Jando #364595 v. Davis et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH JANDO #364595,
Plaintiff, 	Hon. Hala Y. Jarbou
v.
Case No. 1:24-cv-01019
UNKNOWN DAVIS, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Summary Judgment.
(ECF No. 21). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that
Defendants’ motion be granted.
BACKGROUND
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Oaks Correctional Facility (ECF) in Manistee, Manistee County,
Michigan, but the alleged events at issue occurred at the Earnest C. Brooks Correctional
Facility (LRF) in Muskegon, Muskegon County, Michigan. In his amended complaint,
Plaintiff alleges the following. (ECF No. 11).
Plaintiff arrived at LRF in January 2020. (ECF No. 11, PageID.56). On
February 15, 2020, Inmate Blanchong punched Plaintiff in the face and head. After
Inmate Blanchong found out that he was going to be charged with assault for the
incident, “he started to tell other inmates that [Plaintiff] was a ‘rat.’” (Id.). On
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June 30, 2020, “[Plaintiff] was assaulted by Inmate Gallegos.” (Id.). “About [a] month
later[,] [Plaintiff] was assaulted by [Inmate] Pierce.” (Id.). At this point, Plaintiff met
with the Security Classification Committee, consisting of Defendants Davis, Brege, and
Trepton, who requested an immediate transfer of Plaintiff following an investigation.
(Id.). Pending his transfer, Plaintiff was housed in “a Temporary Protective Wing,”
where he was “assaulted by Inmate Lanton” after a non-party officer “mistakenly opened
[Plaintiff’s] cell and Lanton entered . . . [and] assaulted [Plaintiff].” (Id.). On October
7, 2020, Plaintiff was released back to general population. On October 19, 2020,
Plaintiff “was assaulted again by 2 inmates.” (Id.).
In December 2020, Plaintiff “started to hear rumors” that Inmate Velez “had
taken the ‘hit’ on [Plaintiff] and was planning to assault [him].” (ECF No. 11,
PageID.57). Plaintiff approached Defendants Hoffman and Treptow, “explain[ing] [his]
concern” to them. (Id.). On December 8, 2020, Inmate Velez hit Plaintiff in the face
and head with a “lock in a sock” while Plaintiff used the e-mail kiosk. (Id.). Plaintiff
was hospitalized and suffered a “shattered orbital bone, fractured retina, broken nose, 5
staples in [the] back of [his] head, 6 stitches above [his] eye,” and he “lost 30% of [his]
vision in his right eye.” (Id.). Plaintiff remained at LRF. (Id.). In September 2021,
Plaintiff was housed in Level IV general population in the same wing as Inmate
Blanchong, who in October 2021, “jumped [Plaintiff] with his bunkie.” (Id.).
Defendant Brege sent Plaintiff to Level II. (ECF No. 11, PageID.58). By February
2022, Plaintiff was back in Level IV in the same unit as Blanchong and his “bunkie.”
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(Id.). Inmate Hill “assaulted” Plaintiff. (ECF No. 11, PageID.59). On July 17, 2022,
Inmate Martinez beat Plaintiff “with a lock while [he] was sleeping,” causing serious
injuries. (Id.).
Plaintiff alleges that Defendants violated his Eighth Amendment right to be free
from cruel and unusual punishment. Plaintiff seeks declaratory and monetary relief.
Defendants now move for summary judgment on statute of limitations and exhaustion
grounds. Plaintiff failed to respond to Defendants’ 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
I. Statute of Limitations
Defendants first argue that they are entitled to relief because Plaintiff did not
initiate the present action prior to the expiration of the statute of limitations as to several
of Plaintiff’s claims. The Court agrees.
Section 1983 civil rights actions are governed by the state statute of limitations
for personal injury actions. Wallace v. Kato, 549 U.S. 384, 387 (2007). For such actions
in Michigan, the statute of limitations is three years. See Mich. Comp. Laws
§ 600.5805(2); see also Carroll v. Wilkerson, 782 F.2d 44, 44 (6th Cir. 1986) (per curiam).
While the Court looks to state law to identify the applicable statute of limitations,
federal law must be applied when determining when the relevant limitations period
begins to run. See Sharpe v. Cureton, 319 F.3d 259, 266 (6th Cir. 2003). Under federal
law, the statute of limitations begins to run “when plaintiffs knew or should have known
of the injury which forms the basis of their claims.” Ruff v. Runyon, 258 F.3d 498, 500-
01 (6th Cir. 2001). A plaintiff has reason to know of his injury when he “should have
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discovered it through the exercise of reasonable diligence.” Dotson v. Lane, 360 Fed.
Appx. 617, 619 n.2 (6th Cir., Jan. 5, 2010). Defendants bear the burden to establish
that Plaintiff has failed to timely assert his claims. See Lutz v. Chesapeake Appalachia,
L.L.C., 717 F.3d 459, 464 (6th Cir. 2013). If Defendants satisfy their burden, the burden
then shifts to Plaintiff to establish that there exists an applicable exception to the statute
of limitations. Id.
Plaintiff’s nine assaults occurred on February 15, 2020; June 30, 2020; July 2020;
August 2020; October 19, 2020; December 8, 2020; October 2021; March 11, 2022;1 and
July 17, 2022, at which each time Plaintiff knew or should have known of the injuries
forming the basis of his Eighth Amendment claims. (ECF No. 11). Plaintiff initiated
this action on September 25, 2024,2 more than three years after the statute of limitations
began running for each of his first six assaults. (ECF No. 1). The statute of limitations
is tolled, however, during the pendency of any attempts by Plaintiff to exhaust his
administrative remedies. See, e.g., Surles v. Andison, 678 F.3d 452, 458 (6th Cir. 2012).
1 Plaintiff does not identify a date for this assault by Inmate Hill in his amended
complaint (ECF No. 11, PageID.59), but his grievance about the same assault is dated
as March 11, 2022 (ECF No. 22-3, PageID.136).
2 The Court notes that under the prison mailbox rule, a prisoner’s court papers are
deemed filed at the time he “delivered it to the prison authorities for forwarding to the
court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988). “Under this relaxed filing
standard, a pro se prisoner’s complaint is deemed filed when it is handed over to prison
officials for mailing to the court. Cases expand the understanding of this handing-over
rule with an assumption that, absent contrary evidence, a prisoner does so on the date
he or she signed the complaint.” Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008)
(internal citations omitted). Plaintiff signed his initial complaint on September 25,
2024. (ECF No. 1, PageID.6).
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On December 23, 2020, Plaintiff submitted a Step I grievance (LRF-2101-0033-
28E), alleging that Defendants Treptow and Brege failed to protect him from the
December 8, 2020, assault and ignored his requests to be transferred despite his six
assaults at LRF. (ECF No. 22-3, PageID.151). Plaintiff’s Step I grievance was rejected
for untimeliness on January 6, 2021. (ECF No. 22-3, PageID.152). Plaintiff appealed
(ECF No. 22-3, PageID.149), but the rejection was upheld at Step II (ECF No. 22-3,
PageID.149). Plaintiff appealed to Step III, but it was again upheld on June 8, 2021.
(ECF No. 22-3, PageID.148-49).
In sum, the statute of limitations on Plaintiff’s Eighth Amendment claim against
Defendants Treptow and Brege for his December 8, 2020, assault began running on
December 8, 2020, but was tolled from December 23, 2020, through June 8, 2021, as
Plaintiff pursued his administrative remedies. Plaintiff fails to assert an exception to
the statute of limitations. Thus, Plaintiff’s claim against Defendants Treptow and
Brege regarding his December 8, 2020, assault, filed on September 25, 2024, remains
untimely filed.
II. Exhaustion
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”).
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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
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 ¶ Q (Mar. 18, 2019). 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 ¶ W
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(Mar. 18, 2019). 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 ¶ S (Mar. 18, 2019).
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
Policy Directive 03.02.130 ¶ DD (Mar. 18, 2019). 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 ¶ HH (Mar. 18, 2019).
In support of their motion for summary judgment, the defendants provide
evidence that Plaintiff pursued two grievances through Step III. (ECF No. 22-3,
PageID.132-53). One of the grievances, LRF-2101-0033-28E, regards Plaintiff’s
untimely December 8, 2020, claim, as discussed above. Plaintiff has presented no
evidence that he filed any additional grievances regarding the allegations in his
complaint.
On December 12, 2022, Plaintiff submitted a Step I grievance, LRF-2022-03-0447-
03B, alleging that Defendants Douglas, Boykins, Brege, Davis, and Page failed to protect
him from a March 11, 2022, assault by his “bunkie,” Inmate Hill, and ignored his
requests to be removed from that “living situation.” (ECF No. 22-3, PageID.136).
Plaintiff’s Step I grievance was denied for “insufficient evidence.” (ECF No. 22-3,
PageID.137). Plaintiff appealed to Step II, in which the denial was upheld. (ECF No.
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22-3, PageID.134-35). Plaintiff appealed to Step III, but the denial was again upheld.
(ECF No. 22-3, PageID.133-34).
Defendants do not dispute that Plaintiff’s Grievance LRF-2022-03-0447-03B
properly exhausts his claims against Defendants Davis, Brege, Page, Boykins, and
Douglas arising from his March 11, 2022, assault. (ECF No. 22, PageID.117). Instead,
Defendants argue that Grievance LRF-2022-03-0447-03B cannot exhaust any of
Plaintiff’s claims against Defendants Winger, Treptow, or Hoffman or his claims arising
out of any incident except for the March 11, 2022, assault against Defendants Davis,
Brege, Page, Boykins, and Douglas. (ECF No. 22, PageID.116-17). The Court agrees.
See Brown v. McCullick, No. 18-2226, 2019 WL 5436159 (6th Cir. Apr. 23, 2019) (holding
that the plaintiff failed to exhaust his claims against the defendants who were unnamed
in Step I grievance); see also Sullivan v. Kasajaru, 316 F. App’x 469, 470 (6th Cir. 2009).
For the reasons articulated above, the undersigned finds that Plaintiff failed to
initiate the present action prior to the expiration of the statute of limitations as to his
claims regarding his first six assaults. The undersigned also finds that Defendants
Davis, Brege, Page, Boykins, and Douglas have satisfied their burden to show that
Plaintiff failed to properly exhaust his claims against them except for the claims arising
from the March 11, 2022, assault. Additionally, Defendants Winger, Treptow, and
Hoffman have satisfied their burden to show that Plaintiff failed to properly exhaust any
of his claims against them. Accordingly, the undersigned recommends that Defendants’
motion be granted.
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CONCLUSION
For the reasons articulated herein, the undersigned recommends that Defendants’
Motion for Summary Judgment (ECF No. 21) be granted. All of Plaintiff’s claims
against Defendants Winger, Treptow, and Hoffman and Plaintiff’s unexhausted claims
against Defendants Davis, Brege, Page, Boykins, and Douglas should be dismissed
without prejudice. Plaintiff’s claims against Defendants Davis, Brege, Page, Boykins,
and Douglas arising from the March 11, 2022, assault would remain. The undersigned
further recommends that appeal of this matter would not be taken in good faith. See
McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
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,
Dated: February 20, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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