Opinion
2:23-cv-0076
11-25-2024
SIDNEY DURELL HILL, #724440 Plaintiff, v. PATTI HUBBLE, 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 Defendants' motion for summary judgment due to Plaintiff's failure to exhaust his administrative remedies. (ECF No. 21.)
State prisoner Sidney Durell Hill filed a verified complaint under 42 U.S.C. § 1983 alleging that Defendants violated his First Amendment rights by retaliating against him while he was confined at the Alger Correctional Facility (AMF). (ECF No. 1.) In a screening opinion and judgment, the Court dismissed six Defendants and a number of claims. (ECF Nos. 12, 13.) Plaintiff's retaliation claims against the following four AMF employees remain in the case:
• Resident Unit Manager (RUM) Patti Hubble,
• RUM Jason Hubble,
• Prison Counselor (PC) Chamberlain, and
• PC Loman.(ECF No. 12.)
Defendants concede that Hill exhausted two of his retaliation claims: (1) that PC Loman improperly reviewed a mail rejection and then acted as the hearing officer on August 3, 2022, and (2) that RUM Jason Hubble threatened Hill with segregation on August 8, 2022.
But Defendants argue that Hill failed to exhaust his other three retaliation claims: (1) that RUM Patti Hubble refused to send out legal mail on June 28, 2022, (2) that PC Chamberlain threatened him with segregation on July 7, 2022, and (3) that PC Loman threatened him with segregation on July 20, 2022.
In the opinion of the undersigned, Defendants have shown that no genuine issue of material fact exists as to the three challenged retaliation claims. It is respectfully recommended that the Court conclude that Hill failed to properly exhaust those three claims. Accordingly, the undersigned recommends that the Court grant Defendants' motion for summary judgment by dismissing three retaliation claims. If the Court adopted this recommendation, then RUM Patti Hubble and PC Chamberlain would be dismissed from this lawsuit, but the claims against PC Loman and RUM Jason Hubble would remain.
II. 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Seventh Amendment does not always require courts to submit factual disputes about exhaustion to a jury. Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). If the factual disputes about exhaustion do not overlap with the merits of the plaintiff's substantive claims, then the court may conduct a bench trial to resolve the exhaustion issue. Richards v. Perttu, 96 F.4th 911, 923 (6th Cir. 2024), cert. granted, No. 23-1324, 2024 WL 4394132 (U.S. Oct. 4, 2024). 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. Willey, 789 F.3d 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.”).
III. Exhaustion of Administrative Remedies
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). In order 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 provide 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).
The most common procedure through which a prisoner in MDOC custody exhausts his administrative remedies is the grievance procedure set forth in Michigan Department of Corrections (MDOC) Policy Directive 03.02.130 (effective on March 18, 2019). According to the Policy Directive inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If oral 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 oral resolution. Id. at ¶¶ Q, W. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ Y. 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. Id. at ¶ DD. The respondent at Step II is designated by the policy. 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 ¶¶ 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.
Where the grievance procedures are not available because the issue presented is non-grievable, exhaustion of prison grievance 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.”).
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 MDOCPD 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 did not grieve the claim that the doctor erred by not prescribing Ranexa.
IV. Plaintiff's Allegations
Plaintiff's remaining allegations are summarized in the table below.
Number
Claim
Defendant
Date of Incident
1
Retaliation by refusing to send legal mail due to complaint about coworker resulting in the filing of grievance LMF-22-06-0685-17i.
Patti Hubble
6-27-22
2
Retaliation during interview regarding above grievance (claim 1) by threatening segregation resulting in the filing of grievance LMF-22-07-00743-15f.
Chamberlain
7-7-22
3
Retaliation by threatening segregation and to make things more difficult.
Loman
7-20-22
4
Retaliation by acting as the hearing officer during mail rejection hearing after acting as the mail rejection reviewer resulting in the filing of grievance LMF-22-08-0863-17i.
Loman
8-3-22
5
interview regarding above grievance (claim 4) by
Jason Hubble
8-8-22
threatening segregation resulting in the filing of grievance LMF-22-08-0884-28j.
Defendants concede that Hill exhausted claim 4 against PC Loman and claim 5 against Jason Hubble. Defendants argue that Hill failed to exhaust claims 1, 2, and 3. (ECF No. 25, PageID.212-213.)
V. Grievances Identified by Defendants
Defendants identified seven grievances filed by Plaintiff. These grievances are summarized below.
Grievance No.
Person Named
Allegation
Date or Date Range of Incident(s)
Results at Step 1
Results at Step 2
Results at Step 3
LMF-22-08-0954-17i (ECF No. 22-3, PageID.171-174.)
Non-Defendant CO
Allowed only 30 minutes outside of cell.
8-24-22
Denied
Denied
Denied
LMF-22-08-0884-28j (Id., PageID.175-179.)
Jason Hubble
Allowed Loman who was the subject of Plaintiff's grievance in office while interviewing Hill on the grievance
8-8-22
Rejected
Rejection upheld
Rejection upheld
LMF-22-08-0863-17i (Id., PageID.180-183.)
Loman
Conducted mail rejection hearing after reviewing the rejection with Hill
8-3-22
Denied
Denied
Denied
LMF-22-07-0811-28a (Id., PageID.184-188.)
Healthcare and Administration
Black mold was not cleaned after
7-19-22
Rejected
Rejection upheld
Rejection upheld
complaint was made
LMF-22-07-0769-15a (Id., PageID.189-192.)
LMF mail room staff, Inspectors, and Administration
Mail Room Staff censored out-going J-Pay messages
7-13-22
Denied
Denied
Denied
LMF-22-07-0743-15f (Id., PageID.193-196.)
LMF mail room staff and Inspector.
Mail Room Staff censored out-going J-Pay messages
7-3-22
Denied
Denied
Denied
LMF-22-06-0685-17i (Id., PageID.197-201.)
Patti Hubble
Denied legal mail because of use of stamp on envelope
6-27-22
Denied
Denied
Denied
VI. Analysis
1. Claim 1 - retaliation claim against RUM Patti Hubble
In this claim, Hill alleges that RUM Patti Hubble retaliated against him by refusing to send his legal mail out of the facility on June 27, 2022. Defendants argue that Hill failed to exhaust his retaliation claim against RUM Patti Hubble because he failed to allege retaliation in grievance LMF-22-06-0685-17i. Hill's Step I grievance stated:
(IMAGE OMITTED) (ECF No. 22-3, PageID.200.)
Hill clearly identified RUM Hubble in this grievance. He asserted that RUM Hubble violated prison mail policy by not sending out his legal mail because he had used a stamped envelope. (Id.) Hill argues that he exhausted his claim “by a catch all and by claiming Retaliation in his grievances.” (ECF No. 23, PageID.205.) Specifically, Hill says that he wrote in every grievance that: “This grievance is for Retaliation and My First Amendment mail rights.” (Id., PageID.206.) Hill is simply wrong. His Step I grievance in grievance LMF-22-06-0685-17i naming RUM Hubble, shown above, does not mention a “catchall” nor does it claim retaliation. Hill did not allege any facts that could arguably be the basis for a retaliation claim. Instead, Hill is complaining about violations of the MDOC mail policy. It should also be noted that the MDOC officials reviewing this grievance evaluated Hill's complaints about policy violations, but not a retaliation claim. A portion of the Step I response in grievance LMF-22-06-0685-17i is shown below.
(IMAGE OMITTED) (ECF No. 22-3, PageID.201.)
In the opinion of the undersigned, Hill failed to exhaust his administrative remedies with respect to his retaliation claim against RUM Patti Hubble in Claim 1.
2. Claim 2 - retaliation claim against PC Chamberlain
Hill alleges that PC Chamberlain retaliated against him by threatening to send him to segregation on July 7, 2022. Defendants argue that Hill failed to exhaust his retaliation claim against PC Chamberlain because he failed to assert retaliation or name PC Chamberlain in grievance LMF-22-07-0743-15f. Hill asserts that he exhausted his retaliation claim against PC Chamberlain. Hill's Step I Grievance stated:
(IMAGE OMITTED) (ECF No. 22-3, PageID.196.)
Hill did not name PC Chamberlain in his grievance and he did not assert retaliation or any factual allegations that arguably could state a retaliation claim in grievance LMF-22-07-0743-15f. In the opinion of the undersigned, Hill failed to exhaust his administrative remedies with respect to his retaliation claim against PC Chamberlain in Claim 2.
3. Claim 3 - retaliation claim against PC Loman
Hill alleges that PC Loman retaliated against him by threatening to send him to segregation on July 20, 2022. The undersigned agrees with Defendants' argument that Hill failed to properly exhaust his July 20, 2022, retaliation claim against PC Loman. Nothing in the record establishes that Hill properly exhausted this claim. In the opinion of the undersigned, Hill failed to exhaust his administrative remedies on his retaliation claim against PC Loman.
VII. Recommendation
The undersigned respectfully recommends that the Court grant Defendants motion for summary judgment by dismissing claims 1-3 and Defendants RUM Patti Hubble and PC Chamberlain.
If the Court accepts this recommendation, the claims against RUM Jason Hubble and PC Loman (retaliation claims 4 and 5) will remain in the case.
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).