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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVID L. BOWEN,

Plaintiff,

CASE NO. 2:09-CV-10414

v. JUDGE AVERN COHN

MAGISTRATE JUDGE PAUL KOMIVES

RICHARD CADY and V. McCABE,

Defendants.

 /

REPORT AND RECOMMENDATION ON DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (docket #15)

I. RECOMMENDATION: The Court should grant defendants’ motion for summary judgment

(docket #15).

II. REPORT:

A. Background

Plaintiff David Bowen is a former state prisoner who, at the times relevant to this complaint,

was incarcerated at the Southern Michigan Correctional Facility. Plaintiff commenced this action

in the United States District Court for the Western District of Michigan on July 28, 2008, by filing

a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. On February 3, 2009, the case was

transferred to this Court. Plaintiff names as defendants Resident Unit Manager Richard Cady and

Assistant Deputy Warden Vicki McCabe. Plaintiff’s complaint alleges, in its entirety:

While being housed at “J.M.F.” Southern M. Correctional Fac. for “D.U.I.” drunk

driving, on July 25, 2007 I was coming down stairs to get some water. And I fell

down and rolled down 26 steps from the second step. I have and had at that time a

medical detail that stated I should never have been up there. It says a ground floor

room. I have sent you a copy of my medical accommodations detail. I fell at 7:30

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On July 7, 2008, plaintiff filed a separate action in this Court arising from these events against

the Michigan Department of Corrections, Sergeant Allen, and MDOC Director Patricia Caruso. That

action is currently pending in Case No. 2:08-CV-12877.

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am on July 25; it was located at “J.M.F.” 5 Block 4010 Cooper St. 49201. I was told

by Sergeant Allen that I had to move up to the second floor even after I showed him

my medical detail. And that the move was ordered by control center. And he

refused me any names further. And he said that if I refused to be moved that I would

go to segregation. Well after I fell Sergeant Allen told another officer to shut off the

camera once he discovered that I had a medical detail for a ground floor room. And

now I sit in pain getting little to no help from medical. I took my detail to the

“RUM” Richard Cady trying to get moved. He said file a grievance. So I did but it

fell untimely at the second step do [sic] to my writing disability. So special thanks

to the inmate helping. He is part of the legal writers. The legal writer at “J.M.F.”

told me he lost my second step grievance because I would not pay him for his

services. He gets paid thru [sic] the prison Law Library. “He just wanted more.”

I have the summary of the complaint step one. It states (Investigative Information -

prisoner had a “ground floor” “bottom bunk” detail. He was moved to a cell on the

upper level when he had his accident). They are in neglect of policy (P.D..03.03.130

pg 3 of 3 K-3 any act or lack of care, weather [sic] by will, act or neglect that injures

or significantly impairs the health of any prisoner is a violation of policy above).

This quotation is also from the step two grievance under summary. Now I’m in a

wheelchair unable to walk do [sic] to my back & neck injuries. Prison medical is

refusing me the M.R.I. that the Doctor said that I would need.

Compl., at 2-3.1

The matter is currently before the Court on defendants’ motion for summary judgment

pursuant to FED. R. CIV. P. 56, filed on May 4, 2009. Defendants argue that they are entitled to

summary judgment because (1) plaintiff failed to exhaust his administrative remedies, and (2)

plaintiff has failed to allege any personal involvement by defendants. Plaintiff filed a brief response

to the motion on September 2, 2009. He requests that the court deny the motion for summary

judgment and that he have an opportunity for discovery pursuant to FED. R. CIV. P. 56(f). For the

reasons that follow, the Court should grant defendants’ motion for summary judgment.

B. Legal Standard

Under Rule 56, summary judgment should be granted “if the pleadings, depositions, answers

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to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d

444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact

is material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451-52

(citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must

view the evidence in a light most favorable to the non-movant as well as draw all reasonable

inferences in the non-movant’s favor. See Sutherland v. Michigan Dep’t of Treasury, 344 F.3d

603, 613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

“The moving party has the initial burden of showing the absence of a genuine issue of

material fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party

need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the

burden on the moving party may be discharged by ‘showing’ -- that is, pointing out to the district

court -- that there is an absence of evidence to support the non-moving party’s case.” Celotex

Corp., 477 U.S. at 325. “Once the moving party satisfies its burden, ‘the burden shifts to the

nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell

Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)); see also, FED. R. CIV. P. 56(e).

To create a genuine issue of material fact, however, the non-movant must do more than

present some evidence on a disputed issue. As the Supreme Court has explained:

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Defendants contend that they are entitled to summary judgment because plaintiff failed to

exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). However, § 1997e allows the

Court to dismiss a claim on the merits notwithstanding the failure of a prisoner to exhaust his

administrative remedies. See 42 U.S.C. § 1997e(c)(2). Although this provision directly addresses a claim

for relief that fails to state a claim on its face, it is equally applicable where the case has already

progressed to the summary judgment stage. This provision is akin to the habeas corpus rule which

permits a court to dismiss unexhausted claims on the merits. Much like the habeas exhaustion

requirement, the PLRA exhaustion requirement is designed to promote administrative and judicial

efficiency, and to show respect for the states by allowing the states the first opportunity to correct

constitutional errors. See, e.g., Brown v. Toombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998) (per curiam);

Sanders v. Elyea, No. 96 C 4559, 1998 WL 67615, at *5 (N.D. Ill. Feb. 10, 1998). And, as the habeas

courts have noted, exhaustion of meritless constitutional claims does not promote these interests. See

Granberry v. Greer, 481 U.S. 129, 135 (1987); Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987). Section

§ 1997e(c)(2) recognizes this fact, and is equally applicable notwithstanding the fact that this case is now

before the Court on a motion for summary judgment. Accordingly, because as discussed below

plaintiff’s claims are without merit, the Court should grant summary judgment on the merits rather than

require further exhaustion. Cf. Bastek v. Federal Crop Ins. Corp., 975 F. Supp. 534, 536 (S.D.N.Y. 1997)

(“However, when one of the purposes is not furthered, exhaustion is normally not required.”), aff’d, 145

F.2d 90 (2d Cir. 1998), petition for cert. filed, No. 98-320 (Aug. 20, 1998); Unger v. US West, Inc., 889 F.

Supp. 419, 424 (D. Colo. 1995) (“If these purposes would not be furthered, then administrative

exhaustion is fruitless.”); Coles Express v. New England Teamsters & Trucking Indus. Pension Fund, 702 F.

Supp. 355, 361 (D. Me. 1988) (“Exhaustion of administrative remedies is not compelled where the

policies it was intended to further are not implicated, as where there is no need for the superior expertise

of an administrative body, where judicial economy would not be promoted and where the statutory

scheme created by Congress would not be ignored.”).

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There is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. If the [non-movant’s]

evidence is merely colorable, or is not significantly probative, summary judgment

may be granted.

Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, “[t]he

existence of a mere scintilla of evidence in support of the non-moving party’s position will not be

sufficient; there must be evidence on which the jury could reasonably find for the non-moving

party.” Sutherland, 344 F.3d at 613.

C. Analysis2

To state a viable § 1983 claim, a plaintiff must allege that: (1) he was deprived of a right,

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privilege or immunity secured by the Federal Constitution or the laws of the United States; and

(2) the deprivation was caused by a person while acting under color of state law. Doe v. Wigginton,

21 F.3d 733, 738 (6th Cir. 1994). Further, the Supreme Court has made clear that liability in a §

1983 action cannot be based on a theory of respondeat superior. See Monell v. New York City Dep’t

of Social Servs., 436 U.S. 658, 691 (1978). Thus, “[t]o recover damages under 42 U.S.C. § 1983,

a plaintiff must establish a defendant’s personal responsibility for the claimed deprivation of a

constitutional right.” Diebitz v. Arreola, 834 F. Supp. 298, 304 (E.D. Wis. 1993). In other words,

in order to state a claim under § 1983 “[a] plaintiff must allege facts, not simply conclusions, that

show that an individual was personally involved in the deprivation of his civil rights. Liability under

§ 1983 must be based on the personal involvement of the defendant.” Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998) (per curiam); see also, Carr v. Parker, No. 98-6395, 1999 WL

1206879, at *1 (6th Cir. Dec. 9, 1999); Salehpour v. University of Tennessee, 159 F.3d 199, 206 (6th

Cir. 1998). As the Sixth Circuit has stated:

“Section 1983 liability will not be imposed solely upon the basis of respondeat

superior. There must be a showing that the supervisor encouraged the specific

incident of misconduct or in some other way directly participated in it. At a

minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly

authorized, approved or knowingly acquiesced in the unconstitutional conduct of the

offending subordinate.”

Taylor v. Michigan Dep’t of Corrections, 69 F.3d 73, 81 (6th Cir. 1995) (quoting Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (emphasis added)) (emphasis by Taylor court); see also,

Monell, 436 U.S. at 693-95; Birell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989); Williams v. Smith,

781 F.2d 319, 323 (2d Cir. 1986); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982); Sims v.

Adams, 537 F.2d 829, 831 (5th Cir. 1976). Furthermore, an allegation that a supervisor was aware

of an actionable wrong committed by a subordinate and failed to take corrective action “is

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insufficient to impose liability on supervisory personnel under § 1983.” Poe v. Haydon, 853 F.2d

418, 429 (6th Cir. 1988). As the Haydon court stated: “A supervisory official’s failure to control,

or train the offending individual is not actionable, unless the supervisor ‘either encouraged the

specific incident or in some other way directly participated in it.’” Haydon, 853 F.2d at 429 (quoting

Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982)).

Here, plaintiff has alleged no personal involvement on the part of defendants. With respect

to defendant Cady, he contends only that defendant Cady told him that he had to file a grievance,

and plaintiff did so. Plaintiff makes no specific allegations against defendant McCabe. Their only

role in the incidents alleged by plaintiff are in responding to petitioner’s grievances. Defendant

Cady responded to petitioner’s grievance filed after the fall down the stairs, and the response

indicated that although plaintiff did not at the time of the fall have a “no stairs” detail, the staff was

working on it at the time and plaintiff had since been given a ground floor cell. Defendant McCabe

reviewed this grievance and response. See Def.’s Br., Ex. A. Defendant Cady, reviewed by

defendant McCabe, had similarly resolved a grievance occurring prior to the fall, indicating at that

time that “[a]ttempts have been made to place this prisoner into a cell that can meet his medical

needs. Grievance should be resolved with the return of the prisoner to a lower level cell.” See id.,

Ex. B. Plaintiff’s complaint contains no allegations to rebut this evidence that defendants’ only

involvement was in responding to his grievances, nor does petitioner allege or provide any evidence

of involvement beyond the grievance process in his response to defendants’ motion for summary

judgment.

Thus, the evidence and allegations establish that defendants had no role beyond responding

to plaintiff’s grievances. This is insufficient to show their personal involvement. The Constitution

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does not require a state to establish a prison grievance system, and thus the denial of, or failure to

consider, a grievance does not state a constitutional claim under § 1983 or render the reviewing

official personally involved in the deprivation alleged in the grievance. See Lee v. Michigan Parole

Bd., 104 Fed. Appx. 490, 493 (6th Cir. 2004); Martin v. Harvey, No. 00-1439, 2001 WL 669983,

at *2 (6th Cir. 2001) (“The denial of the grievance is not the same as the denial of a request to

receive medical care.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (as against defendants

whose only involvement was the denial of administrative remedies and the “failure to remedy the

alleged retaliatory behavior[,]” “[t]here is no allegation that any of these defendants directly

participated . . . in the claimed . . . acts[].”); Weaver v. Toombs, 756 F. Supp. 335, 337 (W.D. Mich.

1989) (“The mere fact that these defendants found plaintiff Martin’s grievance concerning the

seizure to be without merit is insufficient to state a claim against them.”). Accordingly, the Court

should grant defendants’ motion for summary judgment.

D. Plaintiff’s Request for Further Discovery

In response to defendants’ motion, petitioner makes no argument rebutting defendants’ legal

position. Rather, he merely asks for further discovery pursuant to Rule 56(f). That rule provides,

in relevant part, that a court may deny a motion for summary judgment “[i]f a party opposing the

motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its

opposition.” FED. R. CIV. P. 56(f). As another court in this Circuit has explained:

When a party opposing a motion for summary judgment believes that further

discovery is needed to develop the issues addressed in the motion, that party must

file an affidavit pursuant to Fed.R.Civ.P. 56(f) (“R.56(f)”), to “indicate to the district

court its need for discovery, what material facts it hopes to uncover, and why it has

not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d

483, 488 (6th Cir. 2000). Rule 56(f) provides as follows:

Should it appear from the affidavits of a party opposing the

motion [for summary judgment] that the party cannot for reasons

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stated present by affidavit facts essential to justify the party’s

opposition, the court may refuse the application for judgment or may

order a continuance to permit affidavits to be obtained or depositions

to be taken or discovery to be had or may make such other order as

is just.

Rule 56(f) is the means by which a party resisting a motion for summary

judgment fulfills the “obligation to inform the district court of his need for discovery

. . . .” Cacevic, 226 F.3d at 488 (quoting Vance ex rel. Hammons v. United States, 90

F.3d 1145, 1149 (6th Cir. 1996)). The party seeking additional discovery must

“affirmatively demonstrate . . . how postponement of a ruling on the motion will

enable him, by discovery or other means, to rebut the movant’s showing of the

absence of a genuine issue of fact.” Good v. Ohio Edison Co., 149 F.3d 413, 422 (6th

Cir.1998) (internal quotation marks omitted).

The filing of a Rule 56(f) affidavit is no mere formality: 

We, like other reviewing courts, place great weight on the

Rule 56(f) affidavit, believing that “[a] party may not simply assert

in its brief that discovery was necessary and thereby overturn

summary judgment when it failed to comply with the requirement of

Rule 56(f) to set out reasons for the need for discovery in an

affidavit.” The Second Circuit Court of Appeals has similarly

explained that “[a] reference to Rule 56(f) and to the need for

additional discovery in a memorandum of law in opposition to a

motion for summary judgment is not an adequate substitute for a Rule

56(f) affidavit . . . and the failure to file an affidavit under Rule 56(f)

is itself sufficient grounds to reject a claim that the opportunity for

discovery was inadequate.” 

Cacevic, 226 F.3d at 488 (quoting Evans v. Technologies Applications & Serv. Co.,

80 F.3d 954, 961 (4th Cir.1996)) (citations omitted) (alterations in original). “Where

a party opposing summary judgment and seeking a continuance pending completion

of discovery fails to take advantage of the shelter provided by Rule 56(f) by filing

an affidavit, there is no abuse of discretion in granting summary judgment if it is

otherwise appropriate.” Id.

Gencorp, Inc. v. AIU Ins. Co., 304 F. Supp. 2d 955, 960 (N.D. Ohio 2004); see also, Gettings v.

Building Laborers Local 310 Fringe Benefit Fund, 349 F.3d 300, 305 (6th Cir. 2003); Cacevic, 226

F.3d at 488; Evans, 80 F.3d at 961. Thus “a party may not simply assert in its brief that discovery

was necessary and thereby overturn summary judgment when it failed to comply with the

requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit.” Evans, 80

F.3d at 961 (internal quotation omitted); see also, Whalen v. Century Communications, No. 97-

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As the Sixth Circuit noted in Cacevic, some courts have held that a pro se party need not strictly

comply with the technical requirements of Rule 56(f); thus, for example, a pro se brief which contains

the information required by Rule 56(f) may suffice even in the absence of an affidavit. See Cacevic, 226

F.3d at 488-89. Here, however, plaintiff has provided the Court with none of the information required

by Rule 56(f) to support his need for further discovery. Thus, as in Cacevic, the Court need not consider

whether some filing short of an affidavit would be sufficient because plaintiff “complied with neither

the technical nor the substantive aspects of the rule.” Cacevic, 226 F.3d at 489.

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16572, 1999 WL 109630, at *1 (9th Cir. Dec. 10, 1998) (“An inadequate discovery time argument

fails where the party complaining failed to take advantage of the procedural remedy offered in Rule

56(f).”).

Although plaintiff makes a general claim that he needs further discovery to prosecute his

action, he does not argue in his response to defendants’ motion for summary judgment that further

specific discovery is needed. He does not point to any potential discovery which could show that

defendants had any personal involvement beyond their roles in responding to his grievances. On

the contrary, the allegations of petitioner’s complaint make clear that Sergeant Allen, who is a

defendant in another case brought by plaintiff, was the one who failed to abide by his medical detail

for a ground floor bunk. Thus, petitioner has failed to point to any additional evidence that

discovery could uncover which would bear on defendants’ entitlement to summary judgment.

Further, plaintiff has failed to file an affidavit pursuant to Rule 56(f) detailing the need for further

discovery. See Short v. Oaks Correctional Facility, 129 Fed. Appx. 278, 281-82 (6th Cir. 2005)

(applying Rule 56(f) requirements to pro se plaintiff); Summers, 368 F.3d at 887. See generally,

Dicesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993) (Rule 56(f) requirements apply to pro se

parties).3 Accordingly, the Court should deny plaintiff’s request for further discovery.

E. Conclusion

In view of the foregoing, the Court should grant defendants’ motion for summary judgment,

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and should dismiss plaintiff’s action.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in 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 Health & Human Servs., 932

F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of

objections which raise some issues but fail to raise others with specificity, will not preserve all the

objections a party might have to this Report and Recommendation. Willis v. Secretary of Health &

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local

231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

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Dated: 12/10/09

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail on December 10, 2009.

s/Eddrey Butts 

Case Manager

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