Opinion
22-cv-11603
12-31-2024
NICOLE FETTERMAN, Plaintiff, v. JAMES HILL, et al., Defendants.
Honorable Robert H. Cleland, Judge
REPORT AND RECOMMENDATION TO DISMISS CASE SUA SPONTE
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Nicole Fetterman, a prisoner under the Michigan Department of Corrections' (MDOC) jurisdiction, filed this pro se civil rights action under 42 U.S.C. § 1983. ECF No. 1. She alleges that she was attacked by another inmate in July 2018, and that Defendants James Hill and Chloe Peek failed to protect her from further assault in violation of the Eighth Amendment. Id. The Honorable Robert H. Cleland referred the case to the undersigned to resolve all pretrial matters under 28 U.S.C. § 636(b)(1). ECF No. 13.
Fetterman brought the same claims against Hill and Peek in a previous case. See Fetterman v. Stewart, No. 20-12020, Compl., ECF No. 1 (E.D. Mich.). In that case, the Honorable Shalina D. Kumar adopted a recommendation to grant defendants' motion for summary judgment and dismissed the claims without prejudice for failure to exhaust. Fetterman, No. 20-12020, R. & R., ECF No. 21; Order Adopting R. & R., ECF No. 22. Given this history, the Court ordered Fetterman to show cause why this case should not be dismissed for the same reasons. ECF No. 19.
Fetterman timely responded. ECF No. 20.
For the reasons below, the Court RECOMMENDS that Fetterman's case be DISMISSED without prejudice for failure to exhaust.
II. Analysis
A.
Under the Prison Litigation Reform Act (PLRA), courts are required sua sponte to dismiss complaints that are frivolous, fail to state a claim, or seek monetary relief from an immune defendant. 28 U.S.C. § 1915A(b). And although failure to exhaust is an affirmative defense, courts may dismiss claims sua sponte when “the failure to exhaust is evident and the plaintiff first has been given an opportunity to address the issue.” Threatt v. Williams, No. 15-12585, 2016 WL 4607639, at *3 (E.D. Mich. Sept. 6, 2016); see also Coleman v. Snyder, No. 17-11730, 2018 WL 4103364, at *2 (E.D. Mich. Aug. 29, 2018) (same). Fetterman had the chance to show cause why this case should not be dismissed for failure to exhaust. ECF No. 19; ECF No. 20. So sua sponte dismissal is permitted.
The PLRA requires prisoners to “properly” exhaust all “available” administrative remedies before filing a lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 88-90, 93 (2006). The PLRA requires exhaustion of internal remedies for “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To meet this requirement, an inmate must strictly comply with the grievance process provided by the prison. Woodford, 548 U.S. at 93-94. But an inmate need only exhaust those remedies that are actually “available”; if an administrative remedy “is not capable of use to obtain relief,” then § 1997e will not act as a barrier to suit. Ross v. Blake, 578 U.S. 632, 643 (2016). Dismissal based on failure to exhaust administrative remedies is not on the merits and is without prejudice. Adams v. Smith, 166 Fed.Appx. 201, 204 (6th Cir. 2006).
B.
MDOC Policy Directive 03.02.130 has a three-step procedure that prisoners must follow to complete the administrative review process and properly exhaust grievances. Fetterman, No. 20-12020, Mot. Summ. J. Ex. 1, ECF No. 17-2. The policy requires a prisoner to try to informally resolve the problem with the allegedly offending staff within two days of learning about the grievable issue, and then, within five days of those informal efforts, file with the grievance coordinator a Step I grievance about any unresolved issues. Id., PageID.93-94, ¶¶ P, V. The prisoner may then file a Step II grievance appeal within ten business days of receiving the Step I response or, if no response was received, within ten business days after the date the response was due. Id., PageID.95, ¶ BB. The same schedule applies to a Step III appeal-it is due within ten business days of receiving the Step II response or, if no response was received, within ten business days after the date the response was due. Id., PageID.96, ¶ FF. Prisoners must appeal their grievances through Step III and wait until receipt of a Step III response, or until the response is past due, before suing.
In response to the show cause order, Fetterman contends that she exhausted her claim by filing three grievances: (1) WHV-18-10-3207-28e, (2) WHV-18-11-3600-28a, and (3) WHV-18-08-2555-03b. ECF No. 20, PageID.71. The Court addressed grievance 3207 in Fetterman's earlier case. Fetterman, No. 20-12020, R. & R., ECF No. 21, PageID.133-134. Fetterman received no response to her Step I grievance, but she failed to submit a Step II grievance within ten days after the Step I response was due. Id. And while she later submitted a Step II grievance, it was properly rejected as untimely. Id.
The Court will refer to the grievances by the four-digit grievance number, e.g., “grievance 3207.”
Fetterman argues that technical compliance with the grievance process is not required if the inmate gives prison officials fair notice of the alleged misconduct in the grievance. ECF No. 20, PageID.71 (citing Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006)). But Bell merely states that a prisoner need not allege a specific legal theory in her grievance. 450 F.3d at 653-54. As discussed, exhaustion requires “proper exhaustion,” meaning “compliance with an agency's deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90. A prisoner has not exhausted administrative remedies when her grievance is rejected for failure to comply with procedural rules. McCloy v. Corr. Med. Servs., 794 F.Supp.2d 743, 750 (E.D. Mich. 2011).
Grievance 3600 was rejected at Step I as duplicative of grievances 3207 and 2555, a decision upheld at Steps II and III. Fetterman, No. 2012020, Mot. Summ. J. Ex. 2, ECF No. 17-3, PageID.116-120. Again, this grievance cannot support exhaustion because it was denied due to a procedural defect. See McCloy, 794 F.Supp.2d at 750.
Last, grievance 2555 is not listed on Fetterman's Step III grievance report. See Fetterman, No. 20-12020, Mot. Summ. J. Ex. ECF No. 17-3, PageID.101. That report lists all grievances Fetterman appealed through Step III between January 2013 and September 2020. Id., PageID.99-101. Since grievance 2555 is not listed, the Court infers that Fetterman did not exhaust it by appealing it to Step III. See Owusu v. Mich. Dep't of Corr. Pain Mgmt. Comm., No. 16-cv-12490, 2018 WL 6072034, at *3-4 (E.D. Mich. Oct. 23, 2018), adopted, 2018 WL 6065088 (E.D. Mich. Nov. 20, 2018) (defendants carried their initial burden of proving failure to exhaust by showing that a grievance was not listed on the Step III grievance report). And Fetterman has not rebutted this inference with “affirmative contrary evidence” showing that she appealed grievance 2555 through Step III. See id. (cleaned up).
Thus, it is evident that Fetterman has not exhausted her claims, so they should be dismissed sua sponte.
III. Conclusion
The Court RECOMMENDS that Fetterman's complaint be DISMISSED WITHOUT PREJUDICE.
NOTICE TO THE PARTIES ABOUT OBJECTIONS
Within 14 days of being served with this report and recommendation, any party may serve and file specific written objections to this Court's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). If a party fails to timely file specific objections, any further appeal is waived. Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991). And only the specific objections to this report and recommendation are preserved for appeal; all other objections are waived. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).
Each objection must be labeled as “Objection #1,” “Objection #2,” etc., and must specify precisely the provision of this report and recommendation to which it pertains. Within 14 days after service of objections, any non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1,” “Response to Objection #2,” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections lack merit, it may rule without awaiting the response.