UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VIRGIL MITCHELL, 

Plaintiff,

v.

MICHIGAN DEPARTMENT OF CORRECTIONS,

ET AL.,

Defendants.

Case No. 09-11468

SENIOR UNITED STATES DISTRICT JUDGE

ARTHUR J. TARNOW

MAGISTRATE JUDGE DAVID R. GRAND

 /

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION [121] AND

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [92]

Before the Court is Defendants’ Motion for Summary Judgment [92], filed on November 8,

2010. On January 24, 2012, Magistrate Judge Grand issued a Report and Recommendation (“R&R”)

[121] recommending that Defendants’ motion be GRANTED IN PART and DENIED IN PART.

Defendants filed objections [123] on February 2, 2012. Defendants object only to the portion of the

R&R recommending denial of summary judgment as to Defendant Darmody. 

Factual Background

The R&R provides a detailed description of the facts in this case. The Court adopts the facts

as set out in the R&R. The facts discussed below are those pertinent to Defendants’ objection.

Plaintiff Virgil Mitchell alleges that on October 11, 2004, Defendant Darmody, a corrections

officer, repeatedly slammed a cell door on Plaintiff’s back, causing Plaintiff serious injuries. Plaintiff

alleges that his injuries included a spinal disc bulge and/or rupture, loss of muscle strength in his arms

and legs, numbness, and pain when walking or lying flat. The same day that this incident allegedly

occurred, Plaintiff filed a “Step I” grievance (“the First Grievance”) with the Michigan Department

of Corrections (“MDOC”) related to Darmody’s alleged infliction of personal injury. Plaintiff’s Step

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 1 of 6 Pg ID 995
1

As noted by the R&R, it is impossible to determine from the record when Plaintiff’s Step

III grievance was filed and thus whether it was timely under the MDOC grievance policy. 

However, Defendants have not argued that the grievance was untimely, and responded on the

merits to the grievance, thus waiving any claim that the Step III grievance was untimely filed. 

See Broder v. Correctional Med. Servs., Inc., 2008 WL 7042249 at *2 (E.D. Mich. 2008).

2

I grievance was denied on October 22, 2004. Plaintiff appealed the denial by filing a “Step II”

grievance. The Step II grievance was denied on November 15, 2004. Plaintiff appealed a third time,

filing a “Step III” grievance, which was denied on April 1, 2005.

On October 28, 2004, Plaintiff filed a second Step I grievance (“the Second Grievance”)

related to the alleged failure to provide adequate medical care for Plaintiff’s injuries resulting from

Darmody’s alleged actions. While the Second Grievance mentioned Darmody’s name, it did so only

in the context of alleging inadequate medical care by a nurse. The Step I grievance was denied on

December 6, 2004. Plaintiff filed a Step II grievance which was denied on January 28, 2005.

Plaintiff’s Step III grievance was received by MDOC on December 21, 2006,1 and was denied on

August 21, 2007. 

Standard of Review

This Court reviews objections to a Magistrate Judge’s Report and Recommendation on a

dispositive motion de novo. See 28 U.S.C. §636(b)(1)©. Making some objections to a Report and

Recommendation, but failing to raise others, will not preserve all objections a party may have to the

report and recommendation. McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006).

Objections must be specific. Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir. 2006). 

A motion for summary judgment is granted under Fed. R. Civ. P. 56© when there is no

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

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 2 of 6 Pg ID 996
3

Summary judgment is also proper where the moving party shows that the non-moving party is unable

to meet its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1987). Facts and inferences

must be viewed in the light most favourable to the non-moving party. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574 (1986). However, the non-moving party must present “specific

facts showing that there is a genuine issue for trial” that demonstrate that there is more than “some

metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40

(6th Cir. 1993) (internal citations omitted). Summary judgment will not be granted “if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Analysis

Defendants advance three objections to the R&R. First, Defendants repeat their argument that

the three-year statute of limitations on § 1983 actions began running 120 days after Plaintiff’s Second

Grievance (SLF 0411-286712e3) was filed (resulting in a statute of limitations period running from

approximately February 28, 2005 to February 28, 2008), rather than on the day Plaintiff received a

response from MDOC (resulting in a statute of limitations period running from August 21, 2007 to

August 21, 2010). Defendants argue that the Court should disregard the actual date Plaintiff received

a reply to his grievance because the relevant MDOC policy on grievances states that “[t]he total

grievance process from the point of filing a Step I grievance to providing a Step III response shall

generally be completed within 120 calendar days unless an extension has been approved in writing

. . . .” Defendants argue that the policy is a “hard deadline, absent an extension.” However, such a

reading requires the Court to ignore the plain language of the policy that states that Step I through

Step III will “generally” be completed within 120 days. The term “generally” indicates a soft

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 3 of 6 Pg ID 997
4

deadline that is meant to serve as a benchmark. This also seems to be how the policy is actually

applied by the MDOC, given that neither Plaintiff’s First Grievance nor Second Grievance were

resolved within 120 days. 

Furthermore, tolling the statute of limitations 120 days after the Step I grievance is initiated

makes little sense. A plaintiff who filed a lawsuit on the 121st day would be met with arguments that

he or she had failed to exhaust his or her administrative remedies prior to filing suit. Further, as

noted by the Magistrate Judge in the R&R:

Darmody’s argument runs counter to the purpose of the exhaustion policy whose

benefits “include allowing a prison to address complaints about the program it

administers before being subjected to suit, reducing litigation to the extent complaints

are satisfactorily resolved, and improving litigation that does occur by leading to the

preparation of a useful record.” Jones v. Bock, 549 U.S. 199, 219 (2007). See also

Vartinelli v. Pramstaller, 2010 WL 5330484, at *2 (E.D. Mich. Dec. 21, 2010); Davis

v. Straub, 2011 WL 2433398, at *7 (E.D. Mich. May 10, 2011) adopted by 2011 WL

2415357 (E.D. Mich. June 13, 2011). The grievance system, and the legal system as

a whole, benefit when the entire administrative process is allowed to be completed

before a prisoner’s statutory time period to file a lawsuit begins to run. 

Following the reasoning set forth in Vartinelli, the Court finds that in this case, MDOC failed

to follow its own policy, as written, but then ultimately addressed Plaintiff’s grievance on the merits.

Plaintiff waited until his Second grievance had been addressed to file suit, thus fulfilling the purposes

of the exhaustion requirement - developing the record and giving MDOC an opportunity to address

Plaintiff’s grievances prior to litigation. 

Defendants urge the Court to ignore Vartinelli and Davis, supra, and to adopt instead Brandon

v. Bergh, 2009 WL 4646954 (W.D. Mich. Dec. 8, 2009), in which the court found that because the

MDOC policy at the time stated that grievances were to be resolved in ninety days, the statute of

limitations was tolled when the grievance “should have been resolved,” not when the grievance was

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 4 of 6 Pg ID 998
5

actually resolved. The court declines to adopt this reasoning for the reasons stated above.

Defendants’ first objection is DENIED.

Defendants next object that tolling the statute of limitations at the time the grievance is

resolved is “illogical because it would allow the MDOC to unilaterally and indefinitely delay a

prisoner from filing a lawsuit by simply not responding to a grievance.” The Court agrees that the

Prison Litigation Reform Act was not intended to allow the MDOC to indefinitely delay lawsuits.

However, that is not the question before the Court. Rather, the question is whether the statute of

limitations on a § 1983 action is tolled by a 120-day deadline which MDOC may or may not actually

meet, or whether the statute of limitations is tolled on the date that MDOC responds to the grievance

on the merits. The Court finds the latter. The Court also notes that a finding that the statute of

limitations is tolled by a deadline set by MDOC policy, which MDOC can (and apparently does) fail

to follow, would lead to confusion, as potential plaintiffs who wait for a response on the merits to

complete administrative exhaustion might find that the statute of limitations has run if MDOC is not

timely in responding to the grievance. 

Finally, Defendants object that the Magistrate Judge did not offer an explanation why, even

if the Second Grievance is within the statute of limitations, “the First Grievance is not beyond the

statute of limitations,” as a Step III response to the First Grievance was provided on April 1, 2005.

The three year statute of limitations on Plaintiff’s personal injury claim, as set forth by Mich. Comp.

L. § 600.5805 (10), would thus have expired prior to the filing of the instant case. Defendant notes

that therefore the “[First] grievance does not fall within the three year statute of limitations.”

Defendants are correct. Plaintiff’s claim of cruel and unusual punishment in violation of § 1983,

based upon the allegations of personal injury made in the First Grievance, is barred by the statute of

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 5 of 6 Pg ID 999
6

limitations. The allegations in Plaintiff’s Second Grievance concern only claims against Defendant

S. Teed, who was voluntarily dismissed by Plaintiff on February 16, 2012. Defendants’ objection

is therefore well-taken. 

Conclusion

The Court having reviewed the record in this case, the Opinion and Order of the Magistrate

Judge is hereby ADOPTED IN PART and is entered as the findings and conclusions of the Court,

with the exception of the recommendation of denial of summary judgment as to Defendant Darmody.

Accordingly, IT IS ORDERED that Defendants’ Motion for Summary Judgment [92] is

GRANTED.

SO ORDERED.

 s/Arthur J. Tarnow 

Arthur J. Tarnow

 Senior United States District Judge

Dated: March 16, 2012

______________________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on March 16, 2012 that I electronically filed the foregoing paper with the

Clerk of the Court sending notification of such filing to all counsel registered electronically. I hereby

certify that a copy of this paper was mailed to the following non-registered ECF participants on

March 16, 2012: None.

s/Michael E. Lang 

Deputy Clerk to 

District Judge Arthur J. Tarnow

(313) 234-5182

2:09-cv-11468-AJT-DRG Doc # 125 Filed 03/16/12 Pg 6 of 6 Pg ID 1000