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holding that the plaintiff's generalized statements regarding his inability to access the grievance process were "insufficient to create a genuine dispute of material fact as to whether the grievance process was available to him"
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No. 16-2578
06-06-2017
MARVIN BELSER, Plaintiff-Appellant, v. BRENDA JAMES, Health Care Unit Manager; JOHN AUSTIN; ANGELA ROSE, Nurse Practitioner; STEVE MLIKO; GLENN CARON, Grievance Coordinator; ROBERT NAPEL, Warden, Defendants-Appellees, and ERICA HUSS, Deputy Warden; K. GIESEN, Defendants.
Deborah S. Hunt Clerk Mr. Marvin Belser
Carson City Correctional Facility
10274 Boyer Road
Carson City, MI 48811 Re: Case No. 16-2578, Marvin Belser v. Brenda James, et al
Originating Case No. : 2:15-cv-00199 Dear Sir,
The Court issued the enclosed (Order/Opinion) today in this case.
Sincerely yours,
s/Roy G. Ford
Case Manager
Direct Dial No. 513-564-7016 cc: Mr. Ronald W. Chapman Sr.
Mr. Thomas Dorwin
Mr. James Erwin Long Enclosure Mandate to issue NOT RECOMMENDED FOR FULL-TEXT PUBLICATION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
ORDER
Before: COLE, Chief Judge; GUY and GILMAN, Circuit Judges.
Marvin Belser, a pro se Michigan prisoner, appeals the district court's order and judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).
In December 2015, Belser filed a complaint against several Michigan Department of Corrections ("MDOC") Marquette Branch Prison ("MBP") staff members. Belser alleged that, after his October 7, 2014 transfer to MBP from the MDOC's Saginaw Correctional Facility ("SRF"), the defendants deprived him of his wheelchair and other medical accommodations, in violation of his rights under the First and Eighth Amendments. Upon initial screening under the Prison Litigation Reform Act ("PLRA"), the district court allowed Belser to proceed with his claims against MBP Healthcare Unit Manager Brenda James, Dr. John Austin, Nurse Practitioner Angela Rose, Licensed Practical Nurse Steve Mliko, Grievance Coordinator Glenn Caron, and Warden Robert Napel. In July 2016, the defendants moved for summary judgment based on Belser's failure to exhaust his administrative remedies. In August 2016, the magistrate judge entered a report recommending that the defendants' motions be granted. On October 27, 2016, the district court overruled Belser's objections to the report and recommendation, adopted the report and recommendation, and dismissed Belser's action. The district court later granted Belser leave to proceed in forma pauperis on appeal.
On appeal, Belser argues that the administrative process was not available to him because he was prevented from filing grievances.
We review de novo a district court's dismissal of a prisoner's suit for failure to exhaust administrative remedies. Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011). Failure to exhaust administrative remedies is an affirmative defense under the PLRA, which the defendants bear the burden of establishing. Napier v. Laurel Cty., 636 F.3d 218, 225 (6th Cir. 2011). Summary judgment is appropriate in this context only if the defendants "establish the absence of a 'genuine dispute as to any material fact' regarding non-exhaustion." Risher, 639 F.3d at 240 (quoting Fed. R. Civ. P. 56(a)). "A fact is material if it 'might affect the outcome of the suit under the governing law[,]' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), cert. denied, 137 S. Ct. 1229 (2017). When ruling on a motion for summary judgment, we consider the evidence "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)).
To satisfy the PLRA's exhaustion requirement, 42 U.S.C. § 1997e(a), a prisoner must "complete the administrative review process in accordance with the applicable procedural rules." Woodford v. Ngo, 548 U.S. 81, 88 (2006). A Michigan prisoner exhausts his administrative remedies by timely proceeding through a three-step process. MDOC Policy Directive 03.02.130. At Step I, a prisoner must "attempt to resolve the issue with the staff member involved within two business days" and, if unsuccessful, may file a grievance within five business days. Id., ¶ P. At Step II, a prisoner may appeal the denial of the grievance to the warden or other appropriate official. Id., ¶¶ BB, DD. At Step III, a prisoner may appeal the warden's decision to the MDOC's Grievance and Appeals Section. Id., ¶ FF. If there is no timely response at Step I or II, the prisoner "may forward the grievance to the next step of the grievance process within ten business days after the response deadline expired." Id., ¶ T. An inmate must follow the grievance procedure to its conclusion—a resolution of a Step III appeal—prior to filing a civil suit. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Belser filed only one Step III grievance appeal during his confinement at MBP: MBP-14-08-1346-28a. However, this grievance addressed alleged deprivations that occurred before his October 7, 2014 transfer from SRF to MBP. Therefore, this grievance did not exhaust Belser's administrative remedies as to his claims against the defendants.
Belser does not contest this point, but argues that the administrative process was not available to him because he was prevented from filing grievances at MBP. "[W]hen prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation . . ., such interference with an inmate's pursuit of relief renders the administrative process unavailable." Ross v. Blake, 136 S. Ct. 1850, 1860 (2016). Under such circumstances, "§ 1997e(a) poses no bar." Id.
In his complaint, Belser alleged that he sent several grievances to Caron, including MBP-14-10-1807-12D1, but that Caron "would not process none of the grievances" and "came to [Belser's] cell and told [him] to sign off on the grievance and that nothing was going to be done." In his response to the defendant's summary-judgment motions, Belser further alleged that "Caron would not process or give an identifier number for some of the grievances" and "none of [Belser's] grievances made it to Step II [because] they were lost, and there was no response from the [grievance coordinator] even after the plaintiff sent several kites."
Each of Belser's pleadings was signed under penalty of perjury, and is therefore "sufficient to qualify as an affidavit for the purposes of summary judgment." Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992). However, Belser's generalized statements are insufficient to create a genuine dispute of material fact as to whether the administrative process was available to him at MBP. See Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); Arbuckle v. Bouchard, 92 F. App'x 289, 291 (6th Cir. 2004) ("[Plaintiff]'s bald assertion that [the grievance coordinator] refused to give him grievance forms is not enough to excuse the complete absence of evidence that he attempted to exhaust his administrative remedies for the many claims he raised in his district court complaint."); see also Stine v. State Farm Fire & Cas. Co., 428 F. App'x 549, 550 (6th Cir. 2011) ("[A] conclusory affidavit bypasses the specific-facts requirement of Federal Rule of Civil Procedure 56 necessary to forestalling summary judgment.").
Finally, in his objections to the magistrate judge's report and recommendation, Belser averred that he was unable to "attempt to resolve the issue with the staff member involved," MDOC Policy Directive 03.02.130, ¶ P, because he cannot communicate orally. However, there is no requirement that a prisoner "attempt to resolve the issue" orally, rather than in writing. See id.
For these reasons, we AFFIRM the district court's judgment.
ENTERED BY ORDER OF THE COURT
/s/_________
Deborah S. Hunt, Clerk