Hernandez #492576 v. Smith et al

Filing 65

ORDER REJECTING REPORT AND RECOMMENDATION 56 re 33 : Defendants' Motion 33 for Summary Judgment 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

CARLOS J. HERNANDEZ,
Petitioner,
v.

Case No. 1:17-CV-327

WILLIE SMITH, et al.,

HON. GORDON J. QUIST

Respondent.
/
ORDER REJECTING
REPORT AND RECOMMENDATION
Plaintiff, Carlos Hernandez, has filed Objections, (ECF No. 61), to Magistrate Judge Ray
Kent’s October 31, 2017, Report and Recommendation (R & R). (ECF No. 56.) In the R & R, the
magistrate judge recommends that the Court grant Defendants’ motion for summary judgment for
failure to exhaust and dismiss Defendants Watkins, Wilkinson, Hengesbach, Ybarra, and Howard;
dismiss Hernandez’s retaliation claims against all Defendants; and allow Hernandez’s excessive
force claims against Defendants Smith, Christiansen, Schiebner, Greenfield, Jaramillo, Andrews,
and Scott to proceed.
Pursuant to 28 U.S.C. § 636(b)(1), 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 and Hernandez’s Objection, the Court will reject the R
& R and deny Defendants’ summary judgment motion.
The facts are largely undisputed and are adequately summarized in the R & R. The
magistrate judge recommends dismissing the claims against Defendants Ybarra, Hengesbach,

Wilkinson, and Watkins because Hernandez failed to exhaust his administrative remedies, per the
Prisoner Litigation Reform Act, 42 U.S.C. § 1983, in that he failed to name those Defendants in
Grievance 1363. The magistrate judge recommends limiting claims under Grievance 1363 to
excessive force claims related to the use of a chemical agent because Hernandez did not raise the
subsequent events, i.e., throwing him into the shower, pulling him out, and refusing to clean the
chemical agent from his cell, in the grievance. The magistrate judge recommends dismissing
Hernandez’s retaliation claims because Grievance 1491 did not comply with Policy Directive
03.02.130.
MDOC Policy Directive 03.02.130 requires that a prisoner specifically “name[] all those
involved in the issue being aggrieved” when the prisoner files a grievance. See, e.g., Hall v.
Warren, 443 F. App’x 99, 106 (6th Cir. 2011) (emphasis in original); Reed-Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010). The Sixth Circuit created an exception to this requirement so
that “if the prison considers a grievance on the merits, this allows a federal court to consider the
grievance’s merits—‘even when a procedural default might otherwise have resolved the claim.’”
Cook v. Caruso, 531 F. App’x 554, 562-63 (6th Cir. 2013) (quoting and interpreting Reed-Bey,
603 F.3d at 325).
“Courts have [also] refused to rigidly enforce this requirement [of naming all those
involved], however, where an inmate is unaware of an individual's involvement at the time a
grievance is filed.” Martin v. MacLaren, No. 2:14-CV-208, 2015 WL 4928937, at *2 (W.D. Mich.
Aug. 13, 2015) (citing Contor v. Caruso, No. 1:07–CV–303, 2008 WL 878665, at *7 (W.D. Mich.
Mar.28, 2008)); see also, Hodges v. Corizon, No. 14-11837, 2015 WL 1511153, at *11 (E.D. Mich.
Mar. 30, 2015) (citing Contor favorably). “[P]risoners may not be able to learn the names of all
persons involved in a situation given prisoners' limited access to information and the short time
within which they must file a Step I grievance.” Contor, 2008 WL 878665, at *3.
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Hernandez failed to name Defendants Ybarra, Hengesbach, Wilkinson, and Watkins in his
original grievance, instead listing “John Doe # 1–5,” stating that the John Does would be “used as
place holders until their names can be obtained through the discovery process.” (ECF No. 34-3 at
PageID.163.) The R & R concluded that Plaintiff’s failure to specifically name those involved in
the grievance amounted to a failure to exhaust his administrative remedies against these
Defendants. The Court disagrees. As an initial matter, Hernandez qualifies for the Reed-Bey
exception because the prison did consider the merits of his grievance without objecting to the use
of his John Doe placeholders. (ECF No. 34-3 at PageID.160, 162, 164.) Therefore, the Court can
likewise consider the merits of his claim against these Defendants.
Moreover, Hernandez was unaware of the respective Defendants’ names at the time he
filed his grievance, and he made that clear from the time he first filed. He has further supported
this claim in an affidavit attached to his objection to the R & R. (ECF No. 61-1 at PageID.362.)
Similar to the prisoner in Contor, Hernandez made clear that he would seek to uncover the
respective Defendants’ names, and his lack of knowledge of their names is understandable given
his possible “limited access to information and the short time within which [he had to] file a Step
I grievance.”

Contor, 2008 WL 878665, at *3.

Accordingly, the magistrate judge’s

recommendation that Defendants Ybarra, Hengesbach, Wilkinson, and Watkins be dismissed will
be rejected.
The magistrate judge recommended dismissing Hernandez’ allegations that Defendants
“threw him into the shower, pulled him out of the shower, and refused to clean the chemical agent
from his cell,” because Grievance 1363 exhausted only his claim of excessive force via the
chemical agent. (ECF No. 56 at PageID.303.) The facts that Hernandez alleges, e.g., bringing
him to the shower and refusing to clean the chemical agent, derive from and are closely related to
the same event—i.e., the use of a chemical agent in his cell. Accordingly, the magistrate judge’s
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recommendation that Hernandez’s claim be limited to the act of spraying the chemical agent will
be rejected.
The magistrate judge recommended dismissing Hernandez’s retaliation claims because
Grievance 1491 did not meet MDOC Policy 03.02.130. In particular, the prison rejected the claim
at Step I of the grievance procedure because the grievance, in the prison’s view, was challenging
decisions made in a misconduct hearing. (ECF No. 34-3 at PageID.158-59.) It is clear from
Hernandez’s Step I grievance that he was challenging retaliatory conduct in the form of a
“fabricated misconduct,” as opposed to an actual result of the misconduct hearing, a fact
Hernandez emphasized in his Step II appeal. (ECF No. 34-3 at PageID.156, 158.) Accordingly,
the magistrate judge’s recommendation to dismiss Hernandez’s retaliation claims will be rejected.
Thus, the R & R’s findings that Hernandez did not exhaust his administrative remedies and
its recommendations that Defendants’ motion for summary judgment be granted will be rejected.
Therefore,
IT IS SO ORDERED that Plaintiff’s objections (ECF No. 61) are sustained.
IT IS FURTHER ORDERED that the magistrate judge’s R & R (ECF No. 56) is rejected.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
33) is denied.

Dated: December 11, 2017

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

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