Lacy Jr. # 141241 v. Duell et al

Filing 44

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 26 ; Defendants' Motion for Summary Judgment 14 is GRANTED IN PART and DENIED IN PART; Plaintiff's Motion for Summary Judgment 18 is DENIED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GEORGE LACY, JR.,
Plaintiff,

Case No. 1:14-cv-537

v

HON. JANET T. NEFF

RANDY DUELL, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 involving retaliation
claims. The Defendants remaining in this case filed a motion for summary judgment (Dkt 14),
arguing that Plaintiff failed to properly exhaust his administrative remedies. Plaintiff also filed a
motion for summary judgment (Dkt 18), arguing that there is no factual dispute that Defendants
retaliated against him. The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending that Plaintiff’s motion be denied and Defendants’ motion
be granted in part and denied in part (Dkt 26). Plaintiff objects to both recommendations of the
Magistrate Judge (Dkt 33). Defendants filed a response to Plaintiff’s objections (Dkt 39). 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 and issues this Opinion and Order.

I
Plaintiff first objects to the Magistrate Judge’s determination that he failed to
administratively exhaust his claim against Defendants Arksey, Oversmith and Norwood (Pl. Obj.,
Dkt 33 at PageID.234-241). The Magistrate Judge determined that Plaintiff filed a grievance, ICF12-04-0738-24z, in which he alleged that he was transferred to the Chippewa Correctional Facility
in retaliation for having filed a prison grievance concerning difficulties he was allegedly
experiencing in his prison job; however, Defendant Duell was the only defendant identified in this
grievance (R&R, Dkt 26 at PageID.219-220). Therefore, the Magistrate Judge recommends that
Plaintiff’s claims against Defendants Arksey, Oversmith, and Norwood be dismissed for failure to
exhaust administrative remedies, and that Defendant Duell’s motion for summary judgment on
exhaustion grounds be denied.
In his objections, Plaintiff opines that he met the exhaustion requirements “to the best of his
abilities,” including all information that he could “reasonably obtain” (Pl. Obj., Dkt 33 at
PageID.240). According to Plaintiff, the facts in this case are similar to the circumstances in ReedBey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010), where Plaintiff asserts the MDOC officials
“overlooked (or perhaps) forgave the same procedural failing” (Pl. Obj., Dkt 33 at PageID.235-236,
240). Plaintiff emphasizes that he did not know the identify of Defendants Norwood or Oversmith
until after the grievance reached Step II, and he opines that Defendants received “fair notice” of his
retaliation claim against them (id. at PageID.237-239).
Plaintiff’s objection is properly denied.
As Defendants point out in their response (Defs. Resp., Dkt 39 at PageID.334), Plaintiff’s
reliance on the holding in Reed-Bey is misplaced. In Reed-Bey, the prisoner pursued his grievance
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through all three levels of prison review, yet he failed to identify the “names of all those involved”
in the grievance, as required. Reed-Bey, 603 F.3d at 323. The Sixth Circuit held that “[b]ecause
the Michigan Department of Corrections opted to dismiss his grievance on the merits rather than
invoke its procedural bar, Reed-Bey exhausted his claim.” Id. Here, however, Plaintiff did not
receive a merits-based dismissal. Rather, the relevant grievance was rejected on procedural grounds,
to wit: that Plaintiff “did not attempt to resolve the issue with the staff member involved prior to
filing the grievance” (Dkt 15-3 at PageID.157).1 Plaintiff’s argument therefore reveals no factual
or legal error in the Magistrate Judge’s exhaustion analysis.
II
Plaintiff also objects to the Magistrate Judge’s recommended denial of his motion for
summary judgment. According to Plaintiff, he “met the three[] essential elements . . . in a retaliation
claim” (Pl. Objs., Dkt 33 at PageID.242-244). Plaintiff further asserts that he did not quit his job,
that several people failed to respond to his requests for information, and that all of the Defendants
are liable because they “were in supervisory positions” (id. at PageID.243-244).
This objection is also properly denied.
The Magistrate Judge pointed out that Plaintiff’s motion fails as to Defendants Arksey,
Oversmith and Norwood based on a lack of proper exhaustion (R&R, Dkt 26 at PageID.221). The
Magistrate Judge found that Plaintiff’s motion also fails as to Defendant Duell because Plaintiff had
not presented evidence in support of the conclusion that Duell subjected him to unlawful retaliation

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Plaintiff also suggests that three other grievances are relevant in this matter and were
properly exhausted, yet does not articulate their relevance against Defendants Arksey, Norwood, or
Oversmith. Grievance ICF-12-04-0738-24z, where Plaintiff alleged the retaliatory transfer, is the
only relevant grievance in this case.
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(id.). In fact, Plaintiff submitted evidence suggesting the opposite: that Defendant Duell had no
involvement at all in the decision to transfer him where Plaintiff attested that his transfer was
accomplished by Defendants Oversmith and Norwood (id., citing Pl. Decl. [Dkt 20 at PageID.196]).
Plaintiff’s objection reveals no factual or legal error in the Magistrate Judge’s analysis of his motion.
Having determined that Plaintiff’s objections are properly denied, this Court will adopt the
Magistrate Judge’s Report and Recommendation as the Opinion of this Court. Further, 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).
Therefore:
IT IS HEREBY ORDERED that the Objections (Dkt 33) are DENIED, and the Report and
Recommendation of the Magistrate Judge (Dkt 26) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt 14)
is GRANTED IN PART and DENIED IN PART; specifically, Plaintiff’s claims against Defendants
Arksey, Oversmith and Norwood are dismissed for failure to exhaust administrative remedies, but
Defendant Duell’s motion for summary judgment on exhaustion grounds is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt 18) is
DENIED.

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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: March ___, 2016
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