Kittle #196905 v. Squier, et al
Filing
106
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JON PATRICK KITTLE
#196905,
Plaintiff,
File No. 2:11-CV-97
v.
HON. ROBERT HOLMES BELL
HARRIETT SQUIER, et al.,
Defendants.
/
OPINION
On March 20, 2012, the Court adopted the report and recommendation (R&R)
prepared by Magistrate Judge Timothy P. Greeley. (Dkt. No. 80.) The Court granted
summary judgment in favor of Defendants Squier and Stieve, and dismissed Plaintiff’s
complaint against these two defendants without prejudice for failure to exhaust
administrative remedies. (Id.) In issuing this order, the Court indicated that Plaintiff had not
timely filed objections to the R&R. This matter is now before the Court on Plaintiff’s motion
to strike the order approving and adopting the R&R because his objections were timely filed.
(Dkt. No. 86.) For the reasons that follow, the Court will consider Plaintiff’s objections, but
will deny Plaintiff’s motion as futile.
Plaintiff’s objections were due on March 16, 2012. (Dkt. No. 79.) Having not
received his objections, the Court’s order was issued on March 20, 2012. (Dkt. No. 80.) On
March 23, 2012, the Court received Plaintiff’s objections. (Dkt. No. 81.) Attached to the
present motion is a Michigan Department of Corrections (“MDOC”) legal mail form that
indicates that Plaintiff submitted his objections to prison authorities for mailing on March
15, 2012. (Dkt. No. 86, Attach. 1.) Documents prepared by pro se prisoners are considered
“filed” at the time of delivery to prison authorities for forwarding to the court clerk, rather
than on the date of receipt by the clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). In light
of the date written on the legal mail forms, the Court will accept Plaintiff’s contention that
he submitted his objections on March 15, 2012. Accordingly, the Court considers Plaintiff’s
objections timely.
Having determined that Plaintiff’s objections should be considered timely, the Court
has carefully considered Plaintiff’s objections and reexamined the R&R adopted by the Court
on March 20, 2012. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Upon such a review, none
of the objections raised by Plaintiff have merit.
Plaintiff first objects that the Magistrate Judge failed to acknowledge his submitted
pleadings and arguments.
First, he points to a motion entitled “Motion to Hold in
Abeyance.” (Dkt. No. 45.) Contrary to Plaintiff’s assertions, this motion was considered by
the Magistrate Judge on November 3, 2011, and the Magistrate Judge properly denied it for
lack of good cause shown.
Second, Plaintiff points to his reply in regard to the
aforementioned motion, the copy of the “First Set of Interrogatories” he filed with the Court,
and his response to Defendant Stieve’s motion to stay discovery. Plaintiff is correct that none
of the arguments raised in these documents was discussed in the R&R. However, this was
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not error. The R&R recommended granting Defendants Squier and Stieve’s motions for
summary judgment because Plaintiff failed to name either in a grievance. Pursuant to the
applicable portion of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), a
prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must
exhaust his available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532
(2002). As the R&R correctly stated, MDOC Policy Directive 03.02.130 (effective July 9,
2007), sets forth the applicable grievance procedures for prisoners in MDOC custody at the
time relevant to this complaint. This policy directive provides an administrative grievance
procedure. As part of this procedure, “[d]ates, times, places and names of all those involved
in the issue being grieved are to be included.” Id. at ¶ R. Because Plaintiff failed to comply
with this requirement, by not naming either Squier or Stieve in a grievance, the Magistrate
Judge was correct to recommend granting summary judgment and did not need to address
Plaintiff’s discovery arguments which were moot in light of the failure to exhaust
administrative remedies.
Second, Plaintiff objects to the Magistrate Judge recommending summary judgment
without allowing discovery to be conducted or allowing Plaintiff to amend his complaint.
In support, Plaintiff relies on Curry v. Scott, 249 F.3d 493, 502 (6th Cir. 2001). Curry held
that “[w]hile the preferred practice is for inmates to complete the grievance process prior to
the filing of an action and to attach to their complaint documentation of that fact, ‘because
the exhaustion requirement is not jurisdictional, district courts have some discretion in
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determining compliance with the statute.’” Id. (quoting Wyatt v. Leonard, 193 F.3d 876, 879
(6th Cir. 1999)). However, the examples given by Curry where it is appropriate for a court
to be lenient about the exhaustion requirement are not applicable to Plaintiff. First, the Court
recognized that “substantial compliance with the exhaustion requirements in the form of
good faith efforts to contact prison personnel can be deemed sufficient ‘exhaustion’ under
the PLRA, where the events giving rise to the claim occurred prior to passage of the Act.”
Id. Here, the events in question did not occur prior to the passage of the PLRA. Second, the
Court found that “exhaustion of remedies prior to the filing of an amended complaint . . .
could constitute exhaustion ‘prior to filing a suit in federal court’ within the meaning of
§ 1997e.” Id. Plaintiff has not moved to amend his complaint, nor has he exhausted his
administrative remedies since filing his complaint.
Thus, Curry is not applicable to Plaintiff. Moreover, allowing Plaintiff to conduct
discovery and/or amend his complaint would not have resulted in a cure of Plaintiff’s failure
to exhaust his administrative remedies. Thus, despite Plaintiff’s exhortation of “fairness,”
it was fair and correct for the Magistrate Judge to recommend summary judgment at this
stage and to dismiss Defendants Squier and Stieve without prejudice.
Third, Plaintiff objects that he should not be required to have named Squier and Stieve
in a grievance because he submitted written requests asking for the names of those he
identified as “Jane/John Doe” in his complaint. Plaintiff’s argument lacks merit. The issue
is not his failure to name defendants in his complaint but his failure to name Stieve and
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Squier in his administrative grievance. The grievance form Plaintiff filed refers only to a
health care staff member identified as “MP-4.” (Dkt. No. 11, Attach. 3.) While Plaintiff is
correct that under some circumstances the Court will find that a grievance sufficiently puts
a staff member on notice despite not naming them, such circumstances are not present here.
Plaintiff did not identify Squier or Stieve by the initials of their position, assert that his
grievance was against the entire department, ask for the names of medical staff members in
a manner indicating he was referring to Squier or Stieve, or make factual allegations that
referred to Squier or Stieve. See Contor v. Caruso, 2008 WL 878655, at *3 (W.D. Mich.,
Mar. 28, 2008); Jackson v. Hornick, 2006 WL 1766839, at *2 (W.D. Mich., June 21, 2006);
Austin v. Correction Medical Services, Inc., 2008 WL 4426342, at *5 (W.D. Mich., Sept. 26,
2008).
The Step I grievance form only refers to the “MP-4” who, on May 22, 2009, informed
him that surgery to alleviate his foot pain was being denied. (Id.) “MP-4” could not possibly
have referred to Stieve or Squier. First, Plaintiff’s complaint alleges that it was Padmaja
Vemuri whom he saw on May 22, 2009, and who told him the surgery was being denied.
(Dkt. No. 1, ¶ 15.) The statement of facts in the complaint before this Court alleges that
Plaintiff’s first contact with Stieve was a July 29, 2010, letter, more than one year later, and
after Plaintiff had gone through Step III of the grievance process. (Id. at ¶ 23.) Similarly,
Plaintiff’s first contact with Squier was on October 8, 2010. (Id. at ¶ 29.) Consequently,
none of the facts alleged in the grievance could have referred to either Squier or Stieve, and
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neither was put on notice by the grievance. Consequently, the Magistrate Judge was correct
to dismiss Squier and Stieve on account of Plaintiff’s failure to exhaust his administrative
remedies.
The Court will consider Plaintiff’s objections to be timely filed. However, because
all of Plaintiff’s objections lack merit, the Court will deny the motion to strike the order
approving and adopting the R&R as futile.
An order consistent with this opinion will be entered.
Dated: November 9, 2012
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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