Payne #650743 v. Alviar et al
Filing
51
OPINION; signed by Chief Judge Hala Y. Jarbou (aks)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT GORDON PAYNE,
Plaintiff,
Case No. 1:23-cv-524
v.
Hon. Hala Y. Jarbou
SYDNIE ALVIAR, et al.,
Defendants.
___________________________________/
OPINION
This is a pro se civil rights action brought under 42 U.S.C. § 1983 by Scott Gordon Payne,
an inmate in the custody of the Michigan Department of Corrections (“MDOC”). Payne alleges
that he received insufficient medical care after undergoing bile duct and gallbladder removal
surgery. He brings his claims against three nurses employed by the MDOC, Nurse Practitioner
(“NP”) Sydnie Alviar, Registered Nurse (“RN”) Kathy Sherwood, and RN Arielle Jones. Alviar
filed a motion to dismiss for failure to state a claim (ECF No. 18) under Rule 12(b)(6) of the
Federal Rules of Civil Procedure; in the alternative, she asks the Court to grant summary judgment
in her favor because Payne failed to exhaust his available administrative remedies prior to filing
suit as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Sherwood filed
a motion for summary judgment (ECF No. 24), arguing that Payne did not exhaust his claims
against her. Before the Court is the magistrate judge’s report and recommendation (“R&R”)
recommending the Court deny Alviar’s motion to dismiss and grant both Defendants’ motions for
summary judgment. (R&R, ECF No. 47.) For the reasons herein, the Court will adopt the R&R
in part and reject it in part.
I. BACKGROUND
A. Payne’s Allegations
Payne is an inmate at Muskegon Correctional Facility (MCF). His allegations stem from
complications relating to two surgeries he underwent at an off-site hospital. First, Payne’s
gallbladder was removed. He then underwent surgery to remove gallstones from his bile duct, but
that operation was not entirely successful, and numerous gallstones remained in his system.
(Compl., ECF No. 1, PageID.3.) Since not all the gallstones were removed during surgery, Payne
would have to “pass” the remaining ones on his own. (Id.) Payne was released from the hospital
on January 24, 2023, with instructions from his surgeon that he was “okay for discharge with
Norco ([a pain killer] consisting of Hydrocodone and acetaminophen) for pain control as needed.”
(Id.) According to Payne, he was told by his doctors that he would pass the gallstones naturally,
but there would be associated pain.
On January 24, 2023, the morning of his return to prison, Defendant Alviar reviewed
Payne’s hospital discharge documents and decided to not order pain medication for him. (Id.)
That same day, Payne notified the on-duty corrections officer in his unit that he was experiencing
“serious” pain. (Id.) The officer notified Health Services of his condition by phone, but the
responding nurse refused to speak with Payne. (Id.) The next day, Payne was still in serious
discomfort, so he again asked to speak with Health Services. After three calls by the officer, Payne
was able to reach Defendant Jones by phone. (Id., PageID.4.) Payne told Jones that he was
covered in sweat and “experiencing off the charts levels of pain” from passing gallstones. (Id.)
Jones responded that Payne was not prescribed any pain medication and that he should buy Tylenol
from the prison commissary. (Id.)
Five days later on January 30, 2023, Defendant Sherwood conducted an in-person
assessment of Payne in response to a kite he sent two days earlier complaining of pain related to
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passing gallstones. (Id., PageID.5.) Payne told Sherwood that he was passing gallstones and that
his pain was currently fluctuating between a five and an eight on a ten-point scale, and up to ten
the night before. (Id.) He showed her a gash on his head that he sustained when he fell into a latch
on his wall locker while doubled over in pain. (Id.) Sherwood allegedly responded that the gash
had nothing to do with the purpose of his kite, which only mentioned the gallstones, and further
questioned whether the levels of pain he claimed to be experiencing were plausible. (Id.) Payne
asked Sherwood to contact the hospital that conducted his surgery to confirm that he was
prescribed a pain reliever upon discharge. Sherwood told him that there was no order for pain
medication, only a recommendation, and that the prison was not ordering any pain medication for
him. (Id., PageID.6.)
B. Payne’s Grievance History
1. Step I Grievance
Before meeting with Sherwood on January 27, 2023, Payne filed a Step I prison grievance
complaining that he had been denied the pain medication the hospital had recommended and that
he was continuing to experience “off the chart levels of pain.” (Step I Grievance, ECF No. 25-3,
PageID.162.) In the grievance, Payne mentioned only Defendant Jones by name, asserting that he
spoke with her and that she told him that the hospital had not prescribed pain medication. He also
questioned “Healthcare’s assertion that the hospital operated [on him] without prescribing pain
medication[.]” (Id.)
In a Step I grievance response dated January 31, 2023, the respondent stated that the
“MDOC Medical Provider” (i.e., Alviar) had reviewed Jones’s medical records from the hospital,
which offered “conflicting notes” about whether Jones required any pain medication following
surgery. (Step I Response, ECF No. 25-3, PageID.163.) The response also contended that, after
Jones complained about pain in a kite to healthcare services on January 30, 2023, he was seen by
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nursing staff the same day, but he became angry and left before the nurse (i.e., Sherwood) could
complete an examination. (Id.)
2. Step II Grievance
Payne appealed to Step II of the grievance process. In his Step II grievance, Payne
expressly named Sherwood and Alviar, in addition to Jones. (Step II Grievance, ECF No. 25-3,
PageID.158, 160.)
He contended that, if Alviar did not understand the hospital’s
recommendations, she should have contacted the hospital. (Id., PageID.158.) He asserted that
Jones was aware of his “off the chart levels of pain,” but she hung up on him during his call with
her. (Id., PageID.160.) And he contended that he met with Sherwood on January 30, 2023, showed
her the gash on his head, and complained that his pain was so intense it had caused him to lose
balance. (Id.) She purportedly dismissed his concerns, telling him that his gallbladder had been
removed and that “it wasn’t that painful.” (Id.) She also told him that the hospital had not
prescribed him Norco and that Alviar had decided that he would not receive pain medication. (Id.)
Payne disputed Sherwood’s contention that he abruptly walked away from his visit with her; in
fact, at the time of the visit, he was having trouble walking due to his pain. (Id., PageID.161.)
In a Step II response dated March 31, 2023, prison officials comprehensively addressed
Payne’s concern that he had not received adequate care for his postsurgical pain. The response
discussed his hospital records, as well as the treatment decisions by prison healthcare staff from
the date of Payne’s arrival back at the prison until February 7, 2023. (Step II Response, ECF
No. 25-3, PageID.159.) In other words, it discussed Alviar’s review of Payne’s hospital records
upon his return to the prison, Jones’s phone call with Payne on March 25, 2023, and Sherwood’s
visit with him on January 30, 2023. It also discussed a follow-up visit that Payne had with a
medical provider on February 7, 2023, at which the provider determined that Payne was “tolerating
his post-operative pain in a manner that negated the need for narcotic analgesics.” (Id.) It
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concluded that, although records indicated that Payne’s need for pain control had been “addressed
in various ways by multiple Health Care staff, it appears that there may have been some degree of
miscommunication between grievant, nursing staff, and the medical provider.” (Id.)
3. Step III Grievance
Payne appealed to Step III of the grievance process, arguing that he had been completely
denied his surgeon’s recommended treatment plan for passing gallstones. (Step III Grievance,
ECF No. 25-3, PageID.158.) He contended that he complained to “nurses” about “off the chart
levels of pain” and the nurses acknowledged his surgeon’s treatment plan but they refused to
implement it. (Id.) Instead, they allowed him to “suffer for nine days while he passed gallstones.”
(Id.) Prison officials denied the appeal, upholding the Step I and Step II responses and asserting
that “[t]he Medical Provider is the medical authority and is responsible to manage the treatment
plan[.]” (Step III Response, ECF No. 25-3, PageID.157.)
C. Procedural History
Payne filed suit on May 18, 2023, alleging a complete denial of his surgeon’s
recommended pain treatment plan. Defendant Alviar moved to dismiss the action for failure to
state a claim. And both Sherwood and Alviar moved for summary judgment on the basis that
Payne failed to exhaust his administrative remedies as required by the PLRA prior to filing suit.
The magistrate judge concluded that the Court should deny Alviar’s motion to dismiss
because Plaintiff states a plausible claim against her. However, the magistrate judge concluded
that the Court should grant Alviar and Sherwood’s motions for summary judgment because Payne
failed to exhaust his administrative remedies against them. Specifically, Payne failed to name
them in his Step I grievance. (R&R 12-13.) Indeed, he filed his Step I grievance before meeting
with Sherwood. (Id. at 13.) Payne objects to that decision.
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II. LEGAL STANDARD
A. Review of Objections
Under Rule 72 of the Federal Rules of Civil Procedure,
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).
B. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed R. Civ. P.
56(a). A fact is material if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A material fact is genuinely disputed when there is “sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249
(citing First Nat’l Bank of Ariz v. City Serve. Co., 391 U.S. 253, 288-89 (1961)). Summary
judgment is not an opportunity for the Court to resolve factual disputes. Id. The Court “must shy
away from weighing the evidence and instead view all the facts in the light most favorable to the
nonmoving party and draw all justifiable inferences in their favor.” Wyatt v. Nissan N. Am., Inc.,
999 F.3d 400, 410 (6th Cir. 2021).
III. ANALYSIS
A. Objections
As a preliminary matter, the Court agrees with the magistrate judge that Payne’s complaint
states a plausible Eighth Amendment claim against Defendant Alviar. The magistrate judge twice
reviewed the complaint under the Rule 12(b)(6) standard. He did so at the initial screening stage
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and again in the R&R. (R&R 3-4.) Since Alviar does not object to this portion of the R&R, the
Court will approve it.
Payne objects to the magistrate judge’s conclusion that he failed to exhaust his
administrative remedies through the prison grievance process by not naming Sherwood and Alviar
in his Step I grievance. (Pl.’s Objs. 2, ECF No. 48.) Specifically, he argues that the MDOC waived
its procedural requirement to name all parties by responding to the Step I grievance on the merits
and addressing the actions of both Sherwood and Alviar, rather than focusing solely on Jones. (Id.)
B. Exhaustion
The PLRA requires inmates to exhaust their administrative remedies before filing suit.
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). “An inmate exhausts a claim by taking advantage
of each step the prison holds out for resolving the claim internally and by following the ‘critical
procedural rules’ of the prison’s grievance process to permit prison officials to review, and, if
necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey v. Pramstaller,
603 F.3d 322, 324 (6th Cir. 2010) (quoting Woodford, 548 U.S. at 90).
Under MDOC Policy Directive 03.02.130, prisoners must follow a multistep process to
exhaust their administrative remedies. First, a prisoner must attempt to resolve their issue with the
staff member within two days. (MDOC Policy Directive 03.02.130 ¶ Q (Mar. 18, 2019), ECF
No. 25-2.) If that fails, the prisoner must file a Step I grievance within five business days after the
attempt to resolve the issue. (Id. ¶¶ Q, S.) The Policy Directive provides the following instructions
for grievances:
[t]he 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.
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(Id. ¶ S (emphasis added).) The prisoner must send the Step I grievance to the appropriate
coordinator. (Id. ¶ W.) If the prisoner does not receive a response or is dissatisfied with the
response he does receive, he must submit a Step II grievance to the Grievance Coordinator. (Id.
¶ DD.) 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 to the Grievance and Appeals Section. (Id.
¶ HH.)
A failure to exhaust administrative remedies is an affirmative defense that the defendant
has the burden of proving. See Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). Although nonjurisdictional, “exhaustion under the PLRA is analogous to other threshold issues of judicial
determination ‘that courts must address to determine whether litigation is being conducted in the
right forum at the right time.’” Id. at 678 (quoting Dillon v. Rodgers, 596 F.3d 265, 272 (5th Cir.
2010)).
It is not disputed that Payne failed to name either Sherwood or Alviar in his Step I
grievance. Instead, he mentioned only Nurse Jones and “Healthcare.” Indeed, he submitted his
Step I grievance before his encounter with Nurse Sherwood. The Court notes that the MDOC’s
policy regarding grievances does not clearly require prisoners to name all relevant prison officials
in the Step I grievance, rather than at some point in the grievance process. See Coleman v. Rich,
No. 16-1263, 2016 WL 9650985, at *2 (6th Cir. Dec. 20, 2016) (noting that the MDOC’s policy
is “unclear as to whether a prisoner must name each defendant in his first grievance or before the
conclusion of the grievance process”). The naming requirement in MDOC Policy Directive
03.02.130 ¶ S applies to grievances generally, not to Step I grievances specifically. The Court
acknowledges, however, that many courts have interpreted this policy to require that all officials
involved be named in the Step I grievance. See, e.g., Williams v. Corizon, No. 21-12534, 2023
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WL 2711571, at *2 (E.D. Mich. Mar. 30, 2023); Burley v. Mich. Dep’t of Corrs., No. 16-cv-10712,
2016 WL 11259277, at *4 (E.D. Mich. Nov. 30, 2016) (citing cases).
Even so, “[t]he point of the PLRA exhaustion requirement is to allow prison officials ‘a
fair opportunity’ to address grievances on the merits, to correct prison error that can and should be
corrected and to create an administrative record for those disputes that eventually end up in court.”
Reed-Bey, 603 F.3d at 324 (quoting Woodford, 548 U.S. at 94-95). Thus, where a Step I grievance
names some individuals and not others who become defendants to a lawsuit, some courts have
held that such a grievance can fulfill the exhaustion requirement if it gave “the MDOC sufficient
information to identify the individual or individuals involved[.]” Gardiner v. Corizon Health, Inc.,
No. 2:21-cv-167, 2023 WL 1794118, at *2 (W.D. Mich. Feb. 7, 2023); accord Frisby v. Cobar,
No. 2:22-cv-00087, 2023 WL 4872567, at *5 (W.D. Mich. May 8, 2023) (recognizing that it may
be possible to exhaust a claim against individuals named for the first time in a Step II grievance if
the Step I grievance put the prison on notice of the issue requiring investigation); Blau v. Covert,
2:18-CV-127, 2020 WL 5554873, at *2 (W.D. Mich. Sept. 17, 2020) (declining to dismiss two
nurses not named in the Step I grievance because “the MDOC had the opportunity to address
Plaintiff’s claims that [the unnamed nurses] were providing inadequate medical care”); Calhoun
v. Hill, No. 07-11613, 2008 WL 4277171, at *3 (E.D. Mich. Sept. 17, 2008) (“[T]he Court may
excuse a prisoner’s failure to identify by name a particular defendant in a grievance when it is
obvious from the facts alleged in the grievance that the defendant was involved.”). After all,
“promot[ing] early notice to those who might later be sued . . . has not been thought to be one of
the leading purposes of the exhaustion requirement.” Jones v. Bock, 549 U.S. 199, 219 (2007).
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Assuming that the MDOC’s policy required Payne to name all Defendants in his Step I
grievance, Payne argues that, by addressing the conduct of Alviar and Sherwood on the merits in
their responses, prison officials waived that requirement. The Court agrees.
As explained in Reed-Bey, the procedural requirements of the exhaustion process can be
waived. There, the plaintiff failed to name any of the defendants to a subsequent civil suit in his
initial prison grievance. Nevertheless, the Court of Appeals found that prison officials had waived
that procedural requirement by responding to his grievance on its merits. Reed-Bey, 603 F.3d at
326. Because the prison officials had already received “the first shot at correcting their own
mistakes,” and because the grievance review produced a record available for a court to review, the
Court of Appeals saw no reason to give “merit-based grievance denials undeserved insulation from
federal judicial review[.]” Id. at 326. Indeed, barring a prisoner’s claims that had already been
reviewed on the merits during the prison grievance process “would do nothing to further any of
the goals of proper exhaustion under the PLRA[.]” Id. In short, the Court of Appeals saw “no
benefit to enforcing a procedural bar that the Department of Corrections did not.” Id.
Payne argues that the rationale in Reed-Bey applies to this case as well. The magistrate
judge disagreed because this case is not identical to Reed-Bey. Unlike that case, Payne named at
least one defendant in his initial grievance (Jones), but not others (Sherwood and Alviar). Some
courts have declined to find waiver when the prisoner identifies one or more individuals in a Step
I grievance and does not name others until later in the grievance process or until a complaint is
filed in a lawsuit against them. See, e.g., Hill v. Buchanan, No. 21-1673, 2022 WL 16580149, at
*3 (6th Cir. Sept. 8, 2022); Dykes-Bey v. Finco, No. 20-1624, 2021 WL 2767584, at *2 (6th Cir.
Feb. 2, 2021); Brown v. McCullick, No. 18-2226, 2019 WL 5436159, at *3 (6th Cir. Apr. 23,
2019). The outcome of those cases makes sense where “prison officials would naturally assume
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that [the plaintiff] complied with the requirement to name those involved, and defendants cannot
be said to have waived the exhaustion defense when they had no way of knowing that they would
be the subject of a later lawsuit.” Id.
But that outcome makes less sense here, where the plaintiff grieved an ongoing need for
pain treatment, complained about “healthcare” staff generally, named the only staff member with
whom he had had any contact at that point (Jones), and then prison officials responded to his
grievance on the merits by discussing other individuals who were involved in decisions about that
care. In other words, by their response, prison officials indicated that they were aware of the nature
of Payne’s concern (inadequate treatment for postsurgical pain) and that this concern implicated
conduct by officials who were not named in his initial grievance. Instead of simply addressing the
conduct by Jones, they discussed the conduct of Alviar and Sherwood as well.
In these
circumstances, it is difficult to say that Sherwood and Alviar had no way of knowing that they
would be the subject of a later lawsuit.
But even if it was not clear at the start of the grievance process that Payne’s complaint
extended to Alviar and Sherwood, he made that clear in his Step II grievance, contending that
neither Jones, nor Alviar, nor Sherwood had adequately treated his postsurgical pain.1 Rather than
focus solely on Jones because Payne had not named Alviar or Sherwood in his initial grievance,
prison officials responded by reviewing and explaining the conduct of all three Defendants. By
doing so, they waived the requirement that Payne name all three officials in his Step I grievance.
As in Reed-Bey, barring Payne’s claims against Alviar and Sherwood would do nothing to further
1
Sherwood objects that the Step II grievance was not specific enough to put her on notice of what she did wrong. The
Court disagrees; the thrust of Payne’s grievance was that she did not adequately address his pain. A grievance is not
subject to the same pleading requirements as a complaint. “[T]he primary purpose of a grievance is to alert prison
officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not
a summons and complaint that initiates adversarial litigation[.]” Jones, 549 U.S. at 218 (quoting Johnson v. Johnson,
385 F.3d 503, 522 (5th Cir. 2004)).
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the goals of the exhaustion process. Prison officials took the opportunity to review whether Alviar
and Sherwood adequately addressed Payne’s need for pain care, and in doing so, they created an
administrative record for the Court.
Similarly, at Step III, Payne complained about “nurses” who acknowledged his surgeon’s
treatment plan but then refused to implement it and instead allowed him to suffer for nine days
after returning to the prison. Although he did not mention nurses Jones, Alviar, or Sherwood by
name, he raised the same medical concern at issue in his Step I and Step II grievances, and the
time period he referenced encompassed the dates on which Defendants were involved in his care.
Once again, rather than focus on his interaction with Jones, prison officials addressed the merits
of his larger concern about inadequate treatment of his postsurgical pain, noting that the “Medical
Provider” (Alviar) was responsible for his treatment plan and that his disagreement with that plan
was not a denial of care. In short, Payne received a response on the merits at all three steps of the
grievance process, and all those responses addressed the same concern regarding his lack of
adequate pain treatment by Defendants. This is not a case where Defendants would have no way
of knowing that they would be the subject of a later lawsuit.
Although the Court of Appeals declined to find waiver in Hill, Dykes-Bey, and Brown—
where the prisoner-plaintiffs named at least one official but not others in the Step I grievance—
that court implied that it might have found waiver if the plaintiff had named the additional
defendants at some point in the grievance process, see Dykes-Bey, 2021 WL 2767584, at *2 (noting
that the plaintiff did not name the additional defendants “during any step of the grievance process”
(emphasis added)), or if the grievance responses had discussed the defendants who were not
named, see Hill, 2022 WL 16580149, at *3 (noting that prison officials did not address the conduct
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by the unnamed defendants in response to the prisoner’s grievances); Brown, 2019 WL 5436159,
at *3 (same). Both of those distinguishing circumstances are present here.
In summary, the prison officials responding to Payne’s grievances were clearly aware that
he was complaining about inadequate postsurgical pain care. They were also aware of the
involvement by Alviar and Sherwood in that care, giving them an opportunity to address that
conduct. In addition, Payne expressly identified Alviar and Sherwood by name in his Step II
grievance (and implicitly identified them at Step III), giving notice that they might be the subject
of a later lawsuit. Rather than enforce a requirement to name all officials at Step I, prison officials
responded by reviewing and discussing each Defendant’s conduct. Enforcing that requirement at
this stage would not further the purposes of exhaustion because prison officials had several
opportunities to review Defendants’ conduct before Payne filed his lawsuit, and they did review
that conduct.
Accordingly, the Court is not persuaded that Payne failed to exhaust his
administrative remedies as to his claims against Alviar and Sherwood.
IV. CONCLUSION
For the reasons stated above, the Court declines to adopt the portion of the R&R that
recommends granting summary judgment in favor of Defendants Alviar and Sherwood for failure
to exhaust administrative remedies. Instead, the Court will deny Alviar and Sherwood’s respective
motions for summary judgment. The Court agrees with the magistrate judge that Payne has stated
a plausible claim for relief against Defendant Alviar and will therefore adopt the portion of the
R&R that concerns Alviar’s motion to dismiss for failure to state a claim. The Court will deny
that motion.
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The Court will enter an order consistent with this Opinion.
Dated: March 27, 2024
/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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