LaDouceur #708704 v. First et al
Filing
28
MEMORANDUM OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD LaDOUCEUR, JR.,
# 708704,
)
)
)
Plaintiff,
)
)
v.
)
)
D. FIRST, et al.,
)
)
Defendants.
)
____________________________________)
Case No. 1:15-cv-1179
Honorable Paul L. Maloney
MEMORANDUM OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Plaintiff is currently an inmate at the Bellamy Creek Correctional Facility (IBC). This
lawsuit arises out of alleged conditions of his confinement on May 31, 2013, at the Ionia
Correctional Facility (ICF).
Plaintiff named seven employees of the Michigan
Department of Corrections (MDOC) at ICF as defendants: D. First, B. Risk, R. Drabek,
Unknown Conklin, David Hall, D. Rykse, and Pamela Balczak.
Plaintiff alleges that, on May 31, 2013, while he was being escorted from the
shower to his segregation cell, he was involved in a physical altercation with guards. He
alleges that defendants used excessive force against him in violation of his rights under
the Eighth Amendment’s Cruel and Unusual Punishments Clause. (Compl. Count I,
ECF No. 1, PageID.9). Plaintiff also asks the Court, in its discretion, to exercise
supplemental jurisdiction over purported state law claims. (Compl. Count II, ECF No.
1, PageID.10). Plaintiff sues all defendants in their individual capacities and seeks an
award of damages. (Id. at PageID.1-3, 10).
The matter is now before the court on a motion for partial summary judgment by
defendants Drabek, Conklin, Hall, and Rykse, based on the affirmative defense of failure
to exhaust administrative remedies, pursuant to 42 U.S.C. § 1997e(a). (ECF No. 15).
Defendants’ motion has been pending since February 4, 2016. Plaintiff elected not to
file a response. For the reasons set forth herein, defendants’ motion will be granted and
all plaintiff’s claims against defendants Drabek, Conklin, Hall, and Rykse will be
dismissed without prejudice.
Applicable Standards
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.
-2-
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 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 [nonmovant].’” 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).
-3-
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, 48788 (1984)); see also Arnett, 281 F.3d at 561 (The party with the burden of proof “‘must
show 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.’” (quoting
11 JAMES WILLIAM MOORE, ET AL., MOORE’S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d
ed. 2000))). Accordingly, a 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).
-4-
B.
Standards Applicable to the Affirmative Defense of Failure to
Exhaust Remedies
Defendants Drabek, Conklin, Hall, and Rykse ask the Court to “dismiss them
from this case, without prejudice, because Plaintiff failed to properly exhaust his
administrative remedies, as required by the PLRA and applicable case law.”
(Defendants’ Brief at 8, ECF No. 16, PageID.49). 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).
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
-5-
that “no unexhausted claim may be considered.” 549 U.S. at 220. The Court held that
when a prisoner complaint contains both exhausted and unexhausted claims, the lower
courts should not dismiss the entire “mixed” complaint, but are required to dismiss the
unexhausted claims and proceed to address only the exhausted claims. 549 U.S. at 21924.
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). When a prisoner’s grievance is
rejected by the prison as untimely, the 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.1 In Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009),
1
A copy of the policy directive is found in the record. See ECF No. 16-1,
PageID.51-58.
-6-
the Sixth Circuit held that this policy directive “explicitly required [the prisoner] 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.
Policy Directive 03.02.130 is not limited to the requirement that the individual
being grieved be named in the Step I grievance. The following is an overview of the
grievance process.
Inmates must first attempt to resolve a problem within two business days of
becoming aware of the grievable issue, unless prevented by circumstances beyond his
control.
Id. at ¶ P.
If the mandatory pre-grievance attempt at resolution is
unsuccessful, the inmate may proceed to Step I of the grievance process and submit a
completed grievance form within five business days of the attempted resolution. Id.
The Policy Directive also provides the following directions for completing Step I
grievance forms:
“The issues should be stated briefly but concisely. Information
provided is to be limited to the facts involving the issue being grieved (i.e., who, what,
when, where, why, how). Dates, times, places, and names of all those involved in the
issue being grieved are to be included.” Id. at ¶ R (emphasis in original). Where an
individual is not named in the Step I grievance, or his or her involvement in the issue
being grieved is not indicated, or the individual is mentioned for the first time during
an appeal of a denial of a grievance, the claims against that individual are not properly
-7-
exhausted. See Ketzner v. Williams, No. 4:06-cv-73, 2008 WL 4534020, at *16 (W.D.
Mich. Sept. 30, 2008) (collecting cases); accord Sullivan v. Kasajaru, 316 F. App’x at 470.
The inmate submits the grievance to a designated grievance coordinator who
makes an initial determination whether it should be rejected under MDOC policy or
assigned to a respondent. P.D. 03.02.130 at ¶¶ W, X. If the inmate is dissatisfied with
the Step I response, or does not receive a timely response, he may appeal to Step II by
obtaining an appeal form within ten business days of the response, or if no response was
received, within ten business days after the response was due. Id. at ¶ BB.
The respondent at Step II is generally the warden or the warden’s designee. Id.
at ¶ DD. If the inmate is dissatisfied with the Step II response, or does not receive a
timely Step II response, he may appeal to Step III using the same appeal form. Id. at
¶ FF.
The Step III appeal form must be sent to the Grievance and Appeals Section
within ten business days after receiving the Step II response, or if no Step II response
was received, within ten business days after the date the Step II response was due. Id.
at ¶ FF. The Grievance and Appeals Section is the Step III respondent. Id. at ¶ GG.
“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 approved in writing.” Id.
Ordinarily, a prisoner must pursue appeals of his grievance through Step III of
the administrative process. The Sixth Circuit has “clearly held that an inmate does not
-8-
exhaust available administrative remedies when the inmate fails entirely to invoke the
grievance procedure.” Napier, 636 F.3d at 224. An argument that it would have been
futile to file a grievance does not suffice. See id.; see also Hartsfield v. Vidor, 199 F.3d
305, 309 (6th Cir. 1999) (“[A]n inmate cannot simply fail to file a grievance or abandon
the process before completion and claim that he has exhausted his remedies or that it
is futile for him to do so because his grievance is now time-barred under the
regulations.”); Booth v. Churner, 532 U.S. at 741 n.6 (“[W]e will not read futility or other
exceptions into statutory exhaustion requirements where Congress has provided
otherwise.”).
Findings of Fact
The following facts are beyond genuine issue. Plaintiff is an inmate in the
custody of the Michigan Department of Corrections (MDOC), currently at the Bellamy
Creek Correctional Facility (IBC). On May 31, 2013, plaintiff was an inmate at the
Ionia Correctional Facility (IFC).
Plaintiff filed a grievance against defendants D. First and B. Risk regarding the
purported incident on May 31, 2013, and pursued appeals through Step III of the
MDOC’s grievance process. (Grievance No. ICF-13-06-1165-26a and related appeals,
ECF No. 16-2, PageID.63-68). Plaintiff did not file any grievance against the moving
defendants based on their actions on the date in question and he did not pursue such
a grievance through a Step III-decision. (ECF No. 16-2, PageID.60-109).
On November 13, 2015, plaintiff filed this lawsuit.
-9-
Discussion
Defendants Drabek, Conklin, Hall, and Rykse have raised the affirmative defense
that plaintiff did not properly exhaust his administrative remedies against them as
required by 42 U.S.C. § 1997e(a). Plaintiff failed to exhaust all claims asserted against
these defendants. Exhaustion is mandatory.
Woodford, 548 U.S. at 93.
“[N]o
unexhausted claim may be considered.” Jones v. Bock, 549 U.S. at 220.
Conclusion
For the foregoing reasons, defendants’ motion (ECF No. 15) will be granted and
all plaintiff’s claims against defendants Drabek, Conklin, Hall, and Rykse will be
dismissed without prejudice.
Dated: August 30, 2016
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?