UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES COLEN #604910,

Plaintiff, Case No. 14-cv-12948

Paul D. Borman

v. United States District Judge

CORIZON MEDICAL Elizabeth A. Stafford

SERVICES, et al., United States Magistrate

Judge

Defendants.

_________________________/

OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S JUNE 2, 2015

REPORT AND RECOMMENDATION (ECF NO. 46),

(2) OVERRULING THE MDOC DEFENDANTS’ OBJECTIONS (ECF NO. 47),

AND (3) DENYING THE MDOC DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (ECF NO. 40)

Plaintiff James Colen is currently confined at the Gus Harrison Correctional Facility in

Adrian, Michigan and claims in this action that he has been denied adequate medical care in

violation of his Eighth and Fourteenth Amendment rights during his incarceration in the Michigan

Department of Corrections (“MDOC”). Before the Court is the Magistrate Judge’s June 2, 2015

Report and Recommendation to deny certain MDOC Defendants’ motion for summary judgment. 

(ECF No. 46, Report and Recommendation.) The MDOC Defendants have filed Objections to the

Report and Recommendation (ECF No. 47). Plaintiff filed a “reply” to Defendants’ Objections. 

(ECF No. 61.) Having conducted a de novo review, pursuant to 28 U.S.C. § 636(b)(1), of those parts

of the Magistrate Judge’s Report and Recommendation to which specific objections have been filed,

the Court OVERRULES the MDOC Defendant’s Objections, ADOPTS the Magistrate Judge’s

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Report and Recommendation, DENIES Defendants’ Motion for Summary Judgment (ECF No. 40).

I. BACKGROUND

The factual background of this matter is set forth in the Magistrate Judge’s Report and

Recommendation and the Court adopts that summary here. (Report and Recommendation 1-2.) As

particularly relevant for purposes of addressing the MDOC’s Objections, Plaintiff sustained an

injury to his foot in 2010 while incarcerated and alleges that he has suffered extensively as a result

of the Defendants’ ongoing deliberate indifference to his serious medical needs since the time of that

injury. Plaintiff alleges that two years subsequent to suffering the injury, he was finally diagnosed

with a foot fracture that had not properly healed and a deteriorating knee in need of replacement. 

Plaintiff received a knee replacement in 2014 but alleges that he continues to have foot pain as a

result of the untreated fracture and related complications. 

Importantly, Plaintiff has filed numerous kites and grievances over a period of several years

setting forth his claim that he has been consistently denied adequate medical care for the treatment

of his foot/knee/leg injury. Grievance ARF-13-09-2586-12d1, on which the Magistrate Judge relied

in reaching her conclusion that Plaintiff adequately exhausted his administrative remedies in relation

to the claims in his Complaint in this action, is just one of several that Plaintiff has filed, in addition

to numerous kites, seeking proper treatment for the same injury and alleged series of follow-on

complications. 

II. STANDARD OF REVIEW

A district court judge reviews de novo the portions of the report and recommendation to

which objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district “court

may accept, reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” Id. Objections must be timely to be considered. A party who receives notice

of the need to timely object yet fails to do so is deemed to waive review of the district court's order

adopting the magistrate judge's recommendations. Mattox v. City of Forest Park, 183 F.3d 515,

519-20 (6th Cir. 1999). “[A] party must file timely objections with the district court to avoid

waiving appellate review.” Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373

(6th Cir. 1987) (emphasis in original). 

Only those objections that are specific are entitled to a de novo review under the statute. 

Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those

portions of the magistrate's report that the district court must specially consider.” Id. (internal

quotation marks and citation omitted). A general objection, or one that merely restates the

arguments previously presented, does not sufficiently identify alleged errors on the part of the

magistrate judge. An “objection” that does nothing more than disagree with a magistrate judge’s

determination, “without explaining the source of the error,” is not considered a valid objection. 

Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Specific

objections enable the Court to focus on the particular issues in contention. Howard, 932 F.2d at 509. 

Without specific objections, “[t]he functions of the district court are effectively duplicated as both

the magistrate and the district court perform identical tasks. This duplication of time and effort

wastes judicial resources rather than saving them, and runs contrary to the purposes of the

Magistrate's Act.” Id. “‘[O]bjections disput[ing] the correctness of the magistrate's recommendation

but fail[ing] to specify the findings [the objector] believed were in error” are too summary in nature. 

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). 

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III. ANALYSIS

Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, Defendants bear the burden of

production and persuasion to prove the defense of failure to exhaust administrative remedies. Jones

v. Bock, 549 U.S. 199, 216 (2007); Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012). “Where

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 Defendants must present evidence “so powerful that no reasonable jury would be

free to disbelieve it.” Surles, 678 F.3d 455-56. 

The MDOC Defendants object to the Magistrate Judge’s Report and Recommendation to

deny their motion for summary judgment based on non-exhaustion as to MDOC Defendants Rogers,

Ellenwood, Velarde and Korte. Specifically, they put forth two Objections: (1) the Magistrate

Judge erred in concluding that the exhaustion rule was waived as to these MDOC Defendants, who

were not individually named in the Grievance, because nothing in Grievance ARF-13-09-2586-12d1

would have put these Defendants on notice that they were involved in the issue being grieved; and

(2) the Magistrate Judge erred in concluding that Grievance ARF-13-09-2586-12d1 related to the

claims in Plaintiff’s Complaint because that Grievance does not contain any of the factual

allegations that form the basis of the claims in Plaintiff’s Complaint against these MDOC

Defendants.

The grievance process and exhaustion requirement are designed to give prison officials

enough information to investigate an inmate’s claims, not to give notice to individuals that a claim

has been asserted against them. “We are mindful that the primary purpose of a grievance is to alert

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prison officials to a problem, not to provide personal notice to a particular official that he may be

sued; the grievance is not a summons and complaint that initiates adversarial litigation.” Martin v.

MacLaren, No. 14-cv-208, 2015 WL 4928937, at * (W.D. Mich. Aug. 13, 2015) (citing Johnson v.

Johnson, 385 F.3d 503, 522 (5th Cir. 2006)). “[I[t is sufficient for a court to find that a prisoner’s

[grievance] gave prison officials fair notice of the alleged mistreatment or misconduct that forms

the basis of the constitutional or statutory claim made against a defendant in a prisoner’s complaint.” 

Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (internal quotation marks and citation omitted)

(alterations added). Furthermore, while prison policies requiring an inmate to identify relevant

defendants furthers the objectives of the exhaustion requirement, “the equation changes when the

State does not enforce its own rules.” Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). 

The Sixth Circuit has repeatedly acknowledged that “[w]hen prison officials decline to enforce their

own procedural requirements and opt to consider otherwise-defaulted claims on the merits, so as a

general rule will we.” Id. 

The MDOC Defendants do not dispute that Plaintiff exhausted Grievance ARF-13-09-2586-

12d1 and received a merits-based decision. Rather, they urge the Court to narrowly interpret the

Grievance as an isolated complaint about a single missed steroid injection that involved only a

discrete few prison officials and thus to deem the Grievance insufficient to exhaust the broader

claims set forth in Plaintiff’s Complaint or to put these MDOC Defendants on notice of their alleged

involvement. The Court, however, must reject such a narrow interpretation of Grievance ARF-13-

09-2586-12d1, because a reasonable juror could conclude that the Grievance encompasses much

more conduct than just a single missed steroid injunction. And the MDOC’s failure to follow its

own procedures to reject the Grievance for vagueness or some other procedural default constitutes

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a waiver of the exhaustion defense to Plaintiff’s claims in this action. The Court finds that the

Magistrate Judge correctly concluded that Defendants have not met their burden here of

demonstrating a failure to exhaust.

Here, the MDOC deemed Grievance ARF-13-09-2586-12d1 exhausted on the merits and did

not reject the Grievance for lack of specificity or any other procedural failing despite the fact that

in it Plaintiff openly grieved the conduct of the entire “health care staff and the Adrian

administration.” ECF No. 40-3, PgID 323. Indeed the Step II Grievance Appeal Response

acknowledges that the Grievance goes well beyond an isolated complaint about a missed steroid

injection, summarizing Plaintiff’s claim as follows: “I continually am being misdiagnosed. The

problem with my foot and knee has worsened and although I saw the Dr., x-rays have already been

performed. I am in need of Osteopathic Chronic Care and Surgery to correct my condition.” ECF

No. 40-3, PgID 322. 

In Grievance ARF-13-09-2586-12d1, Plaintiff does complain that he has repeatedly been

denied a steroid injection that was ordered. But, additionally, he references previous kites,

complains generally that nothing has been done to address his condition, demands to see a doctor

specializing in his type of injury and grieves the entire “health care staff and the Adrian

administration” for being deliberately indifferent to his pain and suffering. There is no real mystery

here as to the basis for the claims set forth in Plaintiff’s Complaint and no surprise to the MDOC

Defendants as to the nature of the claims. Although a grievance citing only “health care and the

Adrian staff” may under other circumstances suffer from vagueness, in this case Plaintiff’s express

reference to the previous kites, particularly the 8/23/13 kite, and to his longstanding efforts to seek

treatment for his condition and demand for surgery, offers sufficient specificity to have put the

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MDOC on notice that Plaintiff was grieving the longstanding conduct of the “health care staff and

the Adrian administration” in addressing the excruciating pain caused by repeated claimed failures

to address his injured “foot, knee and leg.” A review of the kites and grievances in evidence in this

case indicate that the moving MDOC Defendants are among those who received or responded to a

number of Plaintiff’s kites. See, e.g., ECF No. 13, Amended Complaint, PgID 143, 144, 147, 164,

166, 175, 179 154. “While the grievance does not specifically name them . . . on the current record,

a reasonable jury could find that the grievance gave these Defendants fair notice of the claims

against them.” Christian v. Michigan Dep’t of Correc. Health Servs., No. 12-cv-12936, 2013 WL

5348832, at *15 (E.D. Mich. Sept. 24, 2013). 

A reasonable jury could conclude that in Grievance ARF-13-09-2586-12d1, Plaintiff grieves

much more than just the failure to administer a single steroid injection and in fact complains about

the entire course of conduct by the health care staff in deliberately ignoring Plaintiff’s complaints. 

The MDOC chose not address the vagueness of the larger grievance and has waived the right to

assert a failure to exhaust now. This Court “agrees that Reed-Bey should not be read to provide a

“catch-all” exception for prisoner grievances, but a careful examination of [Plaintiff’s Grievance]

reveals that he did not simply cite “health services” without any further detail.” Christian, 2013 WL

5348832, at *5. As in Christian, in the context of this case based on Plaintiff’s reference to previous

kites and to a history of unmet complaints regarding his foot and leg, these MDOC Defendants could

reasonably have surmised from a cursory review of the MDOC’s own records, that they might be

among those about whom Plaintiff sought to complain.

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IV. CONCLUSION

The Court concludes that the MDOC Defendants have failed to carry their burden of

persuasion and production to demonstrate that Plaintiff failed to exhaust the claims alleged in his

Complaint. Accordingly, the Court:

(1) OVERRULES the MDOC Defendants’ Objections (ECF No. 47);

(2) ADOPTS the Magistrate Judge’s June 2, 2015 Report and Recommendation

(ECF No. 46);

(3) DENIES the MDOC Defendants’ Motion for Summary Judgment (ECF No. 40).

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 28, 2016

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party

of record herein by electronic means or first class U.S. mail on March 28, 2016.

s/Deborah Tofil 

Case Manager

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