunction motion be denied
are unavailing. Smith’s unsupported accusations that Alford is directing the staff at his current
corrections facility to retaliate against him does not remedy the fact that the motion concerns a new
claim and not the claim pending in this lawsuit. Smith has not identified any specific defect in the
R&R as required by the statute. 28 U.S.C. § 636(b)(1). Accordingly, the R&R recommending the
denial of Plaintiff’s motion for a preliminary injunction (ECF No. 79) is ADOPTED as the opinion
of this Court.
V.

CONCLUSION
For the reasons stated above, the Report and Recommendation that recommends granting

Defendant Alford’s motion for summary judgment (ECF No. 80) is ADOPTED IN PART and
MODIFIED as noted above. Plaintiff’s motion for leave to file an affidavit in support of his
objections to the R&R (ECF No. 88) was GRANTED. Defendant’s motion for summary judgment
(ECF No. 33) is DENIED.
The Report and Recommendation addressing Plaintiff’s motion for a preliminary injunction
(ECF No. 79) is ADOPTED as the opinion of this Court. Plaintiff’s motion for a preliminary
injunction (ECF No. 76) is DENIED.
IT IS SO ORDERED.
Date:

March 31, 2015

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge
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