PAUL J. KOMIVES, Magistrate Judge.
I.
Plaintiff Virgil R. Green, also known as Mu'eem Rashad, commenced this action on October 4, 2013, by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. At the times relevant to this action, plaintiff was incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan. Named as defendant is Corrections Officer James Miller. Plaintiff alleges that defendant Miller retaliated against him in various ways from July through October, 2012. First, plaintiff alleges that on July 29, 2012, he was a wheelchair aide for another inmate. Defendant made him wait outside the chow hall, while other wheelchair aides were permitted to remain inside. Defendant also wrote plaintiff a false misconduct ticket for failing to obey a direct order. The hearing officer dismissed the misconduct ticket. See Compl., ¶¶ 7-17. Second, plaintiff alleges that on September 11, 2012, defendant searched his cell and removed medication (lactaid tablets) and legal documents. Defendant wrote a misconduct ticket for possession of an illegal substance. The hearing officer reduced the charge to a minor offense of possessing contraband. As a result of these acts, plaintiff had to wait 30 days to get another prescription of lactaid. See id., ¶¶ 18-38. Plaintiff alleges that defendant's acts of confiscating his medication and legal papers, and filing false misconduct charges, were done in retaliation for plaintiff's complaints and filing of lawsuits against defendant's coworkers, in violation of the First Amendment. Plaintiff also alleges that defendant's actions violated his right of access to the courts. Finally, plaintiff asserts state law claims of gross negligence and violations of the Michigan constitution.
The matter is currently before the Court on defendant's motion for summary judgment, filed on December 20, 2013. Defendant argues that he is entitled to summary judgment with respect to all of defendant's claims except the cell search claim based on plaintiff's failure to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Defendant also argues that he is entitled to summary judgment on plaintiff's cell search claim on the merits. Finally, defendant argues that the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims. Plaintiff filed an affidavit in opposition to defendant's motion on January 21, 2014. On the same date, plaintiff filed an affidavit request for further discovery pursuant to Rule 56(c). Plaintiff filed a second affidavit on January 24, 2014.
Under Rule 56, summary judgment should be granted "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). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "A fact is material only if its resolution will affect the outcome of the lawsuit." Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-movant as well as draw all reasonable inferences in the non-movant's favor. See Sutherland v. Michigan Dep't of Treasury, 344 F.3d 603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
"The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case." Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex Corp., 477 U.S. at 325; see also, FED. R. CIV. P. 56(c)(1) (moving party may meet its burden by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."). "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) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also, FED. R. CIV. P. 56(e). To create a genuine issue of material fact, however, the non-movant must do more than present some evidence on a disputed issue. As the Supreme Court has explained:
Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, "[t]he existence of a mere scintilla of evidence in support of the non-moving party's position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Sutherland, 344 F.3d at 613.
Pursuant to the Prison Litigation Reform Act (PLRA), inmates challenging their conditions of confinement must exhaust their administrative remedies before pursuing a federal civil rights action. Specifically, the PLRA provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In order to properly exhaust a civil rights claim, a prisoner must comply with the prison system's "procedural rules, including deadlines, as a precondition to bringing suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88 (2006). As the Supreme Court recently explained, the scope of a prisoner's obligation to exhaust is defined not by the PLRA itself, but by the prison's grievance procedures:
Jones v. Bock, 549 U.S. 199, 218 (2007) (citations omitted). Michigan provides for a three-step grievance procedure. A Step I grievance is directed to the Step I Grievance Coordinator at the facility in which the prisoner is incarcerated. If the prisoner is dissatisfied with the Step I response, he may file a Step II appeal to the Warden of the facility. If the prisoner is again dissatisfied with the Step II response, he may file a Step III appeal to the Director of the Department of Corrections or his designee. See MICH. DEP'T OF CORRECTIONS POLICY DIRECTIVE 3.02.130(V), (BB), (FF) (effective July 9, 2007). The Policy Directive provides that a prisoner must include "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., § (R).
In support of his motion, defendant has submitted a Step III grievance report setting forth all of the Step III grievances plaintiff had submitted since May 2009, see Def.'s Br., Ex. B, as well as copies of the relevant grievances. Only one of these grievances addresses defendant Miller's conduct, Grievance No. ARF-12-09-2990-17g. In this grievance, plaintiff alleged:
Def.'s Br., Ex. D. This grievance is sufficient to exhaust plaintiff's claim of retaliation based on the September 11, 2012, search of his cell, a point defendant concedes. However, defendant contends that because this is the only grievance relating to his conduct, plaintiff's remaining retaliation claims are unexhausted. The Court should agree.
The Step III grievance report and grievance copies attached by defendant suffice to meet his initial summary judgment burden of demonstrating that plaintiff failed to exhaust his administrative remedies. See Dean v. Prison Health Servs., No. 10-14135, 2011 WL 1630114, at *6 (Mar. 28, 2011) (Michelson, M.J.), magistrate judge's report adopted, 2011 WL 1627336 (E.D. Mich. Apr. 28, 2011) (Cleland, J.); see also, Ryder v. Wolfenbarger, No. 08-12115, 2010 WL 3059361, at *5 (June 24, 2010) (Hluchaniuk, M.J.), magistrate judge's report adopted, 2010 WL 3259358 (E.D. Mich. Aug. 18, 2010) (Zatkoff, J.); Hernandez v. Harrington, No. 2:09-cv-167, 2010 WL 3853215, at *3 (Aug. 20, 2010), magistrate judge's report adopted, 2010 WL 3843773 (W.D. Mich. Sept. 28, 2010). Petitioner has presented no evidence to contradict the Step III grievance report and show that he has exhausted his administrative remedies with respect to any other claim. Accordingly, the Court should conclude that plaintiff has failed to exhaust any retaliation claim based on the filing of false misconduct reports or confiscation of his medication.
The Court should conclude, however, that plaintiff's grievance exhausts both his retaliation claim based on the alleged confiscation of his legal papers, and the independent access to courts claim.
Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003), abrogated in part on other grounds by Jones, 549 U.S. at 217. Plaintiff's grievance was sufficient to give prison officials fair notice of both a retaliation claim and an access to courts claim based on the same alleged conduct of defendant, and thus was sufficient to exhaust both his claims. See Douglas v. Caruso, No. 1:07-cv-18, 2008 WL 4534061, at *8-*9 (W.D. Mich. Sept. 30, 2008).
With respect to plaintiff's exhausted retaliation claim, defendant argues that he is entitled to summary judgment on the merits. The Court should disagree.
In order to succeed on a retaliation claim, plaintiff must establish 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) (en banc) (plurality op.). However, if the "defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on summary judgment." Id. at 399. While the adverse action inquiry is ordinarily a question of fact for the jury, some "adverse actions" are so de minimis that they fail to state a retaliation claim as a matter of law. See Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002); Thaddeus-X, 175 F.3d at 398-99.
Defendant argues that plaintiff cannot show that he suffered an adverse action, because a cell search is not sufficient to deter a person of ordinary firmness from continuing to engage in protected conduct.
Accordingly, the Court should deny summary judgment with respect to plaintiff's retaliation claim based on the alleged confiscation of his legal materials.
In response to defendant's motion for summary judgment, plaintiff filed an affidavit seeking a stay of summary judgment pending further discovery. The Court should conclude that a stay of summary judgment is not appropriate. Rule 56(d) (formerly Rule 56(f)) provides that "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." FED. R. CIV. P. 56(d). As another court in this Circuit has explained:
Gencorp, Inc. v. AIU Ins. Co., 304 F.Supp.2d 955, 960 (N.D. Ohio 2004); see also, Gettings v. Building Laborers Local 310 Fringe Benefit Fund, 349 F.3d 300, 305 (6th Cir. 2003); Cacevic, 226 F.3d at 488; Evans, 80 F.3d at 961. Thus "a party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit." Evans, 80 F.3d at 961 (internal quotation omitted); see also, Whalen v. Century Communications, No. 97-16572, 1999 WL 109630, at *1 (9th Cir. Dec. 10, 1998) ("An inadequate discovery time argument fails where the party complaining failed to take advantage of the procedural remedy offered in Rule 56(f).").
Here, plaintiff has failed to "affirmatively demonstrate . . . how postponement of a ruling on the motion[s] will enable him, by discovery or other means, to rebut the [defendants'] showing of the absence of a genuine issue of fact." Good, 149 F.3d at 422. Plaintiff's affidavit avers that he needs additional discovery relating to defendant's actions in removing him from the chow hall while he was assisting another inmate. As explained above, however, plaintiff's claims relating to anything other than the confiscation of his legal materials are unexhausted. The additional discovery plaintiff seeks in his affidavit all relate to the merits of his unexhausted claim; plaintiff does not seek further discovery relevant to the exhaustion inquiry. Thus, the further discovery sought by plaintiff would not enable him to "rebut the [defendant's] showing of the absence of a genuine issue of fact" with respect to the exhaustion issue, and thus a delay in ruling on the summary judgment motion is not appropriate. See Chilingirian v. Boris, 882 F.2d 200, 203 (6th Cir. 1989) (summary judgment not premature even though discovery had not been conducted where "there is no evidence that discovery would have disclosed disputed material facts in support of [plaintiff's] claim.").
Finally, defendant argues that the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims. Congress has provided for limited, supplemental jurisdiction over state law claims that are related to federal claims over which a court has original jurisdiction:
28 U.S.C. § 1367(a). However, Congress has also provided that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In determining whether to exercise supplemental jurisdiction, courts should consider the following factors: judicial economy, convenience, fairness to litigants, and comity. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); see also, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Defendant argues that the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims because he is entitled to summary judgment on plaintiff's federal claims. It is true that when "federal law claims are eliminated before trial, the balance of these factors will point toward declining to exercise jurisdiction over the remaining state-law claims." Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994); see also, Gibbs, 383 U.S. at 726 ("if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well"); Imagineering, Inc. v. Kiewit Pac. Co., 976 F.2d 1303, 1307 (9th Cir. 1992); Morse v. University of Vermont, 973 F.2d 122, 127-28 (2d Cir. 1992); Reynolds v. Mercy Hosp., 861 F.Supp. 214 (W.D.N.Y. 1994); Heller v. CACL Federal Credit Union, 775 F.Supp. 839, 843 (E.D. Pa. 1991). Thus, "federal courts, absent exceptional circumstances, should abstain from exercising [supplemental] jurisdiction when federal claims in a case can be disposed of by summary judgment." Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986). However, as explained above defendant is not at this time entitled to summary judgment on all of plaintiff's federal claims.
Nevertheless, the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims. In the supplemental jurisdiction statute, Congress has provided that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a)" if there are compelling reasons for doing so. 28 U.S.C. § 1367(c)(4). Here, comity counsels against exercising supplemental jurisdiction. In addition to bringing ordinary state law tort claims of negligence and gross negligence, plaintiff asserts that defendant's actions violated the Michigan constitution. See Compl., ¶ 42. It is not clear, however, whether the Michigan constitution itself provides a damages remedy for violations of its provisions, and that "novel and complex issues of state law are raised by plaintiff's state law claims. Fundamental concepts of federalism and respect for the courts of the State of Michigan dictate that Michigan state courts be allowed to address these issues." Williams v. Van Buren Township, 925 F.Supp. 1231, 1238 (E.D. Mich. 1996) (Gadola, J.); cf. Pactiv Corp. v. Chester, 419 F.Supp.2d 956, 967 (E.D. Mich. 2006) (Feikens, J.). Accordingly, the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims, and should dismiss these claims without prejudice to plaintiff refiling the claims in state court.
In view of the foregoing, the Court should grant in part and deny in part defendant's motion for summary judgment. Specifically, the Court should deny defendant summary judgment with respect to plaintiff's retaliation and access to courts claims based on defendant's alleged confiscation of his legal materials, and should grant summary judgment with respect to all other federal constitutional claims alleged by plaintiff based on his failure to exhaust any such claims as required by § 1997e(a). The Court should also decline to exercise supplemental jurisdiction over plaintiff's state law claims, and should dismiss these claims without prejudice to plaintiff refiling these claims in state court.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED. R. CIV. P. 72(b). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
