Carl Bennett v. MDOC ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0336n.06
No. 22-1863
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARL BENNETT, )
Plaintiff-Appellant, ) FILED
) Jul 21, 2023
) DEBORAH S. HUNT, Clerk
v.
)
MICHIGAN DEPARTMENT OF )
)
CORRECTIONS; JACKSON ALLEGIANCE
)
HOSPITAL; JOHN DOE, staff involved in surgery;
)
MAHENDER MACHA; CHRISTINE AUSMUS;
) ON APPEAL FROM THE
LISA WURMLINGER; DAVID WRIGHT;
) UNITED STATES DISTRICT
LATOYA CAULFORD; QUINN LAFLEUR;
) COURT FOR THE EASTERN
SHERRI WINTER; MARGUERITE WALKER;
) DISTRICT OF MICHIGAN
ALLINE CURTIS; JUDY CRISENBERRY;
)
ISAAC ALEXIS; SHERRIFF DEPUTY JOHN
) OPINION
DOE II; RICHARD ROE; RICHARD ROE II;
)
HEIDI E. WASHINGTON; JOE BARRETT,
)
Warden; SHIRLEE HARRY, Warden; JEFFREY
)
WOODS; CONNIE HORTON,
)
Defendants-Appellees. )
)
Before: MOORE, ROGERS, and GRIFFIN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Carl Bennett alleged that while in the
custody of the Michigan Department of Corrections (“MDOC”) he was deprived of necessary and
adequate medical care for his heart condition, in violation of his federal constitutional and statutory
rights. The district court found that Bennett had failed to exhaust his available administrative
remedies and accordingly dismissed Bennett’s claims. For the reasons that follow, we GRANT
the motion to lift the stay in bankruptcy as to the proceedings against Isaac Alexis, David Wright,
No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
and Quinn LaFleur; DISMISS Isaac Alexis as a party to this appeal; and AFFIRM the district
court’s judgment.
I. BACKGROUND
Bennett entered MDOC custody in December 2013. R. 121 (4th Am. Compl. ¶ 40) (Page
ID #1657). Twelve days later, Bennett suffered a heart attack. Id. ¶ 46 (Page ID #1657). He was
transported to Jackson Allegiance Hospital, where a single-graft coronary artery bypass surgery
was performed. Id. ¶ 50, 55 (Page ID #1658). According to Bennett, no further treatment was
rendered because he had contracted pneumonia while hospitalized. Id. ¶ 55 (Page ID #1658).
Bennett was subsequently discharged to Duane Waters Hospital, an MDOC-operated
facility. Id. ¶ 56 (Page ID #1658). Bennett alleged that medical staff at Duane Waters gave him
“only three out of the fourteen medications prescribed by his physician” after his surgery. Id. ¶ 59
(Page ID #1658). He filed a grievance regarding this issue in January 2014. Id. ¶ 61 (Page ID
#1659). After Bennett was released from Duane Waters, MDOC staff again restricted his access
to his medication for approximately five days in February 2014. Id. ¶ 65 (Page ID #1659). The
next month, he filed a Step II appeal of his grievance due to the ongoing issues with his medication.
Id. ¶ 66 (Page ID #1659).
Bennett continued to experience chest pain after his surgery and was sent back to Jackson
Allegiance for a cardiac catheterization procedure. Id. ¶ 71–72 (Page ID #1660). In July 2014, he
was admitted to McLaren Hospital, where diagnostic procedures revealed that Bennett had several
cardiac issues that were unaddressed by his original surgery at Jackson Allegiance, as well as new
issues that had developed since the surgery. Id. ¶ 75–76 (Page ID #1660–61). Bennett underwent
surgery at McLaren “to redo the sternotomy from the previous surgery and add three additional
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grafts.” Id. ¶ 78–79 (Page ID #1661). After his second surgery, however, Bennett “continued to
have problems with obtaining his medication in a timely manner.” Id. ¶ 79 (Page ID #1661).
Bennett alleged that he “was routinely denied said medications” until his release from MDOC
custody in March 2017. Id. ¶ 81 (Page ID #1661).
In December 2015, prior to his release from MDOC custody, Bennett filed a complaint in
the United States District Court for the Eastern District of Michigan. R. 1 (Compl. at 1) (Page ID
#1). The operative complaint, however, was filed in September 2019, after Bennett’s release from
MDOC custody. R. 121 (4th Am. Compl. ¶ 81) (Page ID #1661). It alleged that the defendants
violated Bennett’s Eighth and Fourteenth Amendment rights by depriving him of necessary and
adequate medical care while he was in MDOC custody. Id. ¶ 107 (Page ID #1668). The complaint
further alleged that the defendants violated the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act, and the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”) by
discriminating against Bennett and failing to provide him with reasonable accommodations. Id.
¶¶ 119–39 (Page ID #1668–75). Finally, the complaint alleged negligent infliction of emotional
distress resulting from the defendants’ conduct. Id. ¶¶ 140–44 (Page ID #1675–76). Bennett
raised claims against two sets of defendants: (1) the Corizon defendants, Isaac Alexis, David
Wright, and Quinn LaFleur, medical providers employed by Corizon Health, Inc. (“Corizon”); and
(2) the MDOC defendants, consisting of the MDOC itself and numerous MDOC employees. Id.
¶¶ 6–39 (Page ID #1652–57); R. 125 (Corizon Defs. Answer 4th Am. Compl. ¶¶ 18, 30, 36) (Page
ID #1690, 1692, 1694).
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
In November 2021, the district court held a bench trial on the issue of whether Bennett had
failed to exhaust the administrative remedies that were available to him prior to bringing suit, an
affirmative defense raised by the defendants. R. 209 (Order Dismissing Claims at 2) (Page ID
#3279). Following the trial, the district court found “that Bennett failed to exhaust his available
administrative remedies with respect [to] his remaining claims against all of the remaining
Defendants in this action other than Kay Garland.”1 Id. In reaching that conclusion, the district
court found the “testimony and the documentary evidence presented by the MDOC Defendants to
be credible and reliable,” and concluded that the “evidence is more than sufficient to support
findings that the grievance process was available to Bennett and that Bennett did not exhaust his
available administrative remedies with respect to any of his remaining claims against the
Defendants.” Id. at 9 (Page ID #3286). Accordingly, the district court dismissed Bennett’s claims
against all defendants, with the exception of Garland. Id. at 25 (Page ID #3302).
Bennett subsequently moved for reconsideration of the district court’s order, raising for the
first time the argument that, because he was not in MDOC custody at the time the operative
complaint was filed, the requirement of exhaustion of administrative remedies did not apply to
him. R. 216 (Mot. Recons. ¶ 3) (Page ID #3532). The district court denied Bennett’s motion,
finding that Bennett should have raised this argument prior to the district court entering judgment
against him. R. 225 (Order Den. Mot. Recons. at 4–6) (Page ID #3658–60). The district court
dismissed the claims against Garland and issued a final judgment. R. 232 (Judgment) (Page ID
#3675). Bennett now timely appeals. R. 235 (Notice of Appeal) (Page ID #3684).
1
Kay Garland is not a party to this appeal.
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II. ANALYSIS
A. Standard of Review
“We review de novo the district court’s ‘[d]ismissal of a prisoner’s civil rights claim for
failure to exhaust administrative remedies.’” Mattox v. Edelman, 851 F.3d 583, 589 (6th Cir.
2017) (quoting Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011) (alteration in original)).
Because the district court conducted a bench trial on the issue of exhaustion, our usual standards
of review following a bench trial apply. “This court reviews a district court’s finding of facts made
after a bench trial for clear error and reviews a district court’s conclusions of law de novo.”
Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 402 (6th Cir. 1999).
“When reviewing for clear error, we must affirm the trial court unless we are left with the definite
and firm conviction that a mistake has been committed.” Id.B. Applicability of the Administrative Exhaustion Requirement
Bennett again raises the argument that he first raised in his motion for reconsideration, that
the administrative-exhaustion requirement of the Prison Litigation Reform Act (“PLRA”) does not
apply to this case because he was no longer incarcerated when he filed the operative complaint.
Appellant Br. at 19. The appellees argue that the district court was correct in finding that Bennett’s
argument was untimely. MDOC Defs. Br. at 12. We agree with the district court.
We have previously held that issues are forfeited “when they are raised for the first time in
motions requesting reconsideration.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.
2008); see also Thurman v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir. 1996) (holding
that an issue is not preserved for appeal if it is raised for the first time in a motion to amend or alter
the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure). Bennett, who was
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
represented by counsel below, had numerous opportunities to raise this argument before or during
the bench trial on the issue of exhaustion, or even in the post-trial briefing allowed by the district
court. Instead, he waited to raise the issue in his motion for reconsideration pursuant to Rule 59(e).
Accordingly, his argument was untimely in the district court and has not been properly preserved
for appeal.
C. Availability of Administrative Remedies
Next, Bennett argues that the administrative remedies set forth by MDOC policies were
unavailable to him, thus excusing his failure to fully exhaust his remedies. Appellant Br. at 25–
30. According to Bennett, he was often transferred to different MDOC facilities while in the
middle of the grievance process, which hampered his ability to proceed through the entire process
in a timely manner. Id.The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). As we have explained, “[t]here is no uniform federal exhaustion standard.”
Mattox, 851 F.3d at 590. Instead, “[a] prisoner exhausts his remedies when he complies with the
grievance procedures put forward by his correctional institution.” Id. We require a plaintiff “to
make ‘affirmative efforts to comply with the administrative procedures,’ and analyze[] whether
those ‘efforts to exhaust were sufficient under the circumstances.’” Risher, 639 F.3d at 240(quoting Napier v. Laurel County, 636 F.3d 218, 223–24 (6th Cir. 2011)). An incarcerated
individual “must exhaust available remedies, but need not exhaust unavailable ones.” Ross v.
Blake, 578 U.S. 632, 642 (2016). There are three circumstances in which remedies are considered
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
to be unavailable: (1) where an administrative procedure “operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) where “an
administrative scheme might be so opaque that it becomes, practically speaking, incapable of use,”
and (3) “when prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 643–44. “Generally, ‘[t]he
transfer of a prisoner from one facility to another does not render the grievance procedures at the
transferor facility “unavailable” for purposes of exhaustion.’” Napier, 636 F.3d at 223 (quoting
Blakey v. Beckstrom, No. 06-163-HRW, 2007 WL 204005, at *2 (E.D. Ky. Jan. 24, 2007)
(alteration in original)).
The MDOC requires that incarcerated individuals follow a three-step grievance process in
order to exhaust their administrative remedies. R. 129-2 (MDOC Policy Directive 03.02.130(B))
(Page ID #1797). At the bench trial, the defendants presented testimony from Richard Russell, the
MDOC grievance section manager and hearings administrator, who confirmed that “going through
all three steps of the grievance process” is necessary for an individual to exhaust their
administrative remedies. R. 196 (Trial Tr. at 22) (Page ID #2847). Russell further agreed that
even if an individual “does not receive a Step II response within the allotted period of time under
the policy, then the[y] can automatically appeal that grievance to Step III without having to go
through any staff member.” Id. at 31–32 (Page ID #2856–57). Russell repeatedly testified that
Bennett did not follow the grievance process through to Step III of MDOC’s policy with regard to
any grievance that he filed while in MDOC custody. Id. at 36–38, 47–54 (Page ID #2861–63,
2872–79). Russell’s testimony on this point was confirmed by Bennett’s “MDOC Prisoner Step
III Grievance Report,” which showed that MDOC had not received any Step III appeals from
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
Bennett while he was incarcerated. R. 129-3 (Step III Grievance Report) (Page ID #1813). Thus,
Bennett plainly did not exhaust the administrative remedies required by MDOC policy.
Bennett’s testimony at the bench trial undermines his arguments that the administrative
remedies required by MDOC were unavailable to him. When explaining his frustration at the
grievance process being interrupted by his transfers to other MDOC facilities, Bennett stated that:
[T]hey still had grievances in there but by the time I got there, it was already—it
was already time-related because then by the time I would have to send it back to
the other facility, I said why should I have to do that? You’re one . . . MDOC.
There shouldn’t—I should not have to send it back to one facility and then to
another. That doesn’t even make sense. But that’s—I don’t know, I guess that’s
the way they do it. Like I said, I’m not very good at stuff like that. I never did like
getting into that kind of, grievances and all that crap.
R. 196 (Trial Tr. at 122) (Page ID #2947). When asked about whether he thought he needed to
restart the grievance process upon being transferred to a new facility, Bennett replied:
Yes. I didn’t know that at first because they said you have to send it back to the
facility. I said why? It’s like I’m at another facility, I’m still in Michigan. And
they said I had to go back to the same facility or send them the letter or go through
the prisoner mail and do it that way or go to a counselor and have him do it and I’m
like, oh my God. That’s pretty—I don’t know. To me, that’s just a little ignorance
but it doesn’t make sense to me.
Id. at 124 (Page ID #2949). Bennett’s testimony suggests that the grievance process was in fact
still open to him despite his transfer to a new facility, but that he simply disapproved of the
procedures that he would have to follow. Although the process for pursuing a grievance following
a transfer might be frustrating and burdensome, it does not rise to the level of being “a simple dead
end” or “so opaque that it . . . [is] incapable of use.” Ross, 578 U.S. at 643. And Bennett’s
testimony also shows that MDOC officials explained the steps he had to take in order to continue
the grievance process following his transfer, thus he was not “thwart[ed] . . . from taking advantage
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of” the administrative process. Id. at 644. Bennett therefore failed to show that his frequent
transfers to other MDOC facilities rendered the three-step grievance process unavailable to him.
To the extent that Bennett argues that the process was unavailable to him because officials
prevented him from filing a Step III appeal with regard to one of his grievances, that argument is
also supported by insufficient evidence. Although Bennett argues that his mother’s attempts to
mail a Step III grievance form on his behalf were blocked, he did not produce any credible evidence
to show that this was the case. During the bench trial, his mother testified that she never looked
at the document that Bennett asked her to mail, that she could not confirm that it was the Step III
appeal form, and that she could not recall critical facts, such as the address to which the form was
mailed. R. 196 (Trial Tr. at 147) (Page ID #2972). As the district court correctly noted, Bennett’s
other testimony on this issue seemed unreliable. R. 209 (Order Dismissing Claims at 17) (Page
ID #3294). And Bennett’s isolated claim that a single grievance counselor threw one of his
grievances in the trash—admittedly troubling behavior from a prison official, if true—is not
sufficient to rise to the level of “machination, misrepresentation, or intimidation” necessary to
render the administrative process unavailable to him. Ross, 578 U.S. at 644. This is particularly
true given that Bennett could “not identify which grievance was thrown out, the subject of the
grievance (i.e., whether the grievance related to any claims raised in this case), the prison counselor
who threw the grievance away, the date when the grievance was thrown away, or any other specific
information about this incident.” R. 209 (Order Dismissing Claims at 18) (Page ID #3295); see
also R. 196 (Trial Tr. at 120–21) (Page ID #2945–46). Bennett therefore has not given us reason
to question the district court’s rejection of his argument that the administrative remedies required
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
by MDOC policy were unavailable to him. We therefore affirm the district court’s conclusion that
Bennett did not properly exhaust his administrative remedies.
D. Applicability of the Exhaustion Requirement as to Grievances Against the Corizon
Defendants
While this appeal was proceeding, Corizon filed a Chapter 11 bankruptcy petition, which
resulted in an automatic stay of judicial proceedings against it, pursuant to 11 U.S.C. § 362(a). 6th
Cir. R. 30 (Notice of Automatic Stay at 1–2). Although Corizon itself is not a party to this appeal,
it is the insurance carrier of the individual Corizon defendants, Alexis, LaFleur, and Wright. Id.Accordingly, we issued an order holding this appeal in abeyance as to Alexis, LaFleur, and Wright.
6th Cir. R. 33 (Abeyance Order at 1). The individual Corizon defendants have since moved to lift
the stay in bankruptcy and dismiss Alexis as a party to this appeal. 6th Cir. R. 38 (Notice
Regarding Representation at 1–3). We will grant their motion.
First, the Corizon defendants indicate to us that they have retained private counsel and thus
are no longer being provided representation for this appeal by their insurance carrier, Corizon. Id.Because Corizon itself is not a party to this appeal, and because Corizon is no longer responsible
for the representation of the individual Corizon defendants, this appeal is no longer “a judicial,
administrative, or other action or proceeding against the debtor” and thus the automatic stay does
not apply. 11 U.S.C. § 362(a)(1). Second, Alexis was dismissed as a party to this case in the
district court before the case proceeded to a bench trial on the exhaustion issue. That is because
the district court granted Alexis’s motion for summary judgment on all claims against him as time-
barred under the statute of limitations. R. 173 (Order Mot. Summ. J. Corizon Defs. at 10) (Page
ID #2486). Because Bennett does not appeal that order, nor does he raise any arguments in his
briefing regarding the time-barred claims, we agree that Alexis ought to be dismissed as a party to
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No. 22-1863, Bennett v. Mich. Dep’t of Corr. et al.
this appeal. Accordingly, we now consider Bennett’s arguments as to his claims against Wright
and LaFleur on the merits.
Bennett argues that he was not required to exhaust his claims against the Corizon
defendants, because the relevant MDOC policies apply to grievances against MDOC and its
employees, and not to private medical providers. Appellant Br. at 31–32. We have previously
rejected an identical argument, albeit in an unpublished order, reasoning that “[c]ourts in this
circuit have recognized that a prisoner must file a grievance against service providers like Corizon
to exhaust administrative remedies.” Kitchen v. Snyder, No. 20-1936, 2021 WL 4470032, at *4
(6th Cir. June 23, 2021). Likewise, we have previously required plaintiffs to exhaust their
administrative remedies with respect to claims against private medical providers. See Vandiver v.
Corr. Med. Servs., Inc., 326 F. App’x 885, 889 (6th Cir. 2009). Bennett points to no section of the
MDOC policy, nor can we find any section of the MDOC policy, that would have prevented him
from filing a grievance against the Corizon defendants while he was incarcerated. See R. 129-2
(MDOC Policy Directive 03.02.130) (Page ID #1797). And nothing in the language of the PLRA
suggests that the exhaustion requirement does not apply to certain defendants. See 42 U.S.C.
§ 1997e(a). We therefore conclude that Bennett was required to exhaust his administrative
remedies with respect to his claims against the Corizon defendants.
III. CONCLUSION
For the foregoing reasons, we GRANT the motion to lift the stay in bankruptcy as to the
proceedings against Isaac Alexis, David Wright, and Quinn LaFleur; DISMISS Isaac Alexis as a
party to this appeal; and AFFIRM the district court’s judgment.
11