Sutton #427894 v. Conner et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION 24 and DENYING 18 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRISCO SUTTON, #427894,
Plaintiff,
-vCOLTEN CONNER, et al.,
Defendants.

)
)
)
)
)
)
)
)

No. 1:22-cv-961
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING MOTION FOR SUMMARY JUDGMENT
Plaintiff Brisco Sutton, a prisoner in the custody of the Michigan Department of
Correction, initiated this lawsuit alleging violations of his civil rights. Defendant Conner filed
a motion for summary judgment asserting that Plaintiff failed to properly exhaust his
administrative remedies (ECF No. 18). The Magistrate Judge reviewed the motion and
issued a report recommending the Court deny Defendant’s motion (ECF No. 24).
Defendant filed objections (ECF No. 25).

The Court will adopt the report and

recommendation and will deny Defendant’s motion.
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). 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); Fed. R. Civ. P. 72(b)(3). 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).

The Magistrate Judge summarized the relevant history of the grievance process.
Plaintiff sent a grievance about the medical care he received on May 31 and on June 1, 2022
(ECF No. 19-3 PageID.98). Plaintiff submitted his grievance on June 2, 2022, which the
MDOC rejected as vague (id.). The reviewer explained that the grievance “is vague as to
what the main issue is or who you are grieving” (id. PageID.99). Plaintiff filed a Step II
appeal (id. PageID.96). The Magistrate Judge found that Step II appeal was denied on the
merits and that the Step III decision upheld the rejection (R&R at 3 PageID.111). The
Magistrate Judge found that the Step III decision was wrong reasoning that the reviewer
should have addressed the merits determination made at Step II (id. PageID.113). The
Magistrate Judge compares this situation to the one in Nelson v. Wilson, No. 2:19-cv-9, 2020
WL 5105035 (W.D. Mich. Aug. 31, 2020).
Defendant objects. In Objection 1, Defendant attempts to distinguish Nelson.
Defendant argues in Objection 2 that the Step II reviewer addressed both the procedural
problem with the grievance and the merits of the grievance. In Objection 3, Defendant argues
that the rejection at Step III was not incorrect.
The Court overrules the objections. Critical to this Court’s resolution of the issue,
the Court must view the facts in the record in the light most favorable to Plaintiff. Viewed in
this light, the record supports the Magistrate Judge’s conclusion that MDOC rejected the
Step II appeal on the merits and not for procedural reasons. The Step II reviewer begins by
stating that the Step I rejection was proper. The reviewer then addresses the merits of
Plaintiff’s appeal by discussing the health care Plaintiff received on May 31 and on June 1.
Organized and worded this way, the Step II rejection does not clearly reject the appeal as

2

vague. The Court’s conclusion finds support in Paragraph EE of the Policy Directive
03.0.2.130 (ECF No. 19-2 PagerID.87). When the Grievance Coordinator receives a Step
II appeal, the coordinator “shall determine if the grievance should be rejected pursuant to
this policy. If the grievance is rejected, the grievance response shall state the reason for the
rejection without addressing the merits of the grievance. If accepted, Grievance Coordinator
shall assign an appropriate respondent and indicate the date by which the response is due”
(underlining in original). By addressing the merits, the respondent did not conclude that the
grievance should be rejected for one of the procedural reasons set forth in the Policy
Directive.
Defendant argues that the Step II rejection necessarily found that that appeal was
vague because the grievance category code did not change. While the Court agrees that the
last three symbols of the grievance identifier number (28b) did not change from Step I to
Step II (and to Step III), Defendant has not sufficiently established the significance of the
grievance category code such that the Court must reject the R&R and must grant the motion
for summary judgment. Defendant has not presented the Court with any evidence to show
the significance of “28b.” The Court is unaware of any Policy Directive that sets forth the
grievance category codes. The Policy Directive concerning grievances does not mention the
category codes. Because the Court must view the evidence in the light most favorable to
Plaintiff, if the category code reflects a procedural problem and the language rejecting the
grievance addresses the merits, the Court must resolve the discrepancy in Plaintiff’s favor.

3

For these reasons, the Court ADOPTS the Report and Recommendation (ECF No.
24) and DENIES Defendant’s motion for summary judgment (ECF No. 18). IT IS SO
ORDERED.
Date:

May 9, 2024

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

4