Kelly #225090 v. Stoddard et al

Filing 65

MEMORANDUM OPINION and ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 62 ; granting defendants' motion for summary judgment 43 ; dismissing claims against all other defendants for failure to serve; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OPELTON KELLY, #225090,
PLAINTIFF,
-VKELLY STODDARD, ET AL.,
DEFENDANTS.

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NO. 1:14-CV-1278
HONORABLE PAUL L. MALONEY

MEMORANDUM OPINION AND ORDER
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. On
August 16, 2017, United States Magistrate Judge Phillip J. Green issued a Report &
Recommendation (“R&R”) recommending that the Court grant Defendants Stoddard,
Young, Ball, Allen, Roberts, and Foldie’s motion for summary judgment based on Plaintiff’s
failure to properly exhaust his administrative remedies and dismiss Plaintiff’s remaining
claims against Defendants who have not yet been served. (ECF No. 43; R&R, ECF No. 62.)
The matter is before the Court on Plaintiff's objections to the R&R. (ECF No. 63.)
This Court is required to make a de novo determination of those portions of the R&R
to which specific objections have been made, and may accept, reject, or modify any or all of
the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). “[A] general objection to a magistrate's report, which fails to specify the issues of
contention, does not satisfy the requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).

The Court thus reviews the Magistrate’s recommendation that summary judgment be
granted de novo. Summary judgment is appropriate if the moving party establishes that there
is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the movant carries the burden
of showing that there is an absence of evidence to support a claim, then the party opposing
the motion must demonstrate by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material fact. Id. at 324–25. The nonmoving party cannot rest on his pleadings; he must present “specific facts showing that there
is a genuine issue for trial.” Id. at 324 (citing Fed. R. Civ. P. 56(e)). The evidence must be
viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986). Ultimately, the Court must determine whether there is
sufficient evidence on which the jury could reasonably find for Plaintiff. Id. at 252.
When liberally construing Plaintiff’s complaint, Erickson v. Pardus, 551 U.S. 89, 94
(2007), it appears that he is challenging the Magistrate’s recommendation for summary
judgment on the basis that he “could not reasonably be expected to exhaust his administrative
remedies” when Defendant Stoddard noted an incorrect date on his Step Two grievance and
Grievance Coordinator Heffelbower withheld his grievance from the time it was filed in
September until it was recorded on January 11, 2013. (ECF No. 63 at PageID. 399.)
First, Defendant Stoddard’s alleged mistake in the Step Two grievance response is
irrelevant because whether the grievance was filed on January 11th or January 28th, it was
untimely. Her response to Plaintiff’s grievance read “Your grievance was filed untimely as
you state the date of the incident was 8/2/12 and you did not file a grievance until 1/28/13.”
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(ECF No. 63-1 at PageID.404.) The grievance was actually received by the grievance
coordinator on January 11, 2013. (Id. at PageID.403.) Stoddard then continued, noting that
“[t]here is no record of the grievance office receiving a grievance about prisoners [sic]
concern. To inquire about a grievance for the first time 5 months later is considered untimely
by policy . . . .” (ECF No. 44-3 at PageID. 299–300.) Therefore, even if Defendant Stoddard
was mistaken when she said that the grievance was filed on January 28th, it would not have
prevented Plaintiff from exercising his administrative remedies—it was untimely either on
January 11th or January 28th.
Recognizing this, Plaintiff argues that a grievance is considered “filed” when it is
mailed, and that he mailed the grievance on August 4, 2012. See Michigan Dep’t of

Corrections, Policy Directives 03.02.130 § S. In support of his factual assertion that he filed
his grievance on August 4, and that the grievance was either lost or withheld by the prison
officials until January 11, he has attached a kite that he purportedly wrote to the prison
grievance coordinator on August 19, 2012 to ask about the grievance’s status. (ECF No. 633.) If the kite is genuine, it directly contradicts Defendant Stoddard’s written statement that
Plaintiff inquired about the grievance for the first time five months after it was supposed to
be filed, and it supports his allegation that he filed on August 4th.
However, the Court finds it extraordinarily curious that this evidence that directly
contradicts the Defendants’ claim was not included in Plaintiff’s voluminous filings
supporting his brief in opposition to the motion for summary judgment or produced at any
point in the administrative process when prison officials noted that his grievance was
untimely. The kite shows no markings or any sign that it was ever actually given to the
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grievance office. The grievance office indicates that they have no record of ever receiving any
inquiry about the alleged August 4, 2012 grievance. (ECF No. 44-3 at PageID. 299–300.) A
district court has discretion to consider evidence first presented after the magistrate has filed
a report, provided that the evidence is furnished by the time objections to the report are due.

Muhammad v. Close, 798 F. Supp. 2d 869 (E.D. Mich. 2011). Consideration of such
evidence is not mandatory. Id. Here, given the lack of corroboration that the kite is authentic,
and Plaintiff’s failure to submit the kite in his brief in opposition to the motion for summary
judgment, the court will decline to consider Exhibit 1.
Plaintiff also attached his sworn affidavit to his objections. (ECF No. 66-2.) There, he
again asserts that he filed his Step 1 grievance on August 4, 2012. (Id. at PageID.412.)
However, he does not include more than a bare assertion that he did so; he includes no
other facts that would support his assertion that either the facility mailroom or grievance
coordinator delayed processing the grievance.
Neither document offered by the Plaintiff creates a genuine dispute as to the date he
filed the grievance. As noted, Exhibit 1 is of dubious authenticity. Plaintiff’s affidavit is selfserving, and does not allege any credible facts that would bolster his claim that the grievance
was mailed on August 4th, but withheld from, or ignored by, the grievance coordinator until
January 11, 2013.
Thus, Plaintiff has not presented specific facts showing that a genuine dispute exists
as to whether he failed to properly exhaust his administrative remedies as required by 42
U.S.C. § 1997e(a). “Proper exhaustion demands compliance with an agency’s deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90. Here, Plaintiff’s
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grievance was rejected at all three administrative stages because it was untimely. Further, his
argument that administrative remedies were not available must fail because it is unsupported
by anything other than the Plaintiff’s own self-serving affidavit and a kite of dubious
authenticity, never before produced at any stage of the administrative process or this
litigation. Plaintiff has not identified the staff member that he allegedly gave his Step I
grievance to, and he has not identified anything more than a conspiracy to withhold his
grievance to explain why it was not recorded by the grievance coordinator until January 11,
2013. Accordingly, the Court finds that Plaintiff has shown that a material dispute exists as
to whether he properly exhausted his claim for purposes of filing a § 1983 action in federal
court. See Siggers v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011); Doss v. Mackie, 2017
WL 924363 at *4 (W.D. Mich. Feb. 13, 2017).
With regard to the sections of the R&R not specifically objected to, the Court has
reviewed the matters and concludes that the R&R correctly analyzes the issues and makes a
sound recommendation. Accordingly,
IT IS ORDERED that the August 16, 2017 R&R (ECF No. 62) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s objections to the R&R (ECF No. 63)
are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 43) is GRANTED.

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IT IS FURTHER ORDERED Plaintiff’s claims against all other defendants be
dismissed under Rule 4(m) of the Federal Rules of Civil Procedure for failure to achieve
service.
JUDGEMENT TO FOLLOW.
Date: September 6, 2017

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

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