Raper #147525 v. Cotroneo et al

Filing 47

ORDER MODIFYING TO INCORPORATE REPORT AND RECOMMENDATION 45 and DENYING 22 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY RAPER, SR.,
Plaintiff,
v.
JOSEPH CONTRONEO, ET AL.,
Defendants.

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No. 1:17-CV-368
HONORABLE PAUL L. MALONEY

ORDER
This is a civil rights action brought by a pro se state prisoner under 42 U.S.C. § 1983.
Plaintiff Larry Raper alleges that Defendants Lynn Larson, D.O. and Terrance Whiteman,
M.D. were deliberately indifferent to his serious medical needs while he was housed at
Duane Waters Hospital (DWH), a medical facility operated by the Michigan Department
of Corrections (MDOC).
Defendants Larson and Whiteman have moved for summary judgment based solely
on Plaintiff’s alleged failure to exhaust his administrative remedies. The magistrate judge
issued an R & R on May 14, 2018, concluding that Plaintiff had exhausted his administrative
remedies because the Defendants waived any procedural defect by addressing the merits of
the grievance at earlier steps, before the defect was raised. The matter is now before the
Court on the Defendants’ concise objections to the R & R.
The magistrate judge concluded that Plaintiff had filed two grievances relating to his
claim: DRF-1608-2074-12D (“2074”) and DRF-1702-0333-28A (“333”).
Grievance 2074 recounted Plaintiff’s experience this way:

This grievance is dealing mainly with Duane Waters Hospital there in
Jackson, and their over all [sic] negligence in my treatment of my right
leg, mainly Doctor Larson. As on Wednesday Night I was bleeding in
my right leg. Now how on earth could they be so grouse [sic] of a
negligence on behalf of Doctor Larson. As I was scheduled to be
released on Thursday or Friday, just one or two days before I almost
bleed to death. I was within one hour of getting on a van to come back
here to this Carson City Facility. Now if that any one can explain to me
just how over all incompetent Doctor Larson, but then trickling all the
way down to the entire medical staff there at Duane Waters Medical
Facility. As I am quite sure none of the ones that work there would want
to have one of their loved ones subject to that kind of treatment, having
to loose [sic] their leg.
(ECF No. 22-1 at PageID.134.)
MDOC then issued a Step I response to Grievance 2074. (Id. at PageID.135.) It
summarized Plaintiff’s relevant medical history including his surgery on March 6, 2015,
second surgery on April 27, 2015, and post-surgery treatment from May 31, 2016 and
continuing over the summer. (Id.) It noted that on August 5, 2016, Plaintiff suffered a related
medical issue when the surgical site ruptured resulting in further medical treatment and the
amputation of Plaintiff’s leg below the knee. (Id.) MDOC’s Step I response concluded by
noting, “Upon review of [the medical history], no evidence to support the grievant’s claim of
negligence is found. With any surgery there are many possible complications. Grievance
denied. The grievant is encouraged to re-access health care as needed.” (Id.)
Plaintiff then escalated the grievance to a Step II appeal. MDOC responded similarly:
“Grievant’s electronic medical record was reviewed. Documentation revealed grievant was
provided timely and appropriate care for his medical condition.” (Id. at PageID.133.) In the
conclusion section, the Step II appeal indicated: Evidence[:] Policy 03.04.100 Health Care
Services. Grievance: Denied. (Id.)
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Plaintiff then escalated Grievance 2074 to Step III. For the first time, MDOC rejected
the grievance because there was “no indication the grievant attempted to resolve this issue
prior to filing [Grievance 2074] as outlined in policy [PD 03.02.130].” (Id. at PageID.131.)
The magistrate judge concluded that because MDOC had considered the merits of
grievance at Step I and Step II without any reference to a procedural defect, the Defendants
had waived the defect noted at Step III. The magistrate judge’s conclusion was premised on

Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). There, the Sixth Circuit
explained, “[w]hen prison officials decline to enforce their own procedural requirements and
opt to consider otherwise-defaulted claims on the merits, so as a general rule will we.” Id.
The magistrate judge further concluded that Plaintiff had exhausted a claim against
Dr. Whiteman because Grievance 333, which contained a claim against Whiteman, was
rejected as duplicative by MDOC. The magistrate judge reasoned that if Grievance 333 was
truly duplicative of Grievance 2074, then Dr. Whiteman had fair notice of the alleged
mistreatment that led to Plaintiff’s claim despite Plaintiff not identifying him by name.
The Defendants now object that the Report and Recommendation does not address

Cook v. Caruso, an unpublished Sixth Circuit opinion. 531 F. App’x 554, 563 (6th Cir.
2013).1

 The Defendants do not challenge the magistrate judge’s conclusion that Dr. Whiteman
had fair notice of the claim against him through Grievance 2074. Accordingly, if the
MDOC waived the procedural defect in Grievance 2074, Plaintiffs claims against
Whiteman will also survive. 
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In Cook, the MDOC denied the plaintiff a bottom bunk even though he had a special
medical accommodation as a precaution for his epilepsy. Id. at 556. He suffered a seizure,
fell out of his top bunk, and injured himself. Id.
He filed a grievance charging that he received inadequate medical care after his fall.
One year later, he filed a second grievance raising the denial of a bottom bunk. Id. at 557.
At each stage of the grievance process, MDOC officials rejected the second grievance as
untimely, but in steps II and III, they also recounted the basis for the prisoner’s injury and
noted the medical treatment he had received. Id. at 557–58. The district court granted the
defendants’ motion for summary judgment on the basis of exhaustion. Id. at 558. The
prisoner then appealed, arguing that MDOC had waived his procedural defenses.
The Sixth Circuit affirmed. The court distinguished Reed-Bey by noting that although
MDOC had reviewed the facts at each step, it had not actually decided on the merits, so that
from Step I to Step III, MDOC had relied on procedural defects to reject the grievance. See

id. at 563 (“Simply mentioning that the prison reviewed the record does not a merits-based
response make.”). The court clarified Reed-Bey, asserting that a merits-based determination
must be made at each step of the grievance process for a prisoner to claim that the prison
had waived a procedural defect. Id. at 563 (“For Reed–Bey’s holding to apply, Cook would
have had to receive merits-based responses at each step.”). Thus, the Court affirmed the
district court’s grant of summary judgment on the basis of exhaustion.
Now, the Defendants assert that because Plaintiff did not receive a merits-based
determination at Step III, he failed to exhaust his claims properly under Cook.

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The Court does not agree. The crucial difference between Cook and the instant case
is that here, Defendants did not assert a procedural defect in either Steps I or II, and it went
far beyond “review[] of the record” in those steps by denying the grievance on the merits. It
raised Plaintiff’s procedural defect—failing to attempt to resolve the issue before filing a
grievance—only at Step III. 2
The Court concludes that where prison officials do not assert a procedural default at
Steps I and II of the grievance process, instead addressing the claims on the merits, Cook is
inapplicable. Reed–Bey instructs that “[w]hen prison officials decline to enforce their own
procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as
a general rule will we.” 603 F.3d at 325.
Neither Cook nor Reed–Bey directly addresses situations in which MDOC officials
assert a procedural defect for the first time late in the grievance process. The Court concludes
that when MDOC officials shift their rationale in denying a grievance from a purely meritbased determination to a procedural defect at the final step in the grievance process, the
defect has been waived, thus exhausting the claim for purposes of federal suit. See, e.g.,

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The Court is unsure how Plaintiff could have resolved his issue—that medical negligence
by DWH employees caused his leg to be amputated—by informally raising it with the Dr.
Larson.
Further, there is no evidence that Plaintiff had access to Dr. Larson at any point after the
August 5 medical emergency and amputation, which is when the grievance arose. It
would appear to the Court that under MDOC policy, Plaintiff was prevented from raising
the issue with Dr. Larson by circumstances beyond his control. (See PD03.02.130(G)(2).)
While not a model of clarity, Plaintiff seemed to suggest as much in Grievance 333 which
stated, “There was no way in which I could take, and resolve this grievance [] as I was in
the Duane Waters Medical Center. Also I did not have any of the medical record
files . . . .” (ECF No. 22-1 at PageID.127.)
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Alexander v. Huss, No. 2:16-cv-209, 2017 WL 4119944 (W.D. Mich. Sept. 18, 2017)
(Maloney, J.) (“When the MDOC opts to ignore procedural violations, and instead addresses
the merits of the claim or the appeal, it cannot later raise the procedural defect as a defense.”)
(citing Reed–Bey). Thus, Defendants waived their right to enforce the procedural defect
when it was not asserted in either the Step I or Step II response to Plaintiff’s grievance. It
would be vastly unfair to allow MDOC to shift to a purely procedural rationale to deny a
grievance and thus deprive the grievant of access to the courts under such a circumstance.
Accordingly, Defendants’ objection (ECF No. 46) that the magistrate judge did not
consider Cook is OVERRULED.  
IT IS ORDERED that the May 14, 2018 R & R (ECF No. 45) is MODIFIED TO
INCORPORATE the Court’s discussion of Cook and Reed–Bey, but otherwise
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 22) is DENIED.
Date: June 12, 2018

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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