JEROME MENDELL HAILEY v. LARRY CIEPLY, et al.
Case No. 1:20-cv-1248
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
October 14, 2022
Hon. Paul L. Maloney
ECF No. 40, PageID.268
This is a pro se civil rights action brought pursuant to
I. Background
The Court summarized plaintiff‘s retaliation claims against defendants Cieply and Williams as follows:
Plaintiff alleges that he has several issues that affect his mental health. On October 15, 2020, he transferred to MTU. When Plaintiff arrived, Defendant Williams allegedly told him that he would be sent to administrative segregation because he had filed complaints and grievances on MTU staff three years earlier
while incarcerated there. Plaintiff alleges that Defendant Williams further directed a corrections officer to take Plaintiff to administrative segregation and explained that Defendant Cieply had ordered the placement “to protect the staff and prisoners from [Plaintiff].” (Compl., ECF No. 1, PageID.5.) On October 16, 2020, psychologist Chattah (not a defendant) allegedly apologized to Plaintiff and provided further information. Psychologist Chattah allegedly told Plaintiff, “Defendant Cieply is talking of fabricating a SPON [FN 1] against you. It is likely you‘re going to a [security] level 4 facility.” (Id.) Several days later, Defendant Reed allegedly told Plaintiff and Defendant Yokom that Defendant Cieply had initiated a SPON. Plaintiff alleges that he had no pending or recent misconduct reports against him at that time. . . . On November 12, 2020, MDOC transferred Plaintiff to ARF where he again was placed in administrative segregation, and the remainder of Plaintiff‘s allegations relate to that facility. . . .
Plaintiff alleges that Defendants Cieply and Williams placed him in administrative segregation in retaliation for filing grievances and complaints.
Retaliation based upon a prisoner‘s exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish three elements: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant‘s alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
On initial review, the Court concludes that Plaintiff has alleged facts sufficient to state a First Amendment retaliation claim against Defendants Cieply and Williams. . . .
Plaintiff‘s First Amendment retaliation claims against Defendants Cieply and Williams remain in the case.
[FN 1] A “SPON” is a “Special Problem Offender Notice.” See MDOC Policy Directive (PD) 03.03.110 (eff. Nov. 1, 2018) (defining SPON) [hyperlink omitted]. MDOC staff may initiate a SPON when, based on “specific reliable information[,] an offender is believed likely to present a genuine threat to the safety of an identified offender, volunteer, or employee . . . or to the order or security of a correctional facility.” Id., ¶ D.
II. Defendants’ motion for summary judgment
A. Legal standard for summary judgment
Defendants Cieply and Williams seek summary judgment on the ground that plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit. “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.”
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) 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.
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:
The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party‘s case. Once the moving party has met its burden of production, the nonmoving party cannot rest on its pleadings, but must present significant probative evidence in support of the complaint to defeat the motion for summary judgment. The mere existence of a scintilla of evidence to support plaintiff‘s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
B. Failure to Exhaust
1. Exhaustion requirement
The PLRA provides that a prisoner bringing an action with respect to prison conditions under
Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.
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
2. MDOC Grievance process
The MDOC requires prisoners to follow a three-step process to exhaust grievances. See Policy Directive 03.02.130 (effective March 18, 2019). 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 ¶ Q. 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 ¶¶ Q and S. The Policy Directive provides the following directions for completing grievance forms:
The issues should be stated briefly but concisely. Information provided is to be limited to 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. at ¶ S (emphasis in original). The prisoner must send the Step I grievance to the appropriate grievance coordinator. Id. at ¶ W. 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 ¶ DD. 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 ¶ HH.
Hailey‘s grievance history is set out in his MDOC Prisoner Step III Grievance Report (“Grievance Report“) (ECF No. 21-3). The Grievance Report does not show any grievances filed by Hailey while at MTU during his short stay at that facility in 2020. Defendants seek summary judgment because Hailey did not file any grievances against them during the relevant time period.
In his response, Hailey states that he “wrote” grievances on October 16, 19, 21 and 23, 2020 against defendants Cieply, Williams and others. See Hailey‘s Response (ECF No. 25). In this regard, Hailey presented a number of unfiled grievances with no identifiers or responses from MDOC officials. See Grievance Forms (ECF Nos. 25-1 to 25-33, PageID.158-208); Policy Directive 03.02.130 ¶ X (“The Grievance Coordinator shall log and assign a unique identifying number to each Step I grievance received, including those that may be rejected. A computerized grievance tracking system shall be used for this purpose.“). Hailey also included copies of unfiled, home-made appeal forms with no identifiers or responses from MDOC officials. See Grievance Forms. Hailey stated that he sent the documents, along with kites, to “Grievance Coord. Lake” at MTU. Hailey‘s Response at PageID.151-153.
Hailey‘s Response, which included a declaration under penalty of perjury1, included the following argument/declaration:
In conclusion, plaintiff‘s illustrations [sic] that the officials made the administrative remedies “unavailable” when on 10/23/2020 ADW Yokom threatens plaintiffs’ [sic] life for complaining about his conditions of confinement in
administrative segregation stating in a hostile manner, “You think that‘s something I can leave your ass in that cell and watch you rottens [sic] to death and wouldn‘t care, try me [sic]!“. Therefore, this Court should not grant defendants’ summary judgment motion and find plaintiff provided facts that establish a genuine dispute in opposition to defendants’ motions [sic].”
Id. at PageID.153.
In their reply, defendants presented affidavits from the individuals responsible for processing grievances at MTU. In his affidavit, MTU Grievance Coordinator Nicholas Lake stated: that he did not recall receiving any of the Step I grievances, Step II appeals, or kites referenced by Hailey; and, that he found no records that his office received any of the documents. Nicholas Lake Aff. (ECF No. 27-2, PageID.220). In addition, Lake performed a search of Hailey‘s database for grievances at MTU, but this did not return any of the documents identified by Hailey. Id.; Printout (ECF No. 27-2, PageID.222). Lake received one kite from Hailey in 2020 (ECF No. 27-2, PageID.220, 223). This kite, which Lake received on October 28, 2020, involved a property dispute not related to any grievances against defendants Cieply or Williams. Id. Lake‘s response included a copy of an e-mail which he sent to another MDOC employee on October 28, 2020 related to the kite. PageID.220, 224.
In his affidavit, MDOC Grievance Section Manager Richard Russell stated that:
MDOC has no records that Hailey submitted any documents to Step III in 2020. All Step III submissions from Hailey would have been logged and responded to, and the Step III Grievance Report does not show any entries as having been received in 2020. This indicates that Hailey did not submit any documents to Step III. MDOC also has no records that Hailey submitted any letters to Step III in 2020 or 2021 inquiring about Step III submissions.
Russell Aff. (ECF No. 27-3, PageID.228).
The issue for the Court is whether Hailey presented sufficient evidence to create a genuine issue of material fact on whether he properly exhausted grievances against defendants
In addition, Hailey‘s argument/declaration makes the conclusory statement that former defendant Yokom “made the administrative remedies ‘unavailable‘” does not create a genuine issue of fact which precludes granting defendants’ motion for summary judgment. In addressing a similar “availability” argument raised by Hailey in a previous lawsuit, the Sixth Circuit stated the rule that:
Congress requires a prisoner to exhaust only “available” administrative remedies.
42 U.S.C. § 1997e(a) . A prisoner thus must “exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.‘”
Jerome Mendel Hailey v. Trombley Noble, No. 20-1631, 2020 WL 7706396 at *2 (6th Cir. Dec. 18, 2020) (quoting Ross v. Blake, 578 U.S. 632, 642 (2016)).
III. Recommendation
Accordingly, I respectfully recommend that defendants’ Cieply and Williams’ motion for summary judgment (ECF No. 20) be GRANTED and that this action be TERMINATED.
Dated: October 14, 2022
/s/ Ray Kent
RAY KENT
United States Magistrate Judge