Lee #791018 v. Tinerella et al

Filing 29

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 25 , 14 , 23 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY LEE,
Plaintiff,
CASE No. 1:17-cv-797
v.
HON. ROBERT J. JONKER
ROBERT TINERELLA, et al.,
Defendants.
_______________________________/
ORDER ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 25) and Defendant’s Objections to the Report and Recommendation. (ECF
No. 26). 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).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the

Report and Recommendation itself; and Defendants’ Objections. After its review, the Court agrees
with the Magistrate that the unopposed portion of Defendants’ motion should be granted. The
Court respectfully disagrees, however, that the motion should be denied with respect to Plaintiff’s
retaliation claim against ARUS Buchin. For the reasons that follow, the Court concludes that
Defendants have met their affirmative defense of lack of exhaustion with respect to this claim as
well.
Plaintiff has Eighth Amendment claims related to alleged excessive force and failure to
intervene against Defendants Tinerella, Piggot, Rose, and Spitzley. These claims are proceeding
and are not at issue in Defendants’ motion for partial Summary Judgment. What is at issue is
Plaintiff’s retaliatory transfer claim against Defendant Buchin.1 Defendant says Plaintiff failed to
exhaust this claim, and the Court agrees.
When analyzing whether a plaintiff’s claim has been exhausted, the Sixth Circuit Court of
Appeals has held:
Failure to exhaust administrative remedies is an affirmative defense,
which the defendant has the burden to plead and prove by a
preponderance of the evidence. . . . A prisoner’s lack of compliance
may be excused if the administrative remedies are not available, but
this court has required a prisoner to make “‘affirmative efforts to
comply with the administrative procedures before analyzing
whether the facility rendered these remedies unavailable.’” Napier
v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir. 2011) (citation omitted);
see also Brock v. Kenton Cnty., 93 Fed.Appx. 793, 798 (6th Cir.
2004) (citing cases). When a prisoner makes affirmative efforts to
comply but does not succeed, we analyze “whether those ‘efforts to
exhaust were sufficient under the circumstances.’” Risher v. Lappin,
639 F.3d 236, 240 (6th Cir. 2011) (quoting Napier, 636 F.3d at 224).

1

Plaintiff has not objected to the Magistrate Judge’s recommended dismissal of his First
Amendment Claims against the other defendants, and so the Court adopts that portion of the Report
and Recommendation.
2

Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). Because Defendants bear the burden of proof on
exhaustion they must, of course, come forward with sufficient evidence to establish that no
reasonable fact-finder could determine that Plaintiff, in fact, satisfied the exhaustion requirement.
Once defendant does so, however, normal summary judgment principles apply, and the party
opposing summary judgment cannot simply rely on unverified assertions; rather, the party
opposing—Plaintiff in this case—must come forward with an evidentiary basis to defeat the
motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
Plaintiff has failed to create a triable issue of fact.2 In his Response brief, Plaintiff admits
he did not exhaust a grievance of retaliation against Defendant Buchin. He then argues that his
failure should be excused because a Step II grievance form was never provided to him. (ECF No.
18, PageID.302). Plaintiff provides no affidavit, no verified declaration, and no other probative
evidence to support this statement, and for that reason this claim must be dismissed. While it is
true that exhaustion is not necessary for unavailable remedies, the Sixth Circuit requires evidence
of affirmative efforts to follow the procedures before unavailability will be found. See Napier,
636 F.3d 218, 224 (6th Cir. 2011). Plaintiff’s bare assertion that a grievance was unavailable to
him is insufficient to make this showing on summary judgment. See Lynn v. Davis, No. 2:150003, 2016 WL 3553029, at *8 (M.D. Tenn. June 29, 2016), affirmed in relevant part by Lynn v.
Melton, No. 16-6109 (6th Cir. Mar. 30, 2017) (conducting a similar analysis). Moreover, the sheer
number of grievances that Plaintiff did file successfully shows that there was an active and
available grievance process for him. Accordingly, the court concludes that Defendants are entitled

2

The Report and Recommendation includes a section entitled “Proposed Findings of Fact.” The
Court rejects that characterization because the Court is not finding any facts on summary judgment.
Rather, the Court is simply determining whether any material issues of fact are in genuine dispute
based on the summary judgment record.
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to summary judgment with respect to Plaintiff’s retaliation claim against Defendant Buchin as
well.
This case will proceed on Plaintiff’s Eighth Amendment claims that Officers Tinerella and
Piggot used excessive force, and that Officers Rose and Spitzley failed to intervene.
CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 25) is ADOPTED IN PART and REJECTED IN PART.
IT IS FURTHER ORDERED that:
1. Defendants’ Motion for Partial Summary Judgment (ECF No. 14) is GRANTED.
2. Plaintiff’s Motion for Order (ECF No. 23) which requests the Court deny the
Defendants’ motion is DISMISSED AS MOOT.

Dated:

August 9, 2018

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

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