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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VIRGIL MITCHELL

Plaintiff,

v.

MICHIGAN DEPARTMENT OF

CORRECTIONS,

Defendants.

Case No. 09-11468

HONORABLE ARTHUR J. TARNOW

DISTRICT JUDGE

HONORABLE PAUL J. KOMIVES

MAGISTRATE JUDGE

______________________________/

ORDER REJECTING THE MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION [54], DENYING DEFENDANTS CORRECTIONAL

MEDICAL SERVICES, INC., AND MICHAEL ENGELSGJERD’S

MOTION TO DISMISS [34], AND GRANTING IN PART AND DENYING

IN PART DEFENDANTS CARUSO, ET AL.’S MOTION FOR DISMISSAL

AND/OR SUMMARY JUDGMENT BASED ON LACK OF EXHAUSTION,

AND/OR FAILURE TO STATE A CLAIM, THE STATUTE OF

LIMITATIONS, AND SOVEREIGN IMMUNITY [38]

Before the Court is the Magistrate Judge’s Report and Recommendation [54]

of December 4, 2009. The Report and Recommendation recommended that Plaintiff’s

Complaint [1] against all named defendants be dismissed because it is barred by the

statute of limitations. On January 21, 2010, Plaintiff filed an Objection [57].

Defendants Correctional Medical Services, Inc., and Michael Engelsgjerd filed a

Response [58] on February 5, 2010. The remaining defendants did not file a response.

I. STANDARD OF REVIEW
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Under 28 U.S.C. § 636(b)(1), a magistrate judge’s orders shall not be disturbed

unless “found to be clearly erroneous or contrary to law.” United States v. Curtis, 237

F.3d 598, 603. The “clearly erroneous” standard requires that the Court affirm the

Magistrate's decision unless, after reviewing the entirety of the evidence, the Court

“is left with the definite and firm conviction that a mistake has been committed.”

Sandles v. U.S. Marshal's Service, 2007 WL 4374077 at *1 (E.D. Mich. 2007) (citing

United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92

L.Ed. 746, 766 (1948)). The test is: 

not whether the finding is the best or only conclusion that can be drawn

from the evidence, or whether it is the one which the reviewing court

would draw. Rather the test is whether there is evidence in the record to

support the lower court's finding, and whether its construction of that

evidence is a reasonable one. 

Heights Community Congress v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th

Cir.1985).

This Court reviews de novo any objections to a Magistrate’s Report and

Recommendation. See 28 U.S.C. § 636(b)(1).

II. ANALYSIS

A. Plaintiff’s Objections

Plaintiff objects to the dismissal of his complaint, alleging that it is not time

barred. Plaintiff maintains that the statute of limitations was tolled until he exhausted

his administrative remedies. 

In his Report and Recommendation, the Magistrate Judge concluded that

Plaintiff’s complaint should be dismissed because the latest constitutional harm that

Plaintiff alleged occurred on August 12, 2005 and the complaint was filed on April
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 Defendants Correctional Medical Services, Inc., and Michael Engelsgjerd’s Motion to

Dismiss [34] argued for dismissal solely on statute of limitations grounds. 

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20, 2009; thus, Plaintiff failed to comply with the three year statute of limitations for

this §1983 claim.

However, under Sixth Circuit case law, Plaintiff’s claims are tolled for the time

period during which he was exhausting his state remedies. See Brown v. Morgan, 209

F.3d 595, 596 (6th Cir. 2000) (Sixth Circuit concludes that the language of the Prison

Litigation Reform Act, 42 U.S.C. §1997e, “unambiguously requires exhaustion as a

mandatory threshold in prison litigation. Prisoners are therefore prevented from

bringing suit in federal court for the period of time required to exhaust such

administrative remedies as are available. For this reason, the statute of limitations

which applied to [Plaintiff’s] civil rights action was tolled for the period during which

his available state remedies were being exhausted”).

Defendants’ motion, while raising exhaustion arguments, fails to establish what

specific grievance policy was in place at the time Plaintiff filed his grievances and

whether Plaintiff fully exhausted his claims. Therefore, this Court is unable to

conclude when Plaintiff’s claims were exhausted for statute of limitations purposes.

Thus, Plaintiff’s complaint should not be dismissed at this time on these grounds. 

B. Remaining arguments raised in Defendants’ motion

Since the magistrate granted Defendants Caruso, et al.’s Motion for Dismissal

on statute of limitations grounds, he did not make any recommendations regarding the

alternative arguments raised in the motion.1

 Rather than referring the motion back to

the magistrate for ruling, this Court, in the interest of judicial efficiency, will address

those arguments now. 
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1. Defendant Darmody

Defendant Darmody argues that the complaint, as to the allegations involving

him, should be dismissed, as Plaintiff failed to complete the grievance process with

respect to the grievance he filed regarding the November 13, 2004 incident. However,

the exhibits which Defendants attach to their motion in support of this argument do

not establish that Plaintiff failed to exhaust the grievance process as to this incident,

nor do they establish what the grievance policy was at the time Plaintiff filed his

grievance. Exhibit 2, a copy of a grievance form for the incident, indicates the

grievance was given the identifier “SLF0411304717a.” Defendants attach as Exhibit

3 a printout list of grievance identifiers that Plaintiff has filed. The aforementioned

identifier is not included on the list. Accordingly, Defendant Darmody has not

demonstrated at this time that Plaintiff has failed to exhaust his administrative

remedies.

2. Defendant McCabe

Defendant McCabe asserts that the rejection of Plaintiff’s grievance, identifier

SLF-05-01-00142-28e, as duplicative of another grievance Plaintiff filed means that

Plaintiff did not properly exhaust his administrative remedies as to the claims against

Defendant McCabe. 

As noted above, Defendants have not established what specific grievance policy

was in place at the time Plaintiff filed his grievances. Additionally, although the

Supreme Court has made “clear that a prisoner cannot satisfy the PLRA [Prisoner

Litigation Reform Act] exhaustion requirement by filing an untimely or otherwise

procedurally defective administrative grievance,” See Scott v. Ambani, et al., 577

F.3d 642, 647 (6th Cir. 2009), citing Woodford v. Ngo, 548 U.S. 81, 83 (2006),
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Plaintiff may have exhausted his administrative remedies as to the allegations raised

in the original grievance regarding Defendant McCabe despite allegedly filing a

duplicative grievance. Therefore, Defendant McCabe will not be dismissed on this

12(b)(6) motion. 

3. Defendants Caruso, Armstrong, Renico, and Williams

These Defendants allege that Plaintiff failed to submit claims against them

through the prison grievance process, entitling Defendants to dismissal on exhaustion

grounds.

 In Jones v. Bock, 549 U.S. 199, 219 (2007), the Supreme Court found that

“exhaustion is not per se inadequate simply because an individual later sued was not

named in the grievances.” Rather, “compliance with prison grievance procedures...

is all that is required by the PLRA to ‘properly exhaust.’” Id. at 218. As noted above,

Defendants have not established in their motion what specific grievance policy was

in effect at the time that Plaintiff filed his grievances and whether that policy required

Plaintiff to specifically identify certain individuals in order to exhaust his claims

against them before filing a complaint.

Defendants also assert that they cannot be held liable under §1983 since

Plaintiff does not allege that they were personally involved in depriving him of any

constitutional right. Defendants maintain that supervisory liability cannot be based

upon a failure to act. 

The Sixth Circuit has found that:

a supervisory official’s failure to supervise, control or train the offending

individual is not actionable unless the supervisor either encourage the

specific incident of misconduct or in some other way directly

participated in it. At a minimum a plaintiff must show that the official

at least implicitly authorized, approved, or knowingly acquiesced in the
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unconstitutional conduct of the offending officers.

See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (citation and internal

quotation marks omitted). 

Here, Plaintiff’s complaint sufficiently pleads his claims as to Defendants

Caruso, Armstrong, Renico, and Williams to withstand the instant 12(b)(6) motion.

Regarding Defendant Caruso, the complaint alleges, inter alia, that through Plaintiff’s

correspondence to her, Caruso knew or should have known of the malicious acts of

the subordinate officers and failed to respond. See Complaint at ¶ 8-9. Regarding

Defendants Armstrong and Williams, Plaintiff’s complaint alleges that they “ignored

and condoned” the conduct of Defendant Darmody. See Complaint at ¶ 7. Plaintiff

pleads that both defendants responded to at least one of Plaintiff’s grievances, but did

not “conduct an investigation and correct” the harm that occurred. Id. at ¶ 8. Finally,

Plaintiff alleges that Defendant Renico failed to “conduct a thorough investigation”

after being put on notice about the constitutional violation that allegedly occurred.

For purposes of this 12(b)(6) motion, Plaintiff’s complaint sufficiently pleads

under Sheehee that the named officials knowingly acquiesced in the conduct of the

officers.

4. Plaintiff’s official capacity claims

Defendants argument in their motion that any claims brought against them in

their official capacities are barred under the Eleventh Amendment is correct. See Will

v. Michigan Dept. Of State Police, 491 U.S. 58, 71 (1989). Thus, Defendants’ motion

is granted as to this issue. However, Plaintiff may proceed against Defendants in their

individual capacities.
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5. Mootness

Defendants argue that Plaintiff’s claims for relief are moot since Plaintiff was

ultimately transferred to a different facility. However, simply because Plaintiff no

longer is located at the facility that the alleged constitutional deprivations took place

does not mean that this matter should be dismissed. Plaintiff is not barred from

attempting to establish the constitutional deprivations alleged.

III. CONCLUSION

The Court has reviewed the record and the parties’ pleadings in this case, and

being fully advised in the premises,

IT IS ORDERED that the Report and Recommendation [54] of the Magistrate

Judge is hereby REJECTED;

IT IS FURTHER ORDERED that Defendants Correctional Medical Services,

Inc., and Michael Engelsgjerd’s Motion to Dismiss is [34] is DENIED;

IT IS FURTHER ORDERED that Defendants Caruso, et al.’s Motion for

Dismissal and/or Summary Judgment Based On Lack of Exhaustion, and/or Failure

to State a Claim, the Statute of Limitations, and Sovereign Immunity [38] is

GRANTED IN PART AND DENIED IN PART. 

SO ORDERED.
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S/ARTHUR J. TARNOW

Arthur J. Tarnow

United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of

record and Virgil Mitchell #349178, G. Robert Cotton Correctional Facility, 3500

N.Elm Road, Jackson, MI 49201 on March 15, 2010, by electronic and/or ordinary

mail.

S/LISA M. WARE

Case Manager