Randall #925722 v. Winnicki et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION 16 and granting motion for summary judgment 10 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLY J. RANDALL, #925722,
Plaintiff,
-vA. WINNICKI, et al.,
Defendants.

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No. 2:16-cv-207
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Kelly Randall is a prisoner under the control of the Michigan Department of
Corrections (MDOC). Randall alleges the defendants caused him to miss the deadline for
filing, in the state courts, a motion for correction of an invalid sentence. Because he missed
the filing deadline, the state court dismissed his motion as untimely. In his remaining claim,
Randall alleges a violation of his constitutional right of access to the courts.
Defendants filed a motion for summary judgment for failure to exhaust administrative
grievances. (ECF No. 10.) Randall did file a grievance, which was rejected as untimely.
Reviewing the motion and response, the magistrate judge issued a report recommending the
motion be granted. (ECF No. 16.) Randall filed objections, generally asserting that he need
not exhaust constitutional claims. (ECF No. 17.) Randall does not raise objections to any
of the factual conclusions in the R&R.
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge

reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam) (holding the district court need not provide de novo review where the objections are
frivolous, conclusive or too general because the burden is on the parties to Apinpoint those
portions of the magistrate=s report that the district court must specifically consider@).
Objection 1. Randall asserts the exhaustion requirement applies only to prison
conditions; it does not apply to constitutional claims.
Randall’s objection is OVERRULED. Randall has not alleged or established that the
factual basis giving rise to his claim cannot be grieved under the MDOC’s grievance
procedure. The factual situation in McGrath v. Johnson, 67 F.Supp.2d 499 (E.D. Pa. 1999),
one of the cases Randall cites, is distinct from Randall’s situation. In McGrath, the court
concluded that the plaintiff had successfully established that there was no avenue for him to
exhaust his claim concerning the decision to place him in administrative custody. Id. at 51011. Here, Randall has not established that the grievance procedure precludes him from
grieving his claim that his state-court motion was not timely filed because Defendants
mishandled the paperwork. And, Randall has not established that the grievance process is
“so opaque” that “no ordinary prisoner can discern or navigate it.” Ross v. Blake, 136 S.Ct.
1850, 1859 (2016). On this point, Randall’s actions undermine his assertion; he filed a
grievance, but it was not timely. And, as the magistrate judge found, to which Randall did
not object, Randall knew he missed the filing deadline before he filed his grievance.

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As explained in the R&R, prisoners bringing claims under the Prison Litigation
Reform Act (PLRA) must exhaust the available administrative remedies.

(R&R at 3

PageID.122.) The Supreme Court has held that the PLRA’s exhaustion requirement applies
broadly to all prisoner lawsuits, whether filed under § 1983 or some other federal statute.

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“For the reasons stated, we hold that the PLRA’s
exhaustion requirement applies to all inmate lawsuits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.”). The Sixth Circuit explained that the exhaustion “requirement is a strong
one.” Napier v. Laurel Cty., Kentucky, 636 F.3d 218, 222 (6th Cir. 2011). Prisoners must use
the available administrative remedies “even if the prisoner subjectively believes the remedy
is not available,” “even when the state cannot grant the particular relief requested,” and “even
where the prisoners believe the procedure to be ineffectual or futile[.]” Id. (citations
omitted).

Contrary to Randall’s assertion, the exhaustion requirement does apply to

constitutional claims, including access to the courts. See, e.g., Walker v. Michigan Dep’t of

Corrs., 128 F. App’x 441, 446 (6th Cir. 2005); Green v. Tudor, 685 F.Supp.2d 678, 692
(W.D. Mich. 2010).
Randall’s other authority does not require a different conclusion. The Michigan case
cited by Randall, Dickerson v. Warden, Marquette Prison, 298 N.W.2d 841 (Mich. Ct. App.
1980), is not binding. At best, Dickerson stands for the proposition that the Michigan
Administrative Procedures Act does not require a state prisoner to exhaust a federal
constitutional claim before bringing a § 1983 claim in state court. The holding in that case
does not apply to the claims brought under the PLRA. And, as explained in Napier,

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prisoners must attempt to exhaust their grievances even when the state cannot grant the relief
requested. The statement in Heck v. Humphrey, 512 U.S. 477, 480 (1994), that exhaustion
of state remedies is not a prerequisite to a § 1983 action, is no longer accurate. The PLRA,
which imposed the exhaustion requirement, was enacted in 1996. In Snider v. Melindez,
199 F.3d 108 (2d Cir. 1999), the circuit court held that the district court, on its own and
without a motion from the defendants, erred when it dismissed a claim for failing to exhaust
administrative remedies. The circuit court explained that the district court failed to give the
plaintiff notice and opportunity to be heard prior to the dismissal. Id. at 112-13. That is not
the case here.
Objection 2. Randall asserts that all of the defendants should be defaulted because
they failed to file an answer or affirmative defenses.
Randall’s objection is OVERRULED. The default judgment rule, Rule 55 of the
Federal Rules of Civil Procedure, applies when the defendant fails to plead or otherwise

defend. The motion for summary judgment was filed on behalf of all of the defendants
remaining in the case. By filing the motion, the defendants have defended against Randall’s
claims.
For these reasons, the Court ADOPTS the Report and Recommendation (ECF No.
16) as the opinion of the Court. Defendants’ motion for summary judgment (ECF No. 10)
is GRANTED and Plaintiff’s claims are dismissed for failing to exhaust administrative
remedies. IT IS SO ORDERED.
Date: June 2, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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