Opinion
Case Number 01-10049-BC
July 3, 2002
Fremichael Makele, [COR LD NTC pro] [PRO SE], Baraga, MI, for plaintiff.
Christine M. Campbell [COR LD NTC ret], Michigan Department of Attorney General, Corrections Division, Lansing, Mi., for defendant.
OPINION AND ORDER ADOPTING IN PART THE REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT
The matter was referred to Magistrate Judge Charles B. Binder for full case management, and is now before. the Court on the sua sponte report and recommendation of the Magistrate Judge that this case be dismissed due to the plaintiffs failure to demonstrate exhaustion of administrative remedies and to state a claim upon which relief can be granted. Although the Court declines to adopt the report and recommendation in full, it nevertheless finds that the plaintiffs complaint must be dismissed.
I.
The plaintiff, who is incarcerated at the Baraga Maximum Correctional Facility in Baraga, Michigan, filed this pro se, civil rights complaint seeking relief under 42 U.S.C. § 1983 on January 18, 2002. The Magistrate Judge construed the complaint, which is related mainly in narrative form, to state three claims: (1) that the plaintiff was poisoned by prison employees in 1995 and 1996; (2) that the plaintiff was unlawfully refused medical care from 1996 to 2000; and (3) that the plaintiff is unlawfully being denied parole.
The Magistrate Judge first recommended that the claims in the plaintiffs complaint be dismissed for failure to exhaust administrative remedies, with the exception of any claims related to grievance number SMF-99-09-2614-12d, which complained about inadequate medical care for chest pains. The plaintiff failed to attach any grievances to his complaint, and the Magistrate Judge properly provided the plaintiff with an additional thirty days to provide documentation. The plaintiff submitted four documents in response:
1. A Step II grievance appeal, Step II response, Step III appeal, and Step III response regarding grievance number SMF-99-09-2614-12d, arising out of an incident occurring September 10, 1999, at SMF.
2. A copy of a letter Plaintiff wrote to the [Michigan Department of Corrections] Director's Office in Lansing, Michigan, on March 19, 2001, asking them to send him copies of grievances he wrote in 1995, 1996, and 1998.
3. A Step I grievance submitted on February 4, 2001, claiming that the Michigan Parole Board discriminated against Plaintiff on the basis of race.
4. Eleven pages of documentation concerning Petitioner's parole eligibility and parole guideline scoresheets from 1992.
The plaintiff has since submitted Step II and Step III grievances concerning his denial of parole that were submitted and processed after suit was filed. These supplements, however, are too late. The Prison Litigation Reform Act mandates exhaustion before suit is filed, not after. Prisoners may not file suit first and exhaust remedies later. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Report Recommendation at 8. The Magistrate Judge correctly concluded that the evidence submitted by the plaintiff is insufficient with the exception of grievance number SMF-99-09-2614-12d. The Michigan Department of Corrections has a three-step grievance process, and grievants cannot abandon the grievance process before completion and then claim to have exhausted administrative remedies. See Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999).
In his "motion pursuant to objections," which the Court liberally construes as the plaintiffs objections, the plaintiff asserts that he in fact pursued grievance number SMF-99-09-2614-12d and that he also filed several other grievances from 1995 to 1996 that he has no records of. Instead, the plaintiff attaches a letter from Ms. Laura Dotson at the Michigan Department of Corrections indicating that several Step I grievances were flied in 1995, but none in 1996. The Court agrees (as did the Magistrate Judge) that the plaintiff properly grieved his complaints in grievance number SMF-99-09-2614-12d concerning chest pains, but the plaintiff still has failed to provide any evidence that he properly pursued any other grievance through the three-step grievance system established by the Michigan Department of Corrections. As a result, with the exception of the allegations arising from the chest pains complained of in grievance number SMF-99-09-2614-12d, all other claims are subject to dismissal without prejudice for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998).
II.
Next, the Magistrate Judge recommended that the claims raised in grievance number SMF-99-09-2614-12d themselves are subject to dismissal for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915 (e)(2), 1915A(b)(1). That grievance complained of chest pains in September, 1999. Unfortunately, neither the grievance nor the complaint specify any defendant's involvement with his chest pains on that date. Instead, the plaintiff includes a litany of allegations about "they" and "them." Because the plaintiff has not alleged personal action by an individual defendant in this case, the plaintiff fails to state a claim upon which relief can be granted. See Barren v. Harringion, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Hays v. Jefferson county, Ky., 668 F.2d 869, 874 (6th Cir. 1982) (finding that defendant must have personally participated in the unconstitutional activity to be held individually liable).
The plaintiff did not specifically object to this finding, and the Court agrees with the conclusion of the Magistrate Judge.
III.
Finally, the Magistrate Judge found that the plaintiffs claims alleging wrongdoing more than three years before the filing of the complaint were barred by the three-year statute of limitations. See carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986) (citing Mich. Comp. Laws § 600.5805(8)) Unexhausted claims may still be dismissed by the Court with prejudice if they are found not to state a claim upon which relief can be granted. 42 U.S.C. § 1997e(c)(2).
The statute has since been amended. The three-year, residual statute of limitations "for all other actions" has been moved to subsection (9), but otherwise appears to be identical to the provision construed in Carroll.
The plaintiff objects to this recommendation, correctly pointing out that Michigan law tolls the statute of limitations for one year after the release of any prison inmate whose claim accrucs while incarcerated. See McCune v. City of Grand Rapids, 842 F.2d 903, 906-07 (6th Cir. 1988). This tolling provision also applies to suits brought under 42 U.S.C. § 1983. Id. Accordingly, even though the three-year statute of limitations on many of the incidents referenced in the plaintiffs complaint has run, the Court finds that Mr. Makele will have one year from the time of his discharge from incarceration before the statute of limitations precludes suit altogether.
The Court therefore will decline to adopt the report and recommendation to the extent that it recommends that claims accruing before January, 1998 be dismissed with prejudice due to the statute of limitations.
IV.
The plaintiff fails to state a claim against any defendant with respect to the chest pains suffered in September, 1999. The remainder of the plaintiffs claims are baned by his failure to exhaust administrative remedies, and must be dismissed without prejudice.
Accordingly, it is ORDERED that the Report and Recommendation is ADOPTED IN PART.
It is further ORDERED that the plaintiff's claims arising from chest pains suffered in September, 1999 are DISMISSED WITH PREJUDICE and the rest of his claims are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies.
It is farther ORDERED that the remaining motions, including, but not limited to the plaintiffs Motion Pursuant to Objections [dkt #25], Motion for Defendants to Produce Documents [dkt #26], Motion of Objection [dkt #28], Motion of Objections [dkt #29], Motion for Default Judgment [dkt #32], Motion for Summary Judgment [dkt #36], Motion to Compel Production of Documents [dkt #37], Motion for Jury Trial [dkt #38], Motion for Temporary Restraining Order or Preliminary Injunction [dkt #39], second Motion for Temporary Restraining Order or Preliminary injunction [dkt #40], and defendants' Motion to Stay Discovery [dkt #26] are DENIED AS MOOT.