Sango #252200 v. Burns et al

Filing 91

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 80 re 66 , 21 , 10 , 24 , 74 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT SANGO, #252200,
Plaintiff,

Case No. 1:15-CV-356

v.

Hon. Gordon J. Quist

UNKNOWN BURNS, et al.,
Defendants.
/

ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
On February 11, 2016, Magistrate Judge Ellen S. Carmody issued a Report and
Recommendation (R & R) concluding that Defendants are entitled to summary judgment because
Plaintiff failed to exhaust his administrative remedies. Plaintiff filed an objection, arguing that he
exhausted all available remedies because he was denied access to the grievance process. After
conducting a de novo review, the Court concludes that the R & R should be adopted in part and
rejected in part.
During the time period at issue, Plaintiff was on modified grievance access. While on
modified access, a prisoner can obtain grievance forms only through the grievance coordinator.
MDOC Policy Directive 03.02.130 ¶¶ KK. When Plaintiff was placed on modified access,
Grievance Coordinator Clarice Lewis provided Plaintiff with a memorandum stating that, in order
to receive a grievance form, Plaintiff had to submit a request and a clear explanation of the
complaint and all pertinent information.
Defendants argue that Plaintiff failed to exhaust his administrative remedies, and have
provided an affidavit from Lewis stating that Plaintiff never requested a Step I grievance form while

on modified access. In response to the motion filed by Defendants Burns and Watkins, Plaintiff
filed a declaration stating that he sent requests for a grievance form to Lewis on March 26, 2015,
March 29, 2015, and April 1, 2015, but that he had never received a response. Plaintiff also filed
copies of those requests, which name Defendants Burns and Watkins and describe the incidents that
form the basis of Plaintiff’s claims. In response to the motion filed by the other defendants, Plaintiff
simply filed a declaration stating that he had requested grievance forms for all the issues raised in
the motion, but he did not provide a copy of such requests or any further details about the requests.
The magistrate judge found that, even if Plaintiff was unable to file a grievance while on
modified access, he could have filed a grievance once such restriction was removed. Because
Plaintiff did not file a grievance form after being removed from modified access, the magistrate
judge concluded, he did not properly exhaust his available administrative remedies. Although it is
a close question, the Court disagrees and concludes that Plaintiff’s requests were sufficient to
exhaust his administrative remedies with regard to Burns and Watkins.
The exhaustion requirement only mandates exhaustion of available administrative remedies.
See 42 U.S.C. § 1997e(a). The Sixth Circuit has recognized that prisoners on modified access may,
under certain circumstances, exhaust their remedies without ever filing a grievance. Walker v.
Michigan Dep’t of Corr., 128 F. App’x 441, 446 (6th Cir. 2005). The court explained that, “if a
grievance officer dismissed a non-frivolous complaint by [a prisoner on modified access], that would
be the end of possible administrative remedies with regard to that grievance, and a court would thus
have jurisdiction to hear a related federal claim, since all possible administrative remedies would
have been attempted.” Id. By that reasoning, a prisoner whose request for a grievance form was
ignored (as opposed to explicitly rejected) would have also done all he could to exhaust his
administrative remedies. There is nothing in the Sixth Circuit’s statement suggesting that a prisoner
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would have to do more than required by the modified access procedures, such as filing a grievance
after removal from modified access, in order to exhaust.
As noted, Defendants provided an affidavit from Lewis stating that Plaintiff never requested
grievance forms while on modified access. Plaintiff provided sufficient evidence to refute that
statement with regard to his claims against Defendants Burns and Watkins, and thus the Court finds
that those defendants have failed to meet their burden of demonstrating a lack of exhaustion.
Plaintiff has failed, however, to provide sufficient evidence to refute Lewis’s affidavit as it pertains
to the claims against the remaining defendants. Plaintiff’s declaration merely includes a vague
statement that he filed a grievance form request for “all related issues,” but never specifies which
issues and defendants were included in that request. Moreover, Plaintiff did not include a copy of
the grievance form request for the Court to determine whether it sufficiently detailed the claims.
Accordingly, the Court concludes that Burns and Watkins have not met their burden of
demonstrating a lack of exhaustion, but that the remaining defendants have met such burden.
Therefore,
IT IS HEREBY ORDERED that Report and Recommendation issued on February 10, 2016
(ECF No. 80) is ADOPTED in part and REJECTED in part.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Defendants
Burns and Watkins (ECF No. 21) is DENIED. Plaintiff may proceed with his claims against
Defendants Burns and Watkins related to the alleged March 26, 2015 and March 29, 2015 incidents.
IT IS FURTHER ORDERED that the Motions for Summary Judgment filed by the
remaining defendants (ECF Nos. 66, 74) are GRANTED. Plaintiff’s claims against Defendants
Day, Joiner, Chrunck, Nevins, Barber, Morris, Huss, Smith, Maceachern, and Finco are
DISMISSED without prejudice.
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IT IS FURTHER ORDERED that the Plaintiff’s Motions for Summary Judgment (ECF
Nos. 10, 24) are DENIED as moot in light of the Court’s conclusion that Plaintiff did not exhaust
the claims for which Plaintiff seeks summary judgment.

Dated: March 30, 2016

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

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