Crump #236528 v. Armstrong et al

Filing 60

ORDER REJECTING REPORT AND RECOMMENDATION [56} and GRANTING Defendants' motion 49 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

HORACE W. CRUMP,
Plaintiff,

Case No. 2:11-cv-45

v.

Honorable R. Allan Edgar

JIM ARMSTRONG, et al.,
Defendants.
/

MEMORANDUM AND ORDER
Plaintiff alleged in this suit that defendants actively prevented his attempt to exhaust
a grievance. This case was initially dismissed for failure to state a claim upon which relief
could be granted. Doc. No. 4, 5. Upon reconsideration of that opinion, the Court reopened
the case. Doc. No. 16. In doing so, the Court stated the following:
In the underlying opinion, the court noted that if Plaintiff was
attempting to assert an access to courts claim, such a claim
lacked merit. The court stated that the exhaustion requirement
only mandates exhaustion of available administrative remedies,
see 42 U.S.C. § 1997e(a), and that if Plaintiff were improperly
denied access to the grievance process, the process would be
rendered unavailable, so that exhaustion would not be a
prerequisite for initiation of a civil rights action. However,
Plaintiff now asserts that Defendants’ refusal to process his
grievances resulted in the dismissal of a pending lawsuit.
Although Plaintiff fails to specify the name or case number of
the lawsuit allegedly dismissed, a search of the court’s
electronic docketing system reveals that Crump v. Caruso, et
al., No. 2:09-cv-194, asserted the claims raised in the
grievances which were allegedly thwarted by Defendants in the
instant case. In addition, Case Number 2:09-cv-194 was
dismissed on August 23, 2010, for failure to exhaust

administrative remedies.
Therefore, Plaintiff’s complaint
appears to set forth a nonfrivolous access to courts claim.
Doc. No. 16, pp. ID 139-40. Defendants filed a motion for summary judgment, which the
Court denied. Doc. No. 48. Defendants argued that Plaintiff’s suit was barred by collateral
estoppel. In rejecting that argument, the Court stated the following:
Defendants recognize that the dismissal of the previous action
was not on the merits, but for failure to exhaust grievance
remedies. Moreover, the previous case involved a different
cause of action. In this case, Plaintiff is asserting that the
failure to properly process his grievances caused the dismissal
of the previous case. Since the dismissal of the previous case
was required before a denial of access to the courts cause of
action could accrue, the court could not have decided the
precise issue raised and litigated in this case. Moreover, the
only issue previously decided was that Plaintiff failed to exhaust
his claims in the prior case. That issue has no relevance to
whether Plaintiff exhausted his claims in this case, and cannot
be dispositive on whether these Defendants denied Plaintiff
access to the court by intentionally failing to allow Plaintiff to
exhaust his grievances within the boundaries of established
procedures.
Doc. No. 48, pp. ID 308-09. Defendants then filed a motion to dismiss. Doc. No. 49.
Magistrate Judge Greeley entered a Report and Recommendation (R&R) in which he
recommended denying the motion to dismiss. Doc. No. 56. Defendants have filed
objections to the R&R.

Doc. No. 57.

This Court is required to make a de novo

determination of those portions of the R&R to which objections have been filed, and may
accept, reject, or modify any or all of the Magistrate Judge’s findings or recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
In their objections, Defendants assert that, to the extent that Plaintiff argues that
Defendants prevented him from filing grievances or ignored his grievances, he is alleging
that the grievance process was unavailable to him. Such an allegation fails to state an

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access to the courts claim. Defendants further assert that, to the extent that Plaintiff argues
that his grievances were improperly rejected, in violation of prison policy, such allegations
have already been found to lack merit in the prior case of Crump v. Caruso, 2:09-cv-194.
In that case, Judge Bell found that Plaintiff had failed to properly exhaust, and the Sixth
Circuit affirmed.
Plaintiff’s complaint in this case alleges that he filed a grievance concerning his
treatment as a Shi’a, KTF-08-03-386-20A. Doc. No. 1, p. ID 7. Plaintiff states that he
submitted a step III grievance but never received a response, and that he later learned that
his step III grievance was never logged by Defendants. Id. However, in Plaintiff’s objection
to Magistrate Judge Greeley’s R&R in Crump v. Caruso, Plaintiff admitted that he did not
file a Step III grievance on KTF 08-03-386-20A and stated that he felt that he did not need
to do so because he was satisfied with the Step I and Step II responses. 2:09-cv-194, Doc.
No. 85, p. ID 910. Judge Bell found that Plaintiff had failed to properly exhaust this issue.
Plaintiff’s inconsistent assertion in the present case appears to merely be an attempt to
relitigate a previously decided exhaustion issue in Crump v. Caruso. Accordingly, such a
claim fails to state a claim upon which relief can be granted.
Plaintiff’s complaint further alleges that he filed grievances concerning his property
that were improperly rejected as untimely and containing multiple issues. This issue was
also addressed in Crump v. Caruso, where Magistrate Judge Greeley found that the
grievances were properly rejected. 2:09-cv-194, Doc. No. 79, p. ID 866. Judge Bell found
the same, and the Sixth Circuit affirmed the dismissal of Plaintiff’s claims. Plaintiff’s attempt
to relitigate this previously decided exhaustion issue similarly fails, in this case, to state a
claim upon which relief can be granted.

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Finally, Plaintiff’s complaint alleges that various defendants failed to process his
grievances. To the extent that Plaintiff asserts that he was prevented from accessing the
grievance process, such an argument fails to state an access to the courts claim. The
exhaustion requirement only mandates exhaustion of available administrative remedies.
See 42 U.S.C. § 1997e(a). If Plaintiff were improperly denied access to the grievance
process, the process would be rendered unavailable, and exhaustion would not be a
prerequisite for initiation of a civil rights action. See also Wills v. Barber, 2012 WL 3579650
(W.D. Mich. Aug. 16, 2012) (Maloney, C.J.).
The Court GRANTS Defendants’ objections [Doc. No. 57]. The Court REJECTS
Magistrate Judge Greeley’s R&R [Doc. No. 56]. Defendants’ motion to dismiss [Doc. No.
49] is GRANTED, and this case is DISMISSED WITH PREJUDICE.
SO ORDERED.

Dated:

9/27/2013

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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