Opinion
2:22-cv-54
06-28-2021
MYRON JESSIE, #701078, Plaintiff, v. MARK HARRIS, et al, Defendants.
Hon. Paul L. Maloney U.S. District Judge
REPORT AND RECOMMENDATION
MAARTEN VERMAAT U.S. MAGISTRATE JUDGE
I. Introduction
This Report and Recommendation (R&R) addresses the exhaustion-based motion for summary judgment filed by Defendants Harris and Hares (ECF No. 34).
Plaintiff - state prisoner Myron Jessie - filed suit pursuant to 42 U.S.C. § 1983 on March 16, 2022. In his verified complaint, Jessie asserted that while he was incarcerated at the Marquette Branch Prison (MBP) in Marquette, Michigan, members of his mental health team violated his rights under the Eighth Amendment as well as various state laws and policies of the Michigan Department of Corrections (MDOC). (ECF No. 1, PageID.11-13.) More specifically, Jessie alleged that Defendants Qualified Mental Health Professional (QMHP) Harris, Community Health Services Manager (CHSM) Hares, and Psychiatrist Beaudoin provided him with inadequate mental health care, and that QMHP Harris sexually harassed him. (ECF No. 1, PageID.3-8.)
Including negligence, intentional infliction of emotional distress, medical malpractice, and violations of the Mental Health Code Act 258 of 1974.
In its October 3, 2022 screening opinion, the Court dismissed all but the following claims: (1) Jessie's Eighth Amendment claims against Defendant Harris for verbally and sexually harassing Jessie, (2) Jessie's Eighth Amendment claims against Defendants for providing him with inadequate mental health care, and (3) Jessie's state law claims against Defendants.
Defendants Harris and Hares now move for summary judgment, asserting that Jessie did not properly exhaust his administrative remedies prior to filing suit. (ECF No. 34.) More specifically, QMHP Harris and CHSM Hares argue that Jessie had to exhaust his sexual harassment claim against QMHP Harris through the MDOC's Prison Rape Elimination Act (PREA) grievance process, and that he did not. (ECF No. 35, PageID.196.) They further argue that Jessie had to pursue his claims of inadequate mental health care through the traditional grievance process, and that he did not. (Id.) Defendants say that although Jessie filed grievances against them, the grievances were either rejected as improper, or were not appealed through all steps of the relevant grievance process. (Id., PageID.196-199.)
The undersigned respectfully recommends that the Court deny Defendants' motion for summary judgment. The record reflects that Jessie submitted grievance MBP-21-05-472-12B3 complaining that Harris and Hares were providing him with inadequate mental health care, and that Harris was sexually harassing him. The grievance was rejected at Step I as containing multiple issues, although the Respondent considered the merits of each issue and noted that “each issue is unsubstantiated and would be denied if filed individually.” In addressing Jessie's Step II appeal, the Respondent denied the grievance on its merits. Then, in addressing Jessie's Step III appeal, the Respondent rejected the grievance due to a newly cited but pre-existing defect: that there was no evidence that Jessie attempted to resolve his complaints in accordance with policy prior to filing his grievance. In the opinion of the undersigned, there are genuine issues of material fact as to whether prison staff waived the procedural defects in grievance MBP-21-05-472-12B3 and whether grievance MBP-21-05-472-12B3 was properly rejected at Steps I and III.
II. Factual Allegations
Jessie says that he first started seeing QMHP Harris in late summer of 2017. (ECF No. 1, PageID.4.) During a group meeting, Harris asked if anyone had anything to share or any questions to ask. Jessie says that when he started talking about his treatment, Harris “shut him down” and said that he did not care. Jessie says that he blacked out and kicked a chair, leading QMHP Harris to issue Jessie a misconduct ticket. (Id.) Thus began Jessie's attempts to get Harris to take Jessie and his mental health seriously as well as Harris's pattern of disregard for Jessie's mental health needs.
At some point before May 20, 2020, Jessie says that he politely asked QMHP Harris to remove himself from Jessie's case because Jessie believed that Harris was deliberately indifferent to his needs. (Id., PageID.5.) Jessie says that Harris refused to believe the majority of what Jessie told Harris during their appointments, which led Jessie to become suicidal. (Id.)
On May 20, 2020, Jessie says that he was meeting with QMHP Harris and CHSM Hares when Harris waited until Hares was out of earshot and then called Jessie a crybaby and told Jessie that if he needed favors going forward, Jessie would have to perform oral sex on Harris. (Id.) Jessie believes that Harris made this statement because Jessie had previously informed Harris that he is bisexual.
Jessie says that he tried to tell CHSM Hares about Harris's remarks later on, but Hares dismissed Jessie's claim as a lie. Jessie says that this caused him to experience a “downward spiral.” (Id.)
According to Jessie, other inmates began to taunt and tease him for his sexuality, again leading him to become suicidal. He says that he began blacking out and attempting suicide during those blackouts. (Id.) Jessie says that he had voices in his head that became louder and more persistent, telling him to hurt himself and others. On at least one occasion, Jessie says that he was sent to the emergency room for a blood transfusion following a suicide attempt. (Id., PageID.6.) Even still, Jessie says that he received essentially no treatment from QMHP Harris. (Id.) And Jessie alleges that CHSM Hares went so far as to forge documents related to assessments of Jessie that never occurred. (Id., PageID.8.)
In addition to his complaints against Harris and Hares, Jessie says that his psychiatrist, Defendant Dr. Beaudoin, failed to diagnose Jessie with a major mental disorder. (Id., PageID.7.) Jessie says that the diagnosis would have made him eligible for certain treatments and programs, so that Jessie could experience a more therapeutic environment. (Id.)
III. 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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
If defendants move for summary judgment on the basis of exhaustion under the PLRA, and the court determines that there is a genuine issue of material fact, the issue need not be submitted to a jury. Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). Instead, the court may conduct a bench trial to resolve the issue. (Id.) In a bench trial on exhaustion, the defendants must show that the plaintiff failed to exhaust his administrative remedies by a preponderance of the evidence. Id. at 677 (citing Jones v. Bock, 549 U.S. 199, 218 (2007)) (“Failure to exhaust administrative remedies is an affirmative defense, which the defendant has the burden to plead and prove by a preponderance of the evidence.”); Richards v. Perttu, No. 2:20-CV-76, 2022 WL 842654, at *1 (W.D. Mich. Mar. 22, 2022) (affirming a magistrate judge's ruling that the preponderance of the evidence standard applies in a bench trial on exhaustion).
IV. Exhaustion
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).
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). “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.'” Jones, 549 U.S. at 218-19. In rare circumstances, the grievance process 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 process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 644 (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, 1:07-cv-004, 2007 WL 3244075, *5 (W.D. Mich., Nov. 1, 2007).
Michigan Dept. of Corrections (MDOC) Policy Directive 03.02.130 (effective March 18, 2019) sets forth the applicable grievance procedures for prisoners in MDOC custody at the time relevant to this complaint. Inmates must first attempt to informally resolve a grievable issue within two business days of becoming aware of the issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If informal resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted informal resolution. Id. at ¶¶ Q, W. The inmate submits the grievance to a designated Grievance Coordinator, who assigns it to a respondent. Id. at ¶ W. The Policy Directive also provides the following directions for completing grievance forms: “The issues should be stated briefly but concisely. Information provided is to be limited to the facts involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places and names of all those involved in the issue being grieved are to be included.” Id. at ¶ S (emphasis in original).
If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten business days of the response, or if no response was received, within ten days after the response was due. MDOC Policy Directive 03.02.130 at ¶¶ U, DD. The respondent at Step II is designated by the policy, e.g., the regional health administrator for medical care grievances. Id. at ¶ FF.
If the inmate is still dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at ¶¶ U, HH. The Step III form shall be sent within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ II.
When the grievance procedures are not available because the issue presented is non-grievable, exhausting those 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 Fed.Appx. 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, when other administrative remedies are available, the prisoner is required to exhaust those remedies prior to filing a federal lawsuit.
One alternative administrative remedy that a prisoner may be required to pursue in order to exhaust his claims is the PREA grievance process set forth in MDOC Policy Directive 03.03.140 (effective Apr. 24, 2017, superseded Apr. 5, 2021).
At least, prior to the MDOC doing away with the PREA grievance process in April of 2021. See Policy Directive 03.03.140 ¶ V (effective Apr. 5, 2021).
The PREA grievance process “is a two-step process allowing prisoners to grieve regarding allegations of sexual abuse.” Id. at ¶ EE. To exhaust the PREA grievance process, a prisoner must file a PREA Prisoner Grievance Form (CAJ-1038A). Id. at ¶ FF. If the prisoner receives an unfavorable response, he must then appeal the response to Step II of the process. Id. at ¶ LL. Only PREA grievances appealed through Step II of the PREA grievance process are considered exhausted. Id. at ¶ EE.
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 MDOC PD 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.Mattox v. Edelman, 851 F.3d 583, 590-91 (6th Cir. 2017).
In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim “where he notifies the relevant prison . . . staff” regarding the specific factual claim “giving the prison staff a fair chance to remedy a prisoner's complaints.” Id. at 596. For example, grieving a doctor about his failure to give cardiac catheterization failed to grieve the claim that the doctor erred by not prescribing Ranexa.
V. Analysis
As set forth above, Defendants assert that Jessie was required to exhaust his Eighth Amendment sexual harassment claim against QMHP Hares through the MDOC's PREA grievance process, and his Eighth Amendment deliberate indifference claims through the MDOC's non-PREA grievance process. (ECF No. 35, PageID.197.) Defendants say that Jessie either failed to appeal his grievances through all steps of the relevant process, or that his grievances were rejected as improper in accordance with MDOC policy. (Id., PageID.197-199.) Jessie responded, seemingly referring back to his complaint for his argument regarding exhaustion. (ECF No. 40, PageID.295 (“I, Myron Jessie #701078, am asking/respectfully requesting your Honorable Court to deny Defendants['] motion for Summary Judgment because Defendants motion was redundant and moot as before listing reasons that were already stressed.”).)
In his complaint, Jessie alleged that he exhausted his claims against Defendants Harris and Hares via the following grievances: (1) grievance MBP-20-05-33060-PREA, (2) grievance MBP-21-05-472-12B3, (3) grievance MBP-21-03-320-12B3, (4) grievance MBP-21-10-1362-7Z. (ECF No. 1, PageID.8-11.) The contents of those grievances and their dispositions at each step of the grievance process are summarized in the table below:
| Grievance No. | Defendants Named | Allegation | Step I Response | Step II Response | Step III Response |
| MBP-20-05- 33060-PREA (ECF No. 1-2, PageID.24-25.) | Harris | At the end of Jessie's meeting with Harris and Hares on May 12, 2020, Harris waited until Hares was out of earshot, called Jessie a crybaby and told Jessie that if he needed favors in the future, Jessie would have perform oral sex on Harris. | Insufficient evidence of sexual abuse or harassment. | N/A No Step II appeal. | N/A |
| MBP-21-05- 472-12B3 (ECF No. 35-3, PageID.239- 243.) | Harris and Hares | QMHP Harris has been providing inadequate mental health care. On April 28, 2021 and April 30, 2021, Jessie tried to get CHMS Hares to change Jessie's provider, but Hares only set up a meeting with Harris and Jessie. After the meeting QMHP Harris told Jessie that if he needed any favors in the future he would have to perform oral sex on Harris. Other inmates overheard and made fun of Jessie. This event is part of a pattern of deliberate indifference by Harris and Hares. | Rejected for including multiple issues. | Denied. | Rejected for failing to attempt to resolve the issue with staff before filing a grievance. |
| MBP-21-03- 320-12B3 (Id., PageID.253- 256.) | Harris and Hares | On January 13, 2021, Jessie attempted suicide by cutting an artery. He was sent to Marquette General Hospital and was ultimately charged $3,913,79 for medical care. QMHP Harris was deliberately indifferent when he failed to evaluate Jessie as mentally ill at the time of the attempt despite Jessie's history of blacking out and attempting suicide. As a result, Jessie is stuck with unreasonable hospital bills. | Rejected as duplicative of MBP-21- 03-321-13B3. | Rejected as untimely. | Step II rejection upheld. |
| MBP-21-10- 1362-7Z (Id., PageID.232- 235.) | Hares | Jessie's misconduct hearing investigator never completed a misconduct sanction screening form with Jessie. CHSM Hares signed off on a misconduct sanction assessment without the screening form. This violated Jessie's due process rights and the Mental Health Rights Act Code 258 of 1974. It also constitutes deliberate indifference and neglect. | Denied. | Denied. | Denied |
The undersigned agrees with Defendants' position that there are no genuine issues of material fact with respect to grievances three of the four grievances listed above - MBP-20-05-330-6D-PREA, MBP-21-03-320-12B3, and MBP-21-10-1362-7Z -and that these grievances did not exhaust Jessie's claims against Defendants Harris and Hares.
First, although Jessie claims to have exhausted his sexual harassment claim against QMHP Harris through MBP-20-05-33060-PREA, Jessie does not allege, and the record does not reflect, that Jessie appealed MBP-20-05-33060-PREA through Step II of the PREA grievance process. (See ECF No. 35-6 (Affidavit of MBP Litigation Coordinator Jennifer Farley).) At the time, MDOC Policy Directive 03.03.140 ¶ EE specifically required prisoners to appeal unfavorable responses through Step II of the PREA grievance process in order to exhaust their claims. As such, MBP-20-05-33060-PREA did not serve to exhaust the PREA grievance process.
Second, turning to MBP-21-03-320-12B3, the undersigned reiterates that a prisoner must properly exhaust his administrative remedies, meaning that he must exhaust his administrative remedies in accordance with the MDOC's procedural rules. Jones, 549 U.S. at 218-19. Grievance MBP-21-03-320-12B3 was rejected at Steps II and III because Jessie did not appeal the Step I grievance response within the time provided by MDOC Policy Directive 03.02.130. There are no genuine issues of fact as to whether Jessie in fact appealed grievance MBP-21-03-320-12B3 in a timely manner. As such, MBP-21-03-320-12B3 did not serve to exhaust the MDOC's grievance process.
Third, turning to grievance MBP-21-10-1362-7Z, the undersigned acknowledges that the grievance was considered on its merits and denied at all three steps of the grievance process. Therefore, grievance MBP-21-10-1362-7Z served to exhaust the grievance process. However, it did not relate to Jessie's present claims. Grievance MBP-21-10-1362-7Z reads as follows:
H/I Hemmila never completed a Misconduct Sanction Screening form in my presence, a pre-requisite before a Misconduct Sanction Assessment is completed by a QMHP. Mr. Hares the unit chief who isn't even my case manger signed the Sanction Assessment form CSJ-331 with no screening to build off of. This was a manipulation of the assessment and screening process. I was never interviewed. I just received a screening form in the inst. mail that was blank in the Q and A section accompanied by a signature from Hemmila and another form CSJ-331 accompanied by a signature from Hares. This violates my due process, a violation of the Mental Health Rights Act Code 258 of 1974. This is also neglect and deliberate indifference which I should be protected from per the Mental Health Rights Act Code 258 of 1974. I'd like H/I Hemmila be made [sic] to produce his copy of the CSJ-331 form that I was supposed to be screened with for evidence to substantiate my claim. And for Mr. Hares to be made to answer-what documents motivated his assessment absent of a proper screening?(ECF No. 35-3, PageID.234.)
In the opinion of the undersigned, MBP-2.1-10-1362-7Z did not put the MDOC on notice of Jessie's claim that Defendants Harris and Hares provided Jessie with inadequate mental health care in deliberate indifference to his serious mental health needs, or that Harris sexually harassed Jessie. Although Jessie uses the term “deliberate indifference” in this grievance, his complaint is that Hares completed a Misconduct Sanction Assessment without receiving a Misconduct Sanction Screening Form from a non-defendant hearings investigator. The grievance says nothing of Jessie's mental health treatment or lack thereof.
Although it is the undersigned's opinion that there are no genuine issues of material fact with respect to the aforementioned grievances, and that they did not serve to exhaust Jessie's claims, grievance MBP-21-05-472-12B3 is a different story. That grievance reads as follows:
Since I've come to MBP I've been perturbed by the level of treatment I've received from my QMHP Mr. Harris so I've been writing grievances on the matter and trying to appeal to the Unit Chief several times (the last dates being 4-28-21 and 4-30-21) to swap or switch me to another caseload because of the mental anguish that was being caused by Mr. Harris'[s] deliberate indifference and sexual inuendos [sic], that it aided in my wanting to kill myself (which as a result I've tried) and increased the times when I hear voices (I hear them the most when I have feelings of hopelessness). The only thing Mr. Hares has done was mediating a meeting between me and my QMHP to find a solution. At the first meeting Hares stated that he didn't believe me on the allegations against psych Harris and when he left and was out of earshot he told me (Harris that is) I was a crybaby and that if I needed any favors in the future I'd have to eat his penis for it. He said it out loud and I got teased by my peer until I tried to end my life. I told Mr. Hares and he said I was lying. My reason for bringing that up is solely to list a pattern of deliberate indifference and not to grieve about the first meeting Hares mediated, but to grieve the fact that after I once again explained the course of past events up to current events, Mr. Hares did nothing, even called me a liar to my face 4-30-21, during yet another mediated meeting including me, Harris, and Hares, once again leaving me distraught. I, at this meeting, told Harris [sic] that Mr. Harris told me that he doesn't believe I hear voices, cell[-]side, while on observation for a self-inflict[ed] injury suicide attempt. I explained that I no longer trust Harris because
he's bias[ed] and partial to my woes and condition as mentally ill and he refuses to put me on someone else's caseload so I can receive the treatment I deserve. For this reason I apply the deliberate indifference standard. According to the Mental Health Code Public Act 258 of 1974: 330.1722 sec.722(1) A recipient of mental health services shall not be subject to abuse or “neglect.” 333.1713 sec. 713 states that a recipient shall be given a choice of physician or other mental health professional in accordance with the policies of the community mental health service program, licensed hospital, or service provider under contact with the community mental health service program. I let Hares know 4-30-21 that I'm sure I'll successfully kill myself at some point if I'm forced to endure sexual advances and neglect. I'm afraid of retaliation from this grievance.(ECF No. 35-3, PageID.241.) The Step I, Step II, and Step III responses to grievance MBP-21-05-472-12B3 are shown below:
(Image Omitted)
(Id., PageID.243.)
(Image Omitted)
(Id., PageID.240.)
(Image Omitted)
(Id., PageID.238.)
Defendants argue that there are no genuine issues of material fact and that this grievance did not properly exhaust the MDOC's grievance process because it was rejected at Steps I and III. (ECF No. 35, PageID.198.) Furthermore, Defendants posit that Jessie could only exhaust his sexual harassment claim through the PREA grievance process. (Id., PageID.197.) The undersigned disagrees.
Turning first to the issue of “proper exhaustion,” the undersigned finds that there are genuine issues of material fact bearing on whether the MDOC waived the procedural defects in grievance MBP-21-05-472-12B3. As explained above, prison officials waive enforcement of their procedural rules when they consider the merits of a grievance despite its defects. Reed-Bey, 603 F.3d at 325. Although grievance MBP-21-05-472-12B3 was rejected because it contained multiple issues at Step I, it was denied on its merits at Step II. A reasonable finder of fact could determine that this merits-based decision waived any pre-existing procedural defects. See Raper v. Controneo, 2018 WL 2928188, at *3 (W.D. Mich., June 12, 2018) (finding that a grievance rejected for the first time at Step III based on a pre-existing procedural defect exhausted the claims stated within); McBride v. Canlas, No. 2:20-CV-212, 2021 WL 5332408 (W.D. Mich. Oct. 8, 2021) (same), R&R adopted, No. 2:20-CV-212, 2021 WL 5323769 (W.D. Mich. Nov. 16, 2021); Sedore v. Greiner, 2020 WL 8837441, at *7 (E.D. Mich. Sept. 21, 2020) (“As a matter of policy, it would be unfair to allow prison officials to address the merits of a prisoner's grievance, but then reject the grievance for a procedural error that existed throughout the process at the final step, where the prison official has the last word.”).
It is also worth noting that despite the fact that grievance MBP-21-05-472-12B3 was rejected at Step I, the Step I Respondent clearly determined that Jessie's complaints lacked merit.
Including Jessie's failure to attempt resolution of his claims prior to filing the grievance, which served as the basis for the Step III rejection of grievance MBP-21-05-472-12B3.
Moreover, there are genuine issues of material fact as to whether Jessie's grievance was properly rejected at Steps I and III. Although grievance MBP-21-05-472-12B3 was rejected because it contained multiple issues, MDOC Policy Directive 03.02.130 does not prohibit prisoners from filing grievances concerning multiple issues. Instead, it prohibits prisoners from filing grievances concerning multiple unrelated issues. MDOC Policy Directive 03.02.130 ¶ J(1). See McDuff v. Addis, No. 1:17-CV-912, 2018 WL 3239491, at *3-4 (W.D. Mich. July 3, 2018) (finding that a grievance complaining about four related events was improperly rejected as concerning multiple unrelated issues).
In the opinion of the undersigned, a reasonable finder of fact could determine that to the extent grievance MBP-21-05-472-12B3 contained multiple issues, those issues were related, and the Step I rejection was therefore improper. See Wilson v. Taskila, No. 2:21-CV-236, 2022 WL 16745768, at *5 (W.D. Mich. Sept. 20, 2022) (citing McDuff, 2018 WL 3239491, at *4) (“[W]hen the MDOC improperly rejects a grievance as concerning multiple unrelated issues, it renders the grievance process unavailable with respect to the claims therein.”), R&R adopted, No. 2:21-CV-236, 2022 WL 16744819 (W.D. Mich. Nov. 7, 2022).
Similarly, grievance MBP-21-05-472-12B3 was rejected at Step III of the grievance process because the Respondent could not locate a “written attempt to resolve [Jessie's] issue through a Health Care Request (CHJ-549)/Prisoner Kite.” The portion of grievance MBP-21-05-472-12B3 addressing Jessie's attempts to resolve his complaint prior to filing MBP-21-05-472-12B3 is shown below.
(Image Omitted)
(ECF No. 35-3, PageID.241.) While Jessie said that he had written kites on the issue, he also implied that he had spoken with Hares and Harris about the matters contained in his grievance. MDOC Policy Directive 03.02.130 ¶ Q provides that: “Prior to submitting a written grievance, the grievant shall attempt to resolve the issue with the staff member involved within two business days after becoming aware of a grievable issue.” Nowhere does the policy say that a prisoner must attempt to resolve the issue in writing or through a health care request. Accordingly, in the undersigned's opinion, a reasonable finder of fact could determine that the Step III rejection was improper.
Ultimately, the undersigned finds that there are genuine issues of material fact bearing on whether grievance MBP-21-05-472-12B3 exhausted the MDOC's grievance procedure with respect to his claims against Defendants Harris and Hares. This includes Jessie's claim that QMHP Harris sexually harassed him. Although Defendants argue that the PREA grievance process was the appropriate administrative remedy to exhaust Jessie's sexual harassment claim, MDOC Policy Directive 03.03.140 ¶ EE (effective Apr. 24, 2017, superseded Apr. 5, 2021) provides that the PREA grievance process “is a two-step process allowing prisoners to grieve regarding allegations of sexual abuse.” Id. at ¶ EE (emphasis added). And Policy Directive 03.03.140 repeatedly distinguishes between sexual abuse and sexual harassment. See id. at ¶¶ D-E, G, V. Indeed, when the MDOC updated the policy directive, it specified that: “Prisoners may utilize the prisoner grievance system in accordance with PD 03.02.130 ‘Prisoner/Parolee Grievances' to report allegations of sexual harassment or retaliation.” MDOC Policy Directive 03.03.140 ¶ WW (effective Apr. 5, 2021). Furthermore, it appears that both the Step I Respondent and the Step II Respondent to grievance MBP-21-05-472-12B3 specifically considered the merits of Jessie's claim that QMHP Harris had made sexually harassing comments to Jessie. (ECF No. 35-3, PageID.243 (“The only evidence of impropriety is what the inmate has alleged and is unsubstantiated.”); id., at PageID.240 (“The record does not support allegations of retaliation or unprofessional conduct.”).) Accordingly, the undersigned concludes that there are genuine issues of material fact precluding summary judgment as to all of Jessie's claims against Defendants Harris and Hares.
VI. Recommendation
The undersigned respectfully recommends that the Court deny Defendants' motion for summary judgment based on Jessie's failure to exhaust his administrative remedies. In the opinion of the undersigned, there are genuine issues of material fact bearing on whether grievance MBP-21-05-472-12B3 was sufficient to exhaust Jessie's deliberate indifference claims against Harris and Hares.
If the Court accepts this recommendation, all of Jessie's claims will remain.
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. 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).