Dykes #201541 v. Marshall et al

Filing 42

MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION 38 : Plaintiff's Motion for Leave to File an Amended Complaint 13 is deemed WITHDRAWN and shall be STRICKEN [13-1]; Defendants Marshall's and Jones's Motion for Summa ry Judgment 15 is DENIED; Defendant North's Motion to Dismiss 20 in which Defendant Meadows joins 29 is GRANTED; and Plaintiff's Objection and Defendant North's Objection 30 , 32 are DISMISSED AS MOOT; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT L. DYKES #201541,
Plaintiff,
v.

Case No. 1:14-CV-1167

N. MARSHALL, et al.,

HON. GORDON J. QUIST

Defendants.
___________________________/

MEMORANDUM OPINION AND ORDER
REGARDING REPORT AND RECOMMENDATION
On December 29, 2015, Magistrate Judge Ray Kent issued a Report and Recommendation
(R & R) which addressed Plaintiff’s motion for leave to file an amended complaint (ECF No. 13),
Defendants Marshall’s and Jones’s motion for summary judgment based on Plaintiff’s failure to
exhaust (ECF No. 15), Defendant North’s motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) (ECF No. 20), Defendant Meadows’s “joinder and concurrence” in Defendant
North’s motion (ECF No. 29), and Plaintiff’s and Defendant North’s “Objections” (ECF Nos. 30
and 32). The magistrate judge first concluded that Plaintiff’s motion to amend should be denied as
moot, but his proposed amended complaint be allowed because Plaintiff filed his amended complaint
within the time permitted by Federal Rule of Civil Procedure 15(a)(1). (R & R at 6.) Having
concluded that the amendment should be allowed, the magistrate judge screened the amended
complaint, concluding that the Eighth Amendment, First Amendment free exercise, Fourth
Amendment, and First Amendment access to courts claims should be dismissed, noting that several
of these allegations had been dismissed following screening of Plaintiff’s initial complaint. (R &

R at 9–12.) In addition, the magistrate judge noted that the amended complaint omitted Plaintiff’s
previous equal protection claim and his claim against Defendant Meadows. (R & R at 12.) Finally,
the magistrate judge recommended that Defendants’ motions and the parties’ objections be denied
as moot because they do not address the claims in the amended complaint, which would be the
operative pleading. (R & R at 12–13.)
Plaintiff has filed Objections, in which he requests that the Court reject the R & R because
he did not intend to file a new complaint or abandon his original complaint. Rather, Plaintiff states,
he merely intended to supplement his pleading, as allowed by Rule 15(d). However, Rule 15(d)
refers to supplementation based on “any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.” That is not the case with Plaintiff’s proposed amendment,
which, according to Plaintiff, attempts to supplement his original claims. Plaintiff requests that the
Court deny his motion for leave to amend and allow him to proceed on his original pleading. The
Court will, therefore, treat Plaintiff’s Objection as a motion to withdraw his motion for leave to
amend and proposed amended complaint and allow him to proceed on his original complaint.
Plaintiff’s motion to amend becomes moot and Plaintiff’s amended complaint is stricken. Now,
because Plaintiff’s original complaint is revived as the operative pleading, the Court will rule on
Defendants Marshall’s and Jones’s motion for summary judgment and Defendant North’s motion
to dismiss.
I.

Motion for Summary Judgment for Lack of Exhaustion
Pursuant to 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison

conditions under § 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” The Supreme Court has held that
this provision bars a prisoner’s suit unless the prisoner first presents his grievance to the state
2

pursuant to the established grievance procedure and within the deadlines set by the state. Woodford
v. Ngo, 548 U.S. 81, 93–95, 126 S. Ct. 2378, 2387–88 (2006). “[I]t is the prison’s requirements, and
not the [Prison Litigation Reform Act], that define the boundaries of proper exhaustion.” Jones v.
Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 923 (2007). Failure to exhaust administrative remedies is
an affirmative defense that must be proved by the defendant. Id. at 216, 127 S. Ct. at 921; see also
Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (“Non-exhaustion is an affirmative defense
under the PLRA, with the burden of proof falling on the [defendant].”).
Defendants Marshall and Jones argue that the Court should dismiss Plaintiff’s claims for
failure to exhaust his administrative remedies because the Step III Grievance Report they submitted
in support of their motion shows that Plaintiff filed ten Step III grievances while incarcerated at the
Michigan Reformatory, but none of those grievances was “completed/resolved” prior to the date
Plaintiff filed his original complaint in this case. (ECF No. 16 at PageID.193–94.) In other words,
Defendants argue that because the MDOC had not issued Step III responses prior to the time
Plaintiff filed his complaint in this case, Plaintiff could not have properly exhausted.
It is true that “[w]hen a prisoner fails to exhaust his administrative remedies before filing a
civil rights complaint in federal court, or only partially exhausts administrative remedies, dismissal
of the complaint is appropriate.” Poor v. Grayson, 46 F. App’x 825, 826 (6th Cir. 2002).
“Exhaustion may not be completed after a federal complaint has been filed.” Id. (citing Freeman
v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)). However, Defendants’ motion fails because, as
Plaintiff correctly notes, the MDOC failed to comply with its own grievance procedure by timely
responding to Plaintiff’s grievances. The MDOC’s grievance procedure provides, in relevant part,
“The total grievance process from the point of filing a Step I grievance to providing a Step III
response shall generally be completed within 120 calendar days unless an extension has been
3

approved in writing by the Grievance Coordinator at Step I and/or Step II.” Policy Directive
03.02.130 ¶ S. In addition, the policy allows a grievant to proceed to the next step if prison staff has
not responded within the required time frames. Id. ¶ T. As Plaintiff notes, when Plaintiff filed his
complaint, each grievance Defendants identify in their motion had been pending for more than 120
days, and in some cases for around 240 days—twice the time the MDOC allows for completion of
the grievance process—without authorized extensions.
The Sixth Circuit has held that “administrative remedies are exhausted when prison officials
fail to timely respond to a properly filed grievance.” Boyd v. Corr. Corp. of Am., 380 F.3d 989, 996
(6th Cir. 2004). Moreover, judges in this district, including the undersigned, have concluded that
administrative remedies are deemed exhausted after 120 days regardless of whether a Step III
response has been issued. For example, in Brown v. Prelesnik, No. 1:12-CV-873, 2014 WL 632093
(W.D. Mich. Feb. 18, 2014), the court observed that a prisoner should be permitted to file a lawsuit
if prison officials failed to respond to the prisoner’s grievance within the 120-day period “because
in such a circumstance, the inmate has completed the administrative process as defined by the
MDOC and the MDOC’s failure to comply with its own guidelines should not be able to be
employed as the basis for the dismissal of the inmate’s lawsuit.” Id. at *5; see also Carter v. Ayala,
No. 1:13-CV-807, 2014 WL 4660320, at *3 (W.D. Mich. Sept. 17, 2014) (denying the defendants’
motion for summary judgment on exhaustion grounds because prison officials failed to provide a
timely step III response); Jarrett v. Snyder, No. 1:13-CV-139, 2014 WL 4472732, at *2 (W.D. Mich.
Sept. 10, 2014) (“Defendants’ argument that Plaintiff should have simply waited for a response
before filing his complaint—no matter how long that response took—is unavailing.”).

4

Defendants Marshall and Jones cite no other reason for concluding that Plaintiff failed to
exhaust and, therefore, have failed to demonstrate lack of exhaustion. Accordingly, their motion
for summary judgment will be denied.
II.

Defendant North’s Motion to Dismiss
Defendant North also argues that Plaintiff’s claims against him should be dismissed for lack

of exhaustion. Defendant North further argues that Plaintiff cannot state a claim against him
because Defendant North was not acting under color of law while overseeing Plaintiff’s work in the
prison kitchen. Finally, Defendant North says that Plaintiff’s allegations fail to establish a
retaliation claim and that his conspiracy allegations are conclusory in nature and insufficient to state
a claim. Defendant Meadows “joins and concurs” in Defendant North’s motion “on the grounds that
the arguments raised by Defendant North are equally applicable to Defendant Meadows.” (ECF No.
29 at PageID.372.)
A.

Exhaustion

In support of his lack of exhaustion argument, Defendant North raises the same argument
raised by that Defendants Marshall and Jones—that Plaintiff failed to complete exhaustion before
filing his complaint. This argument fails for the reasons set forth above.
Defendant North raises an additional argument in his reply. Defendant North asserts that
Plaintiff failed to properly exhaust because he failed to resolve the issue with Defendant North prior
to filing his grievances, as required by the MDOC’s grievance procedure. Defendant North waived
this argument by failing to raise it in his opening brief. As the court observed in Sims v. Piper, No.
07-14380, 2008 WL 3318746 (E.D. Mich. Aug. 8, 2008), a moving party is not permitted to raise
arguments for the first time in a reply because it deprives the opposing party of an opportunity to
respond. Id. at *4–5. The Sixth Circuit’s longstanding rule is that issues raised for the first time in
5

a reply brief are considered waived. See Tranter v. Orick, 460 F. App’x 513, 515 (6th Cir. 2012)
(“We decline to consider Tranter’s argument that the witness statements are excited utterances under
Rule 803(2) or were otherwise independently admissible because he waived them by raising them
for the first time in his reply brief.”); Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.
2008) (stating that “we have found issues to be waived when they are raised for the first time in
motions requesting reconsideration or in replies to responses”).
B.

Failure to State a Claim

Defendant North argues that Plaintiff may not assert a claim against North under 42 U.S.C.
§ 1983 for violating Plaintiff’s federal constitutional rights because Defendant North is an employee
of Aramark, a private corporation that contracts with the MDOC to provide food services to inmates.
In order to assert a valid claim under § 1983, a plaintiff must allege that the defendant acted under
color of state law. See Flagg Bros. v. Brooks, 436 U.S. 149, 155–57, 98 S. Ct. 1729, 1733–34
(1978).
For purposes of the instant motion, this Court assumes Aramark—having contracted with
the State to fulfill the State’s constitutional obligation to provide a nutritionally-adequate diet to
inmates—can be held liable as a state actor under § 1983. In the context of medical services, the
Sixth Circuit has stated that “it is clear that a private entity which contracts with the state to perform
a traditional state function such as providing medical services to prison inmates may be sued under
§ 1983 as one acting under color of state law.” Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993).
Based on this reasoning, court have allowed prisoners to proceed on § 1983 claims against Aramark
employees. See Mills v. Aramark Corp., No. 1:15-cv-610, 2015 WL 7820872, at *3 (S.D. Ohio Nov.
10, 2015); Horn v. Hunt, No. 2:15-cv-220, 2015 WL 5873290, at *4–5 (S.D. Ohio Oct. 8, 2015)

6

(rejecting Aramark employee’s assertion that he was not a state actor for purposes of § 1983 because
Aramark assumed the state’s obligation to provide food service to inmates).
Retaliation Claim
Inmates have a constitutional right of access to the courts that extends to direct appeals,
habeas corpus applications, and civil rights claims only. Thaddeus-X v. Blatter, 175 F.3d 378, 391
(6th Cir. 1999) (en banc). This right extends to the filing of formal grievances. As the Sixth Circuit
has previously explained:
An inmate has an undisputed First Amendment right to file grievances against prison
officials on his own behalf. This right is protected, however, only if the grievances are not
frivolous. Thus, [an inmate’s] pursuit of legal claims . . . [is] protected conduct only to the
extent that the underlying claims ha[ve] merit.
Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (internal citations omitted). Stated
differently, a grievance is frivolous, and thus not considered protected activity, “if it complains of
conduct that is not legally actionable.” Walton v. Jones, No. 14-1299-JDT-egb, 2016 WL 483143,
at *6 (W.D. Tenn. Feb. 5, 2016) (citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)).
Plaintiff’s retaliation claim against Defendant North alleges that Plaintiff’s threatened and
actual filing of a grievance against Defendant North for “unsanitary practices” based on North taking
a cookie from a cookie sheet and eating it while supervising the food line is the reason for the
retaliation. But, any claim by Plaintiff that Defendant North’s “unsanitary practices” violated his
constitutional rights would have been frivolous. Accordingly, Plaintiff’s retaliation claim fails
because Plaintiff did not engage in protected conduct.
Plaintiff’s claim against Defendant Meadows also fails. Plaintiff filed grievances against
Defendant Meadows for unprofessional and intimidating conduct and harassment. Such broad
allegations do not support an actionable claim. See Pasley v. Conerly, 345 F. App’x 981, 984 (6th
Cir. 2009) (stating that “general abuse and harassment . . . , while a shameful reflection on the prison
7

system . . . , does not constitute cruel and unusual punishment”); Ivey v. Wilson, 832 F.2d 950, 955
(6th Cir. 1987) (stating that “verbal abuse,” “harassment,” or “arbitrariness” do not qualify as
punishment for purposes of the Eighth Amendment). While Plaintiff also filed two grievances
alleging that Defendant Meadows engaged in retaliatory conduct, the conduct giving rise to the
alleged retaliation was the same unprotected conduct—filing a frivolous grievance. Plaintiff fails
to state a retaliation claim against Defendant Meadows.
Conspiracy Claim
A civil conspiracy under § 1983 is “an agreement between two or more persons to injure
another by unlawful action.” See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (quoting
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)). The plaintiff must show the existence of
a single plan, that the alleged coconspirator shared in the general conspiratorial objective to deprive
the plaintiff of a federal right and that an overt action committed in furtherance of the conspiracy
caused an injury to the plaintiff. Hensley, 693 F.3d at 695; Bazzi v. City of Dearborn, 658 F.3d 598,
602 (6th Cir. 2011). Moreover, a plaintiff must plead a conspiracy with particularity, as vague and
conclusory allegations unsupported by material facts are insufficient. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 565, 127 S. Ct. 1955, 1970 (2007) (recognizing that allegations of conspiracy must
be supported by allegations of fact that support a “plausible suggestion of conspiracy,” not merely
a “possible” one); Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008); Spadafore v. Gardner, 330 F.3d
849, 854 (6th Cir. 2003); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).
Plaintiff’s allegations of conspiracy, viewed in the light most favorable to Plaintiff, are
conclusory and speculative. Plaintiff claims that Defendants conspired to terminate him from his
job and cites various incidents involving Defendants, but he does not allege anything more than a
possibility of a conspiracy. Allegations that individuals engaged in various acts that resulted in
8

harm do not meet the particularity requirement for a conspiracy claim. As the Supreme Court has
held, such allegations, while hinting at a “possibility” of conspiracy, do not contain “enough factual
matter (taken as true) to suggest that an agreement was made.” Twombly, 550 U.S. at 556, 127 S.
Ct. at 1965. In light of the far more likely possibility that the various incidents Plaintiff alleges were
unrelated, Plaintiff fails to state a plausible claim of conspiracy. Because the conspiracy claim fails
as to all Defendants, that claim will be dismissed from the case.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued December 29, 2015 (ECF No. 38) is REJECTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File an Amended
Complaint (ECF No. 13) is deemed WITHDRAWN and, along with Plaintiff’s proposed amended
complaint (ECF No. 13-1), shall be STRICKEN
IT IS FURTHER ORDERED that Defendants Marshall’s and Jones’s Motion for Summary
Judgment Based on a Failure to Exhaust Administrative Remedies (ECF No. 15) is DENIED.
IT IS FURTHER ORDERED that Defendant North’s Motion to Dismiss Pursuant to Fed.
R. Civ. P. 12(b)(6) (ECF No. 20), in which Defendant Meadows joins (ECF No. 29), is GRANTED
on the grounds that Plaintiff fails to state valid retaliation claims against Defendants North and
Meadows, and Plaintiff fails to state a cognizable conspiracy claim against all Defendants.
Accordingly, Defendants North and Meadows, and Plaintiff’s conspiracy claim, are dismissed from
this case.
IT IS FURTHER ORDERED that in light of the foregoing, Plaintiff’s Objection and
Defendant North’s Objection (ECF No. 30, 32) are DISMISSED AS MOOT.

Dated: March 17, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
9