Rosencrantz #252422 v. Schmalbach et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TIMOTHY ROSENCRANTZ, #252422,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:24-cv-886
ANGELA SCHMALBACH, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant’s Motion for Summary Judgment.
(ECF No. 21). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that
Defendant’s motion be granted and this action terminated.
BACKGROUND
Plaintiff initiated this action against several personnel employed at the Ionia
Correctional Facility (ICF) where the relevant events occurred. Most of Plaintiff’s
claims were dismissed on screening. (ECF No. 5). At this juncture, the only
remaining claim is a deliberate indifference claim against Defendant Fosburg. (ECF
No. 5, 42). In his complaint, (ECF No. 1), Plaintiff alleges the following.
In 2011, Plaintiff was diagnosed with sleep apnea after which prison officials
provided him with a continuous positive airway pressure (CPAP) device. Plaintiff’s
CPAP device requires distilled water which he must request from health care. On four
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occasions between November 2, 2023, and December 28, 2023, Plaintiff’s requests for
distilled water were denied by Defendant Mukarurinda, Kunkel, or Fosburg. Plaintiff
alleges that this conduct constituted deliberate indifference to his serious medical needs
in violation of his Eighth Amendment rights. Defendant Fosberg now moves for
summary judgment on the ground that Plaintiff has not properly exhausted his
administrative remedies. Plaintiff has responded to Defendant’s motion. The Court
finds that oral argument is unnecessary. See W.D. Mich. LCivR 7.2(d).
SUMMARY JUDGMENT STANDARD
Summary judgment “shall” be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Whether a fact is “material” depends on “whether
its resolution might affect the outcome of the case.” Harden v. Hillman, 993 F.3d 465,
474 (6th Cir. 2021).
A party moving for summary judgment can satisfy its burden by demonstrating
that the non-moving party, “having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.” Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). Once the moving party makes this showing, the non-
moving party “must identify specific facts that can be established by admissible evidence,
which demonstrate a genuine issue for trial.” Amini v. Oberlin College, 440 F.3d 350,
357 (6th Cir. 2006). The existence of a mere “scintilla of evidence” in support of the non-
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moving party’s position, however, is insufficient. Daniels v. Woodside, 396 F.3d 730,
734-35 (6th Cir. 2005).
While the Court must view the evidence in the light most favorable to the non-
moving party, that party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The non-moving
party “may not rest upon [his] mere allegations,” but must instead present “significant
probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon
Corp., 434 F.3d 810, 813-14 (6th Cir. 2006). Likewise, the non-moving party cannot
merely “recite the incantation, ‘credibility,’ and have a trial on the hope that a jury may
disbelieve factually uncontested proof.” Fogerty v. MGM Group Holdings Corp., Inc.,
379 F.3d 348, 353-54 (6th Cir. 2004).
Accordingly, summary judgment is appropriate “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Daniels, 396 F.3d
at 735. Stated differently, the “ultimate question is whether the evidence presents a
sufficient factual disagreement to require submission of the case to the jury, or whether
the evidence is so one-sided that the moving parties should prevail as a matter of law.”
Harden, 993 F.3d at 474.
While a moving party without the burden of proof need only show that the
opponent cannot sustain his burden at trial, a moving party with the burden of proof
faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002).
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Where the moving party has the burden, “his showing must be sufficient for the court to
hold that no reasonable trier of fact could find other than for the moving party.”
Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). Accordingly, summary
judgment in favor of the party with the burden of proof “is inappropriate when the
evidence is susceptible of different interpretations or inferences by the trier of fact.”
Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
ANALYSIS
Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action regarding prison
conditions under 42 U.S.C. § 1983 must first exhaust his administrative remedies. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). This obligation only extends, however, to
such administrative remedies as are available. Ross v. Blake, 578 U.S. 632, 642 (2016)
(a prisoner “must exhaust available remedies, but need not exhaust unavailable ones”).
Prisoners are no longer required to demonstrate exhaustion in their complaints.
See Jones v. Bock, 549 U.S. 199, 216 (2007). Instead, failure to exhaust administrative
remedies is “an affirmative defense under the PLRA” which the defendant bears the
burden of establishing. Ibid.
With respect to what constitutes proper exhaustion, the Supreme Court has stated
that “the PLRA exhaustion requirement requires proper exhaustion” defined as
“compliance with an agency’s deadlines and other critical procedural rules.” Woodford
v. Ngo, 548 U.S. 81, 90-93 (2006). In Bock, the Court reiterated that
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Compliance with prison grievance procedures, therefore, is all
that is required by the PLRA to ‘properly exhaust.’ The level
of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim,
but it is the prison’s requirements, and not the PLRA, that
define the boundaries of proper exhaustion.
Bock, 549 U.S. at 218.
MDOC Policy Directive 03.02.130 articulates the applicable grievance procedures
for prisoners in MDOC custody. Prior to submitting a grievance, a prisoner must
attempt to resolve the issue with staff, unless prevented by circumstances beyond his
control, or the issue falls within the jurisdiction of Internal Affairs. MDOC Policy
Directive 03.02.130 ¶ W (Sept. 25, 2023 and Oct. 21, 2024). The prisoner must attempt
to resolve the matter within two days of becoming aware that there exists a grievable
issue. (Id.).
If this attempt is unsuccessful (or such is inapplicable), the prisoner may submit
a Step I grievance, but such must be submitted within five business days after
attempting to resolve the matter with staff. MDOC Policy Directive 03.02.130 ¶ CC
(Sept. 25, 2023 and Oct. 21, 2024). The issues asserted in a grievance “should be stated
briefly but concisely” and the “[d]ates, times, places, and names of all those involved in
the issue being grieved are to be included.” MDOC Policy Directive 03.02.130 ¶ Y (Sept.
25, 2023 and Oct. 21, 2024).
If the prisoner is dissatisfied with the Step I response, or does not receive a timely
response, he may appeal to Step II within ten business days of the response, or if no
response was received, within ten business days after the response was due. MDOC
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Policy Directive 03.02.130 ¶ JJ (Sept. 25, 2023 and Oct. 21, 2024). If the prisoner is
dissatisfied with the Step II response, or does not receive a timely Step II response, he
may appeal the matter to Step III. MDOC Policy Directive 03.02.130 ¶ NN (Sept. 25,
2023 and Oct. 21, 2024).
In support of her motion, Defendant has presented evidence that Plaintiff has
failed to properly pursue any grievance concerning the claim asserted against her.
(ECF No. 22-3, PageID.172-83). Specifically, Defendant has presented evidence that
while Plaintiff pursued a grievance regarding the events in question, Plaintiff’s
grievance was asserted against another individual. (ECF No. 22-3, PageID.175-83).
Plaintiff pursued this grievance through all three steps of the grievance process but
Defendant Fosberg is not identified at any step of the grievance process. Id.
Plaintiff responds that the reference in his grievance to “health care” is sufficient
to constitute proper exhaustion as to Defendant Fosberg or anybody else working in
health care. The Court is not persuaded. It is important to note that Plaintiff did not
indicate in his Step I grievance that he was unaware of the identity of the individual(s)
against whom his grievance was asserted. Rather, Plaintiff clearly identified the
person against whom the grievance was asserted and likewise identified other staff
members involved in the matter. Likewise, in his Step II and III grievances, Plaintiff
did not name Defendant Fosberg or suggest that he was unaware of the identity of others
against whom he wanted to assert his grievance. Rather, at all three steps of the
grievance process, Plaintiff plainly directed his allegations toward another staff member.
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It is well understood that if a prisoner identifies by name a specific individual in
a Step I grievance, that grievance can serve to exhaust claims only as to the individual
named in the Step I grievance. See, e.g., Dykes-Bey v. Finco, 2021 WL 2767584 at *2
(6th Cir., Feb. 2, 2021). Accordingly, Plaintiff’s argument is rejected. Because
Defendant’s evidence satisfies her burden on the exhaustion question, the undersigned
recommends that Defendant’s motion be granted, Plaintiff’s claim against Defendant
Fosberg be dismissed without prejudice for failure to exhaust administrative remedies,
and this matter terminated.
CONCLUSION
For the reasons articulated herein, the undersigned recommends that Defendant’s
Motion for Summary Judgment, (ECF No. 21), be granted; Plaintiff’s claim against
Defendant Fosberg be dismissed without prejudice for failure to exhaust administrative
remedies; and this matter terminated. For the same reasons the undersigned makes
these recommendations, the undersigned finds that an appeal of such would be
frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the
undersigned further recommends that an appeal of this matter by Plaintiff would not be
in good faith.
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OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within the specified time waives the right to
appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
Date: December 26, 2025 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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