Walker #747025 v. Washington

Filing 89

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 59 ; ORDER GRANTING 25 ; ORDER DENYING 34 , 36 , 55 and 67 ; ORDER LIFTING Administrative Stay 81 : ORDER DENYING AS MOOT 82 ; Objection 87 OVERRULED; this case is DISMISSED; signed by Judge Robert J. Jonker (elam)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY WALKER,
Plaintiff,

CASE No. 1:21-cv-223

v.

HON. ROBERT J. JONKER

HEIDI WASHINGTON,
Defendant.
_______________________________/

ORDER REGARDING REPORT AND RECOMMENDATION
INTRODUCTION
This is a prisoner civil rights lawsuit. In his lawsuit, Plaintiff Larry Walker challenges an
MDOC policy related to dental care that provides prisoners tooth extractions but not root canals
and crowns. On May 17, 2023, the Magistrate Judge issued a Report and Recommendation (ECF
No. 59) that recommends granting a defense motion seeking summary judgment on the basis of
exhaustion and dismissing the case. Plaintiff has filed objections (ECF No. 56) and he has also
requested leave to further amend his Complaint. (ECF No. 67).
DISCUSSION
1. Class Action Proceedings
In the course of reviewing the Magistrate Judge’s Report and Recommendation, the Court
reviewed the Eastern District of Michigan case, Bownes v. Washington, 2:14-CV-11691 (E.D.
Mich). Like the instant case, the plaintiffs in Bownes allege that MDOC’s dental policies violate
the Eighth Amendment. The district court certified a class action in that matter in February 2013.
Id. at ECF No. 253. The parties in Bownes have since reached a settlement agreement and notice

has been sent to the class. Id. at ECF No. 390. It appeared to the Court that Plaintiff Walker was
a member of the class, and on August 28, 2023, the Court entered an administrative stay of the
case. (ECF No. 81). Plaintiff now moves to lift the stay. (ECF No. 82). Defendant does not
oppose Plaintiff’s request. (ECF No. 84).
Both sides now agree that Plaintiff is a member of the class in Bownes. (ECF Nos. 82,
ECF No. 86). 1 That would appear to present a facial problem in this action, since generally parties
cannot proceed with duplicative claims. See, e.g., Shabazz v. Centurion, No. 17-1051-JDT-CGC,
2018 WL 1440985, at *3 (W.D. Tenn. Mar. 22, 2018) (prisoner plaintiff member of class could
not proceed individual on claims covered by class). But it also appears that both sides believe that
at least some part of the claims advanced in this case fall outside of the claims covered by Bownes
class action. Indeed, while apparently conceding that Plaintiff is a Bownes class member, the
defense argues that the settlement agreement “would not impact Walker’s claims or requested
relief in the instant matter.” (ECF No. 86). There is some tension, to say the least, in these two
positions. Yet, without wading too deep into the finer points of dental care, it does appear that
there are at least some portions of this case that are not covered by the Bownes settlement. Plaintiff,
for example, seeks compensatory damages. The settlement in Bownes, however, appears to
concern injunctive relief only. There may, then, be a pathway for Plaintiff to proceed to the extent
he is raising claims or requesting relief outside the scope of the Bownes class settlement. See In
re Jackson Lockdown/MCO Cases, 568 F. Supp. 869, 892 (E.D. Mich. 1983) (“[E]very federal
court of appeals that has considered the question has held that a class action seeking only
declaratory and injunctive relief does not bar subsequent individual suits for damages based on the

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Plaintiff argues he has disclaimed any participation in the class action, but there is no opt-out
provision in Rule 23(b)(2), which is the mechanism at issue in Bownes.
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same or similar conditions.”). The Court is satisfied, then, that overall this is a different case from
Bownes, despite some overlap in the subject matter and events. To the extent Plaintiff’s claims are
covered by the class action in Bownes, Plaintiff must pursue his case there. With respect to those
claims outside the class action, a lift of the stay previously entered in this case is warranted, and
the Court proceeds to the Report and Recommendation.
2. Report and Recommendation
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this
matter (ECF No. 59) and Plaintiff’s Objection to the Report and Recommendation (ECF No. 66).
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:
The 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 Plaintiff’s objections. After its review, the Court finds
the Magistrate Judge’s Report and Recommendation is factually sound and legally correct.
The Magistrate Judge recommends granting Defendant Washington’s motion for summary
judgment on the basis of exhaustion; and denying Plaintiff’s motion for summary judgment and
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motion to amend his Complaint. In his objection, Plaintiff primarily reiterates the arguments that
have already been thoroughly considered by the Magistrate Judge.

Nothing changes the

fundamental analysis. The Magistrate Judge carefully and thoroughly considered the record, the
parties’ arguments, and the governing law.
Plaintiff does not dispute that he was required to name Defendant Washington in his
grievance and that he did not do so. He argues, however, that the requirement that he name
Defendant Washington should be waived under Reed-Bey v. Pramstaller, 603 F.3d 322, 326 (6th
Cir. 2010), because he invoked the grievance process through completion and received a meritbased response at each step. Plaintiff reads Reed-Bey too expansively. In Reed-Bay, the Sixth
Circuit explained, “[w]hen prison officials decline to enforce their own procedural requirements
and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we.” Id. at
325. The prison did indeed address the merits of Plaintiff’s claim through all three steps of the
process, and did not mention any procedural defect or an inability to identify the persons grieved.
But both the grievances and the grievance responses were focused on the specific treatment
provided to Plaintiff by the MDOC dentist and dental assistant; there was no reference to Director
Washington at all. Nor did the grievance responses attempt to defend an overall MDOC treatment
policy. To the contrary, the responses focused on the particulars of care provided to Plaintiff by
specific dental professionals.
This lawsuit, in contrast, names only Director Washington and involves a direct challenge
to policy. Defendant Washington, therefore, retained the ability to argue exhaustion in this case
even though the underlying grievance process addressed the merits of the specific care provided.
Reed-Bey does not control this situation:
In Reed-Bey v. Pramstaller, 603 F.3d 322 (6th Cir. 2010), the initial
grievance did not name any defendant, and the MDOC opted to
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address the grievance on the merits, rather than denying the
grievance for failing to name individuals. Unlike Reed-Bey,
Plaintiff named a specific individual. Plaintiff’s interpretation of the
holding in Reed-Bey would require the MDOC to include, in
response to any grievance, a list of all possible affirmative defenses
that might be raised in a future lawsuit. That is not the law.
Kean v. Hughes, No. 1:12-cv-847, 2013 WL 5771146, at *2 (W.D. Mich. Oct. 24, 2013); see
Vandiver v. Vasbinder, No. 08-10508, 2012 WL 4355536, at *2 (E.D. Mich. Sept. 24, 2012) (A
response to a grievance does not deprive all MDOC employees regardless of direct involvement
of the right to defend on exhaustion grounds). Here, Plaintiff’s grievance did not provide
Defendant Washington with “fair notice of the alleged mistreatment or misconduct that forms the
basis of the constitutional or statutory claim made against [her].” Bell v. Konteh, 450 F.3d 651,
654 (6th Cir. 2006).

The Court agrees with the Magistrate Judge, then, that Defendant

Washington’s motion for summary judgment should be granted for the very reasons articulated by
the Magistrate Judge.
The Court further agrees with the Magistrate Judge that Plaintiff’s motion for summary
judgment and motion to amend his Complaint should be denied. Since the filing of the Report and
Recommendation, Plaintiff has filed another motion for leave to amend his complaint. (ECF No.
67). It is not immediately apparent what the differences are between the latest proposed amended
Complaint (ECF No. 67-1) and the earlier motion that was reviewed by the Magistrate Judge.
(ECF No. 34-1). The only meaningful difference appears to be a substitution of one state law
claim for another. However, as the Magistrate Judge correctly pointed out, because the Court has
dismissed Plaintiff’s federal claim, there is no reason why Plaintiff should be permitted to amend
his Complaint to litigate four state law claims.

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CONCLUSION
ACCORDINGLY, IT IS ORDERED that the August 28, 2023, Administrative Stay
(ECF No. 81) is LIFTED. Plaintiff’s Motion for Order (ECF No. 82) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate
Judge (ECF No. 59) is APPROVED AND ADOPTED as the opinion of the Court to the extent
Plaintiff’s Complaint asserts claims outside the Bownes class.
IT IS FURTHER ORDERED That Defendant Washington’s Motion for Summary
Judgment (ECF No. 25) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (ECF No.
55); and Motions to Amend Complaint (ECF Nos. 34, 36, and 67) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Objection (ECF No. 87) is OVERRULED.
This case is DISMISSED. A separate Judgment shall issue.
The Court discerns no good-faith basis for appeal of this matter.

See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).

Dated:

November 15, 2023

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

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