Lenoir #818283 v. Millette et al
MEMORANDUM ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 49 ; denying as moot Plaintiff's motion for summary judgment 37 and Defendants' motions to stay the obligation to respond to Plaintiff's motion for summary judgment 42 , 44 ; granting Defendants' motions for summary judgment 19 , 22 , 34 , 40 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-69
HON. ROBERT HOLMES BELL
MICHAEL MILLETTE, et al.,
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983,
alleging violations of the Eighth Amendment. On October 24, 2016, United States
Magistrate Judge Timothy P. Greeley issued a Report and Recommendation (“R&R”)
recommending that Defendants’ motions for summary judgment for failure to exhaust
administrative remedies (ECF Nos. 19, 22, 34, 40) be granted. The Magistrate Judge also
recommended that Plaintiff’s motion for summary judgment (ECF No. 37) and Defendants’
motions to stay the obligation to respond to Plaintiff’s motion for summary judgment (ECF
Nos. 42, 44) be denied as moot. The matter is before the Court on Plaintiff’s objections to
the R&R. (ECF No. 54.)
This Court is required to make a de novo determination of those portions of the R&R
to which specific objection has been made, 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). “[A] general objection to a magistrate’s report, which fails to specify the issues of
contention, does not satisfy the requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Plaintiff made three objections. First, Plaintiff objects to the Magistrate Judge’s
conclusion that he did not fully exhaust administrative remedies for his claim against
Defendant Gerlach. Second, Plaintiff objects to the Magistrate Judge’s conclusion that he
did not fully exhaust administrative remedies for his claim against Defendants Doolittle and
Kronk. Third, Plaintiff objects to the Magistrate Judge’s conclusion that he did not fully
exhaust administrative remedies for his claim against Defendants Millette, Ball, MacDowell,
Fischer, Haske, and Bennett.
A. Defendant Gerlach
Plaintiff argues that the Michigan Department of Corrections (“MDOC”) improperly
rejected his grievance against Defendant Gerlach as duplicative. Plaintiff argues that this
was the first grievance he made against Defendant Gerlach regarding his back brace.
Because of its improper rejection, Plaintiff contends that further administrative remedies
were unavailable. Thus, Plaintiff claims that he exhausted all available remedies as required
by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.
In order to properly exhaust administrative remedies, prisoners must complete the
administrative review process in accordance with deadlines and other applicable procedural
rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007). MDOC policy provides that grievances
filed by inmates may be rejected if they raise issues found to be duplicative of issues raised
in previous grievances filed by the same inmate. (ECF No. 54-1, PageID.418.) In Step II and
Step III, the MDOC rejected Plaintiff’s grievance because it raised duplicative issues. (Id.
at PageID.418, PageID.419.) Thus, the Magistrate Judge properly concluded that Defendant
Gerlach’s motion for summary judgment for failure to exhaust administrative remedies
should be granted. See Cowan v. Miller, No. 15-cv-1248, 2016 WL 3251762, at *3 (E.D.
Mich. June 14, 2016) (holding that a plaintiff did not exhaust administrative remedies where
the MDOC rejected a grievance as duplicative).
B. Defendants Doolittle and Kronk
Plaintiff argues that he filed a grievance against Defendants Doolittle and Kronk, but
never received a response from the MDOC. After no response, he requested a Step II
grievance appeal form. Plaintiff claims that the MDOC responded, with a difference
grievance number, and rejected his Step II grievance for raising duplicative issues. Plaintiff
claims that the rejection included a different grievance number than the grievance he filed
against Defendants Doolittle and Kronk. But this argument is not supported by the grievance
forms. In Step I of grievance ICF 15-02-454-28a, Plaintiff alleged that he was being denied
pain medication, and had spoken with Defendants Doolittle and Kronk about the issue. (ECF
No.23-2, PageID.235.) In Step II of that grievance number, the MDOC rejected Plaintiff’s
grievance as duplicative, and this rejection was upheld at Step III. (Id. at PageID.232-34.)
Plaintiff did not fully exhaust his claims against Defendants Doolittle and Kronk. Therefore,
the Magistrate Judge properly concluded that Defendants Doolittle and Kronk’s motion for
summary judgment for failure to exhaust administrative remedies should be granted.
C. Defendants Millette, Ball, MacDowell, Fischer, Haske and Bennett
Plaintiff argues that he filed a Step I grievance against Defendants, but he did not
receive a response from the MDOC. After he obtained the names of the others involved, he
filed another grievance, which was dismissed as duplicative. Again, Plaintiff contends that
the rejection contained a different grievance number. Plaintiff then requested a Step II
grievance appeal form for this grievance, but the Step II grievance was rejected as untimely.
Plaintiff contends that he submitted several grievances without receiving a response
from the MDOC. But Plaintiff did not submit a copy of any of these grievances to the Court.
Plaintiff did include a letter that wrote to the grievance director complaining about the
MDOC’s failure to respond to his grievances. (ECF No. 54-1, PageID.434.) Although
Plaintiff alleges that he sent grievances regarding his medical treatment, he does not include
any of the grievance identifier numbers in the letter. Plaintiff has failed to produce any
evidence to support his claim that he submitted grievances but never received a response
from the MDOC. Moreover, even if the Court credits Plaintiff’s claim, the MDOC rejected
this grievance at Step II as untimely. Thus, Plaintiff has not shown that there is a genuine
dispute of material fact as to whether he properly exhausted all available administrative
remedies for his claims against Defendants Millette, Ball, MacDowell, Fischer, Haske, and
The Court has reviewed the R&R; it accurately recites the facts and correctly applies
pertinent law. Thus, the Court agrees with and adopts the Magistrate Judge’s analysis.
IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (ECF No. 47) are
IT IS FURTHER ORDERED that the R&R (ECF No. 49) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment (ECF
No. 37) and Defendants’ motions to stay the obligation to respond to Plaintiff’s motion for
summary judgment (ECF Nos. 42, 44) are DENIED as moot.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment
(ECF Nos. 19, 22, 34, 40) are GRANTED.
Dated: December 19, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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