Gibson #873946 v. Haggagi et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HAMEED GIBSON, #873946,
Plaintiff, 	Hon. Jane M. Beckering
v. 	Case No. 1:24-cv-891
ZAKRIA HAGGAGI, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant’s Motion for Partial Summary
Judgment. (ECF No. 13). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned
recommends that Defendant’s motion be granted.
BACKGROUND
Plaintiff is presently incarcerated with the Michigan Department of
Corrections (MDOC) at the Macomb Correctional Facility. The events giving rise to
this action, however, occurred at the Lakeland Correctional Facility (LCF). Plaintiff
initiated this action against the following LCF staff: Corrections Officer Zakria
Haggagi, Acting Deputy Warden Cline, and Deputy Warden Rurka.
Most of Plaintiff’s claims were dismissed on screening. (ECF No. 4). At this
juncture only the following claims remain: (1) on December 1, 2022, Defendant
Haggagi retaliated against Plaintiff by falsely charging him with a misconduct
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violation; (2) on January 13, 2023, July 4, 2023, and August 8, 2023, Defendant
Haggagi retaliated against Plaintiff by conducting shakedowns of Plaintiff’s living
area; and (3) on September 13, 2023, Defendant Haggagi subjected Plaintiff to
inappropriate sexual touching. Plaintiff’s state law claims against Defendant
Haggagi also remain in the case.
Defendant Haggagi concedes that Plaintiff properly exhausted his
administrative remedies regarding his inappropriate sexual touching claim. (ECF
No. 14, PageID.71). Defendant moves for summary judgment, however, with respect
to Plaintiff’s remaining retaliation claims on the ground that Plaintiff has failed to
properly exhaust his administrative remedies regarding such. 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,
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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-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
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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). 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”).
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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
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attempting to resolve the matter with staff. MDOC Policy Directive 03.02.130 ¶ W
(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 his motion, Defendant Haggagi has submitted evidence that
during the relevant time period Plaintiff pursued two grievances through all three
steps of the prison grievance process. (ECF No. 14-3, PageID.88-99). For the
reasons noted below, however, neither of these grievances serves to exhaust any of
Plaintiff’s remaining claims of retaliation.
A. 	Grievance LCF-23-07-0571-27a
Plaintiff initiated this grievance alleging that on July 4, 2023, Defendant
Haggagi falsely charged him with a misconduct violation as a form of retaliation.
(ECF No. 14-3, PageID.96). Plaintiff also alleges that Defendant Haggagi conducted
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a shakedown of his living area to “harass and intimidate” him. While Plaintiff does
not characterize this behavior as retaliatory, the Court will, for present purposes,
assume that Plaintiff’s grievance also alleges that Defendant searched his living area
for retaliatory reasons.
Plaintiff’s grievance was rejected at Step I on the ground that Plaintiff was
asserting a non-grieveable issue. Id. Pursuant to MDOC policy, claims “directly
related to the misconduct hearing process are non-grievable.” Hill v. Grover, 2024
WL 2863432 at *6 (W.D. Mich., Jan. 24, 2024) (citing MDOC Policy Directive
03.02.130 ¶ J (9), (11)). This includes claims that a misconduct charge was
motivated by retaliatory animus. Hill, 2024 WL 2863432 at *6 (citing Siggers v.
Campbell, 652 F.3d 681, 693-94 (6th Cir. 2011). Because Plaintiff asserted in this
grievance a non-grieveable issue, the grievance was properly rejected at all three
steps of the grievance process. Thus, this grievance cannot serve to properly exhaust
any of Plaintiff’s remaining claims of retaliation.
B. 	Grievance LCF-23-02-0173-02a
Plaintiff initiated this grievance alleging that his prison work assignment was
improperly terminated by the Classification Director. (ECF No. 14-3, PageID.99).
Because this grievance does not concern any of Plaintiff’s remaining claims of
retaliation, this grievance cannot serve to properly exhaust any such claims.
In response, Plaintiff offers no evidence that he pursued any other grievances or
otherwise exhausted any of his remaining retaliation claims. (ECF No. 16). Instead,
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Plaintiff argues that Grievance LCF-23-07-0571-27a was improperly rejected. The
Court disagrees. In that grievance, Plaintiff clearly alleges that Defendant charged him
with a misconduct violation for retaliatory reasons. (ECF No. 14-3, PageID.96). As
discussed above, however, such allegations may not be pursued via the prison grievance
process. Thus, the grievance was properly rejected. Defendant Haggagi has satisfied
his burden to establish that there does not exist any factual dispute on the question
whether Plaintiff properly exhausted his administrative remedies vis-à-vis his
remaining claims of retaliation. Accordingly, the undersigned recommends that such
claims be dismissed without prejudice.
CONCLUSION
For the reasons articulated herein, the undersigned recommends that
Defendant’s Motion for Partial Summary Judgment (ECF No. 13) be granted.
Specifically, the undersigned recommends that the following claims be dismissed
without prejudice for failure to exhaust administrative remedies: (1) on December 1,
2022, Defendant Haggagi retaliated against Plaintiff by falsely charging him with a
misconduct violation; and (2) on January 13, 2023, July 4, 2023, and August 8, 2023,
Defendant Haggagi retaliated against Plaintiff by conducting shakedowns of
Plaintiff’s living area. The undersigned further recommends that the following
claims remain in the case and proceed forward: (1) on September 13, 2023, Defendant
Haggagi subjected Plaintiff to inappropriate sexual touching; and (2) Plaintiff’s state
law claims against Defendant Haggagi.
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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: November 19, 2025 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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