Gresham v. Horton

1

MICHAEL GRESHAM, #272603, Plaintiff, v. CONNIE HORTON, et al., Defendants.

No. 2:21-cv-252

United States District Court, W.D. Michigan, Northern Division

October 17, 2023

REPORT AND RECOMMENDATION

Hon Hala Y. Jarbou Chief U.S. District Judge

I. Introduction

This Report and Recommendation (R. & R.) addresses the motion for summary judgment filed by Defendants Horton,^[1] Corrigan, Plumm, Wonnacott,^[2] Landreville, Corey-Spiker,^[3] and Batho based on Plaintiff's failure to exhaust his administrative remedies. (ECF No. 22.) It also addresses Plaintiff's failure to serve Defendant R. Corgan.

Plaintiff - state prisoner Michael Gresham - filed suit pursuant to 42 U.S.C. § 1983 on December 27, 2021. In his complaint, Gresham alleged that while he was incarcerated at Chippewa Correctional Facility (URF) in Kincheloe, Michigan, URF employees violated his First and Eighth Amendment rights by retaliating against him, failing to protect him, and acting with deliberate indifference to his serious medical needs. (ECF No. 1, PageID.4-6.)

More specifically, Gresham alleged that URF employees retaliated against him for past lawsuits by refusing to place him in protective custody after he was threatened by various prison gangs. (Id., PageID.4-5.) Gresham further alleged that URF employees issued him false misconduct tickets in response to his attempts to “change the system.” (Id., PageID.6.) Finally, Gresham alleged that URF employees denied him medical treatment after other inmates threw urine and feces at him in the shower. (Id., PageID.4-5.) At this stage of the case, only Gresham's First and Eighth Amendment claims against Defendants Horton, Corgan, Corrigan, Plumm, Wonnacott, Landreville, Corey-Spiker, and Batho for denying him placement in protective custody in retaliation for his past lawsuits remain. (See ECF No. 9, PageID.92 (Screening Op.).)

Defendants Horton, Corrigan, Plumm, Wonnacott, Landreville, Corey-Spiker, and Batho now move for summary judgment, asserting that Gresham did not properly exhaust his administrative remedies. (ECF No. 22.) Defendants argue that Gresham filed only one grievance at URF, and that he did not receive a Step III response to that grievance until after he filed his complaint. (ECF No. 23, PageID.144.) In response, Gresham says that URF staff “misled” him as to the grievance process, and that they “issued threats and intimidation” rendering the grievance process unavailable to him. (ECF No. 24, PageID.168.)

The undersigned respectfully recommends that the Court grant the motion for summary judgment filed by Defendants Horton, Corrigan, Plumm, Wonnacott, Landreville, Corey-Spiker, and Batho (ECF No. 22) and dismiss Gresham's claims against them. The record before the Court reflects that Gresham successfully exhausted the grievance process after he filed this lawsuit. As such, there are no genuine issues of material fact; the grievance process was available to Gresham, and Gresham did not exhaust prior to filing suit in federal court. In the undersigned's opinion, that ends the Court's inquiry.

Additionally, the record reflects that the U.S. Marshals Service was unable to identify and therefore unable to serve the person identified in the complaint as R. Corgan. The time for service has now expired. The undersigned therefore recommends that the Court order Gresham to show cause as to why his claims against Corgan should not be dismissed without prejudice in accordance with Federal Rule of Civil Procedure 4(m).

II. Relevant Factual Allegations

Gresham says that while he was housed in administrative segregation at URF in November and December of 2021, Defendants began calling him a snitch for lawsuits that he filed against their fellow staff members. Because Defendants called Gresham a snitch in front of other prisoners, prison gangs including “the Bloods, the Vice Lords, [and] the Gangster Disciples” began threatening Gresham through their cell doors. (ECF No. 1, PageID.4.) Specifically, Gresham alleges that the gang members threatened to stab him and “dress [him] out in the shower” when Gresham returned to general population. According to Gresham, one of those gang members had previously attacked Gresham while they were incarcerated at another Michigan Department of Corrections facility in 2019. (Id.)

Based on these threats, Gresham says that he asked Defendants former Warden Connie Horton, Deputy Warden (DW) R. Corgan, Warden James Corrigan, Prison Counselor (PC) Dustin Plumm, PC Ricky Wonnacott, Corrections Officer (CO) Nicholas Landreville, Resident Unit Manager (RUM) Teresa Corey-Spiker, and Assistant Deputy Warden (ADW) Robert Batho to place him in protective custody. (Id., PageID.4-5.) Gresham alleges that Defendants denied his request based on Gresham's history of filing lawsuits^[4] against their friends and co-workers. (Id., PageID.5.) Gresham says that URF inmates later assaulted him by throwing their bodily fluids at him during shower time.

III. Summary Judgment Standard

Summary judgment is appropriate when the record reveals that there are no genuine issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Kocak v. Comty. Health Partners of Ohio, Inc., 400 F.3d 466, 468 (6th Cir. 2005). The standard for determining whether summary judgment is appropriate is “whether the evidence presents a sufficient disagreement to require submission to a jury^[5] or whether it is so one-sided that one party must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

IV. Exhaustion

A prisoner's failure to exhaust his administrative remedies is an affirmative defense, which Defendants have the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 212-16 (2007). “[W]here the moving party has the burden-the plaintiff on a claim for relief or the defendant on an affirmative defense-his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). The Sixth Circuit has repeatedly emphasized 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.” Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). Accordingly, Instead, the court may conduct a bench trial to resolve the issue. (Id.) In a bench trial on exhaustion, the defendants must show that the plaintiff failed to exhaust his administrative remedies by a preponderance of the evidence. Id. at 677 (citing Jones v. Bock, 549 U.S. 199, 218 (2007)) (“Failure to exhaust administrative remedies is an affirmative defense, which the defendant has the burden to plead and prove by a preponderance of the evidence.”); Richards v. Perttu, No. 2:20-CV-76, 2022 WL 842654, at *1 (W.D. Mich. Mar. 22, 2022) (affirming a magistrate judge's ruling that the preponderance of the evidence standard applies in a bench trial on exhaustion). summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

Pursuant to the applicable portion of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983 must exhaust his available administrative remedies. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 733 (2001). A prisoner must first 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. Porter, 534 U.S. at 520; Booth, 532 U.S. at 741; Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000); Freeman v. Francis, 196 F.3d 641, 643 (6th Cir. 1999).

To properly exhaust administrative remedies, prisoners must complete the administrative review process in accordance with the deadlines and other applicable procedural rules. Jones, 549 U.S. at 218-19; 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 218-19. In rare circumstances, the grievance process will be considered unavailable where officers are unable or consistently unwilling to provide relief, where the exhaustion procedures may provide relief, but no ordinary prisoner can navigate it, or “where prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016).

“Beyond doubt, Congress enacted [Section] 1997e(a) to reduce the quantity and improve the quality of prisoner suits.” Porter, 534 U.S. at 524. In the Court's view this objective was achieved in three ways. First, the exhaustion requirement “afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Id. at 525. Second, “the internal review might ‘filter out some frivolous claims.'” Id. (quoting Booth, 532 U.S. at 737). And third, “adjudication could be facilitated by an administrative record that clarifies the contours of the...