Ragan #314744 v. Stevie et al

Filing 71

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 64 granting defendants' motion 37 ; signed by Judge R. Allan Edgar ; this document appears in the following associated cases: 2:12-cv-00113-RAED-TPG, 2:12-cv-00114-RAED-TPG(Judge R. Allan Edgar, cam)

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

BENJAMIN RAGAN,
Plaintiff,

Case No. 2:12-cv-113

v.

Honorable R. Allan Edgar

JEFFREY STEVIE, et al.,
Defendants.
/
BENJAMIN RAGAN,
Plaintiff,

Case No. 2:12-cv-114

v.

Honorable R. Allan Edgar

JEFFREY STEVIE, et al.,
Defendants.
/
MEMORANDUM AND ORDER
On July 25, 2013, U.S. Magistrate Judge Timothy P. Greeley entered a Report and
Recommendation (“R&R”) in this consolidated case, in which he recommended that
Defendants Stieve, Borgerding, Stephenson, Malloy, and Jenkins’ motion for summary
judgment be granted and that Plaintiff’s claims in 2:12-cv-113 be dismissed for failure to
exhaust. Doc. No. 64. Magistrate Judge Greeley noted that 2:12-cv-113 alleged that
Plaintiff had not received proper medical treatment pertaining to his HIV status. Since it
appeared that Plaintiff had exhausted his claims in 2:12-cv-114, in which Plaintiff alleged
that he did not receive adequate treatment for his back pain, Magistrate Judge Greeley

recommended that only the claims in 2:12-cv-113 be dismissed. Magistrate Judge Greeley
noted that, while Defendants asserted that Plaintiff had filed an untimely grievance
concerning the treatment of his HIV, they failed to attach a copy of that grievance. While
such a failure would normally be fatal to the motion, Magistrate Judge Greeley noted that
Plaintiff had conceded that he had filed an untimely grievance. Magistrate Judge Greeley
then rejected Plaintiff’s argument that he should be excused for his untimely filing because
he was not knowledgeable about the rules.
Plaintiff has filed objections to the R&R. Doc. No. 69. 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(a). In his objections, Plaintiff
asserts that his grievance should not have been rejected as untimely, since Plaintiff was
complaining about the ongoing issue of Defendants’ failure to provide adequate treatment
for his HIV. In support of his assertion, Plaintiff attaches his grievance, KCF-11-10-0108528e. Doc. No. 69-4, pp. ID 442-47. At Step I, Plaintiff wrote that the date of the incident
was “7/22/11 until Present.” Id., p. ID 442. Plaintiff asserted in that grievance that
healthcare staff had stopped the treatment for his terminal life-threatening illness and his
very serious back injury. This grievance was rejected as untimely. The rejection stated that
the date of the incident was listed as 7/22/11 and the grievance was received 10/6/11, with
no explanation for the cause in delay of filing. The rejection pointed to PD 03.02.130, which
states that inmates must attempt to resolve a problem orally within two days of becoming
aware of the issue, and must submit a grievance form within five days of the attempted oral
resolution. PD 03.02.120, ¶ P. Plaintiff pursued the grievance at Step II and Step III, and

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the grievance was rejected as untimely at those steps as well. Plaintiff did not explain in his
Step II or Step III grievance forms why he had not filed the grievance in a timely manner.
Plaintiff does not explain why he did not do so in his objections, either. Since Plaintiff’s
grievance was rejected as untimely, Plaintiff has failed to exhaust the issue of his HIV
treatment.
Plaintiff’s objections [Doc. No. 69] are without merit and are DENIED. Magistrate
Judge Greeley’s R&R [Doc. No. 64] is APPROVED and ADOPTED as the opinion of the
Court pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. L. Civ. R. 72.3(b). Defendants’
motion for summary judgment [Doc. No. 37] is GRANTED. Defendants Prison Health
Services, Hutchinson, Borgerding, Stephenson, Malloy, and Jenkins are DISMISSED
WITHOUT PREJUDICE. Plaintiff’s Eighth Amendment claim against Defendants Stieve,
Pomeroy, and Wilson concerning his HIV treatment are also DISMISSED WITHOUT
PREJUDICE. This case remains pending as to Plaintiff’s Eighth Amendment claims against
Defendants Wilson, Pomeroy, and Stevie, as found in 2:12-cv-114.
SO ORDERED.

Dated:

9/23/2013

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

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