Opinion
2:19-cv-13210
07-12-2021
DAVID J. KENNEDY, Plaintiff, v. LT. JOSH CURTIS, Defendant.
REPORT AND RECOMMENDATION TO DENY DEFENDANT LT. JOSH CURTIS' MOTION FOR SUMMARY JUDGMENT (ECF No. 20)
KIMBERLY G. ALTMAN United States Magistrate Judge
I. Introduction
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff David J. Kennedy, proceeding pro se, filed a complaint alleging that defendants Anthony H. Stewart, Kevin Lindsey, Lt. Josh Curtis, and Sgt. Mask violated his constitutional rights. Specifically, he alleged that he was retaliated against for protected speech, subjected to cruel and unusual punishment in violation of the Eighth Amendment, and denied due process under the Fourteenth Amendment. See ECF No. 1. All of Kennedy's claims except for his retaliation claim against Curtis have been dismissed. See ECF No. 5.
Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 25). Before the Court is Curtis' motion for summary 1 judgment on the grounds that Kennedy failed to exhaust his administrative remedies before filing suit. See ECF No. 20. For the reasons that follow, the undersigned recommends that Curtis' motion be DENIED.
II. Background
In the complaint, Kennedy alleges that while incarcerated at the G. Robert Cotton Correction Facility (JCF), he was elected to serve on the Food Service Committee by the other members of the Warden's Forum. (ECF No. 1, PageID.3). In the course of his duties on the Food Service Committee, “[Kennedy] made continuous complaints to JCF administration during Warden's Forum meetings concerning the ill practices of Trinity Food Service. [Kennedy] also rendered very poor scores on the food evaluation forms after testing the meals on a regular basis.” (Id., PageID.4).
Kennedy alleges that on or about August 29, 2017, Curtis approached him and said, “[Y]ou have pissed the wrong people off by making complaints about the food and I'm one of those people. You are not untouchable because you are a Warden's Forum Member. If you keep making trouble then I'm going to show you're touchable and make trouble for you.” (Id.). The next day, August 30, 2017, Kennedy again complained about Trinity Food Service at a Warden's Forum meeting. (Id.). The following day, August 31, 2017, Sgt. Houtz handcuffed Kennedy and stated, “[Y]ou must have really pissed Lt. Curtis off. He has it out 2 for you about your activities on the Forum, what did you do?” (Id.). Mask later told Kennedy, “You shouldn't have pissed the L.T. off and done what you did to get yourself in this situation.” (Id., PageID.5). Kennedy was then placed in administrative segregation. (Id., PageID.4-5). Kennedy later learned that Curtis had filed a misconduct ticket against him, charging him with threatening behavior and creating a disturbance for an incident alleging to have occurred on August 31, 2017. (Id., PageID.5).
A hearing was held on September 13, 2017. Kennedy was found not guilty on the misconduct. (Id., PageID.7, 31-32). Notably, the hearing investigator found in part:
The record present reveals quite justifiable reasons for dismissal of these charges based on substantive due process grounds, including the facility's failure or refusal to respond to requests for information from the Hearings Investigator. The prisoner did present his defense and this matter was schedule [sic] for the final day for a timely hearing, however. The prisoner is therefore entitled to determinations based on the merits of the charges.
HO finds absolutely no credible or substantial evidence in the record for the factual allegations. There is no allegation in the misconduct report sufficient to even support the (432) [creating a disturbance] charge.
The facility's contentions are exclusively based on Lt. Curtis' report of a double-hearsay report from a “confidential informant” [it is noted parenthetically that the MDOC does not sanction the use of “informants”; the MDOC does have and use “confidential witnesses”] that prisoners Kennedy and Swackhammer . . . while on the yard on 08/31/17, threatened to “stab” other prisoners if they attended the lunch or dinner meal. . . .3
The record documents that the Hearings Investigator sent numerous very relevant critical questions to the Lieutenant regarding the need to questions the witness. The report further shows that the facility failed or refused to response. The charged prisoner's claims and defenses were not meaningfully investigated.
The record here easily gives rise to the inferences that either the facility did not in fact have a “confidential informant, ” or that the facility did not itself have confidence in the witness's verbal report to Lt. Curtis, or that there was a reason other than the integrity of the misconduct process for bringing the charges, confining the prisoner and failing to cooperate afterwards. Regardless of which inference is more correct, it was a misuse of the hearings process.
(ECF No. 20-4, PageID.201-202).
III. Summary Judgment
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court “views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 Fed.Appx. 132, 135 (6th Cir. 2004).
“The moving party has the initial burden of proving that no genuine issue of material fact exists. . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56(e)(2) (providing 4 that if a party “fails to properly address another party's assertion of fact, ” the court may “consider the fact undisputed for purposes of the motion”). “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.' ” Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The fact that Kennedy is pro se does not reduce his obligations under Rule 56. Rather, “liberal treatment of pro se pleadings does not require lenient treatment of substantive law.” Durante v. Fairlane Town Ctr., 201 Fed.Appx. 338, 344 (6th Cir. 2006). In addition, “[o]nce a case has progressed to the summary judgment stage, . . . ‘the liberal pleading standards under Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512-13 (2002)] and [the Federal Rules] are inapplicable.' ” Tucker v. Union of Needletrades, Indus., & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)).
IV. Analysis
The Prison Litigation Reform Act (PLRA) requires prisoners to “properly” exhaust all “available” administrative remedies prior to filing a lawsuit challenging prison conditions. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 88-90, 93 (2006). Proper exhaustion of administrative remedies “means using all steps that 5 the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Woodford, 548 U.S. at 90, 93 (emphasis in original). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court and produces a useful administrative record. Jones v. Bock, 549 U.S. 199, 204 (2007). The PLRA does not detail what “proper exhaustion” entails because “it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218.
“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.” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015). But a prisoner countering a motion alleging failure to exhaust “must offer competent and specific evidence showing that he indeed exhausted his remedies, or was otherwise excused from doing so.” Sango v. Johnson, No. 13-12808, 2014 WL 8186701, at *5 (E.D. Mich. Oct. 29, 2014), report and recommendation adopted, 2015 WL 1245969 (E.D. Mich. Mar. 18, 2015). Granting summary judgment because of a failure to exhaust administrative remedies is not on the merits and thus requires dismissal without prejudice. Adams v. Smith, 166 Fed.Appx. 201, 204 (6th Cir. 2006).
The Michigan Department of Corrections (MDOC) has established a three-step process to review and resolve prisoner grievances. “Under the [Michigan] 6 Department of Corrections' procedural rules, inmates must include the ‘[d]ates, times, places and names of all those involved in the issue being grieved' in their initial grievance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010). As noted by the Court in Woodford, one of the purposes of requiring proper exhaustion is to “provide[ ] prisons with a fair opportunity to correct their own errors.” Woodford, 548 U.S. at 94. To be sufficient, a grievance need not “allege a specific legal theory or facts that correspond to all the required elements of a particular legal theory.” Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003). Nonetheless, the grievance must give “fair notice of the alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made against a defendant in a prisoner's complaint.” Id.
Specifically, under MDOC Policy Directive 03.02.130, prisoners must provide the following information at Step I of the grievance process: “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.” MDOC Policy Directive 03.02.130(R) (underscoring omitted).
Here, Kennedy filed three grievances related to the aforementioned events. See ECF No. 20-3. 7
In Grievance ID # JCF-17-09-2169-5A, filed on September 5, 2017, Kennedy alleged that changes were made to the misconduct report after he reviewed it, which was a violation of MDOC procedure. (ECF No. 20-3, PageID.198).
In Grievance ID # JCF-17-09-2275-3F, filed on September 15, 2017, Kennedy alleged “discrimination, retaliation, and inhumane treatment.” (Id., PageID.186). In regard to retaliation, Kennedy stated, “Grievant has been informed that he has not been placed in H-Unit even though he is registered in the college program and still a member of the Warden's Forum as a form of retaliation for being rendered a not guilty finding on the charges that were bestowed upon him by Lt. Curtis.” (Id., PageID.187).
In Grievance ID # JCF-17-10-2329-17I, filed on September 24, 2017, Kennedy alleged that Curtis falsified the misconduct ticket. (Id., PageID.192-193). This allegation was premised on the hearing officer finding that “there was no credible or substantial evidence to support what grievant was charged with. . . .” (Id., PageID.193).
Curtis argues that Kennedy did not exhaust his administrative remedies because none of the grievances “specifically allege that Lt. Curtis issued the ticket in retaliation for his complaints during the Warden's Forum meetings.” (ECF No. 20, PageID.164) (emphasis in original). The undersigned finds that this argument 8 cuts too fine. In Grievance ID # JCF-17-09-2275-3F, Kennedy alleged “discrimination, retaliation, and inhumane treatment.” (Id., PageID.186) (emphasis added). He also stated, “Grievant has been informed that he has not been placed in H-Unit even though he is registered in the college program and still a member of the Warden's Forum as a form of retaliation for being rendered a not guilty finding on the charges that were bestowed upon him by Lt. Curtis.” (Id., PageID.187) (emphasis added). Kennedy's statement provides fair notice to Curtis that he has alleged the misconduct ticket was issued in retaliation for his actions as being a member of the Warden's Forum. Further, in Grievance ID # JCF-17-10-2329-17I, Kennedy alleged that Curtis falsified the misconduct ticket against him. While this grievance does not mention retaliation specifically, it reasonably alleges that Kennedy believed Curtis issued the misconduct ticket without good cause, inferring it was for an improper purpose, as the Hearing Investigator similarly inferred. As another court noted, “[t]he MDOC policy does not contain a precise description of the necessary degree of factual particularity required of prisoners.” Rather, “a grievant need only ‘object intelligibly to some asserted shortcoming' and need not ‘lay out facts, articulate legal theories, or demand particular relief.' ” Davison v. MacLean, No. 06-12755, 2007 WL 1520892, *5 (E.D. Mich. 2007) (citing Burton, 321 F.3d at 575). 9
Here, Kennedy grieved the subject matter of the remaining claim in this case - Curtis' issuance of the misconduct ticket which Kennedy alleges was in retaliation for Kennedy's actions. As such, Curtis was given a fair opportunity to address the grievance on the merits. At the very least, Curtis did not carry his summary judgment burden to show Kennedy's retaliation claim was unexhausted. Accordingly, Kennedy's claim against Curtis is not subject to dismissal for failure to exhaust administrative remedies.
V. Conclusion
For the reasons stated above, the undersigned recommends that Curtis' motion be DENIED.