Glenn #373892 v. Pol et al

Filing 46

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 40 ; Plaintiff's Application for Entry of Default 17 is denied; Plaintiff's claims against Nurses Diane (unknown) and (unknown) Thomas are dismissed without prejudice; Defendants' Motion for Summary Judgment 22 is denied ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LARON GLENN,
Plaintiff,
CASE NO. 1:17-CV-545
v.
HON. ROBERT J. JONKER
JAMES APOL, et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 40) and Defendants’ Objection to it (ECF No. 41). 1 Under the Federal Rules of
Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation,
“[t]he district judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de
novo reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL
PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

1

Plaintiff does not object to the Report and Recommendation, but has filed an “Objection”
to the Defendants’ Objection. (ECF No. 44).

The Magistrate first recommends denying Plaintiff’s application for entry of default (ECF
No. 17) and dismissing without prejudice all claims against Defendant Nurses Diane (unknown)
and (unknown) Thomas. No objections have been raised relating to this portion of the Magistrate’s
Report and Recommendation, and the Court agrees with the recommended disposition here for the
very reasons recited by the Magistrate Judge.
The sole Objection in the record relates to the Magistrate Judge’s recommendation that
Defendants’ motion for summary judgment (ECF No. 22) be denied because the Defendants had
not carried their burden on the affirmative defense of exhaustion. More specifically, the Magistrate
Judge found that it would be error to grant the motion because the Defendants’ affirmative defense
focused on a truncated period–the date between March and July 2016, rather than what the
Magistrate concluded was the applicable period of March 2016 through June 2017. The Magistrate
Judge concluded that the omission means Plaintiff could theoretically have exhausted grievances
between July 2016 and June 2017. Because Defendants bear the burden of proof on the affirmative
defense of failure to exhaust, this omission precluded summary judgment.
Defendants contend the Magistrate erred in finding the applicable period extended through
to the date Plaintiff filed this suit because Plaintiff could only have filed timely grievances related
to those complained of incidents through July 2016. (ECF No. 41, PageID.330). Defendants
further contend that even if the Magistrate were correct, the proper recourse in this case is an
evidentiary hearing, not denial of the motion. After performing a de novo review, the Court
concludes that the Magistrate provided an accurate application of the relevant law and, accordingly,
Defendants’ motion for summary judgment must be denied.

2

“The PLRA provides as follows: ‘No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.’” Woodford v. Ngo, 548 U.S. 81, 87-88 (2006) (quoting 42 U.S.C. § 1997e(a)). “There
is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot
be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). But it is equally plain that “failure
to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially
plead or demonstrate exhaustion in their complaints.” Id. at 216. This means that Defendants bear
the burden of coming forward with an evidentiary showing to support the affirmative defense in the
motion for summary judgment.
Whether a clam has been properly exhausted is determined as of the date of the filing of the
complaint or other currently operative pleading where the complaint has been amended See Mattox
v. Edelman, 851 F.3d 583, 592 (6th Cir. 2017). A grievance cannot be exhausted after the lawsuit
is filed. “It is well established that a prisoner cannot file a lawsuit first and then exhaust his
administrative remedies after-the-fact.” Jennings v. Crompton, No. 1:16-cv-921, 2017 WL
3557427, at * (W.D. Mich. July 20, 2017). But a prisoner can theoretically exhaust right up to the
time of filing suit. The fundamental error in Defendants’ position is that the applicable time period
for purposes of an exhaustion analysis is not limited by the date of the underlying factual
allegations, but by the dictates of the PLRA. For the reasons discussed above, the applicable time
period under the PLRA extends to the date of the filing of the Complaint.
Defendants cannot avoid this burden of establishing failure to exhaust by suggesting that
any grievance filed between July of 2016 and the filing of this lawsuit in June of 2017 would have
3

been untimely under MDOC rules. Even an untimely grievance can properly exhaust a claim if the
defendants fail to enforce their own procedural basis in the grievance process. A 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). The pivotal question is whether the Step III
decision, the last decision, was based on the enforcement of a procedural bar. Id. at 326 (6th Cir.
2010); see also Reynolds-Bey v. Harris, 428 F. App’x 493, 502 (6th Cir. 2011) (The Step III
decision is “the equivalent of the last state court [decision] in [a] habeas [case.]”). The affidavit of
Clarice Lewis is entirely silent regarding the period between July 2016 and June 2017. The Court
therefore cannot determine whether Plaintiff filed grievances within this time, and if so whether
the state enforced its own procedural rules in response. Therefore the Magistrate Judge correctly
found that Defendants could not meet their burden on the affirmative defense of exhaustion.
For these reasons the Defendants’ argument for an evidentiary hearing also misses the mark.
This is not a case of conflicting evidence on whether Plaintiff was prevented from pursuing his
administrative remedies. Rather, it’s a case where Defendants failed to meet their initial burden on
summary judgment of demonstrating that Plaintiff failed to exhaust during the potentially available
time period established by the PLRA. Of course, denial of summary judgment does not preclude
defendants from relying upon and attempting to establish a viable exhaustion defense at trial, or in
any other appropriate motion.
CONCLUSION
ACCORDINGLY, IT IS ORDERED:
1.

The Report and Recommendation of the Magistrate Judge (ECF No. 40) is
APPROVED and ADOPTED as the Opinion of the Court.
4

2.

Plaintiff’s Application for Entry of Default (ECF No. 17) is DENIED.

3.

Plaintiff’s claims against Nurses Diane (unknown) and (unknown) Thomas are
DISMISSED WITHOUT PREJUDICE under FED. R. CIV. P. 4(m).

4.

Dated:

Defendants’ Motion for Summary Judgment (ECF No. 22) is DENIED.

July 19, 2018

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

5