UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT TATE,

Plaintiff, Civil Action No.

09-CV-10698

vs.

HON. BERNARD A. FRIEDMAN

CORRECTIONAL MEDICAL SERVICES

and DR. JOSEPH BURTCH,

Defendants.

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OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

This matter is presently before the court on defendants’ motion to dismiss [docket

entry 26]. Magistrate Judge Donald A. Scheer has issued a Report and Recommendation (“R&R”)

in which he recommends that this motion be granted. Plaintiff has filed objections to the R&R. The

court reviews de novo those portions of the R&R to which timely and sufficient objections have

been made. See Fed. R. Civ. P. 72(b)(3).

The issue presented by defendants’ motion is whether plaintiff exhausted his

administrative remedies prior to filing suit. Plaintiff does not object to the magistrate judge’s

statement that the law requires exhaustion. Rather, plaintiff objects to the magistrate judge’s

conclusion that he failed to comply with the MDOC’s grievance procedure because he “fail[ed] to

specifically name either CMS or Dr. Burtch in his grievance . . . .” R&R at 4. Plaintiff argues he

“did name Dr. Burtch and CMS in said grievance.” Pl.’s Obj. at 2.

Plaintiff’s grievance, a copy of which is attached to defendants’ motion to dismiss

as Exhibit D, states:

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CIVIL COMPLAINT

MEDICAL NEGLECT AND MISTREATMENT

This grievance is against TCF Medical Health Department.

On October 1, 2008, I was denied the request for hand surgery

for the third time by TCF medical health department. Dr. Burtch,

submitted this request for me by E-mail on three separate occasions.

Yet because of a diagnosis given by (X-ray Tech. Mr. June) on (2-20-

08), who determined my hand injury sustained on (2-19-08) was an

old fracture I was denied hand surgery.

My injury was caused by a co-worker inmate the day before.

On (2-19-08) while pushing this 1000 pound store cart, my co-worker

pushed the cart into my hand, which was smashed between the cart

handle an[d] a metal door handle as we entered franklin housing unit

to perform our detail. Being in much pain with a swollen hand, I was

taken to health care and given a couple of mo[tr]ins, then sent to my

unit. After the X-Rays on (2-20-08), I was given a hand brace and

ace bandage by (Mrs. Mass, P.A.) who took the word of the X-Ray

tech., that it was just an old fracture and nothing more. Therefore,

after wearing this brace on my hand for 17 days as directed I was still

experiencing much pain each time I tried to work my hand and

fingers.

I requested medical attention on (4-10-08), because I was not

able to use, bend, or move my fingers correctly as before. I realized

my pain was a result of improper healing, and not being properly set

in this beginning when this injury occur[r]ed. Therefore, I have been

requesting medical attention to no avail for my hand and fingers,

from (4-10-08 to 9-25-09). And now, because of this neglect of

medical attention, I cannot make a fist, and my hand is deformed due

to health care person[n]el here at the Thumb Correctional Facility.

RELIEF SOUGHT

1. I desire hand surgery, before I’m forced to live a life of deformity,

never being able to use my hand properly again.

As the magistrate judge correctly noted, MDOC regulations in effect when plaintiff

filed this grievance required a prisoner grievance to “include the dates, times, places and names of

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all those involved in the issue being grieved.” R&R at 3. Paragraph R of PD 03.02.130 states:

“Dates, times, places, and names of all those involved in the issue being grieved are to be included.”

As the magistrate judge also correctly noted, the Sixth Circuit has upheld this requirement. In

Sullivan v. Kasajaru, 316 Fed.Appx. 469 (6th Cir. 2009), the court affirmed the dismissal of the

complaint because plaintiff failed to comply with PD 03.02.130 by failing to specifically name in

his grievance the individuals who were later named as defendants in the § 1983 action.

The same result is required here. Plaintiff specifically directed his grievance “against

TCF Medical Health Department,” which is not named as a defendant. Correctional Medical

Services, which is named as a defendant, was not mentioned in the grievance. And while Dr. Burtch

was mentioned, the grievance does not suggest that he was involved in the issue being grieved, i.e.,

the alleged denial of plaintiff’s need for hand surgery. To the contrary, the only mention of Dr.

Burtch in the grievance is that he “submitted this request [for surgery] for me by E-mail on three

separate occasions.” The grievance therefore fails to suggest that Dr. Burtch was in any way

responsible for the alleged denial of treatment. Under these circumstances, the court agrees with

the magistrate judge that plaintiff has not exhausted his administrative remedies as to the defendants

he has named in this instant lawsuit. Plaintiff’s objections to the contrary are overruled.

Accordingly,

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IT IS ORDERED that Magistrate Judge Scheer’s R&R is accepted and adopted as

the findings and conclusions of the court.

IT IS FURTHER ORDERED that defendants’ motion to dismiss is granted. The

dismissal is without prejudice.

IT IS FURTHER ORDERED that all other pending motions in this matter are denied

as moot.

S/Bernard A. Friedman_____

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: December 11, 2009

Detroit, Michigan

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