Hailey #575198 v. Washington et al

Filing 46

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 43 ; Motion for Summary Judgment 34 is DENIED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEROME MENDELL HAILEY,
Plaintiff,
Case No. 1:17-cv-1067
v.
HON. JANET T. NEFF
HEIDI WASHINGTON, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendants
Crawford and Smith moved for summary judgment, arguing that Plaintiff failed to properly
exhaust his administrative remedies. The matter was referred to the Magistrate Judge, who issued
a Report and Recommendation (R&R), recommending this Court deny the motion. The matter is
presently before the Court on Defendants’ objections to the Report and Recommendation, to which
Plaintiff filed a response. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3),
the Court has performed de novo consideration of those portions of the Report and
Recommendation to which objections have been made. The Court denies the objections and issues
this Opinion and Order.
The Magistrate Judge concluded that Defendants failed to meet their burden to demonstrate
that Plaintiff did not properly exhaust his available administrative remedies (R&R, ECF No. 43 at
PageID.299). Specifically, the Magistrate Judge found that there is a “genuine factual dispute
whether the prison grievance process was actually available to Plaintiff” (id.). The Magistrate

Judge relied on Plaintiff’s allegations of “threats of physical violence, sexual propositions, and
threats of sanction” in his Amended Complaint, which the Magistrate Judge found was properly
verified, allegations that the Magistrate Judge determined satisfied “any reasonable definition of
‘intimidation’” (id. at PageID.297-299). See Ross v. Blake, __ U.S. ___; 136 S.Ct. 1850, 1858-60
(2016) (holding that a prisoner need not exhaust unavailable remedies and that “when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation,” the remedy in question is unavailable for purposes of the
PLRA).
In their objections, Defendants argue that there is no question of material fact as to whether
the grievance system was available to Plaintiff where Plaintiff used the system “to grieve the
purported underlying actions” (Objs., ECF No. 44 at PageID.305-306). However, the Magistrate
Judge acknowledged Plaintiff’s use of the grievance system, noting that Plaintiff failed to present
evidence that he pursued his claims through all three steps (R&R, ECF No. 43 at PageID.297).
Defendants’ argument does not demonstrate that the Magistrate Judge erred in finding a question
of fact about the system’s availability.
Defendants also argue that “[t]he Magistrate Judge erred by not individually analyzing each
claim against each defendant” (Objs., ECF No. 44 at PageID.301). Defendants point out that the
Magistrate Judge misstated that Plaintiff’s sexual harassment allegation is against Defendant Smith
(R&R, ECF No. 43 at PageID.291), rather than against Defendant Crawford (Am. Compl., ECF
No. 21 at PageID.95) (Objs., ECF No. 44 at PageID.301). While Defendants are correct that the
Magistrate Judge inadvertently mixed up Defendants’ names in the Background section of the
Report and Recommendation, Defendants’ argument does not demonstrate any error in the
Magistrate Judge’s exhaustion analysis or ultimate conclusion.

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Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 44) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 43) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 34) is
DENIED.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: September 20, 2019

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