Davis #223815 v. Heyns et al

Filing 34

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 30 ; Defendants' motion for summary judgment 12 and Defendant Aramark's motion to dismiss 25 are GRANTED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RONALD LAMONT DAVIS,
Plaintiff,

Case No. 1:15-cv-19

v

HON. JANET T. NEFF

DANIEL H. HEYNS, et al.,
Defendants.
_______________________________/

OPINION AND ORDER
Plaintiff filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983 against various
employees and officials of the Michigan Department of Corrections (MDOC) and Defendant
Aramark, a private food service contractor that serves meals at the MDOC. Plaintiff referenced two
grievances—Grievance LCF-14-05-0626-28b and Grievance LCF-14-06-0717-20e—and attached
them to his Complaint (Compl., Dkt 1 at PageID.10-11, Exs. 7 & 10). Plaintiff’s claims against two
of the individual defendants were dismissed on screening for failure to state a claim (Op. & Order,
Dkts 4 & 5). The remaining defendants filed dispositive motions, arguing in pertinent part that
Plaintiff failed, with two limited exceptions, to properly exhaust the claims in his complaint (Dkts
12 & 25).

The matter was referred to the Magistrate Judge, who issued a Report and

Recommendation (R&R), recommending that both motions be granted. Specifically, the Magistrate
Judge recommended that Plaintiff’s claims be dismissed for failure to exhaust administrative
remedies, save his claims against Defendants Tompkins and Leach, articulated in Grievance

LCF-14-06-0717-20e, that the denial of his request for a religious diet accommodation violated his
First Amendment right to freedom of religion (R&R, Dkt 30 at PageID.312).
The matter is presently before the Court on Plaintiff’s three objections to the Report and
Recommendation (Dkt 31). Defendant Aramark filed a response to Plaintiff’s objections (Dkt 32).
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
Defendant Aramark filed a “Motion to Dismiss pursuant to FED. R. CIV. P. 12(b)(6)” (Dkt
25), arguing, in pertinent part, that Plaintiff’s claims against it should be dismissed for failure to
exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e(a) (id. at PageID.172-175).
Defendant Aramark pointed out that Plaintiff’s Grievance LCF-14-05-0626-28b against T. Miller,
Aramark’s food service director at Lakeland Correctional Facilities (LCF), was rejected at Step I for
being “vague” and including “extraneous information,” a decision that was upheld at Steps II and
III of the grievance process (id. at PageID.175; Ex. 7 to Pl.’s Compl., Dkt 1-1 at PageID.44-46).
Defendant Aramark also noted that Plaintiff had only “generically identified ‘Aramark’” in the
grievance and did not name Miller as a defendant in the suit at bar (Dkt 25 at PageID.175).
Plaintiff filed a response to Defendant Aramark’s motion, asserting that the failure-toexhaust-administrative-remedies affirmative defense may not be raised by a motion to dismiss as a
plaintiff has no obligation to plead exhaustion (Dkt 26 at PageID.250). Plaintiff nonetheless also
argued that “the grievance in question named T. Miller in her official capacity as a[n] Aramark
employee” (id. at PageID.252-253).
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Defendant Aramark filed a reply, maintaining that the grievance documents are pleadings
subject to a motion to dismiss where Plaintiff submitted the grievance documents with his Complaint
(Dkt 27 at PageID.289). Alternatively, Defendant Aramark argued that to the extent a motion for
failure to exhaust administrative remedies is to be brought as a motion for summary judgment, the
Court may treat Aramark’s motion as one for summary judgment and “Plaintiff’s failure to respond
substantively to Defendant’s argument entitles Defendant Aramark to dismissal for failure to exhaust
administrative remedies” (id. at PageID.289-290).
In resolving Defendant Aramark’s motion, the Magistrate Judge recited only the standard for
reviewing summary judgment motions and referred to Defendant Aramark’s “Motion to Dismiss
pursuant to FED. R. CIV. P. 12(b)(6)” (Dkt 25) as a motion for summary judgment (R&R, Dkt 30 at
PageID.305-308, 312). The Magistrate Judge framed the pivotal question as “the extent to which
these two grievances exhaust the claims in Plaintiff’s complaint,” determined that the pertinent
grievance failed to exhaust “any of the claims asserted in Plaintiff’s complaint,” and recommended
dismissal of Plaintiff’s remaining claims, save his claims against Defendants Tompkins and Leach
(id. at PageID.310-312).
Now, in his first objection to the Report and Recommendation, Plaintiff argues that the
Magistrate Judge erred in “look[ing] at the sufficiency of the evidence presented” and “failed to even
inform the plaintiff that she was turning the defendant Aramark’s motion to dismiss into a motion
for summary judgment” (Pl. Obj., Dkt 31 at PageID.313-314).
In response to Plaintiff’s objection, Defendant Aramark argues that Plaintiff cannot establish
that the Magistrate Judge erred where (1) converting a Rule 12(b)(6) motion to one for summary
judgment is expressly permitted by FED. R. CIV. P. 12(d); and (2) Plaintiff filed a response to
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Aramark’s motion in which Plaintiff referenced the various matters outside the pleadings that were
submitted with Aramark’s motion (Def. Resp., Dkt 32 at PageID.332). According to Aramark,
Plaintiff “had (and utilized) the opportunity to challenge and present materials pertinent to the
motion” (id.).
Plaintiff’s objection is properly denied.
“Because exhaustion of administrative remedies is a matter in abatement and not generally
an adjudication on the merits, an exhaustion defense ... is not ordinarily the proper subject for a
summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised
in a motion for summary judgment.” Bradfield v. Corr. Med. Servs., No. 1:07-cv-1016, 2008 WL
5685586, at *3 (W.D. Mich. July 3, 2008) report and recommendation adopted, No. 1:07-CV-1016,
2009 WL 514251 (W.D. Mich. Feb. 27, 2009) (quoting Bryant v. Rich, 530 F.3d 1368, 2008 WL
2469405 at *4 (11th Cir. June 20, 2008)). See also Price v. Palmer, No. 1:09-cv-172, 2009 WL
5219727, at *2 (W.D. Mich. Dec. 31, 2009) (collecting cases in support of the proposition that courts
may take judicial notice of a plaintiff’s grievance filings for purposes of deciding a motion to
dismiss).
However, Plaintiff’s argument does not reveal that a disposition different from the Magistrate
Judge’s recommendation is warranted. The Magistrate Judge correctly framed the pivotal question
as “the extent to which these two grievances exhaust the claims in Plaintiff’s complaint” (R&R, Dkt
30 at PageID.310). Further, the Magistrate Judge did not shift the burden of proof in resolving the
exhaustion issue but declared that prisoners are not required to demonstrate exhaustion in their
complaints and that the failure to exhaust administrative remedies is an affirmative defense that a
defendant bears the burden of establishing (id. at PageID.308). The Magistrate Judge examined the
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grievances attached to Plaintiff’s complaint, determined that Grievance LCF-14-05-0626-28b failed
to exhaust “any of the claims asserted in Plaintiff’s complaint,” and recommended dismissal of
Plaintiff’s remaining claims, save his claims against Defendants Tompkins and Leach (id. at
PageID.311-312). Plaintiff’s objection therefore fails to demonstrate that a disposition other than
the Magistrate Judge’s recommendation is warranted. Accordingly, the objection is denied.
II
Plaintiff’s second objection concerns Grievance LCF-14-06-0717-20e. Plaintiff argues that
the Magistrate Judge erred in recommending the Court grant summary judgment in favor of
Defendant Finco (Pl. Obj., Dkt 31 at PageID.314). According to Plaintiff, “[e]ven though the
plaintiff states within his grievance that it is against Tompkins and Leach, it still does not negate the
fact that the MDOC grievance policy only requires that the plaintiff must simply place the name of
the defendant Finco within the 1st step of the grievance process along with the description of how
he was involved in the matter being grieved and the plaintiff has in fact done this” (id. at
PageID.315). Plaintiff opines that the Magistrate Judge has, “in essence, placed a hurdle in the way
of the plaintiff that does not exist” (id.).
Plaintiff’s objection merely reiterates the argument he made to the Magistrate Judge. As the
Magistrate Judge pointed out, Plaintiff’s argument overlooks the import of Plaintiff specifically
indicating that “[t]his grievance is against the LCF chaplin [sic] D. Tompkin, David M. Leach
A/special activities coordinator for the MDOC & all other unknown parties who’s [sic] names I don’t
know at this point who are involved in this matter” (R&R, Dkt 30 at PageID.310, quoting Ex. 10 to
Pl.’s Compl., Dkt 1-1 at PageID.53). Further, the Magistrate Judge pointed out that as Defendant
Finco was known to Plaintiff when he submitted the grievance, he cannot plausibly argue that
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Defendant Finco is encompassed by the reference in his grievance to “unknown parties” (id. at
PageID.311). Plaintiff’s objection fails to identify any factual or legal error in the Magistrate Judge’s
analysis, only his disagreement with the Magistrate Judge’s conclusion. Accordingly, the objection
is denied.
III
Plaintiff’s last objection concerns Grievance LCF-14-05-0626-28b. Relying on the decision
in Wayne v. Heyns, No. 13-cv-14495, 2015 WL 736329, at *6 (E.D. Mich. Feb. 20, 2015), Plaintiff
argues that “just because the plaintiff’s grievance was labeled vague does not negate the fact that it
has still been properly exhausted and therefore all of the claims asserted in the plaintiff’s complaint
that has ties to this grievance should be accepted as having exhausted all administrative remedies
as to all the defendants named within the body of this grievance (i.e., the defendants Finco and
Aramark)” (Pl. Obj., Dkt 31 at PageID.317).
Defendant Aramark responds that in the grievance at issue, Plaintiff did not allege that either
Aramark or Miller caused any violation, just that he was being “coerced into being a vegetarian”
(Dkt 32 at PageID.335, quoting Ex. 7 to Pl.’s Compl., Dkt 1-1 at PageID.44). Aramark argues that
the Magistrate Judge therefore correctly determined that Plaintiff’s grievance, unlike the grievance
in Wayne, fails to demonstrate “who, what, when, where, why, how” and consequently fails to
exhaust any of the claims asserted in Plaintiff’s complaint (id.).
Plaintiff’s objection lacks merit for the reasons stated by Defendant Aramark. Accordingly,
the objection is denied.
Having determined that Plaintiff’s three objections are properly denied, this Court adopts the
Magistrate Judge’s Report and Recommendation as the Opinion of this Court. Further, because this
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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). Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 31) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 30) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Dkt 12)
and Defendant Aramark’s Motion to Dismiss (Dkt 25) are GRANTED for the reasons stated in the
Report and Recommendation; specifically, Plaintiff’s remaining claims are dismissed for failure to
exhaust administrative remedies, save his claims against Defendants Tompkins and Leach,
articulated in Grievance LCF-14-06-0717-20e, that the denial of his request for a religious diet
accommodation violated his First Amendment right to freedom of religion.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of this decision would not be taken in good faith.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: March 11, 2016

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