McDuff #204491 v. Burt et al
Filing
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OPINION and ORDER rejecting 16 report and recommendation; denying 11 motion for summary judgment; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RICHARD HANNABLE MCDUFF,
Plaintiff,
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v.
BRENT ADDIS, ET AL.,
Defendants.
No. 1:17-CV-912
HONORABLE PAUL L. MALONEY
OPINON
I.
Background
State prisoner Richard McDuff filed suit under § 1983, claiming that Defendants
Brent Addis, Jared Goodstrey, Shakia Davis, and Robert Dykstra were deliberately
indifferent to the risk that he would be assaulted by other inmates.
Defendants filed a motion for summary judgment for Plaintiff’s failure to exhaust his
administrative remedies. The magistrate judge issued an R & R recommending that the
motion be granted. The matter is now before the Court on Plaintiff’s objections to the R & R.
The focus of the motion for summary judgment, the R & R, and Plaintiff’s objections
is Grievance No. MCF-2015-04-326-28C:
MCF ADMINISTRATION HAS SHOWN WILLFUL AND
DELIBERATE INDIFFERENCE TO MY LIFE AND PHYSICAL
SAFETY. AFTER BEING ATTACKED BY TWO KNOWN GANG
MEMBERS IN 4 UNIT BATHROOM WITH WEAPONS, MCF
ADMINISTRATION NEVER QUESTIONED ME REGARDING MY
SAFETY CONCERNS DESPITE THE FOLLOWING UNDISPUTED
FACTS: 1) 4 UNIT CAMERAS SHOW ME ENTERING ITS UPSTAIRS
BATHROOM WEARING FLIP FLOP SANDALS WHERE TWO
KNOWN GANG MEMBERS RAN IN BEHIND ME THEN SWIFTLY
LATER RAN OUT. 2) THE NOISE OF THE ATTACK BROUGHT
OFFICER DYKSTRA RUNNING TO THE BATHROOM WHERE HE
FOUND ME ALONE AND BLEEDING. 3) HE IDENTIFIED THE
TWO GANG MEMBERS VIA VIDEO AND NO OTHER PERSONS
HAVING BEEN IN THE AREA. UPON MY BEING TAKEN TO
HEALTH CARE THE NURSE NOTED MY HEAD AND FACE HAD
BEEN STRUCK NUMEROUS TIMES WITH WEAPONS THAT LEFT
MULTIPLE PUNCTURE WOUNDS. IN ADDITION MY LEFT
EARDRUM HAD BEEN RUPTURED. PLEASE NOTE HERE THAT
OFFICER DYKSTRA WROTE ME A FIGHTING TICKET DESPITE
NO EVIDENCE OF INJURY TO ANYONE BUT ME AS OUTLINED
ABOVE. THE TICKET WAS THROWN OUT.
ON THE DATE INDICATED ABOVE I WAS RELEASED FROM SEG
WITH THE TWO GANG MEMBERS WHO ASSAULTED ME. RIGHT
IN FRONT OF SEG THEY ATTACKED ME, AND AGAIN DESPITE
NO INVESTIGATION I WAS WRITTEN ANOTHER FIGHTING
MISCONDUCT. THIS LAST ATTACK COMPLETELY EXPLODED
MY EARDRUM TO DATE NO ONE FROM MCF ADMINISTRATION
HAS INTERVIEWED ME ONCE. I’M WRITING THIS GRIEVANCE
IN ACCORDANCE TO PRISONER LITIGATION REFORM ACT FOR
14TH AMENDMENT VIOLATIONS.
(ECF No. 12-2, PageID.74).
The grievance was rejected at Step I for raising “multiple issues.” (ECF No. 12-2 at
PageID.75.) Plaintiff’s Step II and Step III appeals were denied on findings that the Step I
grievance was appropriately rejected based on Policy Directive 03.02.130, ¶ G. (Id. at
PageIDs 71, 73.)
II. Legal Framework
A. Objections to Report and Recommendation
A district court judge reviews de novo the portions of the R & R to which objections
have been filed. 28 U.S .C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Only those objections that
are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir.1986) (per curiam) (holding the district court need not provide de novo
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review where the objections are frivolous, conclusive, or too general because the burden is
on the parties to “pinpoint those portions of the magistrate's report that the district court
must specifically consider”).
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 haled 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
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).
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The MDOC requires prisoners to follow a three-step process to exhaust grievances.
See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to
resolve a problem with the staff member within two business days of becoming aware of the
grieveable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If
the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form
within five business days after the grievant attempted to resolve the issue with appropriate
staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing
grievance forms:
The issues should be stated briefly but concisely. Information provided is to
be limited to the facts involving the issue being grieved (i.e., who, what, when,
where, why, how). Dates, times, places and names of all those involved in the
issue being grieved are to be included.
Id. at ¶ R. The prisoner must send the Step I grievance to the appropriate grievance
coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not
receive a timely response, he must request the appropriate form and send it to the Step II
Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II
response, or does not receive a timely response, he must send a completed Step III
grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.
Relevant to this matter, Paragraph G warns prisoners that a grievance may be rejected “if it
is vague, illegible, contains multiple unrelated issues, or raises issues that are duplicative of
those raises in another grievance . . . .” Id. at ¶ G(1).
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III. Discussion
The magistrate judge recommends granting the Defendants’ motion for summary
judgment because Plaintiff’s grievance was rejected for procedural reasons at Step I. He
concluded that Plaintiff had raised two attacks and two citations for fighting in his grievance,
so rejecting it for raising multiple unrelated issues was reasonable. Plaintiff objects that his
grievance did not raise multiple issues or in the alternative that the grievance process was
unavailable. The Court will sustain Plaintiff’s objection to the R & R’s conclusion that he
procedurally defaulted his grievance and reject the R & R.
MDOC policy prohibits only multiple unrelated issues from being raised in a single
grievance. P.D. 03.02.130 ¶ G(1). A common sense understanding of the term unrelated
means that the issues are “not connected in any way.” Unrelated, MERRIAM-WEBSTER,
available at https://www.merriam-webster.com/dictionary/unrelated (last updated June 30,
2018). The term is also commonly thought to mean “not connected or associated.”
An issue is a “matter that is in dispute between two or more parties.” Issue, MERRIAMWEBSTER, available at https://www.merriam-webster.com/dictionary/issue (last updated
June 30, 2018). It is synonymous with a concern or problem. Id.
The phrase “multiple unrelated issues” takes on its ordinary meaning in the Policy
because it is not otherwise defined. Therefore, the Policy simply warns that inmates may
have their grievance denied if they include multiple disputes, concerns, or problems that are
“not connected or associated.” P.D. 03.02.130 ¶ G(1).
As the Court reads Plaintiff’s grievance, he raised four events pertaining to a single
issue. First, Plaintiff very clearly stated the issue he intended to address with MDOC officials.
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He wrote “MCF ADMINISTRATION HAS SHOWN WILLFUL AND DELIBERATE
INDIFFERENCE TO MY LIFE AND PHYSICAL SAFETY.”
Plaintiff continued, explaining how two alleged gang members attacked him in the
bathroom, and that Defendant Dykstra discovered Plaintiff alone, bruised and bloodied in
the aftermath. Dykstra responded by writing Plaintiff a misconduct for fighting—which was
eventually dropped. Later, Plaintiff was released from “seg” with the gang members, who
proceeded to assault him again. No investigation followed the second alleged attack. Plaintiff
was issued a second misconduct for fighting.
These events are clearly related.
Moreover, the events stated in the grievance are directly relevant to a claim for
deliberate indifference. The Eighth Amendment bars the “inflict[ion]” of “cruel and
unusual punishments.” U.S. Const. Amend. VIII. Prison officials are liable under the
Eighth Amendment for failing to protect an inmate only if they act with “deliberate
indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Officials act with deliberate
indifference if they know of a substantial risk to an inmate's safety, yet disregard that risk by
failing to take reasonable measures to abate it. Id. at 837. Generally, a single isolated attack
on an inmate cannot give rise to a deliberate indifference claim because the inmate will be
unable to show that officials were consciously aware of the risk of an attack. See, e.g., Lewis
v. McLennan, 7. F. App’x 373, 375 (6th Cir. 2001) (affirming dismissal of Eighth
Amendment claim because the plaintiff had not alleged any specific facts which would show
that he was in danger of being assaulted by other prisoners).
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Here, Plaintiff may argue that the first attack resulted in some or all of the Defendants
becoming subjectively aware of a substantial risk to his safety. Only then would the latter
attack, perpetrated by the same offenders, give rise to a claim for deliberate indifference.
The misconduct tickets are also relevant because they may be probative of a failure to take
reasonable measures to abate the risk of substantial harm—especially since Plaintiff states that
the first misconduct ticket was “thrown out.” At the very least, the misconduct tickets are
“connected” to the issue of deliberate indifference by MDOC employees; they stem from
the very attacks giving rise to the claim.
Therefore, it was an unreasonable application of Policy Directive 03.02.130 ¶ G(1) to
reject Plaintiff’s grievance on the cited grounds. 1 This rendered the grievance process
unavailable to Plaintiff. See Ross, 136 S. Ct. at 1859–60.
The Court reaches this result after consideration of LaFountain v. Martin. 334 F.
App’x 738 (6th Cir. 2009) (per curiam). There, a prisoner filed multiple grievances alleging
that an MDOC employee retaliated against him for having filed grievances by telling other
prisoners that he was a snitch and sexual predator. Id. at 740. He also claimed that his cell
was robbed and he had been accosted in the bathroom after the alleged retaliation. Id.
MDOC officials rejected one of the grievances as raising multiple unrelated claims. Id.
Notably, the Step I response does not assert that Plaintiff raised “unrelated” issues. In the
one-sentence denial, the grievance coordinator stated that the reason for denying the
grievance was “raising multiple issues.” (ECF No. 12-2 at PageID.75.) Neither the Step II
nor Step III appeal addressed the difference between “raising multiple issues” and “raising
multiple unrelated issues.” (Id. at PageID.71-75.)
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The plaintiff then filed a complaint claiming a violation of the First Amendment. The
magistrate judge recommended granting the subsequent motion for summary judgment for
failure to exhaust. Id. at 739; see also LaFountain v. Martin, No. 07-cv-76, D.E. 35 (W.D.
Mich. Feb. 2, 2008). The district court adopted the R & R.
On appeal, the Sixth Circuit found that “as a matter of law, [the relevant grievance]
did not raise multiple unrelated issues.” 334 F. App’x at 741. The court explained that the
prisoner had raised one issue: “that [the employee] had retaliated against [him] for having
filed grievances by labeling him a snitch and a sexual predator in order to motivate the other
prisoners to take hostile action against him.” Id. The results—being accosted in the bathroom
and having his cell robbed—were “merely the harm he suffered as a result of the alleged
retaliation.” 2 Id. Accordingly, the LaFountain court found that the district court had erred in
granting summary judgment on the basis of exhaustion, so it vacated the district court’s order
and remanded for further proceedings. Id. at 742.
Here, the same analysis largely holds. While the respective grievants may have raised
more than one event to support their claim, they did not raise “multiple unrelated issues.”
Violations of constitutional rights come in many forms. Sometimes, the violation of a right
becomes clear only after several events have transpired. A prisoner does not run afoul of
The court also noted that the prisoner’s complaint could be construed as a claim for
deliberate indifference against the employee because “labeling an inmate a snitch satisfies the
Farmer standard and constitutes deliberate indifference to the safety of that inmate.” See 334
F. App’x at 742 (quoting Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001).
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MDOC’s “unrelated issue” rule by reporting facts that bear directly on or arise out of a single
claimed constitutional violation.
If MDOC officials were allowed to construe Paragraph G(1) in this manner, litigating
prisoners would be placed in a precarious position. It would force them to walk a tightrope—
stating sufficient information in their grievance to receive a merits determination and qualify
for exhaustion under ¶ R of the Policy, 3 while omitting everything else that MDOC officials
could plausibly seize on to deem the grievance as raising multiple unrelated issues. While
the MDOC has a strong interest in procedural rules that promote efficient administration of
its facilities, a too-broad application of Paragraph G(1) appears designed to bar all but the
most artfully drafted grievances from receiving a decision on the merits. In that case,
administrative relief is deemed unavailable. See Ross, 136 S. Ct. at 1860 (stating that
exhaustion will not bar an inmate’s claim where “officials . . . devise procedural systems . . .
in order to ‘trip up all but the most skillful prisoners.’” (quoting Woodford, 548 U.S. at
102)).
IV. Conclusion
The Court concludes that MDOC officials applied Policy Directive 03.02.130 ¶ G(1)
in an unreasonable manner when it concluded that Plaintiff had raised multiple unrelated
issues. Because MDOC officials applied their Policy unreasonably, they rendered an
“The issues should be stated briefly but concisely. Information provided is to be limited to
the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates,
times, places and names of all those involved in the issue being grieved are to be included.”
P.D. 03.02.130, ¶ R.
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administrative remedy unavailable. Thus, the Court concludes that the Defendants are not
entitled to summary judgment solely on the basis of exhaustion.
ORDER
As thoroughly explained in the accompanying opinion, the Court REJECTS the
Report and Recommendation. (ECF No. 16.)
Plaintiff’s objections (ECF No. 17) to the R & R are SUSTAINED.
Defendants’ motion (ECF No. 11) for summary judgment based on a failure to
exhaust is DENIED.
IT IS SO ORDERED.
Date: July 3, 2018
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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