MAARTEN VERMAAT U. S. MAGISTRATE JUDGE

Hon. Robert J. Jonker Chief U.S. District Judge REPORT AND RECOMMENDATION

I. Introduction

This is a civil rights action brought by state prisoner Dale Freeman pursuant to 42 U.S.C. § 1983. Freeman is a paraplegic. He alleges Eighth Amendment deliberate indifference claims associated with his condition against Nurses Headley, Haske, Brown and Merling; Nurse Supervisor Staine; Nurse Practitioner Buchanan; and Doctors Canlas, and Coleman.

Defendants Headley, Staine, Haske, Brown, and Merling (the remaining Defendants employed by the Michigan Department of Corrections (MDOC)) have filed a motion for summary judgment. Defendants concede that Freeman properly exhausted his two claims against Headley and his one claim against Merling. (ECF No. 49, PageID.365.) Freeman has responded. (ECF No. 57.) The undersigned has reviewed the pleadings and associated documents and respectfully recommends that the Court (1) grant Defendants' summary judgment motion as to Defendant Brown, but deny as Defendants Haske and Staine, and (2) dismiss Freeman's Eighth Amendment deliberate indifference claim against Brown without prejudice.

II. Summary of Plaintiff's Claims and the Factual Allegations Supporting His Claims

The table below summarizes each of Freeman's claims against each Defendant and the alleged facts supporting the claims.

III. Relevant Grievances filed by Plaintiff and Pursued Through Step III

Summarized in the table below are the relevant grievances filed by Freeman and pursued through Step III.

IV. Summary Judgment Standard

Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

V. Exhaustion of Administrative Remedies

A prisoner's failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 212-16 (2007). "[W]here the moving party has the burden -- the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). The Sixth Circuit has repeatedly emphasized that the party with the burden of proof "must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it." Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). Accordingly, summary judgment in favor of the party with the burden of persuasion "is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

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. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). A prisoner must first exhaust available administrative remedies, even if the prisoner may not be able to obtain the specific type of relief he seeks in the state administrative process. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).

In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones, 549 U.S. at 218-19; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). In rare circumstances, an administrative remedy will be considered unavailable where officers are unable or consistently unwilling to provide relief, where the exhaustion procedures may provide relief, but no ordinary prisoner can navigate it, or "where prison administrators thwart inmates from taking advantage of a grievance [or other administrative] process through machination, misrepresentation, or intimidation." Ross v. Blake, 578 U.S. ___, 136 S.Ct. 1850, 1859-60 (2016).

"Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and improve the quality of prisoner suits." Porter, 534 U.S. at 524. In the Court's view, this objective was achieved in three ways. First, the exhaustion requirement "afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 525. Second, "the internal review might 'filter out some frivolous claims.'" Id. (quoting Booth, 532 U.S. at 737). And third, "adjudication could be facilitated by an administrative record that clarifies the contours of the controversy." Id. When institutions are provided adequate notice as required under the PLRA, the opportunity to address the claims internally furthers the additional goals of limiting judicial interference with prison administration. Baker v. Vanderark, 2007 U.S. Dist. LEXIS 81101 at *12.

The most common procedure through which a prisoner in MDOC custody exhausts his administrative remedies is the grievance procedure set forth in Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective on July 9, 2007, superseded on March 18, 2019. Where grievance procedures are not available because the issue presented is non-grievable, exhaustion of prison grievance procedures is not required. It is well-established that a prisoner "cannot be required to exhaust administrative remedies regarding non-grievable issues." Figel v. Bouchard, 89 F. App'x 970, 971 (6th Cir. 2004); Mays v. Kentucky Dept. of Corrections, 2018 WL 4603153, at *3 (W.D. Ky. Sept. 25, 2018) ("It is beyond debate that an inmate cannot be required to exhaust administrative remedies regarding non-grievable issues."); Reeves v. Hobbs, 2013 WL 5462147 (W.D. Ark. Sept. 3, 2013) ("Defendants cannot treat a complaint as non-grievable, and therefore not subject to the grievance procedure, and then turn around and maintain the claim fails because [the plaintiff] failed to follow the grievance procedure. As the well known proverb states, they cannot have their cake and eat it too.").

However, where other administrative remedies are available, the prisoner is required to exhaust those available remedies prior to filing a federal lawsuit. For example, where an inmate claims that he received a retaliatory false misconduct, whether a Class I misconduct or a Class II or III misconduct, the inmate must first raise the issue during the Misconduct Hearing. Siggers v. Campbell, 652 F.3d 681, 693-94 (6th Cir. 2011). If the inmate is claiming to have received a retaliatory Class I misconduct, he or she must then must "file a motion or application for rehearing [of his misconduct conviction] in order to exhaust his or her administrative remedies before seeking judicial review of the final decision or order." Mich. Comp. Laws § 791.255(1); see also Siggers, 652 F.3d at 693-94. Alternatively, if the inmate is claiming to have received a retaliatory Class II or III misconduct, he or she must file an appeal based on retaliation. MDOC PD 03.03.105 ¶¶ UUU-XXX; see also Jones v. Heyns, 2014 U.S. Dist. LEXIS 55712 at *13-17 (W.D. Mich. Jan. 28, 2014).

When prison officials waive enforcement of these procedural rules and instead consider a non-exhausted claim on its merits, a prisoner's failure to comply with those rules will not bar that prisoner's subsequent federal lawsuit. Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). The Sixth Circuit has explained:

[A] prisoner ordinarily does not comply with MDOCPD 130—and therefore does not exhaust his administrative remedies under the PLRA—when he does not specify the names of each person from whom he seeks relief. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010) ("Requiring inmates to exhaust prison remedies in the manner the State provides—by, say, identifying all relevant defendants—not only furthers [the PLRA's] objectives, but it also prevents inmates from undermining these goals by intentionally defaulting their claims at each step of the grievance process, prompting unnecessary and wasteful federal litigation process."). An exception to this rule is that prison officials waive any procedural irregularities in a grievance when they nonetheless address the grievance on the merits. See id. at 325. We have also explained that the purpose of the PLRA's exhaustion requirement "is to allow prison officials 'a fair opportunity'

to address grievances on the merits to correct prison errors that can and should be corrected to create an administrative record for those disputes that eventually end up in court." Id. at 324.

VI. Analysis

The questions presented are whether Freeman properly exhausted his claims against Haske, Staine, and Brown. For the following reasons, it is the opinion of the undersigned that Freeman failed to properly exhaust his Eighth Amendment deliberate indifference claim against Brown but did properly exhaust his claim against Haske and Staine.

A. Failure to Properly Exhaust Freeman's Claims Against Brown

Freeman failed to properly exhaust his Eighth Amendment deliberate Indifference claim against Brown. Freeman concedes "that he did not exhaust administrative remedies for his claims against Brown." (ECF No. 57-1, PageID.457.) Nevertheless, Freeman argues that his failure to properly exhaust his claim is excused because Staine's conduct rendered the grievance process unavailable to him. (Id.) In rare circumstances, prisoners will be excused from the PRLA's exhaustion requirement when the prisoner can show that (1) prison officials are unable or consistently unwilling to provide relief and the exhaustion procedures may have provided relief, or (2) "where prison administrators thwart inmates from taking advantage of a grievance [or other administrative] process through machination, misrepresentation, or intimidation." Ross, 136 S.Ct. at 1859-60. There is nothing in the record to support a finding of either instance regarding Staine preventing Freeman from utilizing the grievance process against Brown. Instead, there is evidence to show that Staine acted as the respondent to a few Freeman's grievances and that those grievances were exhausted through Step III. (ECF No. 49-3, PageID.385, 392, and 397.)

Again, the PLRA does not impose a "name all defendants requirement" when prisoners file their initial grievances, the administrative review process is designed to "allow[] a prison to address complaints about the program it administers before being subjected to suit." Bock, 549 U.S. at 217, 219. Here, MDOC never received an opportunity to address and potentially remedy his claim against Brown. The undersigned respectfully recommends that the Court find that Freeman failed to properly exhaust all administrative remedies and that no genuine issue of material fact exists that must be submitted to a jury regarding an Eighth Amendment deliberate indifference claim against Brown.

B. Proper Exhaustion of Freeman's Claim Against Haske

Freeman properly exhausted his Eighth Amendment deliberate indifference claim against Haske. Freeman directs the Court's attention to grievances URF-17-10-3195-12E3 and URF-17-09-2753-12i as evidence of the exhaustion. (ECF No. 57-1, PageID.456-457.)

As shown below, Freeman names Haske at Step I of grievance URF-17-10-3195-12E3. (ECF No. 49-3, PageID.365.)

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Defendants nevertheless argue that Freeman failed to properly exhaust his claim against Haske because Freeman "did not state how Freeman attempted to resolve [his complaints in] the grievance with" Haske. (ECF No.49, PageID.365.) The crux of Defendant's argument is that MDOC policy requires prisoners to attempt to resolve their complaints with staff members before filing a grievance against them. MDOC PD 03.02.130 ¶ P. Essentially Freeman failed to comply with all MDOC's prison procedures and deadlines. Indeed, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones, 549 U.S. at 218-19; Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).

However, Defendants' argument fails because prison officials waive enforcement of these procedural rules when they instead consider a non-exhausted claim on its merits. Pramstaller, 603 F.3d at 325. Grievance URF-17-10-3195-12E3 was denied on the merits at Steps I, II, and III. (ECF No. 49-3, PageID.382-388.) Because MDOC denied Freeman's grievance on the merits, MDOC waived Defendants' procedure argument regarding Freeman's claim against Haske. For the reasons stated above, the undersigned concludes that Freeman properly exhausted his claim against Haske.

Regarding grievance URF-17-09-2753-12i, no claim against Haske in this grievance is exhausted. In this grievance, Freeman fails to complain about Haske. (ECF No. 49-3, PageID.394-400.) He complains about several other MDOC employees, but not Haske. (Id.) Although the PLRA does not impose a "name all defendants requirement" when prisoners file their initial grievances, the administrative review process is designed to "allow[] a prison to address complaints about the program it administers before being subjected to suit." Bock, 549 U.S. at 217, 219. As such, MDOC was denied the opportunity to respond to any complaint against Haske if Freeman intended present the complaint in grievance URF-17-09- 2753-12i. The undersigned respectfully recommends that the Court find that any claim against Haske contained in grievance URF-17-09-2753-12i is not properly exhausted and should be dismissed.

C. Proper Exhaustion of Claims Against Staine

Freeman properly exhausted his Eighth Amendment deliberate indifference claim against Staine. Freeman again directs the Court's attention to grievances URF-17-10-3195-12E3 and URF-17-09-2753-12i as evidence of the exhaustion. (ECF No. 57-1, PageID.456-457.) Shown below, are excerpts from grievance URF-17-10-3195-12E3 at Step I (ECF No. 49-3, PageID.385) and grievance URF-17-09-2753-12i at Step I (ECF No. 49-3, PageID.397) and Step III (ECF No. 49-3, PageID.400) where Freeman complains about Staine.

Excerpt from grievance URF-17-10-3195-12E3 at Step I

(ECF No. 49-3 , PageID.385)

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Excerpt from grievance URF-17-09-2753-12i at Step I

(ECF No. 49-3 , PageID.397)

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Excerpt from grievance URF-17-09-2753-12i at Step II

(ECF No. 49-3 , PageID.400)

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Nevertheless, Defendants again argue that Freeman failed to properly exhaust his Eighth Amendment deliberate indifference claim against Staine because Freeman "did not state how Freeman attempted to resolve [his complaints in] the grievance with" Staine. (ECF No.49, PageID.365.) Defendants' argument fails, as it did with Haske, because MDOC waived their procedure argument when MDOC denied both grievances on the merits at Steps I, II, and III. (ECF No. 49-3, PageID.382-388, 394-400.)

For the above reasons, the undersigned concludes that Freeman properly exhausted his Eighth Amendment deliberate indifference claim against Staine.

VII. Recommendation

The undersigned respectfully recommends that this Court (1) grant Defendants' motion for summary judgment as to Defendant Brown and deny as to Defendants Haske and Staine, and (2) dismiss Freeman's Eighth Amendment deliberate indifference claim against Brown without prejudice. If the Court accepts this recommendation, Freeman's Eighth Amendment deliberate indifference claims against Haske, Staine, Headley, and Merling will remain.

The remaining claims - including the claims against non-MDOC employees - are summarized in the chart below.

/s/_________

MAARTEN VERMAAT

U. S. MAGISTRATE JUDGE

NOTICE TO PARTIES

Any objections to this Report and Recommendation must be filed and served within fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 20 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).