Crump #236528 v. Caruso et al

Filing 89

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 79 ; granting defendants' motion for summary judgment 47 ; denying as moot plaintiff's motion to depose prisoners 27 and motion for preliminary injunction 69 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

C r u m p #236528 v. Caruso et al

D o c . 89

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

H O R A C E W. CRUMP, P l a in tif f , F ile No. 2:09-CV-194 v. HON. ROBERT HOLMES BELL P A T R IC IA CARUSO, et al., D e f e n d a n ts . / O R D E R APPROVING AND ADOPTING M A G I S T R A T E JUDGE'S REPORT AND RECOMMENDATION O n August 23, 2010, United States Magistrate Judge Timothy P. Greeley issued a rep o rt and recommendation ("R&R") recommending that Defendants' motion for summary ju d g m e n t (Dkt. No. 47) be granted, and that Plaintiff's motion to depose prisoners (Dkt. No. 2 7 ) and motion for preliminary injunction (Dkt. No. 69) be denied. (Dkt. No. 79, R&R.) P la in tif f filed objections to the R&R on September 2, 2010. (Dkt. No. 85.) T h is Court is required to make a de novo determination of those portions of the R&R t o which specific objection has been made, and may accept, reject, or modify any or all of th e Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). The R&R recommends that Plaintiff's complaint be dismissed for failure to exhaust a d m i n is tr a tiv e remedies. This recommendation is based upon evidence that Plaintiff only

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f ile d three grievances that are relevant to the issues raised in his complaint, and that of these th re e grievances, one was never received at Step III of the grievance procedure, and the other tw o were properly rejected for failing to comply with the grievance policy. Plaintiff has ra is e d four objections to the R&R. Objection 1 Plaintiff objects to the entry of summary judgment because he has not been allowed d is c o v e ry. Plaintiff contends that he presented a "Request for Recognition of Shi'a Islam, S h i'a Muslim Prayer and Study Services" to Warden Jeri-Ann Sherry (Dkt. No. 1, Compl. E x . B), that the wardens's designee, Special Activities Coordinator Michael Martin, denied P lain tiff 's request, that Plaintiff's copy of Martin's denial has been lost, and that Plaintiff's re q u e sts for discovery regarding Martin's denial have been stayed (Dkt. No. 39, Order S ta yin g Disc.). Plaintiff contends that without Martin's denial he is unable to prove that the is s u e s raised in his request were exhausted. Plaintiff's argument is without merit. The denial of Plaintiff's request for services by D e f e n d a n t Martin, is irrelevant to the issue of exhaustion of administrative remedies. P la in tif f does not need a copy of Martin's denial in order to contest Defendants' evidence a n d the Magistrate Judge's finding that Plaintiff failed to grieve Martin's denial. Objection 2 P lain tif f objects to the R&R based on his assertion that he properly exhausted all a v a ila b le administrative remedies with regard to all issues presented in his complaint.

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F irs t, Plaintiff asserts that Martin's denial of his request for recognition of Shi'a Islam w a s a non-grievable issue because it raised issues concerning the content of policy or p ro c e d u re , decisions made in hearings, or issues not within the authority of the Department to resolve.1 T h e Prison Litigation Reform Act of 1995, provides that an action cannot be filed "u n til such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In analyzing whether administrative remedies are "available," the Sixth Circuit has concluded th a t "[s]o long as the prison system has an administrative process that will review a p ris o n e r's complaint . . . the prisoner must exhaust his prison remedies." Owens v. Keeling, 4 6 1 F.3d 763, 769 (6th Cir. 2006) (quoting Wyatt v. Leonard, 193 F.3d 876, 878 (6th Cir.

The MDOC grievance policy provides that grievances that raise the following n o n -g rie v a b le issues shall be rejected: 1 . A grievant may not grieve the content of policy or procedure except as it w a s specifically applied to the grievant. If a CFA prisoner has a concern with th e content of a policy or procedure, s/he may direct comments to the Warden's F o r u m as provided in PD 04.01.150 "Prisoner Housing Unit R e p re se n ta tiv e s/W a rd e n 's Forum". 2 . Decisions made in hearings conducted by hearing officers of the State O f f ic e of Administrative Hearings and Rules, including property disposition, a n d issues directly related to the hearing process (e.g., sufficiency of witness statem en ts; timeliness of misconduct review; timeliness of hearing). 3 . Decisions made by the Parole Board to grant, deny, rescind, amend or re v o k e parole, or not to proceed with a lifer interview or a public hearing. 4 . Decisions made in minor misconduct hearings, including property d is p o s itio n . 5 . Issues not within the authority of the Department to resolve. The grievant s h a ll be told who to contact in order to attempt to resolve the issue, if known. 3

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1 9 9 9 )). In Owens, the court held that the movant's classification-related complaint presented a non-grievable issue because the prison had a flat rule declining jurisdiction over grievances re la te d to institutional placement and custody level. Id. at 769; see also Rancher v. Franklin C o u n ty , 122 F. App'x. 240, 242 (6th Cir. 2005) (excusing exhaustion of the plaintiff's d e lib e r a t e indifference claim where there was a flat rule at the jail against allowing g rie v a n c e s for medical issues). Unlike the plaintiffs in Owens and Rancher, Plaintiff has not identified a prison rule th a t would bar him from grieving his claims. Plaintiff has not shown that the denial of his re q u e st for Shi'a recognition was a non-grievable issue. A request for recognition of a re lig io u s group is specifically authorized by MDOC policy. See P.D. 05.03.150 ¶ L. Contrary to Plaintiff's assertions, his request for Shi'a recognition did not challenge the c o n te n t of the policy or procedure except as it was specifically applied to him, did not in v o lv e a decision made in a hearing conducted by hearing officers of the State Office of A d m in istra ti v e Hearings and Rules, and was within the authority of the Department to re so lv e . Defendant Martin's denial of Plaintiff's request falls within the definition of a g rie v a b le issue under PD 05.03.150 ¶ E.2 In support of his contention that his request for Shi'a recognition was non-grievable, P la in tif f relies on the response to his grievance in OCF 05-02-00174-28G, which was

"Grievances may be submitted regarding alleged violations of policy or procedure o r unsatisfactory conditions of conferment which directly affect the grievant, including a lle g e d violations of this policy and related procedures." PD 05.03.150 ¶ E. 4

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d is m is s e d due to lack of jurisdiction. (Dkt. No. 59, Ex. A.) Plaintiff filed Grievance OCF 0 5 -0 2 -0 0 1 7 4 -2 8 G , against the Chaplains Advisory Council ("CAC"). As noted in the re sp o n s e to the grievance, the majority of the members of the CAC are not employed by th e MDOC, and the MDOC has no authority over their decisions. (Id.) The fact that a claim a g a in s t the CAC is non-grievable does not suggest that a claim against Martin, who is an e m p lo ye e of the MDOC, is non-grievable. Plaintiff contends that his issues regarding Shi'a recognition and services were also p ro p e rly exhausted in KTF 2008-03-386-20A. The R&R determined that KTF 2008-03-3862 0 A was not administratively exhausted because Plaintiff did not file a Step III grievance. P la in tif f admits that he failed to file a Step III grievance, but he contends that he was not r e q u ir e d to do so because he was satisfied with the Step I and Step II responses. Those re sp o n s e s found that KTF was in compliance with the current policy on religious beliefs and p ra c tic e s and indicated that Plaintiff could petition the warden or his designee for recognition o f his group pursuant to PD 05.03.150 ¶ L. (Compl. Ex. A.) Plaintiff did not appeal this re s p o n s e . This grievance was accordingly resolved. Plaintiff cannot now use the previouslyreso lved grievance as an excuse for failing to grieve Martin's denial of his request for Shi'a re c o g n itio n . The Court agrees with the Magistrate Judge that Plaintiff was required to grieve the d e n ia l of his Shi'a recognition and Shi'a services request before filing suit, and that because h e failed to do so, he failed to exhaust his available administrative remedies with respect to th e s e issues. 5

O b j e c ti o n 3 P lain tiff objects to the Magistrate Judge's determination that he failed to exhaust his p ro p e rty-r e la te d claims. Plaintiff's relevant property-related grievances, NCF 2008-10-921-28c and KTF 20081 0 -1 0 6 3 -2 8 e , were rejected at Step I for violating the grievance policy. Although Plaintiff a p p e ale d both of these grievances through Step III, the Magistrate Judge determined that they w e re not "properly" exhausted because the grievances were properly rejected for containing m u ltip le issues and being untimely, and Plaintiff appealed them to Step III without correcting th e procedural errors. Plaintiff contends that Grievance NCF 2008-10-921-28c was not properly rejected for c o n tain in g multiple issues. He contends that he was required to include all of the facts in v o lv in g his claim in order to comply with ¶ P of the grievance procedure and to avoid h a v in g his grievance rejected as vague pursuant to ¶ G(1). The exhaustion requirement of 42 U.S.C. § 1997e(a) requires "proper" exhaustion of a d m in is tra tiv e remedies, which means "using all steps that the agency holds out, and doing s o properly (so that the agency addresses the issues on the merits)." Woodford v. Ngo, 548 U .S . 81, 90 (2006) (citations omitted)). Upon de novo review the Court is satisfied that grievance NCF 2008-10-921-28c was p ro p e rly rejected for containing "multiple unrelated issues" in violation of

P D 03.02.130 ¶ G(1). The grievance addressed not only a claim regarding his lost property, b u t also claims of arbitrary punishment, deliberate indifference to medical needs, improper 6

assig n m en t to a smoking unit, and arbitrary refusal to allow him to see the quartermaster. T h e Court is also satisfied that grievance KTF 2008-10-1063-28e was properly rejected for b eing "filed in an untimely manner" in violation of PD 03.02.130 ¶ G(4). Plaintiff's g rie v a n ce addressed numerous discrete incidents that occurred in May 2008, but the g rie v a n c e was not filed until October 16, 2008. The grievance was not filed within five days o f the grievant's attempt to resolve the issue with appropriate staff as required by ¶ P. P la in tif f did not address or correct these deficiencies on his appeals to Steps II or III. The R & R correctly found that Plaintiff failed to properly exhaust his administrative remedies. O b j e c ti o n 4 P lain tiff asserts that the notice of intent to conduct an administrative hearing into his a ss a u lt3 exhausted his failure to protect and prisoner assault claim and that, pursuant to the g rie v a n ce policy, he did not have to grieve this "non-grievable" issue. In essence, Plaintiff c o n te n d s that because the notice of intent was based on Plaintiff's assault by other prisoners, P la in tif f 's assault claim is not grievable pursuant to PD 03.02.130 ¶ F(2). The MDOC grievance policy provides that a grievance that raises the following nong rie v a b le issue will be rejected: Decisions made in hearings conducted by hearing officers of the State Office o f Administrative Hearings and Rules, including property disposition, and is s u e s directly related to the hearing process (e.g., sufficiency of witness statem en ts; timeliness of misconduct reiveiw; timeliness of hearing). P D . 03.02.130 ¶ F(2).

On January 4, 2009, the MDOC issued a notice of intent to classify Plaintiff to segregation for his protection following an assault on Plaintiff by other prisoners. (Dkt. No. 1, Ex. C; Dkt. N o . 59, Ex. K.) 7

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P la in tif f has confused his grievable claim for assault with his non-grievable challenge to issues related to the hearing process. The two are not the same. Plaintiff had a right to g r ie v e his failure to protect and his assault claim. Plaintiff did not file a grievance as to these c la im s , and he has accordingly failed to exhaust his administrative remedies as to these c la im s . The Magistrate Judge correctly found that Plaintiff failed to properly exhaust any of t h e issues raised in his complaint, and that Defendants are entitled to summary judgment. A c c o r d i n g l y, I T IS HEREBY ORDERED that Plaintiff's objections to the R&R (Dkt. No. 85) are OVERRULED. I T IS FURTHER ORDERED that the August 23, 2010, R&R of the Magistrate J u d g e (Dkt. No. 79) is APPROVED and ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. N o . 47) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's motions to depose prisoners (Dkt. No. 2 7 ) and motion for preliminary injunction (Dkt. No. 69) are DENIED AS MOOT. IT IS FURTHER CERTIFIED pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P . 24(a)(3) that an appeal of this action would not be in good faith.

Dated: September 17, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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