Smith #267009 et al v. Pallas et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION 43 ; Granting 36 ; Granting 47 and 49 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERRICK LEE SMITH,
Plaintiff,
v.
ANTHONY GOULET, ET AL.,
Defendants.
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No. 1:17-CV-618
HONORABLE PAUL L. MALONEY
ORDER
I.
Background
This is a civil rights action brought by a pro se state prisoner under 42 U.S.C. § 1983.
The suit arises out of the conditions of Plaintiff’s confinement at the Earnest C. Brooks
Correctional Facility. He alleges that Defendants Anthony Goulet and Ryan Vanderwagen
violated his First and Fourteenth Amendment rights by planting evidence and lying so that
Plaintiff would be convicted of a Class I substance abuse misconduct.
Defendants have moved for summary judgment, based on the affirmative defense of
failure to exhaust administrative remedies, as required by 42 U.S.C. § 1997e. The matter
was referred to the magistrate judge for a Report and Recommendation, which issued on
June 20, 2018. (ECF No. 43.)
The magistrate judge recommended granting the motion for summary judgment
based on a finding that Plaintiff did not exhaust his administrative remedies. The matter is
now before the Court on Plaintiff’s objections to the R & R.
II.
Legal Framework
A. Objections to Report and Recommendation
The Court is required to make a de novo determination of those portions of the
R & R to which specific objections have been made, and may accept, reject, or modify any
or all of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). “[A] general objection to a magistrate's report, which fails to specify the issues
of contention, does not satisfy the requirement that an objection be filed. The objections
must be clear enough to enable the district court to discern those issues that are dispositive
and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
B. Administrative Exhaustion
Prior to filing a civil lawsuit, a prisoner must first properly exhaust his available
administrative remedies. 42 U.S.C. § 1997e(a); Woodford, 548 U.S. at 93. 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 741. One reason for creating prisoner grievance procedures under
the PLRA was to create an administrative record for the court. “Requiring exhaustion allows
prison officials an opportunity to resolve disputes concerning the exercise of their
responsibilities before being hauled into court. This has the potential to reduce the number
of inmate suits, and also to improve the quality of suits that are filed by producing a useful
administrative record.” Jones v. Bock, 549 U.S. 199, 204, (2007). “Proper exhaustion
demands compliance with an agency's deadlines and other critical procedural rules because
no adjudicative system can function effectively without imposing some orderly structure on
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the course of its proceedings.” Woodford, 548 U.S. at 90-91. In rare circumstances, the
grievance process will be considered unavailable where officers are unable or consistently
unwilling to provide relief, where the exhaustion procedures may provide relief, but no
ordinary prisoner can navigate it, or “where prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.”
Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016).
III.
Discussion
As a preliminary matter, Plaintiff—after filing his objections— has moved the Court for
two orders placing evidentiary exhibits “on the record.” (See ECF Nos. 47, 49). While
ordinarily the motions would be the province of the magistrate judge, given the posture of
the case, the Court will resolve them now. The motions are GRANTED and the Court
accepts the grievances as supplement to Plaintiff’s objections. However, for reasons to be
discussed, grievances filed by the Plaintiff relating to this matter cannot, as a matter of law,
exhaust his claim.
Plaintiff claims that Defendants violated his constitutional rights by placing evidence
in his cell, which resulted in his conviction for a Class I substance abuse misconduct. To
pursue a claim based on these events, Plaintiff must have exhausted his administrative
remedies.
Prisoners commonly file grievances pursuant to policy of the Michigan Department
of Corrections to exhaust administrative remedies. For example, a prisoner may grieve
“alleged violations of policy and procedure or unsatisfactory conditions of confinement
which directly affect the grievant.” Mich. Dep't of Corr., Policy Directive 03.02.130, ¶ E
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(effective 4/28/03). But decisions made in hearings conducted by the office of policy and
hearings, hearings and appeals division, and minor misconduct hearings are nongrievable.
See, e.g., Palmer v. Aikens, No. 2:12-cv-309, 2014 WL 581682, at *3 (W.D. Mich. Feb. 14,
2014) (Greeley, M.J.); Mich. Dep't of Corr., Policy Directive 03.02.130, ¶ F(1) (effective
4/28/03).
Because the ordinary grievance procedure does not apply to disputes arising out of
misconduct hearings, the prisoner must instead raise the issue in the misconduct hearing.
See Siggers v. Campbell, 652 F.3d 681, 694 (6th Cir. 2011). In other words, “where a
grievance relates to the issuance of major misconduct reports, . . . Michigan rules provide
that the only avenue for challenging such reports is a hearing.” Id. (emphasis added).
If the prisoner does not successfully resolve the dispute at the misconduct hearing, he
must “file a motion or application for rehearing in order to exhaust his or her administrative
remedies before seeking judicial review of the final decision or order.” See Mich. Comp.
Laws § 791.255(1); Palmer v. Aiken, No. 2:12-cv-309, 2014 WL 581682, at *3 (W.D. Mich.
Feb. 14, 2014). The rehearing request must be made within thirty days after the final decision
or order is issued. Mich. Comp. Laws § 791.254(3).
The magistrate judge concluded that there was no evidence that Plaintiff raised his
claims for retaliation and substantive due process at the misconduct hearing, as he was
required to do to exhaust his claims under Siggers. Thus, the claims remained unexhausted,
and summary judgment was proper.
Plaintiff’s objections reflect an ongoing misunderstanding of the administrative
process as it relates to major misconduct violations. Plaintiff argues vociferously that the
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grievance process was unavailable because the grievance coordinator refused to accept his
grievances for filings. (See ECF No. 45 at PageID.521–523.) But as the Court noted supra,
the grievance process was not available to Plaintiff, per MDOC policy, for purposes of any
dispute arising out of his major misconduct conviction. Plaintiff’s claims are clearly related,
because he effectively accuses the Defendants of manufacturing the wrongdoing which
resulted in his conviction. As a result, Plaintiff largely focuses his objections on an erroneous
conclusion as to the availability of the grievance procedure.
Plaintiff also argues that the magistrate judge misapplied the summary judgment
standard. Plaintiff is incorrect; the magistrate judge properly found that there was no genuine
dispute of fact that Plaintiff did not raise the claims the claims he is now asserting in his
administrative hearing. (See ECF No.43 at PageID.514.) Plaintiff has identified no evidence
that would suggest a conclusion to the contrary.
In sum, Plaintiff’s objections are without merit for the reasons stated. Accordingly,
the Court ADOPTS the Report and Recommendation (ECF No. 43) as the Opinion of the
Court, OVERRULES Plaintiff’s objections (ECF Nos. 44, 45, 46), and GRANTS
Defendants’ motion for summary judgment. (ECF No. 36.)
Plaintiff’s motions (ECF No. 47, 49) to supplement the record are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims are DISMISSED WITHOUT
PREJUDICE.
JUDGMENT TO FOLLOW.
Date: August 3, 2018
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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