Opinion
Case No. 00-CV-10263-BC
December 27, 2001
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION AND GRANTING DEFENDANTS' MOTION TO DISMISS
This matter is before the Court on the report and recommendation of the Magistrate Judge that the defendants' motion be granted, and this case dismissed. The matter was referred to Magistrate Judge Charles E. Binder for full case management by this Court's predecessor. The defendants filed a motion to dismiss or for summary judgment, asserting, among other things, that the plaintiff's case was subject to dismissal for failure to demonstrate exhaustion of administrative remedies. Because the Magistrate Judge correctly determined the applicable law and correctly applied it to the allegations of the plaintiff's complaint, the Report and Recommendation will be adopted, and the plaintiff's complaint will be dismissed.
I.
On July 27, 2000, the plaintiff filed a pro se prisoner civil rights complaint under 421 U.S.C. § 1983. The plaintiff is a prisoner in the custody of the Michigan Department of Corrections who was transferred in February of 1999 from the Standish Maximum Correctional Facility ("SMF") to the Ionia Maximum Correctional Facility ("ICF").
In his complaint, the plaintiff complains that he was transferred without notice and was unable to fully pack his legal and personal belongings prior to the transfer. He claims never to have received his personal property, which he values at $3,500. The plaintiff claims that the defendants have committed a variety of offenses, including "unlawful mail theft, fraud, grand theft of property, conspiracy and the denial of access to the courts," among other wrongs. Compl. at 2.
After the Magistrate Judge granted the plaintiff's motion to amend his complaint, the defendants subsequently filed a motion to dismiss or for summary judgment on October 2, 2000, accompanied by several affidavits. Among various other arguments on the merits, the defendants claimed that the plaintiff failed to affirmatively demonstrate exhaustion of the internal MDOC administrative remedies.
II.
Current federal law states that before any prisoner may file a civil rights suit challenging prison conditions, he must exhaust all internal administrative remedies. See 42 U.S.C. § 1997e(a). A prisoner's failure to affirmatively demonstrate exhaustion of internal remedies is grounds for automatic dismissal. See Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998). The internal administrative procedures must be followed even if they do not offer the precise relief that the prisoner seeks. See Booth v. Churner, 121 S.Ct. 1819, 1825 (2001). Dismissal without prejudice is required even if the time for filing the required grievance has expired. See Wright v. Morris, 111 F.3d 413, 417 n. 3 (6th Cir. 1997). A prisoner cannot abandon the grievance process before completion and then claim to have exhausted administrative remedies. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999).
The Magistrate Judge correctly explained that the MDOC has a multi-step grievance in process in place. Each step has a time limit that can be waived with good cause. First, within two business days, the prisoner must attempt to verbally resolve the dispute with those involved. If that fails, the inmate then must submit a Step I grievance within five days. The prison staff is required to respond within fifteen days. If the inmate is dissatisfied with the response, he may request a Step II appeal form within five days, and then has five additional days to submit it. If an inmate is dissatisfied with the result at Step II, he has ten business days to appeal to Step III, which concludes the grievance process. See generally MDOC Policy Directive 03.02.130.
III.
The defendant does not object to the recitation of facts in the Magistrate Judge's report and recommendation, and they need not be repeated in detail here. The plaintiff was transferred from SMF to ICF, and he claims his property was not passed along to him. The sole issue here is whether the plaintiff properly exhausted the MDOC grievance process.
The Magistrate Judge correctly found that the plaintiff abandoned the grievance process after Step I. Instead, the plaintiff, six months later, sent a series of "direct grievances" to Lansing, Michigan, claiming he had never received his property. After nine months had passed since the initial Step I grievance was filed, the plaintiff finally requested a Step II request form and copies of his initial grievance and his subsequent "direct grievances." This time period far exceeds the five days permitted by MDOC regulations, and constitutes failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
The plaintiff objects to the Magistrate Judge's recommendation of dismissal without prejudice, but says only that "he never received the return of his grievance" and that "the grievance was timely." The plaintiff's allegations are insufficient. The defendants demonstrated that the Step I grievance was answered by the SMF grievance coordinator, who informed the plaintiff that his materials had been placed in the mail. The plaintiff does not explain what he means by his statement that "he never received the return of his grievance." Even if this is true, the plaintiff's remedy was to file a Step II grievance, not to sit on his rights for several months. The plaintiff's further, unverified assertion that his grievance was timely is contradicted by the evidence the defendants attached to their summary judgment motion.
In any event, the plaintiff has clearly failed in his duty to provide affirmative evidence of exhaustion along with his complaint. It is the duty of the plaintiff not the defendants, to demonstrate exhaustion in the first instance. See Curry v. Scott, 249 F.3d 493 (6th Cir. 2001) (affirming dismissal prisoner-plaintiff's claims for failure to attach proof of exhaustion to the complaint, even though the prisoner had in fact exhausted his internal remedies). As a result, the plaintiff's complaint is not properly before the Court, and will be dismissed without prejudice.
IV.
The Magistrate Judge correctly found that the plaintiff failed affirmatively to demonstrate exhaustion of his administrative remedies within the MDOC grievance system. The plaintiff's objections fail to prove otherwise, and the plaintiff's complaint, which lacks attachments indicating exhaustion, speaks for itself. The plaintiff's complaint must be dismissed.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation [dkt #64] is ADOPTED.
It is FURTHER ORDERED that the defendants' Motion for Dismissal or Motion for Summary Judgment [dkt. #26] is GRANTED and that the plaintiff's complaint is DISMISSED WITHOUT PREJUDICE.
It is FURTHER ORDERED that the plaintiff's remaining motions, including but not limited to his Motion to File Response to Motion for Summary Judgment [dkt #41], Motion to Recuse Magistrate Judge Binder for Bias and Prejudice [dkt #43], Motion of Verification of Receivership [dkt #47], Motion to Extend Time [dkt #48-1], Motion to File Response to Motion for Summary Judgment [dkt #48-2], Motion for Preliminary Injunction [dkt #55], and his Motion to Allow Service by Mail and Dispense with Requirement of Security [dkt #56] are all DISMISSED AS MOOT.