REPORT AND RECOMMENDATION

HUGH W. BRENNEMAN, Jr., Magistrate Judge.

This is a pro se civil rights action brought by a state prisoner held at a Michigan Department of Corrections (MDOC) facility pursuant to 42 U.S.C. § 1983. This matter is now before the Court on defendant Dr. Ayala's "Motion to dismiss based solely upon failure to exhaust administrative remedies" (docket no. 21) and plaintiff's "Motion for summary judgment and opposition in response to defendants [sic] motion for summary judgment" (docket no. 30).

I. Plaintiff's complaint

Plaintiff's complaint is directed at two defendants, psychiatrist Dr. Jamie Ayala ("Dr. Ayala"), and psychologist Mr. Robert Davis ("Mr. Davis"). Compl. at ¶ 7 (docket no. 1).1 Plaintiff's complaint includes the following allegations. Defendants were employed by the State of Michigan as mental health officials at Ionia Correctional Facility (ICF), were "employees, agents and/or representatives" of the MDOC, and performed duties "as medical and corrections officials acting pursuant to and under the color of law." Id. at ¶¶ 7-8.

Plaintiff suffers from multiple sclerosis. Id. at ¶ 9. In 2009, while housed at the Marquette Branch Prison (MBP), he was diagnosed with "Psychosis disorder due to medical condition." Id. at ¶ 10. Upon plaintiff's transfer to ICF, his assigned case manager and psychologist, Mr. Davis, notified plaintiff that due to his major mental disorder (MMD), plaintiff could not be subjected to long-term segregation "and that [p]laintiff would be `appealed' back into the `Secure Status Outpatient Treatment Program,' (`SSOTP') for mental health treatment." Id. at ¶ 11. According to plaintiff,

Id. at ¶ 11.2

Plaintiff was admitted into "the mental health program" at ICF. Id. at ¶ 12. However, he refused treatment "in fear of his health and safety of officers" who worked with the mentally ill prisoners in the SSOTP unit. Id. Plaintiff was asked to enter the program on two subsequent occasions, but refused to participate. Id. On July 27, 2010, Mr. Davis went to plaintiff's cell and told plaintiff that "if your [sic] not going to consent to participate in SSOTP, I'll be sure that you see the doctor." Id. at ¶ 13. Plaintiff responded that "I have a constitutional right to refuse treatment, you don't care about my safety, I told you officers are going to jump me over there again." Id. Shortly after Mr. Davis left plaintiff's cell door, Dr. Ayala approached the cell and stated that Davis "referred me to re-evaluate you." Id. at ¶ 14. Plaintiff's meeting with Dr. Ayala "lasted less than three minutes." Id. After the meeting, Dr. Ayala changed plaintiff's diagnosis to an anxiety disorder "with no explanation of why he was discontinuing Plaintiff's prescribed treatment and therapy for his Psychosis Disorder." Id. By changing plaintiff's diagnosis, Dr. Ayala "made [p]laintiff ineligible for mental health therapy, and subjected [p]laintiff to punitive detention and administrative segregation." Id.

Approximately two months later, on September 22, 2010, Mr. Davis told plaintiff that, according to Dr. Ayala, plaintiff "was ineligible for the mental health program because he refused treatment, not because he [Dr. Ayala] downgraded Plaintiff's diagnosis." Id. at ¶ 15. Mr. Davis later stated that plaintiff was ineligible for both reasons "but more because you were admitted to the SSOTP and you refused to go several times." Id.

On September 23, 2010, plaintiff asked Dr. Ayala if he could change plaintiff's diagnosis back to the original psychosis disorder. Id. at ¶ 16. Plaintiff promised Dr. Ayala that he would be compliant with treatment and attend SSOTP therapy, because he needed to be provided with proper treatment for his psychosis and released from segregation." Id. According to plaintiff,

Id.

Plaintiff notified Mr. Davis "numerous times that he will be compliant with treatment and that he was ready to leave segregation because segregation exacerbated the symptoms of his mental illness" and Davis "repeatedly promised that he was going to speak to Dr. Ayala and have Plaintiff's diagnosis corrected." Id. at ¶ 17. However, neither Mr. Davis nor Dr. Ayala corrected "their unlawful actions." Id.

Approximately eight months later, in May 2011, plaintiff experienced an exacerbation of his multiple sclerosis and severe symptoms of his psychosis. Id. at ¶ 18. On May 29, 2011, plaintiff attempted to commit suicide. Id. Dr. Thomas Henry, a psychiatrist, found that plaintiff's "clinical status was worsening" and that plaintiff "suffered from paranoia, delusions, and suicidal behavior, along with sleeping and eating problems." Id. Dr. Henry diagnosed plaintiff with a psychosis disorder and recommended that he enter a residential treatment program "for intensive mental health treatment." Id. On June 16, 2011, plaintiff was transferred to an inpatient mental health facility and released from segregation. Id.

According to plaintiff, defendants' act of downgrading his diagnosis based on his refusal to enter a mental health program caused him to be subjected to segregation for 11 months, to suffer severe mental anguish and emotional pain, and to suffer a substantial risk of harm to his mental health. Id. at ¶ 19.

Plaintiff's complaint has alleged two causes of action. In Count 1, plaintiff alleged that defendants retaliated against him in violation of the First Amendment. Specifically,

Id. at ¶ 25.

In Count 2, plaintiff alleged that defendants were deliberately indifferent to his serious medical needs in violation of the 8th Amendment. Specifically, plaintiff alleged that:

Id. at ¶ 27. Plaintiff seeks monetary damages and declaratory relief. Id. at p. 9.

II. Plaintiff's Count 1 fails to state a claim on which relief can be granted

As an initial matter, the Court should sua sponte dismiss plaintiff's Count 1 for failure to state a claim pursuant to 28 U.S.C. § 1915(2)(B)(2), which provides that "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal . . . (ii) fails to state a claim on which relief may be granted[.]" In Count 1, plaintiff has alleged that defendants retaliated against him in violation of his First Amendment rights. To prove a First Amendment retaliation claim, a plaintiff must establish three elements: "1) the plaintiff engaged in activities protected by the Constitution or statute; 2) the defendant took an adverse action that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that this adverse action was taken at least in part because of the exercise of the protected conduct." Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001). See also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc).

Here, plaintiff failed to establish the first element of the First Amendment retaliation claim because he did not engage in conduct protected by the First Amendment. See Thaddeux-X, 175 F.3d at 393-96. Rather, plaintiff claims that Dr. Ayala retaliated against him because plaintiff exercised his right to refuse medical treatment, a right which arises from the Due Process Clause of the Fourteenth Amendment. See, e.g., Washington v. Harper, 494 U.S. 210, 221-2, 229 (1990) (recognizing that a prison inmate with a serious mental illness has a constitutionally-protected liberty interest in avoiding the unwanted administration of antipsychotic drugs and concluding that an inmate "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment"); Noble v. Schmitt, 87 F.3d 157, 161 (6th Cir.1996) ("[t]he Supreme Court has held that individuals in state custody enjoy protectable liberty interests to be free from bodily restraint, and to refuse medical treatment such as the administration of antipsychotic drugs"). Plaintiff has failed to allege a necessary element of a retaliation claim under the First Amendment, the home of such claims. He cannot stretch this claim to encompass rights found in the Due Process Clause of the Fourteenth Amendment. Accordingly, plaintiff's retaliation claim alleged in Count 1 should be dismissed pursuant to 28 U.S.C. § 1915(2)(B)(2)(ii) for failure to state a claim.

III. The parties dispositive motions

A. Legal standard

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.

Dr. Ayala has moved to dismiss plaintiff's action for lack of exhaustion. While the doctor's motion seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(6), his supporting brief specifically asks the court to "grant him summary judgment due to Plaintiff's failure to exhaust administrative remedies." See Brief at p. 9 (docket no. 21-1). Given that Dr. Ayala has submitted documents outside of the pleadings (including an affidavit), and has requested a grant of summary judgment, the Court construes this motion as one for summary judgment brought pursuant to Fed. R. Civ. P. 56. In response to this motion, plaintiff filed his own motion for summary judgment on the issue of exhaustion.

"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).

B. Failure to Exhaust

1. Exhaustion requirement

The 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.

2. MDOC Grievance process

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.

3. Plaintiff failed to properly exhaust his claim

Dr. Ayala contends that plaintiff did not properly exhaust a grievance with respect to the matters alleged in this action. The Court agrees. Plaintiff has alleged only two interactions with Dr. Ayala: a conversation on July 27, 2010, when the doctor changed plaintiff's diagnosis to an anxiety disorder; and a conversation on September 23, 2010, when the doctor told plaintiff the reasons why his diagnosis was changed.

Dr. Ayala points out that there is no record that plaintiff filed a grievance which specifically related to the doctor's interactions with plaintiff on either July 27, 2010 or September 23, 2010. The doctor notes that plaintiff filed a grievance on September 16, 2010, regarding an incident that occurred on September 11, 2010. See Grievance No. ICF 2010-09-2299-12B1 ("2299") (docket nos. 1-1 and 30-1). Plaintiff relies on Grievance No. 2299 as the basis for his lawsuit. Id.

Plaintiff's Grievance No. 2299 seeks relief based on the following complaints. Plaintiff suffered from multiple sclerosis which caused him to have hallucinations and hear things, resulting in a diagnosis with a "psychiatric disorder due to medical condition." After receiving a misconduct on an unspecified date, plaintiff was placed in segregation and then placed in the SSOPT program because MDOC policy prohibited housing mentally ill prisoners in segregation. While in the SSOPT program, plaintiff was attacked by an officer and taken out of the program. Mental health staff appealed and plaintiff was approved to re-enter the program. Plaintiff refused to re-enter SSOPT, telling Mr. Davis that he was afraid of the officer that had attacked him. About one month later, plaintiff refused a second order to enter the program for the same reason. After plaintiff learned that the officer was no longer at the SSOPT program, he told Mr. Davis that he was willing to go to the program. However, Mr. Davis told plaintiff that he was no longer eligible for SSOPT because his diagnosis was changed to a less severe "mood disorder," a diagnosis which was not eligible for SSOPT. Plaintiff claimed that his constitutional rights were violated because: (1) he had a right to mental care for his severe mental illness; (2) plaintiff was retaliated against for refusing treatment 3 times by changing his diagnosis to a less-severe diagnosis making him ineligible for SSOPT care; and (3) plaintiff had a right to refuse medical treatment at the time because he was in fear of his safety. Id.

The substance of Grievance No. 2299 is that on September 11, 2010, Dr. Ayala and Mr. Davis denied plaintiff mental health treatment and retaliated against him in violation of the First Amendment. As an initial matter, plaintiff's grievance did not (and in fact could not) address his claim against Dr. Ayala which arose twelve days later on September 23, 2010. However, it is not entirely clear whether the grievance involved plaintiff's claim that Dr. Ayala changed his diagnosis on July 27, 2010. As discussed, plaintiff's grievance recounted events which occurred at least one month prior to September 11, 2010. An undated grievance response appeared to acknowledge a relationship between the July 27, 2010 diagnosis and the September 11, 2010 incident, stating in pertinent part that "it was learned that Prisoner Carter had a comprehensive psychiatric evaluation completed in July of this year," that "a determination was made that the diagnosis would not fall in the category of a Major Mental Disorder diagnosis as defined in the Correction's Mental Health Program," and that "[a]lthough he alleges that this was done for retaliatory reasons, this is not supported by the evidence." Id. (docket no. 1-1 at p. 5). Based on this record, the Court concludes that a genuine issue of material fact exists as to whether Grievance No. 2299 involved Dr. Ayala's alleged change of diagnosis which occurred on or about July 27, 2010.

Assuming that Grievance No. 2299 addressed the July 27, 2010 claim, plaintiff did not properly exhaust that grievance. Dr. Ayala has presented the affidavit of Richard D. Russell, Manager of the Grievances Section for the MDOC, Office of Legal Affairs, in which Mr. Russell stated that plaintiff did not pursue this grievance through Step III. See Richard Russell Aff. at ¶¶ 1-5 (docket no. 21-3). After performing a search of the grievance records for plaintiff, Mr. Russell stated that the only grievance which plaintiff pursued through Step III of the grievance process at ICF between March 2009 and March 2011, was Grievance No. ICF-10-04-1092-26a ("1092"). Id. at ¶ 5. This grievance referred to a different matter, i.e., an allegation that Resident Unit Officer Mawer attacked plaintiff on April 21, 2010, and that supervisory staff failed to take appropriate action. See Grievance No. 1092 (docket no. 21-4).

In his cross-motion for summary judgment, plaintiff contends that he exhausted Grievance No. 2299 against Dr. Ayala and Mr. Davis. See Plaintiff's Motion (docket no. 30). In a declaration made pursuant to 28 U.S.C. § 1746, plaintiff stated that "[o]n January 6, 2011, I filed a Step III Appeal with the MDOC Director's Office by depositing it in the mailbox." See Joel Carter Aff. at ¶ 6 (docket no. 30-1). Plaintiff has submitted a copy of a grievance form for a Step III Appeal which provides the following reason for appeal, "Grievant re-states and re-alleges the facts in Step I." Grievance No. 2299 (docket no. 1-1 at p. 7). In his affidavit, plaintiff stated that he followed up on the grievance on February 12, 2011, when he "mailed a letter to Director's Office [sic] inquiring into the non-response to my Step III Grievance Appeal." Joel Carter Aff. at ¶ 6. Plaintiff has filed a copy of the February 12, 2011 letter which he claims was mailed to the Director's Office regarding grievance no. 2299. See Letter (Feb. 12, 2011) (docket no. 30-1 at p. 12). This letter, which is marked "RE: Step III Appeal Decision," does not identify any particular grievance.

Viewing the factual evidence and drawing all reasonable inferences in favor of the nonmoving party (plaintiff), the Court concludes that plaintiff did not properly exhaust Grievance No. 2299. While plaintiff states in his affidavit that he mailed the Step III grievance to the "Director's Office," this action was not the appropriate method for filing a Step III grievance. Under the MDOC Policy Directives,

MDOC Policy Directive 03.02.130 ¶ FF (emphasis added).

Policy Directive 03.02.130 further provides that "[t]he Grievance and Appeals Section shall be the respondent for Step III grievances on behalf of the Director" and is responsible for logging the grievances into a computerized grievance tracking system, forwarding grievances regarding health care issues to the Administrator of the Bureau of Health Care Services, and "ensur[ing] that any additional investigation is completed as necessary for each Step III grievance accepted, including referral to the Internal Affairs Division and, for disability issues, to the Equal Employment Opportunity Office within the Bureau of Human Resources, as appropriate, and that a copy of the Step III response is provided to the grievant." Id. at ¶ GG. While plaintiff stated that he mailed the Step III grievance to the "Director's Office," this action was not sufficient to file a Step III grievance. There is no evidence that plaintiff properly exhausted the grievance by sending a copy of the Step III grievance to the Grievance and Appeals Section as required by Policy Directive 03.02.130 ¶ FF. Indeed, as demonstrated by Mr. Russell's affidavit, there is no record that such a grievance was filed.

Furthermore, plaintiff filed this action against Dr. Ayala prior to receiving a Step III response. The PLRA provides that "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." The exhaustion requirement is mandatory and applies to all suits regarding prison conditions, regardless of the nature of the wrong or the type of relief sought. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741. Thus, a prisoner "may not exhaust administrative remedies during the pendency of the federal suit." Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.1999). Based on this record, plaintiff did not properly exhaust a grievance against Dr. Ayala prior to filing this action. Jones, 549 U.S. at 218; Woodford, 548 U.S. at 90-91; Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Freeman, 196 F.3d at 645. Accordingly, Dr. Ayala's motion for summary judgment (docket no. 21) should be granted and plaintiff's motion for summary judgment (docket no. 30) should be denied.

IV. Recommendation

For the reasons set forth above, I respectfully recommend that plaintiff's allegation of First Amendment retaliation set forth in Count 1 be DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(2)(B)(2)(ii).

I further recommend that Dr. Ayala's motion for summary judgment (docket no. 21) be GRANTED, that plaintiff's motion for summary judgment directed at Dr. Ayala (docket no. 30) be DENIED, and that Dr. Ayala be DISMISSED from this action.