NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0228n.06
No. 09-1472
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

PHI L L I P DEMETRI US REYNOL DS-BE Y, Plaintiff - Appellant,

v. SUSANNE E. HARRI S-SP I CER, et al, Def endants - A

ppellees.

______________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

Before: DA UG HTREY, CLAY, and WHITE , Circuit Judges.
HELE NE N. WHITE , Circuit Judge. Pro se Plaintiff-Appellant Phill ip Demetr ius Rey nolds-Be y challeng es the district court’s g rant of summary ju d gm en t t o Def endants, all employ ees o f the Michig an Depa rtment of Correc tions (MDOC). Rey nolds-Be y alleg ed that Def endants retaliated ag ainst him for his First Amendment- protec ted ac tivity while he wa s a st ate prisoner housed at MDOC fac iliti es. The district court g rante d summary judgme nt to all Def endants except King sbury on the basis that Rey nolds-Be y failed to exhaust administrat ive reme dies and deter mined that one defe ndant was additionally entitled to absolute judicial immunit y . The district
court g rante d summary judgme nt to King sbury on the b as i s that Rey nolds-Be y failed to provide adequate support of a cog nizable reta liation claim. We aff irm in part and reve rse and rema nd in part.
I.No. 09-1472

Rey nolds-Bey

v. Harris-Spice r At the times rele vant to this suit, Rey nolds-Be y was a state prisoner in Michig an housed in

sever al state corr ectional fac iliti es opera ted by the MDOC. On Dec ember 22, 2005, he filed a pro

se complaint pursuant to 42 U.S.C. § 1983. The district court lat er gra n ted him leave to file an amende d complaint. A desc ription of the fa cts underly ing his c omplaint follows.
A. AL L EGED RETAL I ATI ON B Y KI NGSBU RY
I n May 2004, Rey

nolds-Be y was transfe rre d from the Chippewa Correc tional Fa cility in Kincheloe , Michig an, to the Boy er Road Correc tional Fa cility in Carson City , Michig an. ReynoldsBe y ’s amende d complaint alleg es that in May 2004, while exit ing the prison dining hall, he was stopped by Def

endant King sbury , a g uard at the Boy er Road Fa cility , who rec og nized Rey nolds-Be y from the Chippewa Fa cility wher e King sbury had previously worke d. Rey nolds-Be y further alleg es that on J une 21, 2004, King sbury stopped him, ref err ed to a 2001 order of a mag istrate judge in the
Western District of Michig an in a case filed by Rey nolds-Be y that mentioned King sbury , and then told Rey nolds-Be y that “Nig g ers and litigants like y ou will alway s stay on my list and y ou can write that in any g rieva

nce or tell the court that.” Ki n gs b u ry also subjected Rey nolds-Be y to what Rey nolds-Be y

termed a “har assing body

sear ch.” By way of backg round, Rey nolds-Be y did file a lawsuit while he was an inmate at the Chippewa Correc tional Fa cility

. See Phillip Deme trius Rey nolds v. N. Smith, et al. , No. 2:01-cv-43 (W.D. Mich. filed Mar. 16, 2001). Rey nolds-Be y named nine defe ndants in that suit; King sbury was
not one of them

. T h e o n l y m en tion of King sbury is on the second pag e of a repor t and

rec ommendation filed by a mag istrate judge , which discusses Rey nolds-Be y ’s all eg ation that on J anuar y 17, 2001, N. Smit h called King sbury via walkie- talkie, and that “Smith was later observe d 2No. 09-1472

Rey nolds-Bey

v. Harris-Spice r with Botos and King sberr y [si c] in possession of the plaintiff’s leg al transc ripts in the counselor’ s office and placing them in the Guar d Desk.” ( Id

. at 2

. ) On November 8, 2001 the district judge dismiss ed all but four defe ndants. The district court dismiss ed the rema ining defe ndants on Aug ust 26, 2003. This Court aff

irmed the district court’s judgme nt on April 8, 2004. See Rey nolds v. Smith , No. 03-2201 (6th Cir. Apr . 8, 2004).
On May 17, 2004, prior to the incident involving the ra ci al ep ithet, Rey nolds-Be y filed a
g rieva nce with prison officia ls “AB OUT BEI NG AT S AM E FACI L I TY AS STAFF MEMBER WHOM I S PART OF L AWSUI T.” (Grie vance No. OTF -04-05-0275-24A.) The g rieva nce
reque sted that Rey

nolds-Be y be transfe rre d to anoth e r f a c il it y b e c a u s e h e w a s “ f

e a r f u l” of King sbury

. His g rieva

nce w as denie d.
On J une 21, 2004, Rey

nolds-Be y f

il e d a n e w g r ie vance reg arding threa ts made by King sbury

. ( See Grieva

nce No. OTF -04-06- 0361-18B .) Rey nold s - B e y a lle g ed that King sbury had y elled at him, forc ed him to empty his pockets, and made an “implied threa t.” I n rele vant part, the g rieva nce rea ds as follows: This Citi zen on J une 21, 2004, while proce eding to chow, once he enter ed int o the chow hall – Guar d KI

NGSBERRY [si c] confr onted this Americ an by y elling in this Citi zen ear from less than 2 fee t from behind.

. . . Subsequently , when Mr. Rey nolds turned around, – KI

NGSBERRY [si c] was speaking with an Unknown J ohn Doe Guar d and commenting : “Rey nolds was the one.” When Mr. Rey nolds was leaving from the rig ht side of the chow hall, KI NGSBERRY [ s i c] exis ted [si c] from the l ef tside [si c] and interce pted Rey nolds in the front are a of chow hall. As a re s u l t , KI NGSBERRY [si c] was succe ssful in interce pting Rey nolds and o rd er ed him to come to him and empty his pockets. Mr. Rey nolds asked prisoner SANDER’S [si c] whom was standing beside him to observe what happene d beca use Rey nolds told Mr. Sanders, that KI

NGSBERRY [si c] was one of the GU AR DS at [C hippewa Correc tional Fa cility ] involved in litigation filed in fede ra l co u rt , along with a varie ty of prison employ ees in 2001. 3No. 09-1472

Rey nolds-Bey

v. Harris-Spice r When this Citi zen proce eded to the front of the chow hall side by the blue mail box , KI NGS BE R R Y [ s ic] and a J ohn Doe Guar d [were] there

. Rey nolds emptied his pockets fo r a shakedow n which KI NGSBERRY [si c] order ed but contra ry to a shakedow n taking place

. C/O KI NGSBERRY [si c] proce eded to question his name and whether he understood. This was strang e bu t M r. Rey nolds understood the implied threa t, along with Mr. Sander’ s [ s i c] witnessing the same. Fur thermore , when KI NGSBERRY [si c] g rabbe d my wallet off the mail box , he remove d my I ’D and stated ‘O[’] and made hand jesters [si c] in front of me. He said something to the other Guar d and I was order ed from the are a. When I walked awa y , KI NGSBERRY [si c] was spea

king in quiet tone w ith this other g uard a bout Rey nolds. ( Id. ) Acc ording to the amende d complaint, this i s the incident during which King sbury used the 1

rac ial slur. This gr ievanc e wa s also denied.
B. COMPL AI

NTS ABO UT HEARI

NG OF FI CER HARRI S-SP I CER
On J uly 1, 2004, Rey

nolds-Be y was written up in a Major Misconduct Report for possessing

a leg al document that could be used to “dec eive the [prison] into be lieving that he had a leg itimate
court date when he did not.” (Major Misconduct Hr’g Report, Pro Se App., App. 2.) I n the Hea ring Report finding him g uilty of the char g e, the hear ing office r, Def endant Susanne Har

ris-Spicer, wrote that a prison staff member had told her “that the I nspector told her that he felt the prisoner was try ing
to esca pe.” ( Id. ) Acc ording to Re y

nolds-Be y , Har

ris-Spicer also made oral c omments during the hear ing alleg ing t h at Rey nolds-Be y ’s mother and brothers “intended to brea k into the prison and assist in Plaintiff’s esca p e” and telling Rey nolds-Be y to “stop writing fede ral judge s and the
Gover nor beca us e i t wa s i n t imidating local prison officia ls and that there was no purpose for a
Rey nolds-Be y also addre ssed this incident in his Step I I I appea l of the first g rieva nce, 1 wri t ing that on “June 21, 2004 time 6:00-6:05 p.m., G[u] ard KI NGSBU RY stopped twice and threa tened this Americ an C itiz en. A s epar ate gr ievanc e is being filed but I wanted to include thi s in the rec ord . . . . Mr. Rey nolds se eks to [be] pla ced in pr otection immediately .” (G rieva nce N o. OTF -04-05- 0275-24A.) 4No. 09-1472

Rey nolds-Bey

v. Harris-Spice r prisoner to complain about his living condition s .” (Am. Compl. ¶¶ 31-32.) Rey nolds-Be y complained about Har

ris-Spicer’ s comments to prison officia ls, who investiga ted and informed him that they could “find no evidenc e . . . that either y ou or y our fam i l y m em b er s are eng ag ed in any

esca pe conspira cy .” (Me m. from Kurt Jones, W arde n, to Phil lip Rey nolds (Sept. 7, 2004), Pro Se App., App. 3.) I n his amende d complaint, Rey nolds-Be y alleg ed that Har ris-Spicer and other prison employ ees “deliber ately falsified Plaintiff’s involvement in a crime t o esca pe from the prison” in
reta liation for Rey

nolds-Be y ’s First Amendment-pr otected activity of “eng ag ing in verba l and written communica tions with publ ic offic ials.” (Am. Compl. ¶ 59.)
C. ADDI TI ONAL GRI EVANCES FI L ED BY REYNO L DS -BEY AND MAJ OR MI SCONDUCT REPORTS I SSUED TO REYNOL DS-BE Y As descr ibed in detail in the mag istrate judge ’s repor t and rec omm en d ati on (R&R), Rey nolds-Be y filed six g rieva nces in 2005 reg arding a series of events that he alleg es const i t u ted
reta liation for filing g rieva nces a nd otherwise pe titioni ng prison officia ls and others. Eac h of the 2
six g rieva nces was untimely filed and reje cted by prison officia ls. The mag istrate judge found that the claims arising out of these g rieva nces wer e there fore not exhausted and, thus, not proper ly befor e the district court.

The re levant g rieva

nces c omprise: 2 (1) OT F- 05-02-00090- 28E (filed F eb. 8, 2005); (2) OT F 05- 02-00091-28E ( filed F eb. 8, 2005); (3) OT F- 05-02-00092- 28E (filed F eb. 8, 2005); (4) OT F 05- 02-00093-28E ( filed F eb. 8, 2005); (5) OT F 05- 03-00153-28E ( filed Mar . 3, 2005); and (6) OT F 05- 06-00397-28E ( filed June 27, 2005). 5No. 09-1472

Rey nolds-Bey

v. Harris-Spice r I n 2004 and 2005, subsequent to the hearing in which Harris-Spicer re fe re n ced ReynoldsBe y ’s s upposed escape plot, prison officia ls filed at least si x additional major m isc o n d u ct re p orts
ag ainst Rey

nolds-Be y : 1) I nsolence , September 2, 2004, written by J

. Dunig an on Dec ember 1, 2004. (Pro Se App., App. 12.) Rey

nolds-Be y found not g uilty by Hea ring Offic er Gar

y Kuiper on Dec ember 16, 2004. ( Id. at App. 13.) 2) Unauthorized Occ upation of Cell or Room, September 14, 2004, written by J

. Dunig an. ( Id. at App. 7.) Rey

nolds-Be y found not g uilty by Hea ring Offic er Har

ris-Spicer on October 5, 2004. ( Id. at App. 8.) 3) Disobey

ing a Di re ct Orde r, Dec ember 1, 2004, written by Be eche r. ( Id. at App. 14.) Rey nolds-Be y

aver s that no hear ing w as conduc ted on this charg e. 4) Disobey ing a Direc t Orde r, J uly 22, 2005, written by C. Whi t e. ( Id. at App. 15.) Rey nolds-Be y

found not g uilty

by Hea ring Offic er B aer

walde on July

29, 2005. (

Id. at App. 16.) 5) Gambling/Possession of Gambling P ara phenalia [ sic], Oc t ober 24, 2005, written by M. Clark. ( Id. at App. 17.) Major misconduct repor t dismiss ed b y He aring Offic er Ba erw alde on November

8, 2005. (

Id. at App. 18.) 6) Disobey ing a Direct Orde r, Decembe r 1 3 , 2 0 0 5 , wr itten by Wingar d. ( Id. at App. 20.) Rey nolds-Be y found not g uilty by Hea ring Offic er Ba erw alde on Dec ember 21, 2005. ( Id. at App. 21.) Rey

nolds-Be y ’s amende d complaint ref ers to three of these major misconduct repor ts. His fifth cause of action in the amende d complaint alleg es, inter alia , that he “suffer ed adverse action 6No. 09-1472

Rey nolds-Bey

v. Harris-Spice r by defe ndant Dunig an when he manufa cture d a prison misconduct on S ep t ember 14, 2004, in
response to Plainti ff c omplaining a bout staff c orruption.” (Am. C ompl. ¶ 65(d).) His six th cause of action al l eges that “Plaintiff suffe red adver se action by Def endant[s] DUNI GAN, BEE CHER,
MAL L ORY, KI L L OUGH, SMI TH, GRAVEL L E, BEL ONGA, BO YNTON and J ONES when they issued Pla i n t i ff t wo major misconduct (De cembe r 2004) for Plaintiff and his mother’s litigation activities in a fede ral § 1983 civil r ights lawsuit.” ( Id. ¶ 67(b).) This a lleg ation appea rs to ref er to the repor t for insolence on September 2, 2004, which was written on Decem b er 1 , 2 0 0 4 , and the
Dec ember 1, 2004, repor

t for disobey ing a direc t order

. The amende d complaint does not mention the three misconduct repor ts from 2005. Rey nolds-Be y ’s amende d complaint named six teen defe ndants, all MDOC employ ees. On April 8, 2008, the mag istrate judge issued a R&R calling fo r d i s m i ssal of all claims ag ainst all defe ndants except King sbury on the grounds that 1 ) t h e claims wer e not exhausted as required by the Prison L itigation Reform Act; 2) Def endant Ha rr i s-Spicer was entitled to absolute judicial immunit y ; and 3) Count 2 of Rey nolds-Be y ’s amende d complaint, conce rning the g uilty finding for the J uly 21, 2004, misconduct repor t for possession of a forg ed document, is “noncog nizable under § 1 9 8 3 beca

use a ruling on the reta liation claims would, if established, nece ssarily imply the invalidity of his disciplinary conviction” in violation of Edwards v. Balisok , 520 U.S. 641, 648 (1997), and Hec k v. Humphrey , 512 U.S. 477, 486-87 (1994). The district c ourt adopted the R&R

on September 30, 2008, and g rante d the motions to dismiss filed by all defe ndants except King sbury

. On October 28, 2008, the mag istrate judge rec ommended th at t h e d istrict court g rant
summary judgme nt to King sbury on the rema ining First Amendment reta liation claim. The district 7No. 09-1472

Rey nolds-Bey

v. Harris-Spice r court adopted the rec ommendation and g rante d summary judgme nt in favor of King sbury on Marc h 6, 2009. Rey

nolds-Be y filed a timely pro se appea l. The Michig an Depa rtment of Attorney Gene ral, acting as counsel for Def

endants, opted to rely on its filings below instead of submitt ing a brief on
appea l.

II A. STANDARD OF REVI EW This Court re v i ews a district court’s g rant of summary judgme nt de novo . Binay v. 3 Bettendorf

, 601 F.3d 640, 646 (6th Cir. 2010). “Summary judgme nt is appropr iate if the pleading s, depositions, a

nswers to inter

rog atories, and admissions on file, toge ther with the aff idavits, if any , ‘s h o w t h at there is no g enuine issue as to any materia l fac t and that the movant is entitl ed t o a judgme nt as a matter of law.’” Id. (quoting Fe d. R. Civ. P. 56(c) ). T h i s C o u rt m ust draw all

rea sonable infere nces and view all evidenc e in favor of the non-moving party

. Id. ; W uliger v. Manufacturers Life Ins. Co. ( USA) , 567 F.3d 787, 792 ( 6th Cir. 2009).
Be cause Rey

nolds-Be y is a pro se litigant, we liberally construe his filings. Spotts v. United
States , 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Maye r , 169 F.3d 384, 387 (6th Cir. 1999) (“Pro

se plaintiffs enjoy the benef it of a l i b er al co nstruction of their pleading s and filings.” ); see also

Def endants filed a motion to dismiss for failure to exhaust administrative reme dies on May 3 29, 2007. Be cause they subm i t t ed exhibi ts with that motion and beca use Rey nolds-Be y attache d evidentiar y materia l to his amende d complaint, the district court conver ted the Rule 12(b)( 6) motion to dismiss into a Rule 56 motion for summary judgme nt. Thus, when the distric t co urt g rante d Def endants’ motions to dismiss for Re y nolds-Be y ’s failure to exhaust, it was actua lly g ranting summary judgme nt. 8No. 09-1472

Rey nolds-Bey

v. Harris-Spice r Haines v. Kerner , 404 U.S. 519, 520 (1972) (stating that the Court holds pleading s of pro se litigants to “less string ent standar ds than forma l pleading s draf ted by lawy ers” ).
B. A BSOL UTE I MMUNI TY On appea l, Rey

n o ld s -B ey challeng es the district court’s decision that Hea ring Offic er Har

risSpicer is entitled to absol u t e j u d icial immunit y by alleg ing that Har ris-Spicer was acting without jurisdiction when she made the alleg ation that he wa s “try ing to e scape .” We disag ree . I n Shelly v. Johnson , 849 F.2d 228, 229-30 (6th Cir. 1988) (per curia m), this Court held that Michig an prison hear ing office rs are entitled to “a b s o l u t e immunit y from liability with respe ct to their judicial acts.” The doctrine of judicial immunit y protec ts judicia l of fice rs from suits see king
money damag es and applies even in the fac e of “alle gat i o n s o f b ad faith or malice.” Mireles v. W aco , 502 U.S. 9, 11 (1991) (per curia m). J u d i ci al i m m u nity is overc ome in only two circ umstances: “F irst, a judge is not immune from liability for nonjudicial actions, i.e. , actions not taken in the judge ’s judicial capa city

. Second, a judge is not immune for actions, though judicial in
nature , taken in the c omplete abse nce of all jurisdiction.” Id. at 11-12 (c itations omi tted).
Her e, Har ris-Spicer was clea

rly acting in her “

ju d ic ia l” capa city

–presiding over a hear ing and authoring a hear ing re p o rt. The Supreme Court has held that “whe ther an act by a judge is a ‘judicial’ one rela te[s] to the nature of the act itself, i.e. , whether it is a function normally perf ormed by a judge , and to the expectations of the parties, i.e. , whether they dealt with the judge in his judicial
capa city .” Id. at 12 (quoting Stump v. Sparkman , 435 U.S. 349, 362 (1978) (alter ation in orig inal)). Although Rey

nolds-Be y alleg es that prison officia ls believed Har ris-Spicer was “ac ting on her own”

9No. 09-1472

Rey nolds-Bey

v. Harris-Spice r when she alleg ed that Rey nolds-Be y was try ing to esca pe, the record indicates t h at Har ris-Spicer 4

was acting in her officia l role as a hear ing office r, and was well wi t h in her jurisdiction to make a deter mination on the Major Misconduct Report and to include in her hear ing repor t any alleg ations

or fac tual finding s she thought rele vant

. S ee MDOC Policy Direc tive 03.03.105, ¶¶ Z , BB , DD ( e f f e c t i v e d a t e A u g . 1 6 , 2 0 1 0 ) , a v a i l a b l e a t http:// www.michig an.g ov/documents/corr ections/0303105_330455_7.pdf (discussing jurisdiction and role of hea

ring office r).
Even if Ha rr i s-Spicer’ s alleg ation was made in bad faith, she is still entitled to absolute immunit y . See Mireles , 502 U.S. at 11; Pierson v. Ray , 386 U.S. 547, 554 (1967) (“This immunit y
ap p l i es even when the judge is acc used of acting maliciously and corr uptly

. . . .”). The l ac k -o fjurisdiction ex ce p t i on to judicial immunit y is narr ow, and Rey nolds-Be y fails t o demonstrate that
Har ris-Spicer acte d in the “cle ar absenc e of all jurisdiction” here

. Stump , 435 U.S. at 357; see also id. at 356 (“[T]he scope of the judge ’s jurisdiction must be construed broadly wher e the issue is the immunit y of the judge .”). There fore , Har ris-S p i ce r i s entitled to absolute immunit y from suit.
Moreove r, the claim ag ainst Har ris-Spicer i s not proper ly exhausted beca use the g rieva

nce

conce rning her a ctions was untimely

. The district court g rante d summary judgme nt to Har ris-Spicer on the alterna tive g rounds that Rey nolds-Be y ’s claim ag ainst her was unexhausted, and that she is e ntitled to absolute immunit y .

I n fac t, prison officia ls stated to Rey nolds-Be y t h at t hey believed that “eve ry possibili ty 4 exis ts that this was a misunderstanding on the part of t he Hearing s Of fi cer when she ty

ped thi s in y our repor

t.” (Mem. from Kurt J ones, Warden, to Phillip Rey nolds ( Sept. 30, 2004), R. 1- 2, at 4.) 10No. 09-1472

Rey nolds-Bey

v. Harris-Spice r The mag istrate judge and the district c ourt addre ssed the latter g round for the holding sua sponte : Absolute immunit y was not arg ued in Def endants’ motion for summary judgme nt. A district court
may , in the exercise of its discretion, g rant summary jud gm en t s u a sponte in “ce rtain limit ed circ umstances,” so long as the losing party is “af forde d notice and rea sonable opportunity to respond
to all the issues to be cons i d er ed b y the court.” Shelby Cnty. Health Care Corp. v. S. Council of Indus. W orkers Health & W

elfare Trust Fund , 203 F.3d 926, 931 (6th Cir. 2000) (interna l quotation marks omitted). Her e, the mag istrate judge did not provide Rey nolds-Be y with notice, and Rey nolds-Be y objected on that basis in the district court, while also including a cursory arg ument on the merits.
We need not cons i d er t h e p ropriety of the g rant of summary judgme nt, howeve r, beca use Har ris-Spicer is nonetheless entitled to absolute immunit y on the merits. We there fore dismiss the

c la im s a g ainst Har

ris-Spicer pursuant to 28 U.S.C. § 1915(e) (2)( B)

. Section 1915(e) (2 ) p r o v id e s th a t i n civil actions broug ht by prisoners, the court “shall dismiss the case at any time if the court deter mines that

. . . the action or appea l-- (i) is frivolous

. . . ; (ii) fails to state a claim on which relief
may be g rante d; or (iii) seeks monetary relief ag ainst a defe ndant who is immune from such relief .”
28 U.S.C. § 1915(e) (2) & (e) (2)( B) (empha sis added)

. Har ris-Spicer is enti t l ed to absolute immunit y , and thus Rey

nolds-Be y ”s claim ag ainst her must be dismiss ed. See Carlton v. Baird , 72
F. App' x 367, 368 (6th Cir. 2003) (“[W] e conclude that the district court was require d to dismiss this complaint beca

use it soug ht monetary relief from a defe ndant who is entitled to absolute immunit y . 28 U.S.C. §§ 1915(e) (2)( B) (iii)

. . . . J udg es are absolutely immune from suit for monetary damag es

11No. 09-1472

Rey nolds-Bey

v. Harris-Spice r

. . . . and the absolute immunit y of the defe ndant there fore compelled dismiss al.” (some internal citations omitt ed))

. C. PL RA EXHAUSTI ON
Pursuant to the Prison L itigation Reform Act (PL RA), 42 U.S.C. § 1997e, prisoners seeking
to bring § 1983 actions with respe ct to prison conditions must first exhaust available administrative

reme dies. 42 U.S.C. § 1997e(a ); Jones v. Bock , 549 U.S. 199, 211 (2007). To satisfy this exhaustion requirem ent, “prisoner s must ‘complete the administrative revie w proce ss in acc ordanc e with the applicable proce dural rule s,’ – rules that are define d not by the PL RA, but by the prison g rieva

nce
proce ss itself.” Jones , 549 U.S. at 218 (quoting W oodford v. Ngo , 548 U.S. 81, 88 (2006)). The
PL RA require s “prope r exhaustion,” meaning that plaintiffs must timely pursue available administrative reme dies. W oodford , 548 U.S. at 93. Fai lure to file an administrative g rieva nce within proper time limit s prec ludes proper exhaustion and thus bars the claim in fede ral court. Id. The exhaustion require ment “applies to all pris o n er s s ee king redr ess for prison circ umstances or

occur renc es,” whether for broad prison conditions suits or for in dividual alleg ations of abuse. Porter

v. Nussle , 534 U.S. 5 1 6 , 5 2 0 (2 0 0 2). When a prisoner’ s complaint contains a combination of exhausted and unexhausted claims, courts are to dismiss t he unexhausted claims but reta in and addre ss the exhausted claims. Jones , 549 U.S. at 220-24.
MDOC Policy Direc tive 03.02.130 (ef fec tive date Dec

. 1 9, 2003) provides the applicable
g rieva nce proce dures for MDOC prisoners. The Policy Direc tive details four steps t h at i n m ates 5
Although Policy Direc tive 03.02.130 has subsequen t l y been amende d, the version of the 5 policy adopted in De cembe r 2003 applied a t all times relevant to Rey nolds-Be y ’s claims. 12No. 09-1472

Rey nolds-Bey

v. Harris-Spice r

m u s t u n d er t ake in order to exhaust their complaints proper ly

. First, a g rieva nt must attempt t o resolve the issue orally

within two business da

y s of becoming awa

re of the g rieva

ble issue, unless
preve nted by circ umstances bey ond his or her control. Policy Direc tive 03.02.130, ¶ R. Second, the
g rieva nt must file a “Step I g rieva nce” within five day s of th e at t empted oral resolution, which is assig ned to an appropr iate responde nt within the MDOC sy stem. Id. ¶¶ R, X. I f the prisoner is not satisfied with the response to the Step I g rieva nce, he or she may appea l to Step I I by reque sting an
appea l form within five day s afte r rec eiving the Step I response and then must file the appea l within five day s of rec eiving the form. Id. ¶ DD. The Step I I responde nt is desig nated by policy (e.g ., the

war den of the fac ility for many g rieva nces)

. Id. ¶ FF

. I f the prisoner is dissatisfied with the response
at Step I I , he or she may file a Step I I I g rieva nce within ten day s afte r rec eiving the Step I I response . Id. ¶ HH. The Step I I I responde nt is the Direc tor of the MDOC Prisoner Affa irs Section. Id. ¶ I I

. Grieva nces alleg ing “ra cial or ethnic discrimination or staff brutality or corr uption” may be filed direc tly to Step I I I

. Id. ¶ S. Policy Direc tive 03.02.130 provides instructions rega rd i n g the contents of prisoner
g rieva nces. I t directs that “[i]nformation provided shall be limited to the fac ts involvi ng the i ssue being g rieve d (i.e., who, what, when, wher e, why , how). Dates, times, place s and names of all those involved in the issue being g rieve d are to be included.” Id. ¶ T

. P o l i cy Direc tive 03.02.130 also provides a list of “non-g rieva ble issu es , ” including “[d] ecisions made in hear ings conducte d by hear ing office rs.” Id. ¶ F( 1). Prisoners may seek rehe aring of such decisions, but they may not file independe nt g rieva

nces reg arding hear ing outcomes. See Policy Di re ct i v e 03.03.105, ¶ BB B ( e f f e c t i v e d a t e A u g . 1 6 , 2 0 1 0 ) , a v a i l a b l e a t 13No. 09-1472

Rey nolds-Bey

v. Harris-Spice r http:// www.michig an.g ov/docum ents/corr ections/0303105_330455_7.pdf (desc ribing proce dures for r equesting rehe aring of re sults of major misconduct hea ring ). 6 Rey nolds-Be y a

r g u e s th a t p r is o n officia ls filed a series of basele ss misconduct repor ts ag ainst him in reta liation for his First Amendment-pr otected activity , but that he was not permitted to appea l

or file g rieva

nces conce rning the misconduct hear ings afte r eac h char g e resulted i n a n o t g uilty finding or other dismiss al. He thus arg ues that his g rieva nces should be deeme d proper ly exhausted. We ag ree with the district c ourt that his a rg ument that he should ha ve been able to a

ppeal the “not
g uilty ” finding s is without m erit bec ause onc e Rey nolds-Be y

“won, . . . ther e wa s nothing for him
to a ppeal.” (Orde r 3, R. 101.) I t is a lso c orre ct that the outcomes of misconduct hear ings are nong rieva ble under MDOC policy

. Howeve r, Rey nolds-Be y does not actua lly challeng e the outcomes of the major-misconduc t hear ings; he was found not g uilty or char g es wer e dismiss ed at eac h of the hear ings at issue here

. Ra t h er , he arg ues that the filing of meritless misconduct repor ts by prison staff constituted unlawful reta liation. As distinct from the outcomes of misconduct hearings , the filing of reta liatory misconduct reports is g rieva ble under MDOC Policy Direc tive 03.02.130. Three of Rey nolds-Be y ’s g rieva

nces complained about re t al i atory filing of major misconduct char g es: Grieva nces OTF 05-02-0092- 28E and OTF 05-02-0093- 28E (both filed on Fe b. 8, 2005) alleg ed that major misconduct re ports issued on September 14, 2004, a nd Dec ember

1, 2004, wer e re taliatory

. Both g rieva

nces wer e deeme d untimely filed and reje cted on that basis at eac h step of the g rieva nce

The version of Policy Direc tive 03.03.105 in eff ect at the times rele vant to this suit was not 6 included in the par

ties submissi ons to the district court or to this Court on appeal. 14No. 09-1472

Rey nolds-Bey

v. Harris-Spice r revie w proce ss. They are there fore not proper ly exhausted and may not form the basis of claims in fede ral c ourt. Rey nolds-Be y ’s g rieva

nce OTF -05-03- 00153-28E, filed on Marc h 3, 2005, alleg es that the
Dec ember 1, 2004, major misconduct repor t for insolence was issued as reta liation for “the filing of prior lawsuits

. . . ag ainst prison employ ees in fe d er al co u rt, g rieva nce writing , family activity in protesting prison officia ls activities ag ainst them, and ect. [si c].” A hear ing office r found ReynoldsBe y not guilty

of this c harg e on Dec ember 16, 2005 (more than two months prior to when he f iled the g rieva nce)

. The g rieva

nce was reje cted as untimely at Step I on the basis that i t wa s filed six

m o nths late. At Step I I , it was ag ain reje cted, this time beca use the responde nt interpr et ed t h e 7
g rieva nce as challeng ing the outcome of the misconduct hear ing, which is non-g rieva ble. The Step 8
I I I response ref

ere nced the Step I and I I response s but then denied the g rieva nce on the substantive
g round that Dismissals/n o t g uilty finding s in major misconduct hear ings are not considere d proof of misconduct on the part of the author of the misconduct or on the part of any other staff. The g rieva

nt has prese nted insufficient evidenc e from which to conclude that staff a cted imprope rly

or that their a ctions were reta liatory or punitive in nature.

The mi s co n d u ct repor

t at issue here was issued on Dec ember 1, 2004, but conce rns an 7 incid en t al l ege d t o have taken place on September 2, 2004. The grie vance was therefor e actually filed three months late, counting from the issuance of the misconduct repor t, not six months late as stated in the Step I response . Three months is s till far outside the applica ble time limit , howeve r. This appea

rs to be an improper rea son for reje cting th e gri ev ance . The g rieva nce 8 complained about the reta liatory filing of a major misconduct repor t, not about the outcome of the misconduct hea

ring . Only

the latter is non-g rieva

ble under Policy Direc tive 03.02.130. 15No. 09-1472

Rey nolds-Bey

v. Harris-Spice r (R. 32-4, at 6.) The mag istrate j u dg e’s R&R found the claim unexhausted due to untimeliness. Rey nolds-Be y does not specific ally arg ue that this finding should be disturbed. He does, howeve r,
arg ue that th e d i strict court err ed in dismiss ing his suit on exhaustion g rounds. Ba sed on our convention of liber ally

construing the filing s of

pro se plaintiffs, Spotts v. United States , 429 F.3d 248, 250 (6 t h C i r. 2 0 0 5 ), and in light of developments in the law of this circ uit subsequent to
R ey n o l ds-B ey ’s filing of his appellate brief, see Ree d-Bey v. Pramstaller , 603 F.3d 322 (6th Ci r. 2010), we will addre ss the question whether Grieva nce OTF 05-03-00153- 28E is proper ly deeme d unexhausted g iven the Step I I I responde nt’s decision t o dismiss the g rieva nce on the merits rathe r than on proc edura l gr ounds. After the district court issued its order g ranting summary judgme nt (and afte r Rey nolds-Be y filed his appellate brief) , this Court decide d Ree d-Bey v. Pramstaller , 603 F.3d 322 (6th Cir. 2010). There , the court held that “[w]hen prison o ff i cials decline to enfor ce their own proce dural require ments and opt to consider otherwise- defa ulted claims on the merits, so as a g ener al rule will
we.” Id. at 325. Thus, “the State’s decision to revie w a claim on the merits g ives us a war rant to do

so as well, even when a proce dural defa ult might otherwise have resolved the claim.” Id. This rule is based substantially

on the s imilarity of t he P L RA exhaustion reg ime and the proce dural default doctrine in ha

beas c ases. Id.

9

I n the habe as conte x t, a petitioner proc edura lly defa ults if 9 (1) the petitioner fail s t o comply with a state proce dural rule; (2) the state courts enforce the rule; (3) the state proce dural rule is an adequate and independe nt state g round for deny ing revie w of a fe dera l constitutional claim; and (4) the petitioner cannot show c ause a

nd prejudice excusing the de fault. Guilmette v. H

owes , 624 F.3d 286, 290 ( 6th Cir. 2010) (en ba nc). 16No. 09-1472

Rey nolds-Bey

v. Harris-Spice r Her e, the g rieva

nce was reje cted under the proc edura l rule on timely filing at the first step, improperly

reje cted unde r anothe r proc edura l rule at the second step, a nd reje cted on the me rits at the third step. We deter

mine whether this constitutes proper exhaustion by ref ere nce to habea s doctrine. See id. at 325. Ree d-Bey states t hat in habea s case s, “‘a proce dural de fault does not bar

co n s i d er at i o n of a fede ral claim

. . . unless the last state court rende ring a judgme nt in the case clea rly and expressly states that its judgme nt rests on a state proce dural bar,’ or it is otherwise clea r they di d n o t evalua te the claim on the merits.” Id. (quoting Harris v. Ree d , 489 U.S. 255, 263 (1989))

. Her e, the Step I I I response (the equivalent of the last state court in habea s) did not “cle arly and expressly ” state that Rey nolds-Be y ’s fifth g rieva

nce was being reje cted on proce dural g rounds. Rather, it mentioned the proce dural b as es for the Step I and I I decisions and then rested its deter mination on the substantive g round that “[d] ismiss als/not g uilty finding s in major misconduct hear ings are not considere d proof of misconduct on the par

t of the author of t he mi sconduct or on the part of any other staff.” (R. 32-4 at 6.) There fore , we find that Grieva nce OTF 05-03-00153- 28E

was e x hausted for

purposes of the PL RA. The s u b s t ance of Rey

nolds-Be y ’s complaint in Grieva nce 05-03-00153- 28E raises a First Amendment reta liation claim that should be addre ssed in the first instance by the district court. We there fore rema

nd for considera

tion of Rey

nolds-Be y ’s claim that the Dec ember 1, 2004, major misconduct repor

t was issued in reta liation for his First Amendment-pr otecte d ac t ivity of filing
g rieva nces and other petitions. We otherwise aff irm the district c o u

r t’s deter mination that Rey

noldsBe y ’s ot her releva

nt g rieva nces were not properly

exhausted, and that the state proce dural rule on timely filing w as enf

orce d by the Step I I I

responde nt as to eac h of them. 17No. 09-1472

Rey nolds-Bey

v. Harris-Spice r D. RETAL I ATORY HARASSMENT B Y KI NGSBU RY Rey nolds-Be y alleg es that King sbury subjected him to a sear ch, used rac ial slurs, and made implicit threa ts in reta liation for Rey nolds

- B e y ’ s p r e v ious filing of a § 1983 lawsuit. Rey nolds-Be y ’s complaint thus raises a F irst Amendment re taliation claim.
A reta liation claim essentially entails three elements: (1 ) t h e plaintiff eng ag ed in protec t ed conduct; (2) an adver se action was taken ag ainst the plaintiff that would deter a per son of ordinary firmness from continuing to eng ag e in that conduct; and (3) there is a causa l connec tio n b et we en elements one and two-that is, the adver se action wa s motivated at least in par t by the plaintiff' s protecte d conduct. Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6th Cir. 1999). I t is undisputed that Rey nolds-Be y ’s filing of his orig inal suit in Rey nolds v. N. Smith , 2:01-cv-43 (W.D. Mich. filed Mar. 16, 2001), constitutes protec ted conduct. The mag istrate judge found that Rey nolds-Be y ’s claim failed on the second and third elements of the reta liation claim.
On t h e s ec o n d element, “the test is, if a rea sonable trier of fac t could conclude that a
reta liatory act would deter a person from exercising his rig hts, then the act may not be dismiss ed at the summary judgme nt stag e.” Siggers-El v. Barlow , 412 F.3 d 6 9 3, 701 (6th Cir. 2005). The
mag istrate judge conclude d that being s u b jected to a single sear ch while exit ing the dining hall would not “dete r a person of ordinary firmness from eng ag ing in pr otected conduct.” (R&R 6, R. 104.)
Ex amples of adver se actions that this Court has held s u ff i ci en t to meet the “per son of ordinary firmness” standard include initiating a reta liatory transfe r to another p ri s o n when it will result in fore seea

ble neg ative conseque nces to the prisoner, Siggers-El , 412 F.3d at 701-02, threa tening to i m p o s e d i sciplinary sanctions, Scott v. Churchill , 377 F.3d 565, 571-72 (6th Cir. 18No. 09-1472

Rey nolds-Bey

v. Harris-Spice r 2004), issuing major misconduct repor ts tha t c ould result in loss of disciplinary cre dits, Thomas v

. Eby , 481 F.3d 434, 441 (6th Cir. 2007), and threa tening the use of phy sical forc e, Thaddeus-X , 175 F.3d at 398. On the other hand, this Court has opined tha t “prisoner s are expected to e ndure more than t he avera g e citiz en,” Siggers-El , 412 F.3d at 701, and so not ever y objectionable act directed
at a priso ner constitutes adver se action sufficie nt to deter a person of ordinary firmness from

en gag ing in protec ted activities. Thus, “the single sear ch of a prison cubicle would not deter a
person of ‘ordinar

y firmness’ from pursuing constitutional g rieva nces.” T a t e v. Campbell , 85 F. App’x 413, 417 (6th Cir. 2003) (unpublished). Other routine inconvenienc es of prison life also do
not constitute adver se action. See, e.g. , Hix v. Tenn. Dep’ t of Corr. , 196 F. App’x 350, 358 (6th Cir. 2006) (unpublished) (transf er of inmate to another prison i n the absenc e of “for esee able
conseque nces to the transfe r th at wo u l d i nhibit the prisoner' s ability to acc ess the courts” is not adver se action); Harbin-Bey v. Rutter , 420 F.3d 571, 579- 80 (6th Cir. 2005) (de fenda nt’s filing of “Notice s of I ntent to Conduct an Administrative He ar ing,” which did not result in loss of inmate privileg es, did not qualify as “a dverse action”)

. Her e, Rey

nolds-Be y alleg es that King sbury sear ched him (either once or twice in quick

succe ssion) and used a rac ial slur and a t h i n l y -veiled threa t in reta liation for Rey nolds-Be y ’s protec t ed co n duct. Although this is a close issue, we find that the allege d events could constitute action sufficie nt to deter a prisoner of ordinary firmness from eng ag ing in protec ted activities in the future. A single shakedow n, unacc ompanied by excessive use of forc e, verba l threa ts, a pattern of

1 0

I t is immaterial that Rey nolds-Be y was not himself deter red from further First Amendment- 1 0 protec ted activity , seen in his continued filing of g rieva nces and other communications. “[T] he issue 19No. 09-1472

Rey nolds-Bey

v. Harris-Spice r previous questionable shakedow n s o r o th e r s u c h f a c to r s, would not meet the adver se action standard.
See Tate , 85 F. App’x at 417. Her e, howeve r, Rey nolds-Be y further asser

ts that King sbury “use[d]

. . . rac ial threa ts to advoca te phy sical vi olence .” (Pro S e Appellant Br

. 9.) Al t h o u gh t h e al l eged threa ts of violence or other reta li at i o n we re not expli cit, the words Rey nolds-Be y attributes to King sbury can be construed as an implicit, and nontrivial, threa t. First, the use of rac ial slurs by an individual in a position of authority is repug nant and often car ries with it an implicit threa t of violence. Cf. W

ard v. W ashington Mut. , No. 03 C 3566, 2004 WL 2534628, at *3 (N.D. I ll. Sept. 30, 2004) (in workplac e rac ial discrimination claim, noting that the use of “odious [racial] epithets

. . . rea sonably could have conjure d up disturbing episodes from our society ' s chec kere d history of inter-r acia l rela ti o n s ” )

. Se c o n d, King sbury ’s alleg ed statements that Rey nolds-Be y “will alway s stay

on my list” (Am. Compl. ¶ 27) and that “Rey nolds was the one” (Grie vance No. OTF - 04-06-0361- 18B) , as well as hi s purported refe renc e to the di strict court decision m entioning Kingsbur y (Am. Compl. ¶ 57(b)) , could rea sonably be interpret ed by a person of ordinary firmness as a serious threa t–particular ly when coupled with the dining hall sear ches. The standard set out in Thaddeus-X there fore leads to the conclusion that the district c ourt err ed in f inding that Rey

nolds-Be y failed to raise a g enuine issue of materia l fac t as to the second element of the reta liation test. See Thaddeus
X , 175 F.3d at 398 (“[W] hile cer tain threa ts or depriva tions a re so de minimi s that they do not r ise
to the level of being constitut i o n al violations, this threshold is intended to wee d out only

is whether a person of ordinary firmness would be deter red, not whether [P laintiff] himself actua lly was de terre d.” Thomas v. Eby , 481 F.3d 434, 441 ( 6th Cir. 2007). 20No. 09-1472

Rey nolds-Bey

v. Harris-Spice r inconseque ntial actions, and is not a means wher eby solely eg reg ious reta liatory acts are allowed to
proce ed past summary

judgme nt.”). The third element of the reta liation standard require s a s h o wi n g that “ther e is a causa l

connec tion betwee n elements one and two–that is, the adver se action was motivated at least in part by the plaintiff' s protec ted conduct.” Id. at 394. This is a subjective test, looking to the defe ndant’s intent. Id. at 399. The mag istrate judge found that Rey nolds-Be y “alleg es that he was sear ched in
reta liation for his long- conclude d lawsuit, in which King sbury was not a defe ndant. Ascribing cause and effec t in these ci rc u m s t an ces would be far-f etche d.” (R&R 7, R. 104.) The lack of t empora l proxi mity and the fac t that Ki ng sbury was not a party to the 2001 suit do tend to cut ag ainst the exis tence of a c ausal c onnection.
Howeve r, temporal proxi mity by itself is no t s u f ficient to show a causa l connec tion, and there is no rea son to think it is strictly nece ssary either. See Smith v. Campbell , 250 F.3d 1032, 1038 (6th Cir. 2001) (“[E]vidence [of temporal proxi mity ] alone is not sufficie nt to meet [pl aintiff’s] burden
to show that the filing of g rieva nces was a substantial or motivating fac tor for his transfe r.”)

. Fur ther, althoug h three y ear s had passed since Rey nolds-Be y filed his orig inal suit, the time betwee n when the district judge enter ed final judgme nt in that suit and the all ege d re t ali atory incident was only one y ear , and the Six th Circuit did not issue its ruling in the case until April 8, 2004, less than three months be fore the incidents at issue here

. Additionally , Rey nolds-Be y

offe rs an e x planation for the time la g betwee n the protec ted activity and the alleg edly reta liatory action: King sbury was previously employ ed at another MDOC fac ility and only had occa sion to interac t with Rey nolds-Be y

once h e b ega n working at the Boy er Road fac ility

. Upon encounte ring Rey nolds-Be y at the new 21No. 09-1472

Rey nolds-Bey

v. Harris-Spice r fac ility , the i ncident in question alleg edly took place

. The report and rec ommendation also failed
to cre dit Rey

nolds-Be y ’s alleg ation that King sb u ry made specific ref ere nce to the protec ted activity –the 2001 suit–when he conducte d the shakedow n and u s ed t h e rac ial slur. Whil e the 1 1
mag istrate judge made much of the fac t that King sbury was not a named defe ndant in the 2001 suit, it is unclea

r why this should be dispositi ve. King sbury ’s name was indeed mentioned in the opinion issued in that case , and Rey nolds-Be y alleg es on appea l tha t K ingsbur y was upset beca

use the suit was filed a g ainst his “friends.”
“Onc e the plaintiff has met his burden of establishing that his p ro t ec t ed conduct was a motivating fac tor behind any harm, the burden of production shifts to the defe ndant. I f the defe ndant

can show that he would have taken the same action in the absenc e of t h e protec ted activity , he is entitled to preva il on summary judgme nt.” Thaddeus-X , 175 F.3d at 399. The plaintiff can demonstrate a causa l connec tion using circ umstantial evidenc e. Goad v. Mitchell , 297 F.3d 497, 505 (6th Cir. 2002); Thaddeus-X , 175 F.3d at 399-400. Wh ere a plaintiff sets forth “spec ific, nonconclusory alleg ations” of reta liation “that could support a jury verdic t at t rial,” the defe ndant
cannot car

ry his or her burden at summary judgme nt by offe ring mere “summary denials.” Thaddeus-X

, 175 F.3d at 399. King sbury ’s evidenc e in support of his motion for summary judgme nt

Rey nolds-Be y ’s amende d complaint asse r ts th a t K in g s b u r y s ta te d th a t “ N ig g e r s a

n d li ti g a n ts 11 like y ou will alway s stay

on my list and y ou can w rite that in any g rieva nce or tell the court that.” (Am. Compl. ¶ 27.) His amende d complaint further alleg ed that King sbury made r efe renc e to the previous lawsuit during the eve nts in question. ( Id

. ¶ 57(b).) I n his appellate br ief, Rey nolds-Be y for the first time additionally alleg es that King sbury called Rey nolds-Be y “the same N.

. . who filed a lawsuit in 2001 ag ainst other prison g uards that wer e his friends.” (Pro Se Appellant Br

. 9.) That statement is not properly

befor e this Court beca

use it was introduce d for the f irst time on appeal. 22No. 09-1472

Rey nolds-Bey

v. Harris-Spice r consists of his own aff

idavit, which states that “Prisoner Rey nolds

. . . claims that I had used a rac ial slur toward him. This alleg ation is a complete and tot al fabrication.” (B r. i n Supp

. o f De f. M ar k King sbury ’s Mot. for Summ. J ., Ex . A at 1.) K ingsbur y further states that “Prisoner Rey nolds . . . also claims that I conducte d a shakedow n as a form of hara s s m en t

. Prisoners routinely complain about shakedow ns and often consider t h em h ar as s m en t

. I t is a require ment of my job to conduct shakedow ns . . . .” (

Id. at 2.) This evidenc e consists of prec isely the ty pe of summary denial at issue in Thaddeus-X

. See Thaddeus-

X , 175 F.3d a t 384 (desc ribing defe ndants’ denia ls); id. at 399-400 (discussing summary judgme n t s t andar d with reg ard to causa l connec tion element of prison
reta liation claim s )

. T h e r e fore , King sbury has failed to rebut Rey nolds-Be y ’s alleg ations that a causa l

connec tion ex isted.
Acc ording ly , we reve rse the district court’s g rant of summary judgme nt to Ki n gsbury and

rema nd for f urther pr ocee dings on this claim.
E

. CH A L L EN G E T O D I ST RI CT CO U RT O RD E R A L L E G E D LY L I M I T I N G PL E A D I

N G S TO THE I SSUE OF EXHA USTI ON Finally , Rey

nolds-Be y alleg es that the district court order ed that his pleading s be limit ed to the ex haustion issue but then unfairly g rante d summary judgmen t to Har ris-Spicer on the basis of absolute immunit y rathe r t h an ex h au stion, without g iving Rey nolds-Be y a chanc e to arg ue issues other than e x haustion. Rey nolds-Be y does not provide a c itation to the recor d identify ing suc h an order of the district court. The only order that could conce ivably form the basis of Rey nolds-Be y ’s objection is an order enter ed on April 10, 2007 that direc ted Def endants, if they wanted to arg ue that Rey nolds-Be y had failed to exhaust his administrative reme d ie s , to r e p ly to Re y n o ld s - B e y ’ s a

mended

23No. 09-1472

Rey nolds-Bey

v. Harris-Spice r complaint by fil i ng a mot ion for summ ary judgme nt limit ed to the ex haustion defe nse onl y . That order constraine d Def

endants, not Rey

nolds- Be y . I t appea

rs that his arg ument is predic ated on a misunderstanding of the district cour t’s order

. Rey nolds-Be y reque sts that the case be rema nded so t h at t he district court can deter mine whether his claims ag ains t H a r ris-Spicer have been exhausted. The district court addre ssed this issue in its response to Rey

nold’s-B ey ’s objection to the mag istrate judge ’s repor t and rec ommendation: The Report and Recommenda tion explain s t h at Mr. Rey nold’s challeng e of Def endant Har

ris-Spicer’ s J uly 2004 decision finding him g uil t y of a major misconduct is non-g rieva ble. But, as the R ep o rt and Recommenda tion corr ectly point s o u t , this is beca

use the hear ing office r is entitled to absolute immunit y for claims rela ted to her decision. The Report and Recommenda tion thus addre sses the exhaustion issue, and also makes it cl ea r t h at there is no viable claim ag ainst Ms. Har ris-Spicer beca

use she is entitled to absolute immun i t y for her decision as a hear ing of

fice r. (Orde r 3, R. 101.) The mag istrate judg e’s f inding that the c omplaint ag ainst Harr is-Spicer is nong rieva ble nece ssarily means that the claim is u n e xh a u s te d , b e c a

u se a non-g rieva

ble issue cannot form the basis of a properl y ex hausted administrative g rieva nce. Whether the issue is non-g rieva ble because hear ing office rs have absolute immunit y , or whether immunit y is an alterna tive g round for
g ranting summary judgme nt is immaterial. There is no g round for rema nd i n g t h e ca s e to further addre ss exhausti on of the c laim ag ainst Harr is-Spicer.
III
For the rea sons stated above, we AF F IRM IN P ART and REVERSE AND REMAND IN
P ART

. We AF F IRM the distr ic t c o u r t’ s d e te r mi n ation that Hea

ring Offic er Har

ris-Spicer is entitled
to absolute immunit y and that Rey nolds-Be y ’s g rieva

nces (excluding the g rieva nces ag ainst

24No. 09-1472

Rey nolds-Bey

v. Harris-Spice r King sbury and Grieva

nce OTF -05-03- 00153-28E) are unexhausted for purposes of the PL RA. We
REVERSE the g rant of summary judgme nt on the issue of the exhaustion of Grieva nce OTF -05-03-
00153-28E and REMAND for consideration of the merits of the reta liation claim arising out of that
g rieva nce. We REVERSE the district court’s g rant of summary judgme nt in favor of King sbury on the Fir st Amendment reta liation claim and REMAND for f urther pr ocee dings on tha t claim.

25