TIMOTHY P. GREELEY, Magistrate Judge.
This is a civil rights action brought by state prisoner David Jamerson pursuant to 42 U.S.C. § 1983. Plaintiff asserts an Eighth Amendment claim against Defendant Jeff Cromell. On January 26, 2018, Defendant filed a motion for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies. (ECF No. 19). Plaintiff failed to file a response brief. This matter is ready for decision.
Plaintiff was incarcerated at Alger Correctional Facility (LMF) in 2013. In his complaint, Plaintiff alleges that on April 8, 2013, Defendant Cromell called Plaintiff for a shakedown as he was leaving the chow house. During the shakedown, Defendant Cromell told Plaintiff that staff were going to teach him a lesson about talking back. As Plaintiff was walking away, Defendant Cromell said "you don't want it like that . . . it's only one way to find out, I kick your ass or you kick mine." Plaintiff turned and began walking toward Defendant Cromell, who yelled "get him." Shortly thereafter, two prison guards put Plaintiff in a headlock and hit him in the head with a blunt object. The officers then pinned Plaintiff to the ground and used a taser on him four or five times. As a result of this incident, Plaintiff suffered injuries to his head, eyelid, wrists, and hand.
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(c); Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005); Thomas v. City of Chattanooga, 398 F.3d 426, 429 (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)); see also Tucker v. Union of Needletrades Indus. & Textile Employees, 407 F.3d 784, 787 (6th Cir. 2005). 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. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 296 (6th Cir. 2005).
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, 212-216 (2007). A moving party without the burden of proof need show only that the opponent cannot sustain his burden at trial. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); see also Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). A moving party with the burden of proof faces a "substantially higher hurdle." Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). "Where 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) (quoting W. SCHWARZER, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The United States Court of Appeals for the Sixth Circuit repeatedly has 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." Arnett, 281 F.3d at 561 (quoting 11 JAMES WILLIAM MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 56.13[1], at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same). 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. See 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. See 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 v. Bock, 549 U.S. 199, 218-19 (2007); 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, 136 S.Ct. 1850, 1859-1860 (2016).
MDOC Policy Directive 03.02.130 (effective July 9, 2007), sets forth the applicable grievance procedures for prisoners in MDOC custody at the time relevant to this complaint. 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 ¶ P. 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 ¶¶ P, V. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ V. 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
Mattox v. Edelman, 851 F.3d 583, 591 (6th Cir. 2017).
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 ¶¶ T, BB. The respondent at Step II is designated by the policy, e.g., the regional health administrator for a medical care grievances. Id. at ¶ DD. 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 ¶¶ T, FF. 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. at ¶¶ T, FF. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ GG. "The total grievance process from the point of filing a Step I grievance to providing a Step III response shall generally be completed within 120 calendar days unless an extension has been approved. . . ." Id. at ¶ S.
In this case, Plaintiff exhausted one grievance related to his claims—Grievance #LMF 1304-624-26a. (ECF No. 20-3, PageID.227-230). At Step I, Plaintiff detailed the events that occurred on April 8, 2013. He stated that he was leaving the chow house at LMF, when an unnamed corrections officer ordered a shakedown. At some point during the shakedown, the corrections officer asked Plaintiff, "whats all that bad talk you were doing about the squad?" Plaintiff began to walk away from the corrections officer. The corrections officer subsequently yelled something and Plaintiff was attacked by "a group of prison guards." In response to the Step I grievance, Inspector Rutter investigated Plaintiff's allegations. Following the investigation, Inspector Rutter determined that Plaintiff assaulted staff without provocation and noted that the incident was being referred for criminal prosecution. Thus, Plaintiff's grievance was denied at Step I. Plaintiff appealed this grievance to Step II, which was denied on June 10, 2013. Plaintiff then appealed to Step III, which was denied on October 15, 2013.
Defendant argues that Grievance #LMF 1304-624-26a did not exhaust the claim against him because (1) Plaintiff did not attempt to resolve the issue with him before filing the grievance, and (2) Plaintiff never named him in the grievance. It is true that the MDOC policy requires an inmate to attempt to resolve the issue before filing a grievance and name the prison official in the grievance. But the problem with Defendant's argument is that the MDOC never enforced its own procedural rules. Instead, the MDOC denied the grievance on the merits following an investigation by Inspector Rutter. This Court will not enforce the MDOC's procedural rules when the MDOC fails to do so. See Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) ("When prison officials decline to enforce their own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a general rule will we."); Mattox v. Edelman, 851, F.3d 583, 591 (6th Cir. 2017) ("[P]rison officials waive any procedural irregularities in a grievance when they nonetheless address the grievance on the merits."). Moreover, Plaintiff's allegations in the grievance were sufficient to provide prison officials "a fair opportunity" to address grievances on the merits. Therefore, in the opinion of the undersigned, Defendant has failed to meet his burden to show that Plaintiff failed to exhaust all available administrative remedies.
Accordingly, it is recommended that Defendant's motion for summary judgment (ECF No. 19) be denied.
NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within fourteen (14) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).
