REPORT AND RECOMMENDATION BENCH TRIAL ON EXHAUSTION OF ADMINISTRATIVE REMEDIES

STEPHANIE DAWKINS DAVIS, Magistrate Judge.

I. PROCEDURAL HISTORY

Plaintiff, Gregory Lee, a prisoner in the custody of the Michigan Department of Corrections (MDOC), filed this civil rights complaint on November 22, 2016. (Dkt. 1). Lee is currently incarcerated at Ionia Correctional Facility but at the time of the events giving rise to this complaint (August-September 2016), he was housed at Macomb Regional Correctional Facility (MRF) in New Haven, Michigan. (Dkt. 40, p. 1). Lee alleges a First Amendment retaliation claim under 42 U.S.C. § 1983 against defendants. He claims that defendants Freeman and Hofbauer retaliated against him for assaulting a prison employee and deprived him of his Eighth Amendment right to be free from cruel and unusual punishment by handcuffing him so tightly that the handcuffs injured his wrists. (Dkt. 40, p. 6). Lee also alleges that defendants Noble, King, and Amalfitano retaliated against him for filing grievances and a formal complaint by planting a knife in his cell and harassing, threatening and intimidating him into silence during the grievance process. Id. Finally, Lee alleges that Noble also retaliated against him and violated his Eighth Amendment rights by squeezing his testicles during a search of his person. Id.

On February 1, 2017, defendants moved for summary judgment based on Lee's failure to exhaust administrative remedies. (Dkts. 15, 16). After this matter was fully briefed (Dkts. 20, 22, 23), the undersigned recommended that the Court deny defendants' motion for summary judgment, finding a genuine issue of material fact as to whether Lee was thwarted from completing the exhaustion process. (Dkt. 31). The undersigned also recommended that this issue be resolved via bench trial. Id. On September 19, 2017, the Court adopted the undersigned's Recommendations. (Dkt. 33). Shortly thereafter, counsel was assigned to represent Lee. (Dkt. 36). Lee, with the assistance of counsel, filed an amended complaint on December 6, 2017. (Dkt. 40). Defendants filed a second motion for summary judgment on the issue of exhaustion, which was denied by District Judge Avern Cohn. (Dkt. 45, 51).

The Court subsequently referred this matter to the undersigned for a bench trial on the issue of exhaustion of administrative remedies. (Dkt. 53). After a period of limited discovery, which was extended, a bench trial was scheduled for October 5, 2018. (Dkt. 64). At the final pre-trial conference, the Court was informed that one of the defendants was unable to attend trial due to an extended illness. The parties stipulated to adjourn the bench trial. (Dkt. 67). The joint final pre-trial order was entered on March 25, 2019 and the bench trial held on March 27, 2019. (Dkt. 71, 73). The parties submitted their proposed findings of fact and conclusions of law on April 10, 2019. (Dkt. 74, 75).1 This matter is now ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's claims be DISMISSED based on his failure to exhaust his administrative remedies.

II. FINDINGS OF FACT

The parties present the current dispute as primarily a contest of credibility, each arguing that their version of events is more credible and supported by the objective evidence. Neither party disputes the fact that Lee did not complete the three-step grievance process or the two step Prison Rape Elimination Act ("PREA") grievance process. Where their positions diverge is on the issue of whether the defendants' alleged threats of physical violence and harassment thwarted Lee from fully exhausting his administrative remedies.

Lee asserts that he has filed many grievances during his incarceration and is well-familiar with MDOC's three-step grievance process and his ability to file lawsuits against prison employees. (Dkt. 73, Trial Transcript, pp. 5-6, 13-14, 20). Thus, when defendants Freeman and Hofbauer used excessive force on him in August of 2016 (Dkt. 73, p. 6), he attempted to address the issue through that grievance process. (Dkt. 73, p. 6; Trial Exhibit 1). Lee refused to be interviewed for that grievance. (Dkt. 73, p. 33). In early September of 2016, shortly after filing the grievance based on Freeman's and Hofbauer's conduct, Lee says that defendant Noble approached him, "asking about some grievances [he] was writing" and took away his "yard" time, prompting Lee to ask Noble for a grievance form. (Dkt. 73, pp. 8-10). According to Lee, Noble refused to provide him with a grievance form, telling him "to stop filing grievances" and informing him that "they don't like litigators at Macomb" in hopes of preventing Lee "from filing the Step II grievance" or filing a new one. (Dkt. 73, pp. 8-11). Noble testified that he did not recall taking away Lee's yard time but says that it was possible. (Dkt. 73, pp. 50-51). Noble also denies making any statement about not liking litigators or refusing to provide grievance forms. (Dkt. 73, pp. 50-51). Based on Noble's decision to take away his yard time, Lee filed a second grievance. (Dkt. 73, p. 21; Trial Exhibit 2). This grievance was resolved in Lee's favor in that his improperly taken yard time "was replaced at a later date." (Dkt. 73, pp. 19-21, 38-39).

On September 19, 2016, purportedly based on a "tip" from a known snitch, defendants Noble and King searched Lee for a weapon but did not find one. Lee contends that during this search, they reiterated Noble's previous statement, saying "they don't like litigators" and they threatened that, "if I continue to file a grievance, I be put on A1, which is the hole for that unit, for possession of a weapon." (Dkt. 73, pp. 24, 54-58, 60-62, 92-93). During this "shake-down," Lee says that Noble "grabbed [his] testicle," causing him to "jerk[] away a little bit," which he testified was met with more threats:

(Dkt. 73, p. 27). To corroborate his version of events, Lee presented the testimony of inmate Steve Caprice Smith, who witnessed the September 19th shake-down and thought that defendant Noble was "messing with" Lee, i.e., trying to aggravate Lee or get a reaction out of him. (Dkt. 73, pp. 104-105). Smith testified that Noble "said he was ... fucking somebody up" and that he'd get away with it to Lee during the search. (Dkt. 73, p. 103; Trial Exhibit 12 — Smith's handwritten statement). Defendants point out that Smith could not recall any of the events of September 19, 2016 until his prior statement was read out loud to him, in its entirety. (Dkt. 73, pp. 99-100). Noble denies grabbing Lee's testicles, instead describing Lee as "cooperative" and the entire incident as unremarkable. (Dkt. 73, pp. 62, 75-76). Likewise, King denies that defendant Noble grabbed Lee's testicles. (Dkt. 73, p. 92). The shake-down was admittedly unsuccessful in that "No contraband was recovered...." (Dkt. 73, p. 62). Lee points out that even though the officers found no weapon on his person and thus, any purported weapon was still "missing," they allowed him to return "back to his cell," which is the only other conceivable place a weapon in his possession might have been. (Dkt. 73, p. 62).

After the shake-down, Lee wrote another grievance under the Prison Rape Elimination Act Grievance Process (a "PREA grievance"), placing it in an envelope, and sliding it out in the hall per usual procedure. (Dkt. 73, p. 26; Trial Exhibit 3; Trial Exhibit 4). According to Lee, "Maybe 30 minutes" later, Noble, King, and Amalfitano came to his cell, handcuffed him, transported him to the shower, and started searching his cell for the supposed knife they had not found on his person. (Dkt. 73, pp. 26-27, 80-82, 92). During this search of Lee's cell, Noble found a knife in a winter glove and all defendants denied that the knife was planted. (Dkt. 73, pp. 67-68, 82-85, 96).

After finding the knife, defendants sent Lee to the "A-wing," i.e., solitary confinement, where he remained until September 27, 2016. (Dkt. 73, pp. 28, 68-69, 87-88). Lee was moved from the A-wing on September 27, 2016. (Dkt. 73, p. 69). On his way back to his cell, Lee says Noble gave him what he labeled as his "last warning":

(Dkt. 73, p. 31). Noble's reference to "RTP" was to the Residential Treatment Program, an elevated level of care for seriously mentally ill inmates. Lee testified that the reference to RTP was important "because like 75 percent of the guys that's (sic) in the program (sic) because of attempted suicide," so defendants could make his death look like a suicide. (Dkt. 73, p. 25). Noble denies threatening Lee on that date and testified that Lee "approached" him, "apologized" for filing grievances against him, and told him "that he's going to take all the grievances back, that he was sorry." (Dkt. 73, p. 70). Noble also disagreed that Lee's apology could have been a consequence of the death threat Lee claims Noble made just a week earlier. (Dkt. 73, p. 72).

Notably, these interactions between Noble and Lee took place during a period in which Noble had been instructed to avoid contact with Lee because of the PREA grievance Lee had filed. And Noble was aware of the grievance at the time. (Dkt. 73, pp. 69-71). Less than two weeks later, Lee purportedly tried to hang himself and Noble was the one who cut him down. (Dkt. 73, p. 72). After what he characterizes as Noble's "last warning," i.e., that if he "kept writing grievances, they'd kill me and ... get away with it," Lee says that he did not use the MDOC's grievance process or pursue any other remedies until he was transferred away from MRF on October 10, 2019 and, as a result, was out of Noble's, King's, and Amalfitano's reach. (Dkt. 73, pp. 31, 35). Lee says he did not use the MDOC's grievance process after the "last warning":

(Dkt. 73, p. 37). Lee says that once he was transferred to another facility and felt safe again, he returned to filing grievances. (Dkt. 73, pp. 35-36; Trial Exhibit F).

III. CONCLUSIONS OF LAW

A. Legal Standards for Exhaustion

Title 42 U.S.C. § 1997e(a) provides that "[n]o 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." Section 1997e(a)'s "exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences." Porter v. Nussle, 534 U.S. 516, 520 (2002). "[T]he 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, 534 U.S. at 532. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that "failure to exhaust is an affirmative defense under the PLRA," and "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones, 549 U.S. at 216. "Compliance with prison grievance procedures ... is all that is required by the PLRA to `properly exhaust.'" Jones, 549 U.S. at 218. "Congress has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues." Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). "[P]roper exhaustion of administrative remedies is necessary." Woodford v. Ngo, 548 U.S. 81, 84 (2006).

In Jones v. Bock, the Supreme Court also held that the burden rests on the defendant to show that a plaintiff failed to exhaust when asserting exhaustion as an affirmative defense. Jones, 549 U.S. at 218. Accordingly, exhaustion is satisfied if the plaintiff complied with the applicable grievance procedure and defendants bear the burden of showing otherwise. Kramer v. Wilkinson, 226 Fed.Appx. 461, 462 (6th Cir. 2007) (A prisoner-plaintiff "does not bear the burden of specially pleading and proving exhaustion; rather, this affirmative defense may serve as a basis for dismissal only if raised and proven by the defendants."). The Sixth Circuit has emphasized repeatedly 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 v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). Here, defendants bear the burden of proof on their affirmative defense of failure to exhaust administrative remedies.

B. Availability of Exhaustion

There are two grievance procedures applicable to Lee's claims. Most grievances must be exhausted using the three-step grievance procedure found in Policy Directive 03.02.130 entitled "Prisoner/Parolee Grievances." In PD 03.02.130, there are four stages to the grievance process that a prisoner must follow before seeking judicial intervention, each with specific time limits. (Dkt. 15-3, Ex. 2, MDOC Policy Directive 03.02.130, "Prisoner/Parolee Grievances" (effective date 07/09/2007)).2 First, the prisoner must attempt to verbally resolve the issue with the staff member(s) involved within two business days of becoming aware of a grievable issue. Id. ¶ P. If the issue is not resolved, the prisoner may then file a Step I grievance, which must be accomplished within five business days of the attempted verbal resolution. Id. ¶¶ P, V. If the prisoner is not satisfied with the Step I outcome, or he does not receive a timely response, he must file a Step II appeal within 10 business days of response, or if, no response was received, within 10 business days of when the response was due. Id. ¶ BB. If the inmate is still not satisfied with the result, he must then file a Step III appeal within 10 business days of receiving the response, or if no response is provided, within 10 business days of when it was due. The Step III response ends the administrative process. Id. ¶ FF.

For grievances involving sexual assault, another procedure applies. As set forth in Policy Directive 03.03.140 (9/15/2015), effective 04/24/2017 (Trial Exhibit 18),3 the PREA grievance process is a two-step process that allows prisoners to grieve allegations of sexual abuse. (Trial Exhibit 18, p. 5, ¶ EE). A prisoner may file a grievance at Step I and may appeal the Step I decision to Step II. Id. The Step II decision is the final decision on the merits. Id. The PREA grievance coordinator will ensure that a written response is provided to the prisoner within 60 days of the receipt of the Step I PREA grievance. (Trial Exhibit 18, p. 6, ¶ KK). Prisoners may appeal to Step II if the Step I response is untimely or not satisfactory. (Trial Exhibit 18, ¶ LL). However, this policy directive does not provide a deadline for a Step II appeal.

Where administrative remedies have effectively been rendered unavailable, a prisoner may be excused from pursuing them to completion. In Ross v. Blake, 136 S.Ct. 1850, 1858-59 (2016), the Supreme Court concluded that if the prisoner is effectively barred from pursuing a remedy by policy or by the interference of officials, the grievance process is not available, and exhaustion is not required. Specifically, the Court articulated three scenarios under which a prison's grievance procedures may be rendered unavailable:

Id. at 1858-1860.

Here, in the view of the undersigned, even if Lee's allegations of threats and intimidation are entirely true, he cannot show that such threats or fears of retaliation prevented him from completing the three-step grievance process or the PREA grievance process. This is so because Lee makes it clear that once he transferred to another facility on October 10, 2016, he no longer feared retaliation and was fully capable of participating in the grievance process. With respect to grievance MRF 60901701017B, which involved alleged retaliation by Hofbauer and Freeman, the Step I response was noted to be signed and reviewed on September 30, 2016. (Trial Exhibit 1).4 In addition, it was noted to be returned to Lee on September 30, 2016. Id. Under PD 03.02.130, Lee's Step II appeal would have been due 10 business days later, or October 14, 2016, after Lee was transferred to ARF and admits that he longer feared pursuing the grievance process. Similarly, the Step I response to MRF 201609185217A, in which Lee alleged that the knife was planted by defendants, is noted to have been signed on October 17, 2016, reviewed on October 24, 2016, and returned to Lee on October 24, 2016. (Trial Exhibit 4).5 Accordingly, Lee's Step II appeal would have been due well after he was transferred to ARF.

As to Lee's PREA grievance, the Step I response is noted to have been signed on September 28, 2016 and reviewed on October 14, 2016. (Trial Exhibit 3).6 There is no date noted as to when it was returned to Lee, but based on the pattern with his other grievances, the Court can reasonably infer that it would not have been returned to him any earlier than October 14, 2016, the date on which it was reviewed. While there is no deadline set forth in PD 03.03.140 for filing a Step II appeal,7 the time for doing so must have been after October 14, 2016, when Lee was housed at ARF and already felt safe to file grievances, even grievances relating to events that occurred at MRF. (See Dkt. 74, Plaintiff's Proposed Findings of Fact and Conclusions of Law, p. 12, citing Trial Exhibit F; Dkt. 73, pp. 35-36). For these reasons, the undersigned finds that Lee was not thwarted from completing any of the grievances procedures applicable to his claims and defendants have met their burden of proving nonexhaustion.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that plaintiff's claims be DISMISSED based on his failure to exhaust his administrative remedies.

The parties to this action may object to and seek review of this Report and Recommendation but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and E.D. Mich. Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).

Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. Local Rule 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.

EXHIBIT A

EXHIBIT D

EXHIBIT E

EXHIBIT F

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

EXHIBIT 12

EXHIBIT 18