Opinion
2:23-cv-00056
10-03-2024
ZACHARY A. HOLMAN #473131, Plaintiff, v. MICHAEL J. BALLARD, and JESSICA VELMER, 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 Defendant Ballard's motion for summary judgment due to Plaintiff's failure to exhaust administrative remedies against him. (ECF No. 92.)
Plaintiff - state prisoner Zachary A. Holman - filed suit pursuant to 42 U.S.C. § 1983 on March 31, 2023. In his verified amended complaint, Holman asserts that while he was incarcerated at the Baraga Correctional Facility (AMF) in Baraga, Michigan, AMF Dentist Michael Ballard and AMF Dental Assistant Jessica Velmer acted with deliberate indifference to his serious medical needs. (ECF No. 15, PageID.71.) Specifically, Holman asserts that when he arrived at AMF in June of 2022, he began requesting a dental appointment to address cavities he had discovered prior to his transfer. (Id., PageID.63.) But Holman was not seen by Dr. Ballard until late December of 2022. (Id., PageID.66.) He did not receive a cleaning until late March of 2023. (Id., PageID.69.) Plaintiff's cavities were not filled during either of those appointments. Holman says that he has since received “partial but incomplete medical care by a different dentist,” but that he experiences tooth pain on a daily basis and that his teeth have deteriorated. (Id., PageID.70.)
Dr. Ballard argues that Holman failed to name him in a grievance and to properly exhaust a grievance raising any of the issues asserted in the amended complaint against him. Dr. Ballard argues that Holman filed only one relevant grievance - AMF-22-12-1877-28e - which raised only the issue that he was unable to see a dentist at AMF due to scheduling delays. That grievance was filed on December 2, 2022, 18 days before his initial treatment with Dr. Ballard. (ECF No. 111-1, PageID.641-642.) Holman never filed a grievance naming Dr. Ballard for an alleged denial of treatment arising from the December 20, 2022, dental appointment, or anytime thereafter.
The Court previously denied Defendant Velmer's motion for summary judgment on the issue of exhaustion of administrative remedies by concluding that there exists a genuine issue of material fact as to whether this grievance exhausted administrative remedies against Defendant Velmer. (ECF Nos. 39 and 44.)
Holman responds by arguing that grievance AMF-22-12-1877-28 specifically names “Dentist.” (ECF No. 111, PageID.633.) The grievance, however, only concerned the scheduling of a dental appointment. Holman received an appointment 18 days later. Holman never filed a grievance against Dr. Ballard for an alleged denial of dental treatment arising from the December 20, 2022 dental appointment or thereafter. In the opinion of the undersigned, Holman failed to exhaust his administrative remedies against Dr. Ballard concerning the allegations in his amended complaint. It is respectfully recommended that the Court grant Dr. Ballard's motion for summary judgment and dismiss him from this case.
II. Factual Allegations
Holman's factual allegations are straightforward. He says that while he was incarcerated at the Ionia Correctional Facility (ICF) on or about March 9, 2022, he conducted a self-examination of his teeth. (ECF No. 15, PageID.63.) During that examination, Holman located multiple cavities. Holman therefore requested an appointment with ICF dental services. (Id.) On March 11, 2022, Holman was informed that he was placed on a list for dental care. Then, on or about June 15, 2022, Holman was transferred to AMF. (Id.) Holman says that shortly after his transfer, he reached out to AMF dental services for an appointment. AMF dental services informed Holman that he was already on a list to be seen. (Id.)
On November 1, 2022, Holman says that he reached out to AMF dental services again, marking his communication as “urgent” and indicating that he had “multiple cavities.” (Id., PageID.63-64.) Defendant Velmer responded the same day, telling Holman that he was “already on the list.” (Id., PageID.64.) Holman followed up with dental services on November 9, 2022, asking who was in charge of making and maintaining the dental waiting list, and who determined whether an inmate's dental issues were “urgent.” On November 21, 2022, Holman followed up again, this time addressing his communication directly to Velmer. (Id.) Holman again inquired as to how the dental waiting list was made and maintained, how many inmates were on the list, and where he fell on the list. (Id.) On November 28, 2022, Velmer responded by simply stating: “You are on the list and will be called out when you are next on the list.” (Id., PageID.65.)
On November 30, 2022, Holman sent another “urgent” communication to AMF dental services, indicating that his multiple cavities were causing him “daily pain.” On December 2, 2022, Holman filed the aforementioned grievance complaining that he had been deprived of dental care for approximately nine months. (Id.) A few days later, on December 8, 2022, Velmer called Holman and told him that he had been placed on an emergency list, but that it would still be a few weeks before he was seen. (Id., PageID.65-66.) Velmer then asked Holman a few questions about his teeth and told him that she could see cavities in his x-rays. (Id., PageID.66.) On the same day, former-defendant Dr. Echols prescribed Holman ibuprofen. And Holman's Step I grievance was denied. (Id.)
On December 15, 2022, Holman says that he filed his Step II grievance appeal stating that his pain management was insufficient, and that additional delay in his dental care was “undue.” Five days later, on December 20, 2022, Holman was called to AMF's medical unit. (Id.) There, Holman spoke with Defendant Velmer about his cavities, and about a molar that he wanted filed down. (Id., PageID.67.) Velmer took x-rays of Holman's mouth, and then called Dr. Ballard in to see Holman.
After Holman reiterated his concerns to Dr. Ballard, Dr. Ballard filed down the molar that was bothering Holman. (Id., PageID.68.) Dr. Ballard then allegedly asked Holman whether he wanted the problem teeth removed. (Id., PageID.68.) Holman told Dr. Ballard he did not, and asked whether Ballard could simply fill his cavities. Holman says that Dr. Ballard responded by stating that Holman “wasn't going to jump the list for fillings” and that Holman should send in a request for a dental cleaning. (Id.) Holman responded by indicating that he had put in multiple requests for cleanings, and that he submitted the first request eight months ago. Dr. Ballard allegedly claimed that this was “impossible” and there was “no way they could be that behind” but Velmer informed Dr. Ballard that they were in fact that behind on the segregation list. (Id., PageID.67-68.)
Dr. Ballard then asked Holman whether he had been in segregation since his arrival. (Id., PageID.68.) When Holman said he had, Dr. Ballard allegedly stated that this was the reason Holman had not been seen. Holman then asked Dr. Ballard whether that meant he was receiving less care than inmates in general population. (Id.) In response, Dr. Ballard became angry and ended the appointment.
Holman says that he did not receive a response to the Step II grievance appeal filed December 15, 2022. As such, he filed a Step III grievance appeal on January 16, 2023 “in accordance with MDOC's grievance policy.” (Id.) On March 15, 2023, Holman received the response to his Step III grievance. His grievance was rejected because it did not contain the Step II response-but Holman reiterates that the Step II response was untimely, and that he did not receive the response until after he mailed his Step III grievance appeal. (Id.)
On March 28, 2023, Holman says that he was seen by a non-party dental provider for a teeth cleaning, but that his cavities were not filled, and he was not provided with any pain relief. He says that another dentist provided him with “partial but incomplete medical care” after his appointment with Dr. Ballard, and that he has “not been prescribed any consistant [sic] pain medication other than the initial prescription that ended on 12/14/22.” (Id., PageID.70.) Holman says that he continues to experience tooth pain on a daily basis, and that his teeth have deteriorated. (Id.)
III. 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, No. 22-1298, 2024 WL 1172634, at *8 (6th Cir. Mar. 19, 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.”).
IV. 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.
V. Analysis
As previously stated, Holman filed one relevant grievance with an incident date of November 29, 2022, which was well before his initial appointment with Dr. Ballard on December 20, 2022. Holman's Step I grievance stated:
[Image Omitted] (ECF No. 30-4, PageID.168.)
Holman never grieved any conduct regarding his allegations against Dr. Ballard for failing to provide him with dental treatment. The above grievance concerns scheduling. Holman asserted that he was on list to see a dentist for 9 months and that he is in pain. Holman's grievance did not name Dr. Ballard, nor did it complain of activities by Ballard on or before the date the grievance was filed. The bottom line is that Holman's December 2nd grievance had nothing to do with care provided by Dr. Ballard on December 20, 2024, or later.
More importantly, the timing of Holman's grievance shows that it does not concern the allegations against Ballard in this case. Holman's complaint fails to attribute any actions to Dr. Ballard prior to December 20, 2022. The relevant paragraphs in the amended complaint as to Ballard are shown below.
[Image Omitted]
[Image Omitted] (ECF No. 15, PageID.66-67.)
Dr. Ballard's affidavit confirms that his first appointment with Holman took place on December 20, 2022.
I, MICHAEL BALLARD, D.D.S., being first duly sworn, deposes and states:
1. I am a general dentist licensed to practice in the State of Michigan.
2. I currently provide dental services at Alger Correctional Facility (LMF) and Baraga Correctional Facility (AMF).
3. I treated Plaintiff Zachary Allen Holman #473131 at LMF on the following dates: December 20, 2022 and September 26, 2023.
4. The December 20, 2022 encounter was my initial evaluation of Mr. Holman. On this date, Mr. Holman complained of sensitivity on his lower molars. Mr. Holman desired to have fillings done, however, I advised him that he needed to be placed on a dental oral list to receive fillings. Mr. Holman thereafter got upset and was removed by correctional officers.
5. The next encounter 1 had with Mr. Holman occurred on September 26, 2023. During this encounter, Mr. Holman stated that he previously had pain from a tooth extraction, but that pain had since subsided.
6. As a dental provider, 1 do not handle any dental treatment lists or kites at AMF. As such, I would have no input on when I see inmates who desire dental care.(ECF No. 92-3, PageID.527.)
Paragraph 6 of his affidavit also confirms that Dr. Ballard is not involved in treatment lists or kites.
Holman's complaint states that he arrived at AMF in June of 2022. (ECF No. 15, PageID.63 (paragraph 14).) His complaint outlines scheduling issues he was having with Defendant Velmer in November 2022. (See id., PageID.64-65 (paragraphs 17-20).) Holman's complaint does not attribute any actions to Dr. Ballard until Dr. Ballard became involved in his treatment on December 20, 2022. Holman's Step I grievance was dated December 2, 2022, and listed an incident date of November 29, 2022. Simply based on timing, Holman's sole grievance in this matter did not concern his allegations against Ballard for treatment Ballard provided.
Accordingly, it is respectfully recommended that the Court grant Dr. Ballard's motion for summary judgment due to Holman's failure to exhaust administrative remedies.
VI. Recommendation
The undersigned respectfully recommends that this Court grant Dr. Ballard's motion for summary judgment and dismiss him from this case without prejudice due to Holman's failure to exhaust his administrative remedies.
If the Court accepts this recommendation, only the Eighth Amendment claim against Defendant Velmer 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).