UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION
JOSEPH J. PERRY #529416, Case No. 2:24-cv-00085
Plaintiff, Hon. Robert J. Jonker U.S. District Judge v.
MICHAEL BROWN, et al.,
Defendants. /
REPORT AND RECOMMENDATION
I. Introduction This Report and Recommendation (R&R) addresses Defendant Jamros’s motion for summary judgment due to Plaintiff’s failure to exhaust his administrative remedies or, alternatively, to timely file his cause of action. (ECF No. 18.) Plaintiff did not respond.1 State prisoner Joseph J. Perry filed a complaint under 42 U.S.C. § 1983 alleging that the two named Defendants – Kinross Correctional Facility Warden Brown and Nurse Practitioner (NP) Jamros – violated his Eighth Amendment rights by refusing to schedule him for surgery after he fractured his left-hand playing sports
1 The Court granted Perry’s motion for an extension of time to respond giving him until October 15, 2024, to file his response. Perry then filed a motion dated October 14, 2024, asking for the Court to stay his response for a period of discovery. The Court denied that motion because Perry failed to explain why he needed discovery to respond to Defendant’s motion. (ECF No. 26.) on March 14, 2020. (ECF No. 1.) Warden Brown has been dismissed from this case; thus, only Defendant NP Jamros remains in the case. (ECF Nos. 9 and10.) Perry was immediately taken to the hospital after he fractured a bone in his
hand. He says that a physician told him that he needed two screws placed in the bone to ensure proper healing. (ECF No. 1, PageID.5.) Perry says that when he returned to the prison, “medical staff” told him his injury would heal and there was no need for surgery. (Id.) Perry says that surgery was required, and that he eventually had surgery on October 1, 2023. (Id.) Perry claims that the delay caused by “defendants’ wrongful conduct” violated his Eighth Amendment rights by leaving
him “permanently with only a limited use of his left hand.” (Id.) Nurse Practitioner Jamros argues that Perry failed to properly exhaust his administrative remedies. A review of the applicable grievance records shows that there exists no genuine issue of material fact regarding exhaustion, thus entitling NP Jamros to summary judgment. It is respectfully recommended that Court grant NP Jamros’s motion for summary judgment and dismiss her from this case. II. 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[2] 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When, as here, the non-movant fails to respond to a motion for summary judgment, the Court must “examine the movant’s motion for summary judgment to
ensure that he has discharged his initial burden.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991)). III. Exhaustion of Administrative Remedies 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
2 The Seventh Amendment does not always require courts to submit factual disputes about exhaustion to a jury. Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). If the factual disputes about exhaustion do not overlap with the merits of the plaintiff’s substantive claims, then the court may conduct a bench trial to resolve the exhaustion issue. Richards v. Perttu, 96 F.4th 911, 923 (6th Cir. 2024), cert. granted, No. 23-1324, 2024 WL 4394132 (U.S. Oct. 4, 2024). 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. Willey, 789 F.3d 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.”). 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, 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,
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION
JOSEPH J. PERRY #529416, Case No. 2:24-cv-00085
Plaintiff, Hon. Robert J. Jonker U.S. District Judge v.
MICHAEL BROWN, et al.,
Defendants. /
REPORT AND RECOMMENDATION
I. Introduction This Report and Recommendation (R&R) addresses Defendant Jamros’s motion for summary judgment due to Plaintiff’s failure to exhaust his administrative remedies or, alternatively, to timely file his cause of action. (ECF No. 18.) Plaintiff did not respond.1 State prisoner Joseph J. Perry filed a complaint under 42 U.S.C. § 1983 alleging that the two named Defendants – Kinross Correctional Facility Warden Brown and Nurse Practitioner (NP) Jamros – violated his Eighth Amendment rights by refusing to schedule him for surgery after he fractured his left-hand playing sports
1 The Court granted Perry’s motion for an extension of time to respond giving him until October 15, 2024, to file his response. Perry then filed a motion dated October 14, 2024, asking for the Court to stay his response for a period of discovery. The Court denied that motion because Perry failed to explain why he needed discovery to respond to Defendant’s motion. (ECF No. 26.) on March 14, 2020. (ECF No. 1.) Warden Brown has been dismissed from this case; thus, only Defendant NP Jamros remains in the case. (ECF Nos. 9 and10.) Perry was immediately taken to the hospital after he fractured a bone in his
hand. He says that a physician told him that he needed two screws placed in the bone to ensure proper healing. (ECF No. 1, PageID.5.) Perry says that when he returned to the prison, “medical staff” told him his injury would heal and there was no need for surgery. (Id.) Perry says that surgery was required, and that he eventually had surgery on October 1, 2023. (Id.) Perry claims that the delay caused by “defendants’ wrongful conduct” violated his Eighth Amendment rights by leaving
him “permanently with only a limited use of his left hand.” (Id.) Nurse Practitioner Jamros argues that Perry failed to properly exhaust his administrative remedies. A review of the applicable grievance records shows that there exists no genuine issue of material fact regarding exhaustion, thus entitling NP Jamros to summary judgment. It is respectfully recommended that Court grant NP Jamros’s motion for summary judgment and dismiss her from this case. II. 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[2] 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When, as here, the non-movant fails to respond to a motion for summary judgment, the Court must “examine the movant’s motion for summary judgment to
ensure that he has discharged his initial burden.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998) (citing Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991)). III. Exhaustion of Administrative Remedies 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
2 The Seventh Amendment does not always require courts to submit factual disputes about exhaustion to a jury. Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015). If the factual disputes about exhaustion do not overlap with the merits of the plaintiff’s substantive claims, then the court may conduct a bench trial to resolve the exhaustion issue. Richards v. Perttu, 96 F.4th 911, 923 (6th Cir. 2024), cert. granted, No. 23-1324, 2024 WL 4394132 (U.S. Oct. 4, 2024). 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. Willey, 789 F.3d 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.”). 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, 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). In order 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 controversy.” Id. When institutions provide adequate
notice as required under the PLRA, the opportunity to address the claims internally furthers the additional goals of limiting judicial interference with prison administration. Baker v. Vanderark, 1:07-cv-004, 2007 WL 3244075, *5 (W.D. Mich., Nov. 1, 2007). The most common procedure through which a prisoner in MDOC custody exhausts his administrative remedies is the grievance procedure set forth in Michigan Department of Corrections (MDOC) Policy Directive 03.02.130 (effective on March 18, 2019). According to the Policy Directive inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable
issue, unless prevented by circumstances beyond his or her control. Id. at ¶ Q. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process and submit a completed grievance form within five business days of the attempted oral resolution. Id. at ¶¶ Q, W. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent. Id. at ¶ Y. The Policy Directive also 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). If the inmate is dissatisfied with the Step I response, or does not receive a timely response, he may appeal to Step II by obtaining an appeal form within ten business days of the response, or if no response was received, within ten days after
the response was due. Id. at ¶ DD. The respondent at Step II is designated by the policy. Id. at ¶ FF. If the inmate is still dissatisfied with the Step II response, or does not receive a timely Step II response, he may appeal to Step III using the same appeal form. Id. at ¶¶ HH. The Step III form shall be sent within ten business days after receiving the Step II response, or if no Step II response was received, within ten business days after the date the Step II response was due. Id. The Grievance and Appeals Section is the respondent for Step III grievances on behalf of the MDOC director. Id. at ¶ II. Where the grievance procedures are not available because the issue presented
is non-grievable, exhaustion of prison grievance procedures is not required. It is well- established that a prisoner “cannot be required to exhaust administrative remedies regarding non-grievable issues.” Figel v. Bouchard, 89 F. App’x 970, 971 (6th Cir. 2004); Mays v. Kentucky Dept. of Corrections, 2018 WL 4603153, at *3 (W.D. Ky. Sept. 25, 2018) (“It is beyond debate that an inmate cannot be required to exhaust administrative remedies regarding non-grievable issues.”); Reeves v. Hobbs, 2013 WL
5462147 (W.D. Ark. Sept. 3, 2013) (“Defendants cannot treat a complaint as non- grievable, and therefore not subject to the grievance procedure, and then turn around and maintain the claim fails because [the plaintiff] failed to follow the grievance procedure. As the well known proverb states, they cannot have their cake and eat it too.”). When prison officials waive enforcement of these procedural rules and instead consider a non-exhausted claim on its merits, a prisoner’s failure to comply with those
rules will not bar that prisoner’s subsequent federal lawsuit. Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). The Sixth Circuit has explained: [A] prisoner ordinarily does not comply with MDOCPD 130—and therefore does not exhaust his administrative remedies under the PLRA—when he does not specify the names of each person from whom he seeks relief. See Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010) (“Requiring inmates to exhaust prison remedies in the manner the State provides—by, say, identifying all relevant defendants—not only furthers [the PLRA’s] objectives, but it also prevents inmates from undermining these goals by intentionally defaulting their claims at each step of the grievance process, prompting unnecessary and wasteful federal litigation process.”). An exception to this rule is that prison officials waive any procedural irregularities in a grievance when they nonetheless address the grievance on the merits. See id. at 325. We have also explained that the purpose of the PLRA’s exhaustion requirement “is to allow prison officials ‘a fair opportunity’ to address grievances on the merits to correct prison errors that can and should be corrected to create an administrative record for those disputes that eventually end up in court.” Jd. at 324. Mattox v. Edelman, 851 F.3d 583, 590-91 (6th Cir. 2017).2 IV. Analysis Perry says that he exhausted his administrative remedies by submitting two grievances through each step of the grievance process. In his response to Defendant’s motion for summary judgment, Perry provided the following table: e.. Grievance Table Grievance Wo. Wi iain fileast Dale or Ras lic \Resy hh = aa -_oFSoy legoti a ss Set § Resu bs Bese iS with ECE No. IManrecl J pte a mt oct + hat Poce. iD Indrctent ts) atep } Step 2 A - (MCE 2000 Y2720E) M.Beow, Werdyt=e-) 2/7/29 Denad Denied Rerect. KCF 201200202816 | Cwarden) pled. “take dp 20 Bao, red Rejeckd Wendy 3 ppl, I Janbrese Broken Hhid-
(ECF No. 19, PageID.64.)
3 In Mattox, the Sixth Circuit held that a prisoner may only exhaust a claim “where he notifies the relevant prison .. . staff’ regarding the specific factual claim “giving the prison staff a fair chance to remedy a prisoner’s complaints.” Id. at 596. For example, grieving a doctor about his failure to give cardiac catheterization did not grieve the claim that the doctor erred by not prescribing Ranexa.
Perry has not provided copies of these grievances.+ The Step I grievances that he submitted with his complaint have different identifying numbers. Perry attached two different copies of Step I grievances to his complaint. Perry attached a copy of his Step I grievance in KCF 20-04-332-12z, which is shown below: PARTMENT OF CORRECTIONS Usain WKISONER/PAROLEE GRIEVANCE FORM
Date Received at Step I 4 3, Co OO Grievance Identifier: hCAOO} BSA aa
print first, last) Number institution | Lock Number int first, la! . Joseth J. Percy = 3/26/2020 los Le rriti this grievance? On what date’? ae What attempt did vou make to resowve eis einih Five, Bases days after Aca Oe grievable isme none, explain why. lete Prisoner/Parolee ‘ CESS ce ry ord cope reg ton SPB, received no response. . iti ing plain paper, may be used. form for each issue. Additional pages, using pis itted _“ Pa ech > aoe ad eupporting documents must be submitted with this fom gab grievance pst an . Four copies of £30) a sn aecordance with the time limits of OP 03.07-130.. $0 me not being able to have to the Grievance fee my boxe is healing incorrectly, viich will re ale to do, I an sufferirg continuously, ee of ay weist, Limiting the activities T would nocally be ting about (3) hours a sleep before POODEE se a toon ay beoken weit, vhich effects ay sleep, I an only unnecessary pal ; . pain. doctor there said that he am a DD, L neces ay west, I was dnmeriataly talen to the bosplists OE sen bore can heal properly, On 3/14 foe surgery within 72 hous to put to screws in so that BS the facility my = m pain killers to hold me over until the Sie9 Ys ted health care about my he also gave me (9) narco ned replaced another pain Idtler. On 3/17/2000, 1 it Jnbrose, ho told me medication was tae fe T han't eone yet, on 3/23/2000, T was geen by PA Were fonved me that 2p0iN EN Ae □□□ foe the surgery, that the bone con "real tow it hess + 2 Ms fond) in my effets acing me off of my pain matica tion despit my protest, I sent anoth . Poli to resolve the isve, hut reoelwsd mighth Amsden U.S. Constitutional cights, OTe eee moLicy Vendy Janbcose has vio ay, For Prisoners" Pp-03,03.190, as well as the tala yuren rights, “Hurere Treatrent and Living Condivine Suprare Court T an still a timen being are Tera thaws bean Beet ee evi > pealth care fax myself, that the MDOG has to db 90., Pervely and because E ‘ heaviicap. □□ placed at risk of being a _treph Povo ee denied medical treatment, and a - Grievant's Signature
(ECF No. 1, PagelID.12.)
4 In addition to not providing copies of any grievance documents to support his claim that he submitted grievances through Step III of the process, Perry’s grievance table indicates that his Step III appeals for the two grievances identified were rejected. Assuming that is true, as stated above, a grievance is not properly exhausted if it is rejected by the MDOC for failure to follow grievance procedures. However, the record shows that Perry never submitted a Step III appeal.
Perry’s complaint documents indicate that this grievance was denied at Step I. Ud., PageID.15-17.) Perry also attached a copy of his Step I grievance in KCF 20-05-467-28e to his complaint: MICHIGAN DEPARTMENT OF CORBECTIONS 4835-42421 PRISONER/PAROLEE G NCE FORM | ba Date Received at Step I rievance Identifier:
= Doseph Pert §246u ly k CF -l-& 06, -2pr0 | 05-03-2020 What attempt did you make to resolve this issue prior to writing this grievance? On what date? 04-94-9920 If none, explain why.
State problem clearly. Use separate grievance form for each issue. Additional pages, using plain paper, may be used. Four copies of each page and supporting documents must be submitted with this form. The grievance must be submitted to the Grievance Coordinator iti accordance with the time limits of OP 03.02.130. On 3] Je | 2020 L brelee my s = ~ □ TI way immed ina aly tuluen te the haspidem) ) Ihe dectope there Sud that he wes scheduler gy met ; wrist WW hel? ot > See the Cardioles y One ~Khet Twas gory +0 howe -t9 pea screws ira my 5 el; | ew bauk \ , he Glsa guve mt A nce darn fale bt he ld mt over tel Suly GY ane wherl L retuned +o the Faciliay MY medicaiwn was Anken Frem me and flnce with antther. Porn pill Cell Ult ren? in 3/23, 2020 TL wad seen by PA Wendy Tambiy 52, whe teld me that £ woslt not gorny For ohgceyy thet the bene con heal hew M4 heals, wes alco tober FF the porn Pills zy kerng Twrelayy cing my Want or wrist have net yor arey betder my hanes are Swathey Crtse + □□□ Flore rey, Rane y Wiha Tn Test fy geyen V5 Loam a human berm and hava. Might wpther/ Ane NV4T Wetman T cu, become Wand? ca? Fer the resd ot my Fee
RESPONSE (Grievant Interviewed? Cl yes, C2 If No, give explanation. If resolved, explain resolution.) ft
PageID.18.) As shown above, the Step I form provided by Perry indicated that the grievance was rejected. Perry did not include the attachment that might have indicated the 10
reason for the rejection. Furthermore, he did not indicate that he appealed either of these grievances through each step of the grievance process. NP Jamros says that Perry failed to properly exhaust administrative grievance remedies by appealing each of his grievances through Step III of the grievance process. Jamros submitted Perry's MDOC Prisoner Step IJ] Grievance Report, which shows that he had not filed a Step III grievance as of July 9, 2024: on, . - SST MDOC Prisoner Step III Grievance Report sos 1/1/2018 to Present Prisoner #: 529416 Last Name: Perry First Name: Joseph Step Ill Grievance Grievance Facility Step | Resolved Partially Denied Rejected Closed Date Mailed Rec'd Identifier Catagory Received Date Resolved o B o B a Notes:
A search of this database has been performed for the time period Listed on the title of this report.gnd no records were found. rallhc RichargO, Russell Manager, Grievance Section Office of Legal Affairs Michigan Department of Corrections
July 9, 2024 Page 1 of 1
(ECF No. 18-1, PageID.54.) In the opinion of the undersigned, NP Jamros has shown that there exists no genuine issue of material fact on the issue of exhaustion of administrative remedies.
The record shows that Perry did not properly exhaust his administrative remedies through Step III of the grievance process.5 V. Recommendation
The undersigned respectfully recommends that this Court grant NP Jamros’s motion for summary judgment and dismiss her without prejudice due to Perry’s failure to properly exhaust his administrative remedies. If the Court accepts this recommendation, this case will be dismissed.
Dated: October 28, 2024 /s/ Maarten Vermaat MAARTEN VERMAAT U. S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within fourteen days of service of this notice on you. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). All objections and responses to objections are governed by W.D. Mich. LCivR 72.3(b). Failure to file timely objections may constitute a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see Thomas v. Arn, 474 U.S. 140 (1985).
5 Alternatively, NP Jamros argues that even if Perry exhausted his grievance remedies through grievances KCF 20-04-32-12z and KCF 20-05-467-28e, his claim would be barred by the applicable three-year statute of limitations period. (ECF No. 18, PageID.50-52.) In the June 21, 2024 opinion, the Court acknowledged that: “Plaintiff asserts that the violation of his rights was of a continuing nature which lasted until he finally received surgery on October 1, 2023.” (ECF No. 9, PageID.9.) In the opinion of the undersigned, because Defendant has not fully addressed the “continuing nature” of Plaintiff’s claim in her motion for summary judgment, it is recommended that Court conclude that she failed to meet her burden of establishing that no genuine issue of material fact exists on her statute of limitations argument.