Opinion
Case No(99-CV-76354-D formerly: 99-CV-60606-AA.
December 29, 2000.
OPINION AND ORDER
This pro se prisoner civil rights action arises of of plaintiff's claim that prison chaplain Edward Taylor violated his First Amendment rights. Plaintiff claims Taylor fired him from his position as a clerk at the chapel center on April 26, 1999 in alleged retaliation for (1) plaintiff disclosing to prison officials that Taylor had ordered the destruction of certain records, and (2) plaintiff's complaints that Taylor's operation of the chapel discriminated against non-Christians and that Taylor discriminated against him personally based on his Islam faith. Defendant filed a motion to dismiss on the grounds that plaintiff failed to fully exhaust his administrative remedies prior to filing suit as required by the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Plaintiff opposed the motion. The motion was referred to Magistrate Judge Goldman for a report and recommendation. Magistrate Judge Goldman issued a report recommending that the motion to dismiss be granted without prejudice for plaintiff's failure to exhaust his administrative remedies. Plaintiff timely filed objections to that report which this court has considered.
After careful review, this court finds that some of plaintiff's objections are well-founded and that the recommendation of the magistrate judge should be accepted in part and rejected in part. Four underlying grievances form the underlying basis for plaintiffs civil rights suit here against Taylor. Those grievances are: (1) ARF 99-03-008 — 0302-B dated March 24, 1999, (2) ARF 99-04-01155-17-Z dated April 21, 1999, (3) ARF 99-04-01154-02-G dated April 23, 1999, and (4) ARF 99-06-01565-17 — Z dated June 7, 1999. The court agrees with the magistrate judge that plaintiff failed to exhaust his administrative remedies with respect to the first two grievances filed, but disagrees with his recommendation that the court find plaintiff also failed to exhaust with respect to his third and fourth grievances filed on April 23, 1999 and June 7, 1999.
Michigan Department of Corrections (MDOC) regulations provide for a three-step procedure for administrative grievances, with Step I representing only the first phase of that three-part process. See MDOC Policy Directive 03.02.130. 42 U.S.C. § 1997e requires that a prisoner exhaust all of his available administrative remedies before filing a § 1983 suit in federal court. See Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir.), cert. denied, 525 U.S. 833 (1998). As discussed by Magistrate Judge Gold, plaintiff's claim that he need not exhaust administrative remedies because he alleges a violation of the First Amendment lacks merit. See Freeman v. Francis, 196 F.3d 641, 642-44 (6th Cir. 1999). Title 42, Section 1997e(a), as amended, provides: "No action shall be brought with respect to prison conditions under § 1983 of this title [i.e., 42], or any other Federal law, by a prisoner confronted in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Contrary to his arguments, his § 1983 claim arises out of his challenge of "prison conditions," namely, his termination from his prison employment. Thus, § 1997e(a) clearly requires that he exhaust his administrative remedies.
In his objections, plaintiff does not dispute that he failed to timely appeal the first two of his administrative grievances and he does not offer any compelling explanation for his failure to do so. As to the April 21, 1999 grievance, however, he contends that he exhausted his administrative remedies because he was satisfied with the response he received from prison officials to his Step I complaint on May 11, 1999. In that Step I grievance, plaintiff complained that the chaplain provided additional services to Christians that were not available to worshipers of other major faiths such as Judaism and Islam. The MDOC responded to his Step I complaint on May 11, 1999, stating, "Services for all religions/faiths will be conducted fairly and equally. There will be no special privileges for any particular denomination." Plaintiff now asserts that he was satisfied with the results of his Step I grievance 99-04-01155-17-Z filed on April 21, 1999, and thus, that he satisfied the exhaustion requirement although he did not bring a Step II or Step III grievance. This argument fails. A prisoner's alleged satisfaction with a Step I grievance does not constitute exhaustion of administrative remedies and does not form the predicate basis for a civil suit. To the contrary, if a prisoner is satisfied with the result of a Step I grievance, it can be presumed that the matter is settled and litigation will be avoided. Because plaintiff does not dispute that he did not appeal his March 24, 1999 or April 21, 1999 grievances, this court accepts the magistrate judge's findings of fact and conclusions of law that plaintiff failed to exhaust his administrative remedies with respect to all claims arising out of those grievances.
In his objections, plaintiff also claims that prison officials prevented him from appealing his grievance number 99-04-01154-02 — G, filed on April 23, 1999, wherein he complained that Taylor had evaluated his work poorly in retaliation for his complaints. The MDOC responded to that grievance on May 11, 1999 as follows:
As the Chaplain was your supervisor, it was his responsibility to evaluate your performance. He did that. The fact that you do not agree with his evaluation is not unusual — since it was not favorable. However, your contention that this poor work report was retaliation is being investigated.
Based on this response, plaintiff did not file a Step II appeal because he was under the impression that the claim was being investigated. Plaintiff later attempted to file an appeal of that response on June 8, 1999, but the MDOC denied the appeal as untimely because he did not request an appeal form within five days of the Step I response as required pursuant to MDOC Policy Directive 03.02.130(DD).
Given the ambiguity on the face of the MDOC's response to plaintiff's Step I grievance, it is easy to understand why he did not request an appeal form within five days of the MDOC'S May 11, 1999 response. At that time, plaintiff had every reason to believe that the MDOC was investigating his complaint of retaliation and that the outcome might be favorable to him. After learning that there was a delay in the reported investigation, he attempted to appeal his grievance to Step II but was told that he was too late. Under these circumstances, it would be unfair to now bar plaintiff from bringing this action on the grounds that he failed to pursue a timely administrative appeal when plaintiff had no reason to think an appeal was necessary at the time he received the MDOC's response to his Step I grievance.
Based on the record now before the court, the MDOC never informed plaintiff of the results of its investigation. Thus, the MDOC has never really given a final response to plaintiff's Step I grievance on his 99-04-01154-02-G complaint at all. Accordingly, the appeal time was never triggered. Based on the MDOC's response to plaintiff's Step I grievance that an investigation of alleged wrongdoing was ongoing, plaintiff should not have been expected to treat that response as a final decision activating his appeal time. Accordingly, remand of this action to allow plaintiff to file a Step II grievance, which the MDOC must consider as to his 99-04-01154-02-G grievance is appropriate. Any other result might encourage the MDOC to respond to prisoners' Step I grievances with ambiguity, leading prisoners to believe that their complaints were under investigation, thus thwarting the filing of timely administrative appeals.
For the same reasons, the MDOC also erred when it denied plaintiff's administrative appeal of his June 7, 1999 grievance, number ARF 99-06-01565-17-Z, as untimely. In that grievance, plaintiff complained that he had been denied a copy of a memorandum in his file from Assistant Deputy Warden Paul Klee to Deputy Warden Haigh allegedly stating that Taylor's work evaluations of plaintiff set forth on form CSJ — 363 were unfair and should be removed from his file. In that grievance, plaintiff asked that he be given a copy of the memorandum to use in support of an appeal on another grievance. On June 23, 1999, the MDOC sent plaintiff a response to his Step I grievance:
Prisoner/grievant interviewed on this date. He received the CSJ-363 reports (2) subsequent to the staff supervisor being investigated for departmental work rule violations. The investigation is also examining the validity of the work reports. However, the staff person under investigation is on extended leave. Final disposition of the CSJ-363's in question must await the investigation findings and outcome of possible associated action. In the interim, the two CSJ-363's must remain in the prisoner's file.
In his initial response to defendant's motion to dismiss, plaintiff responds that he was satisfied with the response that the investigation was ongoing and did not believe that further action was necessary on his part. Based on defendant's submissions, it is clear that the MDOC later denied his Step II administrative appeal of his June 7, 1999 grievance on the grounds that it was time-barred. Given that the MDOC responded to plaintiff's Step I grievance by informing him that no final decision had been reached and an investigation was ongoing, it was unfair for the MDOC to later treat that response as a final response and to fault plaintiff for not filing a Step II appeal sooner. Under these circumstances where plaintiff attempted to follow the administrative review process but was thwarted by the MDOC's own conduct in misleading the prisoner into believing his complaints were being investigated and no final decision on his Step I grievance had been reached, it was error for the MDOC to deny his Step II appeal for untimeliness. Based on the above, this court must respectfully disagree with Magistrate Judge Goldman's finding that plaintiff improperly abandoned the administrative grievance process and should be faulted for failing to file appeals sooner, despite assurances from the MDOC that investigations were ongoing.
Accordingly, with respect to the April 23, 1999 grievance number ARF 99-04 — 01154-02-G, and the June 7, 1999 grievance number ARF 99-06-01565-17-Z, grievances, plaintiff's failure to exhaust his administrative remedies must be excused; the MDOC committed error in denying his Step II appeals for alleged untimeliness, and the MDOC must process his appeals on the merits.
Finally, the court considers plaintiff's argument that this court should grant him a continuance to allow him to pursue his administrative appeals. Because this court will dismiss without prejudice, plaintiff's request for a continuance is moot. Accordingly,
IT IS ORDERED that the Magistrate Judge's findings of fact and conclusions of law are ACCEPTED IN PART as to all portions of his report and recommendation regarding plaintiff's March 24, 1999 and April 21, 1999 grievances for which plaintiff failed to exhaust his administrative remedies, and is DENIED IN PART as to his determination that plaintiff failed to exhaust his administrative remedies with respect to the April 23, 1999 and June 7, 1999 grievances.
IT IS FURTHER ORDERED that this matter is REMANDED to the MDOC to hear plaintiff's Step II appeals of his April 23, 1999 and June 7, 1999 grievances. Copies of those grievances are attached to this opinion. If the MDOC does not issue a response to those previously filed appeals within 30 days of the entry of this order, plaintiff may reopen this case by motion and the exhaustion requirement will be waived as to the April 23, 1999 and June 7, 1999 grievances.
IT IS FURTHER ORDERED that the Clerk mail a copy of this order to the Gus Harrison Correctional Facility, P.O. Box 1888, Adrian Michigan 49221, Attention: J. Eaton or Step II Appeal Decision maker.
IT IS FURTHER ORDER that defendant's motion to dismiss for failure to exhaust administrative remedies is GRANTED IN PART as to the grievances of March 24, 1999 and April 21, 1999, and is DENIED IN PART as to the grievances of April 23, 1999 and June 7, 1999.
IT IS FURTHER ORDERED that plaintiff may reopen this matter upon motion, without paying the filing fee, upon exhausting his administrative remedies.
IT IS FURTHER ORDERED that this case is Dismissed WITHOUT PREJUDICE.