Weatherspoon #471817 v. Williams et al

Filing 57

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 55 re 33 , 30 : Defendants' Motion for Summary Judgment 30 , 33 are DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

MORRIS WEATHERSPOON #471817,
Plaintiff,
v.

Case No. 2:17-CV-40

CAROL WILLIAMS, et al.,

HON. GORDON J. QUIST

Defendants.
_________________________________/
OPINION AND ORDER
This is a civil rights action brought by state prisoner Morris Weatherspoon under 42 U.S.C.
§ 1983. The State Defendants filed a motion for summary judgment (ECF No. 33), as did
Defendant Penny Rogers (ECF No. 30), on the ground that Weatherspoon failed to exhaust his
administrative remedies.

Magistrate Judge Timothy Greeley issued a Report and

Recommendation (R & R), recommending that the Court deny Defendants’ motions. (ECF No.
55.) The State Defendants filed objections to the R & R. (ECF No. 56.)
Under Federal Rule of Civil Procedure 72(b), a party “may serve and file specific written
objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b)
likewise requires that written objections “shall specifically identify the portions” of the R & R to
which a party objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, the State Defendants’ objections, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted.

The State Defendants submitted two objections to the R & R. First, they argue that
Weatherspoon failed to exhaust his available remedies. They argue that Weatherspoon being on
modified grievance access does not excuse him from pursuing his available remedies—it “merely
requires that Weatherspoon first obtain permission” before filing a grievance. Further, the State
Defendants cite the grievance numbers Weatherspoon submitted to conclude that Weatherspoon
did submit grievances at Step I, and received a response—but “the fact that the grievances were
not listed in the Step III report indicates that Weatherspoon did not pursue the grievances to Step
III.” The State Defendants conclude that they “have presented sufficient evidence for this Court
to conclude that Weatherspoon failed to exhaust his administrative remedies relating to his
complaint.” (ECF No. 56 at PageID.525–26.)
On the contrary, the State Defendants have offered no evidence to directly support their
argument—they have only offered Weatherspoon’s Step III Grievance report and their own
conclusory arguments. The R & R noted that failure to exhaust is an affirmative defense and,
therefore, the State Defendants bear the burden of proof. The R & R also noted that Weatherspoon
“asserts that while he was on modified access to the grievance procedures, he was refused
grievance forms by the grievance coordinator each time he requested forms.” (ECF No. 55 at
PageID.522.) The State Defendants offer no evidence or response to Weatherspoon’s allegation
that the grievance coordinator denied his request for grievance forms. Instead, they assert that
Weatherspoon must “first obtain permission from the KCF grievance coordinator”—which is
exactly what Weatherspoon alleges he attempted to do. The State Defendants also point to the
grievances that Weatherspoon cited in his response to conclude that Weatherspoon failed to
exhaust them because he did not pursue those grievances to Step III. This fact is not in dispute—
Weatherspoon admitted he did not pursue those grievances to Step III because the grievance

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coordinator refused his request for Step III forms. (ECF No. 51 at PageID.476.) The R & R found
that “Defendants have not responded to Plaintiff’s assertion that he was prohibited from filing
grievances involving the subject matter of his complaint.” (ECF No. 55 at PageID.522.) They
have still not done so and the Court accordingly agrees with the R & R’s recommendations.
The State Defendants’ second objection is a request for an evidentiary hearing on the
exhaustion issue because, they allege, “they have presented sufficient evidence for this Court to
conclude that Weatherspoon failed to exhaust his administrative remedies.” (ECF No. 56 at
PageID.526.) An evidentiary hearing is unnecessary because State Defendants have presented no
evidence that Weatherspoon failed to exhaust his administrative remedies. State Defendants have
not rebutted Weatherspoon’s sworn statements that the grievance coordinator refused to provide
him with grievance forms when he requested them. For purposes of this motion, that fact is
uncontroverted and an evidentiary hearing is unnecessary.
Therefore,
IT IS HEREBY ORDERED that State Defendant’s Objections (ECF No. 56) are
OVERRULED and the magistrate judge’s Report and Recommendation (ECF No. 55) is hereby
APPROVED AND ADOPTED as the opinion of this Court.
IT IS FURTHER ORDERED that the Defendants’ Motions for Summary Judgment
(ECF Nos. 30, 33) are DENIED.

Dated: June 28, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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