RAY KENT, Magistrate Judge.
This is a pro se civil rights action brought by a state prisoner in the custody of the Michigan Department of Corrections (MDOC) pursuant to 42 U.S.C. § 1983.
The Court previously summarized the allegations set forth in plaintiff's complaint as follows:
Opinion (docket no. 5, PageID.52-54). The Court dismissed all of plaintiff's claims against defendant "with the exception of Plaintiff's retaliation claim." Id. at PageID.59. See also, Order for partial dismissal and partial service (docket no. 6, PageID.61).
As with most combined motions "to dismiss and/or for summary judgment," defendant's combined "and/or" motion is imprecise with respect to those matters being considered for dismissal under Fed. R. Civ. P. 12(b)(6) and those matters being considered for summary judgment under Fed. R. Civ. P. 56. Defendant's explanation is equally unhelpful, i.e., "In this case, Defendant contends that Plaintiff has failed to state claims upon which relief can be granted and/or there is no genuine dispute as to any material fact and Defendant is entitled to judgment as a matter of law." Defendant's Brief (docket no. 17, PageID.99). Given the submissions by both plaintiff and defendant, the Court construes this motion as one for summary judgment. "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 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).
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.
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.
Plaintiff's claim before this Court is "that Defendant Palmer retaliated against him for engaging in protected conduct by terminating him from his job assignment, falsifying Plaintiff's work assignment evaluation, and preventing Plaintiff from returning to his job in food service after the misconduct charge was dismissed." Opinion at PageID.58. The only grievance at issue in this case is Grievance DRF-14-10-2302-09z ("2302"). See Grievance No. 2302 (docket no. 17-4, PageID.118-130). The Step I grievance, dated October 20, 2014, listed an incident date of October 6, 2014, the date his work assignment termination was approved. Id. at PageID.121; Prisoner Program and Work Assignment Evaluation (Form 363) (docket no. 17-4, PageID.125).
Statement of Grievance No. 2302 (docket no. 17-4, PageID.126).
The relevant Form 363 stated in the comments and recommendations section:
From 363 (Oct. 6, 2014) (docket no. 17-4, PageID.125).
The grievance was denied with defendant Palmer as the respondent and B. Davis as the reviewer. See Step I response (docket no. 17-4, PageID.122). Plaintiff's Step II appeal involved the original claim (i.e., that "no progressive discipline was used") and a new claim that defendant Palmer interviewed him. See Step II Response (docket no. 17-4, PageID.120). In denying plaintiff's Step II appeal, the respondent, Catherine Stoddard did not believe plaintiff's statement that he had "no idea as to what `unknown inappropriate behavior' [he] displayed to be terminated," noting that another Form 363 from August 13, 2014 stated that plaintiff received a lay-in because he was caught giving larger portions than approved for the meals. Id. In denying the appeal, Ms. Stoddard also stated that "[p]olicy and procedure was followed in this case." Id. Plaintiff's Step III appeal was also denied. See Step III Response (docket no. 17-4, PageID.118).
This lawsuit involves plaintiff's allegation that defendant Palmer retaliated against plaintiff in violation of the First Amendment. The necessary elements to establish a First Amendment retaliation claim in the prison context are:
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). For purposes of a First Amendment retaliation claim, "[p]rotected conduct is defined as those actions taken pursuant to `individual rights with which the government generally cannot interfere.'" Manning v. Bolden, 102 Fed. Appx. 904, 905 (6th Cir. 2004), quoting Thaddeus-X, 175 F.3d at 387.
Here, plaintiff did not administratively exhaust a retaliation claim against defendant. The only grievance filed in this matter was no. 2302, which stated an incident date of October 6, 2014, i.e., the date that plaintiff was terminated from his prison work assignment. See Grievance No. 2302 at PageID.121. As discussed, the grievance does not claim that defendant Palmer terminated plaintiff's work assignment in retaliation for plaintiff's engagement in protected conduct. Rather, the grievance claims that plaintiff was wrongfully removed from his prison work assignment because the supervisor, Palmer, did not submit "prior documentation regarding inappropriate behavior" under the operating procedure for Prisoner Program Classification. See id. at PageID.126. While plaintiff's filing of grievance no. 2302 was protected conduct, plaintiff cannot claim that defendant Palmer retaliated against him for filing this grievance. There was no causal connection between the protected conduct (filing the grievance) and the adverse action (termination from prison work assignment), because the adverse action occurred on October 6, 2014, two weeks before plaintiff filed the grievance.
In his response, plaintiff claims that he properly grieved retaliation and that defendant Palmer prevented exhaustion. Plaintiff's Response (docket no. 20, PageID.188-190). In a declaration opposing the motion, plaintiff frames the alleged retaliation as based on his protected conduct of threatening to file a grievance against defendant Palmer. According to plaintiff, on October 9, 2014, when he returned to his work assignment, plaintiff told defendant Palmer, among other things, "that a grievance was going to be filed," to which Palmer responded "[i]f you file a grievance on me, I'm going to make sure you never work in food service again." Walden Decl. (docket no. 20-1, PageID.210); see also Compl. at PageID.4 ("On September 25, 2014, Plaintiff was laid-in from his food service detail and placed on non-bond top lock in his cell, pending outcome of his misconduct report"). Plaintiff filed grievance no. 2302 several days after this encounter.
As an individual in the custody of the state, plaintiff is entitled to petition the state for redress of grievances under the First Amendment. Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir. 1996). Assuming, for purposes of this motion, that plaintiff threatened to file a grievance against defendant Palmer on October 9, 2014, this action was not "protected conduct" for purposes of a First Amendment retaliation claim. See McKinney v. Rutenbar, No. 2:14-cv-220, 2016 WL 4144253 at *2 (W.D. Mich. Aug. 4, 2016) ("it is not clearly established that a threat to file a grievance is protected conduct" for purposes of a prisoner's First Amendment retaliation claim) (listing cases). See also Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009) ("it seems implausible that a threat to file a grievance would itself constitute a First Amendment-protected grievance") (emphasis in original); Pasley v. Conerly, 345 Fed. Appx. 981, 984 (6th Cir. 2009) ("[t]his circuit appears not to have determined conclusively whether merely threatening to file a grievance constitutes protected activity").
However, even if the Court recognized plaintiff's theory that his October 9, 2014 threat to file a grievance was "protected conduct" sufficient to support his retaliation claim, plaintiff failed to exhaust this claim. First, there was no causal connection between the threat and the adverse action. Plaintiff was terminated from his work assignment on October 6, 2014, three days before he threatened to file a grievance against defendant Palmer. Second, Grievance no. 2302 did not exhaust a claim that defendant Palmer terminated plaintiff's work assignment in retaliation for plaintiff's threat to file a grievance against Palmer. See Grievance No. 2302 at PageID.126. As discussed, grievance no. 2302 involved a claim that plaintiff was terminated from his prison work assignment without proper supporting documentation. Third, plaintiff contends that defendant Palmer prevented exhaustion of his retaliation claim. See Plaintiff's Response at PageID.188-190. Plaintiff's main complaint seems to be that defendant Palmer violated an operating procedure by interviewing plaintiff, i.e., "AFTER DEFENDANT VIOLATED THE GRIEVANCE POLICY BY INVESTIGATING HIMSELF AND ACTING AS THE RESPONDENT, HE CLEARLY STATED AND LEFT NO DOUBT THAT HIS MOTIVE WAS RETALIATION". Id. at PageID.189 (internal citations omitted). As discussed, the Step II response found that policy and procedure was followed in this case. Furthermore, this contention is moot because grievance no. 2302 did not involve a retaliation claim.
Based on this record, plaintiff has not properly exhausted his First Amendment retaliation claim against defendant Palmer. See Jones, 549 U.S. at 218-19; Woodford, 548 U.S. at 90-93. Accordingly, defendant Palmer's motion for summary judgment should be granted on this basis.
For these reasons, I respectfully recommend that defendant Palmer's motion for summary judgment (docket no. 17) be
