Parker #593090 v. Gainer et al

Filing 67

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 57 re 45 , 32 : Plaintiff's motion 45 is DENIED and Defendants' motion 32 is DENIED IN PART and GRANTED IN PART; Plaintiff's motion for bench trial 59 is DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

BRUCE PARKER,
Plaintiff,
v.

Case No. 1:16-CV-1302

MITCHELL GAINER, et al.,

HON. GORDON J. QUIST

Defendants.
______________________/
ORDER ADOPTING, IN PART,
REPORT AND RECOMMENDATION
Plaintiff, Bruce Parker, filed a civil rights action against Defendants under 42 U.S.C. §
1983. Defendants Roy and Mackie, employees of the Michigan Department of Corrections, filed
a motion for summary judgment on the basis of Parker’s alleged failure to exhaust administrative
remedies. (ECF No. 32.) Parker also filed a motion for summary judgment. (ECF No. 45.)
Magistrate Judge Phillip Green issued a Report and Recommendation (R & R), recommending
that the Court grant Defendants’ motion and deny Parker’s motion. (ECF No. 57.) The R & R
also recommended dismissing some of Parker’s other claims as follows:
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Dismissing his request for injunctive relief as moot.

•

Dismissing claims against Defendants in their official capacities as barred by the Eleventh
Amendment.

•

Dismissing Parker’s due process claims based on the two misconduct charges because
Parker failed to state a claim upon which relief can be granted.
Parker filed Objections to the R & R. (ECF No. 62.) Parker’s three objections address

only his failure to exhaust his claims.

Under Federal Rule of Civil Procedure 72(b), a party “may serve and file specific written
objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b)
likewise requires that written objections “shall specifically identify the portions” of the R & R to
which a party objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Parker’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted in part.
If a party fails to identify and object to specific portions of the R & R, then any possible
objections to those portions are deemed waived. See, e.g., Smith v. Detroit Fed'n of Teachers
Local 231, Am. Fed'n of Teachers, AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987) (stating that
“making some objections but failing to raise others will not preserve all the objections a party may
have”). Because Parker objects only to the failure to exhaust issue, all other possible objections
are waived, and the Court will adopt the R & R as to the claims without objections.
Parker’s first objection is that the R & R erred in concluding that he failed to exhaust his
claims based on a false misconduct ticket written by Defendant Roy. At the misconduct hearing,
Parker raised the fact that Roy was not at work at the time Roy alleged Parker violated the rules.
As a result, Parker was found not guilty. Parker subsequently filed a grievance against Roy
because Roy filed the false misconduct against him. Hearing dispositions of misconduct cannot
be grieved. In the MDOC’s view, Parker’s grievance against Roy was a grievance based on the
hearing disposition of misconduct. The MDOC accordingly rejected his grievance. (ECF No. 11 at PageID.17.) The R & R found that Parker did not exhaust this grievance because his pursuit

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of appeals on the grievance continued after he filed this lawsuit. Typically, this would be grounds
for dismissing a claim for a failure to exhaust.
Decisions made in minor misconduct hearings are not grieveable. (See ECF No. 44-1 at
PageID.221.) Allegations of retaliation via misconduct tickets are properly raised at misconduct
hearings—accordingly, retaliation claims addressed at a hearing cannot be grieved. See Siggers v.
Campbell, 652 F.3d 681, 693–94 (6th Cir. 2011). It follows, then, that a retaliation claim is
exhausted at the hearing stage if a prisoner raises the retaliation issue. Id. Parker asserts he told
the administrative law judge that “Roy promised to set Plaintiff up and file false misconducts
against him based on Plaintiff being black and filing grievances and complaints.” 1 (ECF No. 1 at
PageID.8.) Therefore, Parker’s retaliation claim against Roy for the misconduct was presumably
exhausted at his hearing, i.e., October 4, 2016. (ECF No. 1-1 at PageID.17.) His subsequent
grievance regarding Roy’s retaliation, and the subsequent appeal after the filing of this suit, is
irrelevant because the claim was already exhausted. Accordingly, the R & R will be rejected as to
Parker’s retaliation claim against Roy relating to the false misconduct ticket.
Parker’s second objection is that his grievance against Mackie “wasn’t rejected because it
concerned other prisoners as alleged by the Magistrate but because the issue was not isolated but
widespread and more than plaintiff was suffering from said problem.”

(ECF No. 62 at

PageID.310.) Parker’s grievance alleged that Mackie failed to protect inmates because his officers
continued to assault inmates. Parker names three inmates and himself as examples. (ECF No. 411 at PageID.211.) Parker’s grievance was rejected because it was not specific to him, and applied
to the prison population as a whole—i.e., rather than filing a grievance, the proper means of

1

Because Defendants and the R & R only addressed the unexhausted grievance, there is no evidence to rebut
Parker’s claim that he made this statement at the hearing. Accordingly, the Court accepts it as true for purposes of
this Order only.

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petitioning was “to direct comments to the Warden’s Forum.” (ECF No. 41-1 at PageID.212.) In
accordance with this rejection, the R & R recommended dismissing the claim, noting that as a pro
se plaintiff, Parker could not represent others on a claim. (ECF No. 57 at PageID.296 (citing 28
U.S.C. § 1654; Belser v. Woods, No. 2:16-CV-134, 2016 WL 6975936 at *5 (W.D. Mich. Nov.
29, 2016)).) The Court agrees.
In any event, Warden Mackie’s alleged failure to remedy abuses by his staff is not
cognizable under § 1983. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“Thus, a
supervisory official’s failure to supervise, control or train the offending individual is not actionable
unless the supervisor either encouraged the specific incident of misconduct or in some other way
directly participated in it.” (internal quotation marks and citation omitted)).
Parker’s third and final objection is that the magistrate judge applied a “stringent and
heightened standard” in evaluating his grievances, and inappropriately “appears to make a
credibility determination in who’s telling the truth” about whether Parker exhausted his claims.
(ECF No. 62 at PageID.310.) The magistrate judge made his determinations based on the actual
grievances and the responses to the grievances. The Court finds no basis to disagree with the
magistrate judge’s conclusions in the R & R. The Court finds no basis to say that the magistrate
judge applied the wrong standard or inappropriately dealt with credibility issues.
On the day the R & R was filed, Parker filed a motion he called a “motion for a bench trial
pursuant to Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015), to resolve the disputed issues of fact
regarding exhaustion.” (ECF No. 59.) Lee does not guarantee a bench trial. As discussed, there
are no credibility issues present, and the matter is rightly decided on a motion for summary
judgment. Accordingly, this motion will be denied.
Therefore,

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IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
(ECF No. 57) is REJECTED IN PART as to Parker’s retaliation claim against Roy and
APPROVED AND ADOPTED IN PART as to the remaining claims. Plaintiff’s objections (ECF
No. 62) are sustained in part as to Parker’s retaliation claim against Roy and overruled in part
as to his remaining objections.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment (ECF No.
45) is DENIED, and Defendants’ motion for partial summary judgment (ECF No. 32) is DENIED
IN PART as to the retaliation claim against Roy and GRANTED IN PART as to all other claims
against Roy and the claims against Mackie.
IT IS FURTHER ORDERED that Plaintiff’s claims for injunctive relief are
DISMISSED, Plaintiff’s claims against Defendants in their official capacities are DISMISSED,
and Plaintiff’s due process claims for the misconduct tickets are DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s motion for a bench trial (ECF No. 59) is
DENIED.

Dated: April 2, 2018

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

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