UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

JAMES COLEN #604910,

Plaintiff, Civil Action No.: 14-12948

Honorable Paul D. Borman

v. Magistrate Judge Elizabeth A. Stafford

 

CORIZON MEDICAL

SERVICES, et al., 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO DENY MDOC

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [R. 40]

Plaintiff James Colen, a Michigan Department of Corrections 

(“MDOC”) inmate proceeding pro se, brings this case against a number of 

MDOC employees, medical contractor Corizon Medical Services, and 

several of its employees, for violations of his Eighth Amendment rights 

related to a denial of medical care. MDOC employee nurses Arlene 

Rogers, Deborah Ellenwood, Mary Velarde and Kimberly Korte1 (the 

“MDOC Defendants”) now move for summary judgment on Colen’s claims, 

arguing that he has failed to exhaust his administrative remedies as to 

them, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. 

[R. 40]. For the reasons stated below, the Court RECOMMENDS that the 

 1 Colen refers to defendant Korte as “Kimmy” in his pleadings and briefs. 

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MDOC Defendants’ motion for summary judgment [R. 40] be DENIED. 

I. BACKGROUND

Colen’s claims stem from medical care related to an injury he 

sustained in 2010, when he allegedly broke his foot playing basketball. 

When he was first evaluated by defendant Rogers, he was diagnosed with 

a sprain and given an ace bandage. [R. 13, PgID 82]. Over the next two 

and a half years, he continually kited various medical providers for 

assistance for increasing pain in his foot, swelling, and new pain in his 

knee, but he was told that his pain was either a sprain or simply arthritis 

and he was given minimal care. X-rays taken much later revealed knee 

deterioration requiring replacement, arthritis, and an old foot fracture that 

had not healed properly. [Id., PgID 83-92]. Colen had knee replacement 

surgery in 2014, but continued to experience foot pain that remained 

untreated. [Id. 93-94].

Colen’s amended complaint alleges that the MDOC Defendants’ 

conduct violated his Eighth and Fourteenth Amendment rights, and 

constituted intentional infliction of emotional distress and gross negligence. 

[R. 13]. The MDOC Defendants now move for summary judgment, alleging 

that Colen failed to properly exhaust his administrative remedies. This 

Court disagrees.

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II. LEGAL STANDARD

The Prison Litigation Reform Act (PLRA) requires a prisoner bringing 

an action with respect to prison conditions to exhaust all “available”

administrative remedies. 42 U.S.C. § 1997e(a). See Jones v. Bock, 549 

U.S. 199, 218-20 (2007); Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth 

v. Churner, 532 U.S. 731 (2001). The PLRA requires “proper exhaustion”;

untimely and procedurally defective administrative grievances or appeals 

are insufficient. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). Additionally, 

“proper exhaustion” is defined by the relevant prison’s policies. Jones, 549 

U.S. at 218.

In Jones, the Supreme Court held that “failure to exhaust is an 

affirmative defense under the PLRA, and that inmates are not required to 

specifically plead or demonstrate exhaustion in their complaints.” Id. at 

216. Consequently, the defendant bears the burden of production and 

persuasion on the issue of exhaustion, and must present evidence that “is 

so powerful that no reasonable jury would be free to disbelieve it.” Surles 

v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (citations and internal 

quotation marks omitted). 

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III. ANALYSIS

Colen filed five arguably relevant grievances between April and 

October 2013, but the Court will address only one because it is dispositive. 

In grievance ARF-13-09-2586-12d1, Colen addressed the entire medical 

history that gave rise to his amended complaint, stating, “I am continually 

being denied medical treatment for the injury sustained on my foot where I 

have broken bones and torn ligaments which have worsened over the last 

two years.” [Id., PgID 323]. He emphasized, “I have tried unsuccessfully to 

resolve my condition with the Health care staff, and the Adrian 

Administration. Nothing is being done to correct my foot, knee and leg, and 

I am in excruciating pain.” [Id.]. He alleged that “Health Care and the 

Adrian Staff are being deliberately indifferent by purposefully ignoring my 

request [to see a specialist and receive injections] and ailment.” [Id.]. 

MDOC resolved this grievance on its merits. [Id., PgID 320-22]. In fact, 

MDOC informed Colen on January 31, 2014, that its denial of this Step III 

grievance represented an exhaustion of his administrative remedies. [Id.,

PgID 320]. 

Nonetheless, the MDOC defendants now argue that grievance ARF13-09-2586-12d1 was not properly exhausted because Colen did not 

specify the names of those involved, in violation of MDOC policy. [R. 40, 

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PgID 297]. But, that argument was rejected by the Sixth Circuit in ReedBey v. Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010), because the state 

failed to follow its own procedural rule requiring the prisoner to name those 

involved, and instead decided the otherwise defaulted claims on the merits.

“When 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. at 325.

Since MDOC decided grievance ARF-13-09-2586-12d1 on its merits, 

in disregard for the requirement that he name all those involved, this Court 

should decide the merits of his claims, too. 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the MDOC 

Defendants’ motion for summary judgment [R. 40] be DENIED. 

Dated: June 2, 2015 s/Elizabeth A. Stafford

Detroit, Michigan ELIZABETH A. STAFFORD

United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONSU

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

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of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on June 2, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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