Sango #252200 v. Watkins et al
Filing
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MEMORANDUM OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
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ROBERT D. SANGO, # 252200,
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Plaintiff,
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v.
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DEWEY WATKINS, et al.,
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Defendants.
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____________________________________)
Case No. 1:15-cv-358
Honorable Gordon J. Quist
MEMORANDUM OPINION
This is a civil rights action brought pro se by a state prisoner under 42 U.S.C.
§ 1983. Plaintiff is an inmate at the Baraga Maximum Correctional Facility (AMF).
This lawsuit arises out of conditions of his confinement in March and April 2015, at the
Ionia Maximum Correctional Facility (ICF). Plaintiff named two employees of the
Michigan Department of Corrections (MDOC) as defendants: Corrections Officers
Dewey Watkins and Kevin Burns. Plaintiff alleges that on March 20, 2015, defendant
Watkins retaliated against him in violation of his First Amendment rights by
ransacking his cell. He alleges that on March 26, 2015, defendants Watkins and Burns
violated his Eighth Amendment rights when Watkins pushed plaintiff, and purportedly
encouraged other officers, including defendant Burns, to try to push plaintiff over a
railing in the process of forcefully returning plaintiff to his cell.1 (Complaint, ECF No.
1). Plaintiff seeks damages and declaratory and injunctive relief. (Id. at 3-4, PageID.34).
1
All other claims have been dismissed. (ECF No. 15, 16).
The matter is before the Court on defendants’ motions for summary judgment
based on the affirmative defense provided by 42 U.S.C. §1997e(a). (ECF No. 31, 46).
For the reasons set forth herein, defendants’ motions for summary judgment will be
denied.
A.
Summary Judgment Standard
Summary judgment is appropriate when the record reveals that there are no
genuine issues as to any material fact in dispute and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c); Griffin v. Hardrick, 604 F.3d 949,
953 (6th Cir. 2010). The standard for determining whether summary judgment is
appropriate is “whether ‘the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.’” Moses v. Providence Hosp. Med. Centers, Inc., 561 F.3d 573, 578 (6th
Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The
Court must consider all pleadings, depositions, affidavits, and admissions on file, and
draw all justifiable inferences in favor of the party opposing the motion.
See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pluck v.
BP Oil Pipeline Co., 640 F.3d 671, 676 (6th Cir. 2011).
When the party without the burden of proof seeks summary judgment, that
party bears the initial burden of pointing out to the district court an absence of
evidence to support the nonmoving party’s case, but need not support its motion with
affidavits or other materials “negating” the opponent’s claim. See Morris v. Oldham
County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints,
398 F.3d 751, 761 (6th Cir. 2005). Once the movant shows that “there is an absence
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of evidence to support the nonmoving party’s case,” the nonmoving party has the
burden of coming forward with evidence raising a triable issue of fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, the nonmoving party may
not rest on the mere allegations of his pleadings. FED. R. CIV. P. 56(e); see Everson v.
Leis, 556 F.3d 484, 496 (6th Cir. 2009). The motion for summary judgment forces the
nonmoving party to present evidence sufficient to create a genuine issue of fact for
trial. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1990); see Newell
Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 533 (6th Cir. 2012). “A mere
scintilla of evidence is insufficient; ‘there must be evidence on which a jury could
reasonably find for the [non-movant].’” Dominguez v. Correctional Med. Servs., 555
F.3d 543, 549 (6th Cir. 2009) (quoting Anderson, 477 U.S. at 252); see LaQuinta Corp.
v. Heartland Properties LLC, 603 F.3d 327, 335 (6th Cir. 2010).
A moving party with the burden of proof faces a “substantially higher hurdle.”
Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist.,
270 F.3d 1036, 1056 (6th Cir. 2001). The moving party without the burden of proof
needs only show that the opponent cannot sustain his burden at trial. “But where the
moving party has the burden – the plaintiff on a claim for relief or the defendant on an
affirmative defense – his showing must be sufficient for the court to hold that no
reasonable trier of fact could find other than for the moving party.” Calderone v.
United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. SCHWARZER, Summary
Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99
F.R.D. 465, 487-88 (1984)). The Court of Appeals has repeatedly emphasized that the
party with the burden of proof faces “a substantially higher hurdle” and “‘must show
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that the record contains evidence satisfying the burden of persuasion and that the
evidence is so powerful that no reasonable jury would be free to disbelieve it.’” Arnett,
281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL
PRACTICE § 56.13[1], at 56-138 (3d ed. 2000)); see Surles v. Andison, 678 F.3d 452, 45556 (6th Cir. 2012); Cockrel, 270 F.2d at 1056. Accordingly, summary judgment in favor
of the party with the burden of persuasion “is inappropriate when the evidence is
susceptible of different interpretations or inferences by the trier of fact.” Hunt v.
Cromartie, 526 U.S. 541, 553 (1999).
B.
Standards Applicable to the Affirmative Defense of Failure to Exhaust
Remedies
Defendants have asserted the affirmative defense of plaintiff’s failure to exhaust
administrative remedies.
A prisoner bringing an action with respect to prison
conditions under 42 U.S.C. § 1983 must exhaust available administrative remedies.
42 U.S.C. § 1997e(a); see Jones v. Bock, 549 U.S. 199, 220 (2007); Porter v. Nussle, 534
U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must exhaust
available administrative remedies, even if the prisoner may not be able to obtain the
specific type of relief he seeks in the state administrative process. See Porter, 534 U.S.
at 520; Booth, 532 U.S. at 734. “This requirement is a strong one. To further the
purposes behind the PLRA, exhaustion is required even if the prisoner subjectively
believes the remedy is not available, even when the state cannot grant the particular
relief requested, and even where the prisoner[ ] believes the procedure to be ineffectual
or futile.” Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th Cir. 2011) (internal
quotations and citations omitted).
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In Jones v. Bock, the Supreme Court held that “exhaustion is an affirmative
defense, and prisoners are not required to specifically plead or demonstrate exhaustion
in their complaints.” 549 U.S. at 216. The burden is on defendant to show that plaintiff
failed to properly exhaust his administrative remedies. The Supreme Court reiterated
that “no unexhausted claim may be considered.” 549 U.S. at 220.
In order to exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with the deadlines and other applicable
procedural rules established by state law. Jones v. Bock, 549 U.S. at 218-19. In
Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA
exhaustion requirement “requires proper exhaustion.” 548 U.S. at 93.
“Proper
exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules.” Id. at 90; see Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009).
Thus, when a prisoner’s grievance is rejected by the prison as untimely because it was
not filed within the prescribed period, the prisoner’s claim is not “properly exhausted”
for purposes of filing a section 1983 action in federal court. 548 U.S. at 90-93; Siggers
v. Campbell, 652 F.3d 681, 692 (6th Cir. 2011); see 42 U.S.C. § 1997e(a).
The
procedural bar does not apply where the State declines to enforce its own procedural
rules. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324–25 (6th Cir. 2010).
MDOC Policy Directive 03.02.130 (effective July 9, 2007) sets forth the
applicable grievance procedures.2 In Sullivan v. Kasajaru, 316 F. App’x 469 (6th Cir.
2009), the Sixth Circuit held that this policy directive “explicitly required [the prisoner]
2
A copy of the policy directive is found in the record. See ECF No. 32-2, PageID.190-96.
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to name each person against whom he grieved,” and it affirmed the district court’s
dismissal of a prisoner’s claim for failure to properly exhaust his available
administrative remedies. Id. at 470.
C.
Findings of Fact
The following facts are beyond genuine issue. Plaintiff is an inmate held in the
custody of the Michigan Department of Corrections (MDOC) on criminal convictions.
Plaintiff has filed a declaration under penalty of perjury stating that on March 26,
2015, he was on modified access to the MDOC’s grievance process, and that on that
date, he made a written request for a grievance form in order to pursue a grievance
against defendants corresponding to the allegations of his complaint. Plaintiff states
that he never received a response to his request for a grievance form. (ECF No. 34,
PageID.219). He filed his complaint on April 2, 2015. (Complaint at 2, 4, ECF No. 1,
PageID.2, 4).
The only evidence that defendants filed in support of their motions for summary
judgment was a copy of the policy directive (Exhibit 1, ECF No. 32-2, PageID.190-96)
and a MDOC Step III Grievance Report signed by a student assistant (Exhibit 2, ECF
No. 32-3, PageID.198-213).
D.
Discussion
“Under § 1997e(a), the exhaustion requirement hinges on the availability of
administrative remedies: [a]n inmate, that is, must exhaust available remedies, but
need not exhaust unavailable ones.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)
(quotation omitted). Plaintiff has presented evidence and argument that his claims
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against defendants should not be dismissed for lack of proper exhaustion because the
MDOC’s grievance process was not available to him.
Defendants have ignored the pivotal issue. “An inmate need exhaust only such
administrative remedies as are ‘available.’ ” 136 S. Ct. at 1862 (quoting 42 U.S.C.
§ 1997e(a)). Defendants have not presented evidence sufficient to carry their burden
on the affirmative defense.
Conclusion
For the reasons set forth herein, defendants’ motions (ECF No. 31, 46) will be
denied.
Dated: September 29, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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