HUGH W. BRENNEMAN, Jr., Magistrate Judge.
This is a pro se civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. This matter is now before the court on motions for summary judgment filed by defendants Jared McConkey, Kirt Schafer, Nathan Badryka, Anne Maroulis, Kevin Wood, Troy Jones, Matthew Wellman, and Nakita Haynes (docket no. 52) and defendant Michael Kennerly, P.A. (docket no. 78).
The Court previously summarized plaintiff's complaint as follows:
Opinion (docket no. 29 at pp. ID# 122-25) (footnotes omitted).
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which confers a private federal right of action against any person who, acting under color of state law, deprives an individual of any right, privilege or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984); Stack v. Killian, 96 F.3d 159, 161 (6th Cir.1996). To state a § 1983 claim, a plaintiff must allege two elements: (1) a deprivation of rights secured by the Constitution and laws of the United States, and (2) that the defendant deprived him of this federal right under color of law. Jones v. Duncan, 840 F.2d 359, 360-61 (6th Cir. 1988); 42 U.S.C. § 1983.
Defendants seek summary judgment on plaintiff's claims. The 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). Rule 56 further provides that "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by":
Fed. R. Civ. P. 56(c)(1).
In Copeland v. Machulis, 57 F.3d 476 (6th Cir. 1995), the court set forth the parties' burden of proof in deciding a motion for summary judgment:
Copeland, 57 F.3d at 478-79 (citations omitted). "In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party." McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000). However, the court is not bound to blindly adopt a non-moving party's version of the facts. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
Defendants seek summary judgment for lack of exhaustion. The Prison Litigation Reform Act (PLRA) provides that a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must first exhaust available administrative remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001). A prisoner must 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. See Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. One reason for creating prisoner grievance procedures under the PLRA was to create an administrative record for the court.
Jones v. Bock, 549 U.S. 199, 204 (2007). In order to properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Id. at 218; 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.
The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 2007). A prisoner must first attempt to resolve a problem with the staff member within two business days of becoming aware of the grievable issue, unless prevented by circumstances beyond his or her control. Id. at ¶ P. If the issue is not resolved, then the grievant may file a Step I grievance on the prescribed form within five business days after the grievant attempted to resolve the issue with appropriate staff. Id. at ¶¶ P and R. The Policy Directive provides the following directions for completing grievance forms:
Id. at ¶ R (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ V. If the prisoner is dissatisfied with the Step I response, or does not receive a timely response, he must request the appropriate form and send it to the Step II Grievance Coordinator. Id. at ¶ BB. Finally, if a prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must send a completed Step III grievance, using the appropriate form, to the Grievance and Appeals Section. Id. at ¶ FF.
In Grievance No. ICF-13-06-1156-17i ("1156"), plaintiff claimed that he was denied a shower on May 30, 2013, stating that defendant Wellman told him that the denial was courtesy of defendant McConkey, and that the denial of a shower was retaliation. Grievance No. 1156 (docket no. 53-11 at p. ID# 231); MDOC Prisoner Step III Grievance Report (docket no. 53-11 at pp. ID#221-23). In their brief, defendants concede that plaintiff properly exhausted this claim against defendants Wellman and McConkey (i.e., "limited to the narrow claim of being denied a shower on a single occasion"). Defendants' Brief (docket no. 53 at p. ID#181).
Defendants point out that plaintiff has exhausted eight other grievances to Step III, but that none of these grievances address any of the claims in this action. See MDOC Prisoner Step III Grievance Report. The substance of these exhausted grievances are as follows: Grievance No. ICF-13-06-1158-17z (on June 1, 2013 Corrections Officer Wolever gave plaintiff a meat tray instead of a veggie tray) (docket no. 53-11 at p. ID#227); Grievance No. ICF-13-04-0876-12bl (on April 15, 2013 plaintiff was denied mental health treatment) (docket no. 53-11 at p. ID#236); Grievance No. ICF-13-04-0812-17i (on March 29, 2013 plaintiff was denied envelopes and stationery) (docket no. 53-11 at p. ID#241); Grievance No. ICF-13-04-723-09e (on March 23, 2013 plaintiff was denied a protein substitute for the sausage on the waffle tray) (docket no. 53-11 at p. ID#246); Grievance No. ICF-13-01-0067-20e (on or about November 7, 2012 plaintiff was not allowed to eat "Halal certified meals") (docket no. 53-11 at p. ID#254); Grievance No. ICF-12-05-0885-17i (on May 16, 2012 plaintiff was denied a lunch tray by non-party Corrections Officer Bledsoe) (docket no. 53-11 at p. ID#257); Grievance No. ICF-12-07-1254-17g (on July 12, 2012 plaintiff complained of a mass strip search) (docket no. 53-11 at p. ID#263); and Grievance KCF-10-07-907-20z (on July 17, 2010 plaintiff was given a direct order to stop praying on the prison yard) (docket no. 53-11 at p. ID#267).
In his response, plaintiff states that he attempted to exhaust a grievance related to the March 9, 2012 incident. It is difficult to follow plaintiff's explanation for how he "exhausted" this claim. Plaintiff states that on or about March 11, 2012, he "filed a step one grievance about being refused my inhaler, excessive force with gas and c/o's pulling down my underware [sic] and being placed back in the gased [sic] cell without it being cleaned." Plaintiff's Declaration at ¶ 1 (docket no. 67-1 at p. ID#349). Plaintiff also presented copies of an unfiled, unnumbered Step I grievance regarding the March 9, 2012 incident. See Step I grievance (docket no. 67-1 at pp. ID# 354-59). Plaintiff stated that on March 27, 2012, he requested a step two grievance "after not recieving [sic] a grievance response." Plaintiff's Decl. at ¶ 2. Plaintiff claims that on or about April 1, 2012, "after grievance coordinator and or c/o's interfered with my grievance process," he "filed a step two with face [sic] letter with warden." Id. at ¶ 3; Grievance and letters (docket no. 67-1 at pp. ID#354-58).
Plaintiff then "improvised" by filed a Step III grievance directly with the MDOC's Grievance Section in Lansing. Plaintiff's Decl. at ¶¶ 3-4; Grievance and letters (docket no. 67-1 at pp. ID# 359-64). According to plaintiff,
Plaintiff's Decl at ¶ 5. The MDOC received the Step III grievance from plaintiff on April 12, 2012, which referenced the incident date of March 9, 2012. Grievance (docket no. 67-1 at pp. ID# 361 and 364). The MDOC rejected this grievance in a letter dated April 17, 2012. See Grievance and Rejection (docket no. 67-1 at pp. ID# 360-64). In rejecting the grievance, the MDOC's Grievance Section pointed out that plaintiff failed to include the Step I grievance, the Step I response, the Step II appeal, the Step II response, and a "legible reason for appeal to Step III." Id. at p. ID#360. The MDOC further advised plaintiff:
Id. (emphasis in original). Plaintiff has produced no evidence to demonstrate that he re-submitted a grievance with respect to the March 9, 2012 incident as directed by the April 17, 2012 letter.
Plaintiff's declaration and exhibits do not create a genuine issue of fact sufficient to avoid summary judgment on lack of exhaustion of his March 9, 2012 claims. The record reflects that plaintiff was aware of the procedure for exhausting grievances, having previously exhausted a grievance through Step III back in 2010. See MDOC Step III Grievance Report (docket no. 53-11 at p. ID#223). As discussed, plaintiff also exhausted claims against defendants Wellman and McConkey, as well as eight other incidents. While plaintiff states that he "filed" a Step I grievance on March 11, 2012, he does not explain how he filed it or describe any circumstances which could shed some light on why this particular grievance was not received by the MDOC, other than to make the conclusory statement that an unnamed grievance coordinator "and or" unnamed corrections officers "interfered" with the grievance process sometime before April 1, 2012. Plaintiff's Decl. at ¶ 3.
Plaintiff's alternative explanation for his personal improvised method of exhaustion is without merit. According to plaintiff, he discovered that the Corrections Mental Health Program Mental Health Services Guidebook allowed him to file grievances involving complaints of discrimination, brutality or staff corruption directly with the warden. See Guidebook (docket no. 69-1). As discussed, the requirements for exhaustion of prisoner grievances are set forth in MDOC Policy Directive 03.02.130, not a Guidebook. Furthermore, the copy of the Guidebook provided by plaintiff (effective April 18, 2005) pre-dates the present policy directive regulating grievances. See Curtis v. Caldwell, No. 2:11-cv-14337, 2012 WL 2974901 at *8 (Report and Recommendation) (E.D.Mich. June 26, 2012), adopted in 2012 WL 2974886 (Order) (July 20, 2012) ("the current version of MDOC PD 03.02.130, which has been in effect since July 9, 2007, does not allow for a grievance to be sent directly to Step III as was the case in a previous version of the policy"); Winslow v. Vorac, No. 1:08-cv-229, 2009 WL 1125057 at *5 (W.D. Mich. April 24, 2009) (explaining that while Policy Directive 03.02.130 ¶ R (eff. April 28, 2003) "permitted prisoners to submit grievances alleging racial discrimination or staff corruption or brutality directly to Step III," the current version of Policy Directive 03.02.130 (eff. July 9, 2007) "contains no provision allowing inmates to submit grievances directly to Step III of the grievance process").
Finally, after rejecting the improperly filed grievance, the MDOC gave plaintiff an opportunity to salvage the grievance, advising him that "
In addition, defendants have presented evidence which establish that plaintiff did not properly exhaust his other claims arising from incidents that occurred on: May 6, 2012; May 14, 2012; August 22, 2013; August 23, 2013; August 27, 2013; August 28, 2013; August 31, 2013; and September 5, 2013.
Plaintiff does not address exhaustion with respect to the incidents which allegedly occurred on May 6, 2012 and May 14, 2012, and provides the Court with no basis for finding exhaustion. Accordingly, defendants Shreve's and McConkey's motion for summary judgment should be granted on those claims due to lack of proper exhaustion. See Jones, 549 U.S. at 218; Woodford, 548 U.S. at 90-91.
Plaintiff apparently contends that exhaustion was unavailable for the events which occurred on August 22, 2013, August 23, 2013, August 27, 2013, August 28, 2013, August 31, 2013 and September 5, 2013, based upon this statement in his complaint:
Compl. (docket no. 1 at p. ID# 2).
Plaintiff relies on this statement made in his "verified complaint" to defeat defendants' motion for summary judgment. A verified complaint is considered analogous to an affidavit for certain purposes. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (a verified complaint has the same force and effect as an affidavit for purposes of responding to a motion for summary judgment). Plaintiff apparently takes the position that his complaint was verified under Title 28 U.S.C. § 1746, which authorizes litigants to provide unsworn declarations in lieu of affidavits under oath. Section 1746 provides in pertinent part that such unsworn declaration or verification be subscribed as in writing as true under penalty of perjury, dated, and in substantially the following form:
28 U.S.C. § 1746. Here, plaintiff did not follow the form as set forth in § 1746. Rather, he diluted the statutory language by stating:
Compl. (docket no. 1 at p. ID# 5).
Plaintiff's affirmance does not unequivocally state that the matters in his complaint are "true and correct" as required under § 1746. While plaintiff's affirmation refers to statements made on "information and belief," his complaint does not differentiate between statements based on personal knowledge and statements based on "information and belief." See Tenneco Automotive Operating Company, Inc. v. Kingdom Auto Parts, 410 Fed. Appx. 841, 848 (6th Cir.2010) (trial court could refuse to consider witness' declarations that did not specify which statements were made under information and belief and which were made from personal knowledge).
Consistent with Fed. Rules Civ. Proc. 56(c)(4) and its predecessor, courts have applied a strict personal knowledge requirement to affidavits or declarations submitted in summary judgment proceedings. See, e.g., Totman v. Louisville Jefferson County Metro Government, 391 Fed.Appx. 454, 464 (6th Cir. 2010) (to constitute evidence sufficient to support or oppose a motion for summary judgment, an affidavit "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated;" thus, a complaint which included a verification stating facts that are true and correct to the best of the affiant's "knowledge and belief" indicated that the allegations of the complaint went beyond the plaintiff's personal knowledge, that the allegations extended to matters within the plaintiff's "beliefs," and that the plaintiff's "beliefs" did not meet the evidentiary standard set forth in Fed. Rules Civ. Proc. 56(e)(1) (predecessor to Fed. Rules Civ. Proc. 56(c)(4)); Alpert v. United States, 481 F.3d 404, 409 (6th Cir.2007) (holding that the affiant's "statement... based upon his `belief' ... did not demonstrate the personal knowledge required by Fed.R.Civ.P. 56(e)"); Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (the "personal knowledge requirement [of Rule 56] prevents statements in affidavits that are based, in part, `upon information and belief' — instead of only knowledge — from raising genuine issues of fact sufficient to defeat summary judgment"); Dellacava v. Painters Pension Fund of Westchester and Putnam Counties, 851 F.2d 22, 27 (2d Cir.1988) (statements in an affidavit made "upon information and belief" have "no probative value and may not be considered in a motion for summary judgment"). For these reasons, the Court does not consider plaintiff's complaint to be a "verified complaint" having the same force and effect as an affidavit for purposes of a summary judgment motion. There is no evidence that plaintiff properly exhausted any grievance with respect to his claims arising in August and September 2013. Accordingly, defendants' Schafer, Badryka, and Haynes' motion for summary judgment should be granted on these claims due to lack of exhaustion. See Jones, 549 U.S. at 218; Woodford, 548 U.S. at 90-91.
Plaintiff contends that defendants Wellman and McConkey retaliated against him by denying him a shower on May 30, 2013. Defendants Wellman and McConkey contend that they are entitled to summary judgment on this claim due to qualified immunity.
Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir 2011). The court may exercise its sound discretion "in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at 236.
Defendants Wellman and McConkle contend that they should be granted qualified immunity based on the first prong of the analysis because plaintiff did not establish a constitutional violation. A First Amendment retaliation claim consists of three elements: "(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiff's protected conduct." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Plaintiff has failed to state a claim for retaliation because the denial of a shower on one occasion is not an adverse action for purposes of maintaining a First Amendment retaliation claim. See Hursey v. Klinesmith, No. 1:10-cv-1277, 2011 WL 2580403 at *7 (W.D. Mich. June 28, 2011) ("[t]his court has previously found that the denial of a shower on one occasion, however, is not a sufficiently adverse action"); Williams v. Wise, No. 2:09-cv-177, 2010 WL 160172 at *3 (W.D. Mich. Jan. 8, 2010) (the denial of a shower on one occasion was not sufficiently adverse to deter a person of ordinary firmness from exercising his constitutional rights). See also, Phelan v. Durniak, No. 9:10-cv-666, 2014 WL 4759937 at *16 (N.D. N.Y. Sept. 24, 2014) ("the loss of a single shower is too de minimis in that it would not deter a similarly situated individual of ordinary firmness from exercising their constitutional rights"). Because plaintiff has failed to allege a constitutional violation against defendants Wellman and McConkey, these defendants are entitled to qualified immunity.
For the reasons set forth above, I respectfully recommend that the motions for summary judgment filed by defendants McConkey, Schafer, Badryka, Maroulis, Wood, Jones, Wellman and Haynes (docket no. 52) and by defendant Kennerly (docket no. 78) be
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen (14) days after service of the report. All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections within the specified time waives the right to appeal the District Court's order. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Here, Kennerly did not comply with the first sentence of the rule, which required him to ascertain whether the motion would be opposed, but he did comply with the third sentence of the rule, explaining his "efforts" (i.e., "Concurrence in the motion has not been sought as Plaintiff is an incarcerated prisoner proceeding pro se"). See Def. Kennerly Motion (docket no. 78 at p. ID# 491). In this instance, the Court does not find that Kennerly's violation of the rule should result in a dismissal of his motion without prejudice. The rule's concurrence requirement is less likely to provide a benefit in a dispositive motion which could extinguish a party's claim, than in a non-dispositive motion involving pre-trial or procedural matters. In the Court's experience, plaintiffs rarely, if ever, concur in a defense motion seeking summary judgment, because concurrence could be interpreted as an agreement for the granting of the motion and dismissal of the plaintiff's claim. Even if a plaintiff failed to file any response to a motion for summary judgment, the Court could not grant such a motion as unopposed. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 407 (6th Cir. 1992) (the trial court is required to "intelligently and carefully review the legitimacy of such unresponded-to motion" and cannot "blithely accept the conclusions argued in the motion"). For these reasons, the Court will address the merits of the motion for summary judgment. Nevertheless, defendant Kennerly's failure to comply with W.D. Mich. LCivR 7.1(d) may preclude him from collecting any costs or attorney fees should he prevail on his motion.
