UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL THREET,

Plaintiff, Civil Action No. 14-cv-13345

vs. HON. BERNARD A. FRIEDMAN

D. PHILLIPS, et al.,

Defendants.

___________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION TO DISMISS

and

ORDER TO SHOW CAUSE WHY THE CLAIMS AGAINST THE UNKNOWN

DEFENDANTS SHOULD NOT BE DISMISSED

This matter is presently before the Court on defendants’ motion to dismiss [docket

entry 33]. Plaintiff has filed a response in opposition [docket entry 35] and a supplemental brief in

support of plaintiff’s response in opposition to defendants’ motion to dismiss [docket entry 41]. 

Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion on the briefs. For the

following reasons, the Court shall grant the motion in part and deny it in part.

I. Background

Plaintiff is a pro se prisoner who is currently confined at the Saginaw Correctional

Facility in Freeland, Michigan. On August 26, 2014, plaintiff filed the instant action pursuant to 42

U.S.C. § 1983, alleging various constitutional violations while incarcerated at the Parnall

Correctional Facility (“SMT”) in Jackson, Michigan. Plaintiff alleges that from January to February

2014, defendants Deputy Warden Kenneth Ryan, Clinical Social Worker Noah Bruner, Inspector

Lester Parish, Lieutenant John Hurst, Sergeants Erick Vandenburg and Dawn Jacobson, Corrections

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Officers David Phillips, James Richardson, Wesley Jackson, and James Miller, and John and Jane

Doe nurses and x-ray technicians, were deliberately indifferent to his health and safety in violation

of his Eighth Amendment rights.

The relevant events occurred following an assault perpetrated by a prisoner named

Grey on another inmate. Plaintiff alleges that after this assault, Vandenburg approached plaintiff

and his religious group to discuss whether Grey would be assaulted in retaliation. Compl. ¶¶ 1-2. 

Plaintiff and his religious group assured Vandenburg that they would not harm Grey. Id. A few

days later, a member of a gang informed plaintiff that Grey was going to be assaulted for an

unrelated issue. Id. ¶ 3. Fearing that he and his religious group would be blamed for the planned

attack on Grey, plaintiff attempted to warn Vandenburg of the assault but was stopped by Miller,

Jackson, and Jacobson. Id. ¶¶ 3-7. 

Plaintiff alleges that as a result of attempting to warn SMT employees of the

impending attack on Grey, he was subjected to various forms of harassment. Specifically, he claims

that (1) Richardson and Jackson searched his cell two to three times per day, wrote him misconduct

reports, and confiscated his property; (2) Jacobson coerced him to perform work in violation of his

medical detail; (3) Jacobson threatened to transfer him when he did not sign off on a grievance; (4)

Phillips slammed his left hand in a cell door; (5) John and Jane Doe nurses would not notify

authorities that he had been assaulted by Phillips; (6) John and Jane Doe x-ray technicians would

not show him his x-rays; (7) Hurst, Bruner, and Vandenburg failed to stop the harassment; and (8)

Ryan and Parish would not allow him to use the telephone to call the Michigan State Police. See

id. ¶¶ 14, 16-19, 21-25, 27-28, 30, 32-34, 40-41. Plaintiff asserts Eighth Amendment claims, as well

as state law claims of gross negligence and intentional infliction of emotional distress, against all

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defendants. See Compl., Counts I-XIII. Plaintiff also asserts First Amendment retaliation claims

against Richardson, Jackson, and Jacobson. Id., Counts II-IV. For relief, plaintiff seeks damages

and a declaratory judgment that his constitutional rights were violated. See id., p.13. Defendants

seek dismissal of all claims due to plaintiff’s failure to exhaust his administrative remedies.

II. Legal Standards

The Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), provides

that a prisoner bringing an action with respect to prison conditions under § 1983 must first exhaust

available administrative remedies. See Porter v. Nussle, 534 U.S. 516, 519-20 (2002). “Requiring

exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their

responsibilities before being haled into court. This has the potential to reduce the number of inmate

suits, and also improve the quality of suits that are filed by producing a useful administrative

record.” Jones v. Bock, 549 U.S. 199, 204 (2007). 

The exhaustion “requirement is mandatory but not jurisdictional, and applies to all

federal claims seeking redress for prison circumstances or occurrences regardless of the type of

relief being sought.” Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (citing Porter, 534 U.S. at

532). “[I]nmates are not required to specifically plead or demonstrate exhaustion in their

complaints.” Jones, 549 U.S. at 216. “Failure to exhaust administrative remedies is an affirmative

defense, which the defendant has the burden to plead and prove by a preponderance of the

evidence.” Lee, 789 F.3d at 677 (citing Jones, 549 U.S. at 216). “However, when faced with a

motion to dismiss or a motion for summary judgment based on a failure to exhaust, a prisoner cannot

just sit on his laurels, but must offer competent and specific evidence showing that he indeed

exhausted his remedies, or was otherwise excused from doing so.” Sango v. Johnson, No. 13-12808,

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2014 WL 8186701, at *5 (E.D. Mich. Oct. 29, 2014). A dismissal for failure to exhaust is without

prejudice. Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2006) (citing Knuckles El v.

Toombs, 215 F.3d 640 (6th Cir. 2000)).

The instant motion was filed as an unenumerated Rule 12(b) motion, which plaintiff

argues is “improperly filed” because defendants never specified “which subdivision they were

applying to their request for dismissal.” See Pl.’s Resp. to Defs.’ Mot. to Dismiss ¶ 2. Courts have

differed in determining which subdivision applies to a motion to dismiss based on failure to exhaust

administrative remedies. This issue was summarized in Magistrate Judge Whalen’s Report &

Recommendation that was adopted in Twohig v. Riley, No.12-11832, 2013 WL 3773365, at *1 (E.D.

Mich. July 17, 2013):

There has been a divergence of viewpoints as to the correct

procedural basis for a dismissal premised on non-exhaustion. In

Jones v. Bock, 127 S.Ct. at 921, the Supreme Court suggested in dicta

that failure to exhaust might be a basis for dismissal under Rule

12(b)(6). However, in Pointe v. Wilkinson, 502 F.3d 369 (6th Cir.

2007), the Sixth Circuit found that a dismissal based on exhaustion

may be distinct from a dismissal for failure to state a claim upon

which relief may be granted. See also Snider v. Melindez, 199 F.3d

108, 112 (2d Cir. 1999) (concluding that failure to state a claim as

used in 1997e(c) and 1915(g) does not include failure to exhaust

administrative remedies). In Melton v. Michigan Corrections

Commission, 2009 WL 722688 (E.D. Mich 2009), the Court granted

a motion for summary judgment, dismissing the complaint without

prejudice for failure to exhaust . . . 

In the context of the PLRA, a plaintiff’s failure to exhaust

administrative remedies does not seem to fit within Fed. R. Civ. P.

12(b)(6). After Jones v. Bock, failure to exhaust is not a pleading

requirement, so there is no determination of whether a plaintiff has

stated a claim on the face of the complaint. And unlike the typical

12(b)(6) motion, dismissal is without prejudice. Rule 12(b)(1)

(subject-matter jurisdiction) clearly does not apply, since “the PLRA

exhaustion requirement is not jurisdictional.” Woodford v. Ngo, 548

U.S. 81, 101 (2006). Summary judgment seems inapposite since

there is no determination of the merits of the case, and “judgment” is

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not entered. See Studio Electrical Technicians Local 728 v.

International Photographers of Motion Picture Industries, Local 659,

598 F.2d 551, 552 (9th Cir. 1979) (“Summary judgment is on the

merits,” and failure to exhaust, as a matter in abatement, “ordinarily”

does “not deal with the merits.”) . . .

Citing the decisions of other circuit courts for support, Magistrate Judge Whalen concluded that the

best approach is to treat a motion to dismiss based on a failure to exhaust as an unenumerated Rule

12(b) motion. Finding this method to be the best course as well, the Court is persuaded that

defendants’ unenumerated Rule 12(b) motion was appropriately filed.

III. Analysis

In order to exhaust administrative remedies, “prisoners must complete the

administrative review process in accordance with the applicable procedural rules[,] . . . rules that are

defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218. An

improperly filed grievance, even though appealed through all steps of a grievance procedure, does

not fulfill the exhaustion requirement. Woodford, 548 US at 97. “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.” Jones, 549 U.S. at 218. 

Michigan Department of Corrections (“MDOC”) policy requires prisoners to follow

a three-step process to exhaust grievances. See Defs.’ Mot. to Dismiss, Ex. A, Policy Directive

03.02.130 (effective 07/09/2007). A prisoner must first “attempt to resolve the issue with the staff

member involved within two business days after becoming aware of a grievable issue, unless

prevented by circumstances beyond his/her control[.]” Id. ¶ P. If the issue is not resolved to the

prisoner’s satisfaction, he must then file a Step I grievance within five business days after attempting

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to resolve the issue with appropriate staff. Id. ¶ P. If the prisoner is dissatisfied with the Step I

response, or does not receive a timely response, he must file a Step II grievance. Id. ¶ BB. Finally,

if the prisoner is dissatisfied with the Step II response, or does not receive a timely response, he must

file a Step III grievance. Id. ¶ FF. “The total grievance process from the point of filing a Step I

grievance to providing a Step III response shall generally be completed within 120 calendar days

unless an extension has been approved in writing by the Grievance Coordinator at Step I and/or Step

II.” Id. ¶ S.

MDOC policy also states that “[i]nformation provided is to be limited to the facts

involving the issue being grieved (i.e., who, what, when, where, why, how). Dates, times, places,

and names of all those involved in the issue being grieved are to be included.” Id. ¶ R (emphasis

in original). Grievances may be rejected if they are vague, duplicative of issues raised in other

grievances filed by the grievant, or untimely. Id. ¶ G. However, a “grievance shall not be rejected

if there is a valid reason for the delay, e.g., transfer.” Id. ¶ G.4.

Defendants have submitted as an exhibit to their motion a printout entitled “MDOC

Prisoner Step III Grievance Report” (“MDOC Report”), which appears to have been generated on

September 22, 2014. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 236-38. This report indicates that

plaintiff filed eight Step III grievances while incarcerated at SMT. See id. Seven of these

grievances were rejected at Step I for being vague, duplicative, untimely, or non-grievable. As for

the remaining grievance–SMT-14-03-0460-17Z filed against Bruner for failing to help plaintiff

report the Phillips assault–both sides agree this claim has been properly exhausted, so the Court will

assume the same. See Defs.’ Mot. to Dismiss, p.10 (“It would appear that Threet properly exhausted

his administrative remedies as to [SMT-14-03-0460-17Z].”). The Court will examine each of the

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eight grievances, as well as the two additional grievances that plaintiff appears to argue were also

properly exhausted.

A. Grievances Rejected as Untimely

Plaintiff filed a Step I grievance in SMT-14-03-0461-28e on March 1, 2014, against

Hurst for refusing to listen to plaintiff’s complaints about being harassed and threatened by unnamed

officers. See id., Ex. B, Pg ID 247. Plaintiff listed the “Date of Incident” as February 5, 2014. Id. 

Recognizing that his grievance was untimely, plaintiff noted that his “grievance is late due to threats

by staff, denial of grievance forms and access to law library, was also transfered [sic] to protect

staff.” Id. The Step I grievance was rejected as untimely and informed plaintiff that he had “not

provided any reasonable circumstance beyond [his] control that would have prevented [him]

from filing this grievance in a timely manner.” See id., Pg ID 248 (emphasis in original). 

Plaintiff filed a Step II appeal wherein he noted that he “clearly stated several ‘reasonable

circumstances’ for [his] lateness (see step I)[.]” Id., Pg ID 245. The Step II response affirmed the

Step I response that the grievance was untimely and that plaintiff failed to provide any reasonable

circumstance beyond his control that would have prevented him from filing a grievance in a timely

manner. See id., Pg ID 241. In his Step III appeal, plaintiff stated that he was appealing because

“deliberate indefferance [sic] cover up of corruption which is blatently [sic] obvious.” Id., Pg ID

245. The Step II decision was upheld at Step III. See id., Pg ID 244.

Similarly, plaintiff filed a Step I grievance in SMT-14-03-0455-28e on March 1,

2014, against Phillips for retaliating against him by removing personal items from his cell without

issuing a “written N.O.I[.] or contraband removal.” Id., Pg ID 266. Plaintiff listed the “Date of

Incident” as February 8, 2014. Id. Plaintiff noted in this grievance, too, that his “grievance is late

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due to harrassing [sic], threatening, assaultive behavior of officers in 10 blk, being denied grievance

forms, access to law library, and transfer to new facility.” Id. The Step I response was rejected as

untimely and informed plaintiff that he had “not provided any reasonable circumstance beyond

[his] control that would have prevented [him] from filing this grievance in a timely manner.” 

Id., Pg ID 267 (emphasis in original). Plaintiff filed a Step II appeal wherein he noted that he

“clearly stated several ‘reasonable circumstances’ that were out of my control (see step 1).” Id., Pg

ID 264. The Step II response affirmed the Step I response that plaintiff had failed to provide any

reasonable circumstance for his untimely grievance. See id., Pg ID 265. In his Step III appeal,

plaintiff stated that he believes “being threatend [sic] and assaulted are very reasonable

circumstances for fearing to write complaints while still on the same compound as the officers in

question.” Id., Pg ID 264. The Step II decision was upheld at Step III. See id., Pg ID 263.

Defendants argue that plaintiff’s claims as to Hurst and Phillips must be dismissed

because plaintiff’s untimely–and therefore improperly–filed grievances, even though appealed

through all steps of a grievance procedure, does not fulfill the PLRA’s exhaustion requirement. See

Woodford, 548 US at 97. In response, plaintiff argues that his transfer to a new facility on February

28, 2014, prevented him from timely filing his Step I grievances. See Pl.’s Resp. to Defs.’ Mot. to

Dismiss ¶ 14. The Step I, II, and III responses for both grievances stated that plaintiff had failed to

provide any reasonable circumstance for his untimely grievance, but this contention is inaccurate. 

Plaintiff stated that he was (1) afraid to file grievances against officers on his block for fear of

retaliation; (2) denied access to the law library; (3) denied grievance forms; and (4) transferred to

a new facility. These facts could have provided a valid explanation for any delay in filing SMT-14-

03-0461-28e and SMT-14-03-0455-28e, had they been appropriately considered. See, e.g., Coleman

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v. Gullet, 2013 WL 2634581, at *11 (E.D. Mich. June 10, 2013) (finding plaintiff’s transfer was

conceivably a valid reason for the delay in appealing a grievance). In resolving all reasonable

inferences in favor of plaintiff, as must be done at the motion to dismiss stage, the Court cannot

conclude that plaintiff failed to exhaust his grievances against Hurst and Phillips.

B. Grievances Rejected as Vague

Plaintiff filed three grievances that were rejected as vague. First, plaintiff filed a Step

I grievance in SMT-14-03-0513-28b against Vandenburg for failing to protect plaintiff from the

other officers. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 252-53. The Step I grievance was rejected

as vague, stating “you did not provide the name of the staff that you claim are harassing and

threatening you.” Id., Pg ID 253. Plaintiff appealed this grievance to Step II, arguing that he did

not need to provide the name of the staff members because he was grieving Vandenburg, not the

staff members threatening him. See id., Pg ID 250. The Step II response affirmed the Step I

response. See id., Pg ID 251. Plaintiff filed a Step III appeal, stating “deliberate indifferance [sic]

corruption and cover up” as the reason for his appeal. See id., Pg ID 250. The Step II decision was

upheld at Step III. See id., Pg ID 249. 

Defendants argue that plaintiff improperly exhausted his administrative remedies

because, in filing a grievance that was vague, he did not comply with the MDOC’s procedural rules. 

See, e.g., Woodford, 548 U.S. at 90; Colston v. Cramer, 2007 WL 1655413, at *2 (E.D. Mich. June

7, 2007). The Court agrees. MDOC policy states that “[d]ates, times, places, and names of all those

involved in the issue being grieved are to be included. See Defs.’ Mot. to Dismiss, Ex. A, Policy

Directive 03.02.130 (effective 07/09/2007) ¶ R (emphasis added). Despite plaintiff’s contention to

the contrary, plaintiff was required to provide the names of all those involved and he failed to do so. 

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The claim against Vandenburg is therefore dismissed for failure to properly exhaust administrative

remedies.

Plaintiff also filed a Step I grievance in SMT-14-03-0459-28b against unknown staff

members at Duane L. Waters Hospital in Jackson, Michigan, for their refusal to report to

administration that he was assaulted by an officer. See Defs.’ Mot. to Dismiss, Ex. B, Pg ID 242. 

The Step I grievance was rejected as vague, stating that plaintiff failed to “provide the name of the

staff that [he] claim[s] refused to report [his] claim.” See id., Pg ID 243. Plaintiff filed a Step II

appeal wherein he stated that he “asked for names and copies of all paperwork,” but was “denied”

and that the “grievance coordinator should have . . . looked that information up as I clearly stated

in step I that that information was denied me.” Id., Pg ID 240. The Step II response affirmed the

Step I response, indicating that “[y]ou need to include who, what, when, where and be specific.” 

Id., Pg ID 246 (emphasis in original). Plaintiff appealed this decision to Step III, wherein he simply

stated that the reason for his appeal was “[d]eliberate indifferance [sic] see step I & II.” Id., Pg ID

240. The Step II decision was upheld at Step III. See id., Pg ID 239.

Grievance number SMT-14-03-0458-28b, which also grieved unknown “medical

staff” for refusing to report that plaintiff was assaulted, was also rejected at Step I as vague. See

Pl.’s Resp. to Defs.’ Mot. to Dismiss, Pg ID 300-01. The Step I response stated that plaintiff “did

not provide the name of the staff that [he] claim[s] refused to report [his] claim.” Id., Pg ID 301. 

Plaintiff appealed the Step I response to Step II, arguing that he asked for the names of the staff

members but was denied this information. Defs.’ Mot. to Dismiss, Ex. B, Pg ID 255. The Step II

response affirmed the Step I response. See id., Pg ID 256. Plaintiff appealed the response to Step

III, where the prior decisions were upheld. See id., Pg ID 254.

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Defendants argue that SMT-14-03-0459-28b and SMT-14-03-0458-28b were not

properly exhausted because they failed to include the name of the person being grieved. Plaintiff

acknowledges that MDOC procedure requires grievants to include this information, but argues that

the staff members at Duane L. Waters Hospital refused to provide their names and that “every

attempt (even [as of May 2015]) to obtain copies of the medical reports, and thereby discover their

names has been denied,” thereby preventing him from properly exhausting his administrative

remedies. Pl.’s Resp. to Defs.’ Mot. to Dismiss ¶ 11. When a prisoner is unable to exhaust all

available remedies because prison officials have thwarted the inmate’s attempts at exhaustion, then

proper exhaustion should be assumed. See Brock v. Kenton Cnty., 93 F. App’x 793, 798 (6th Cir.

2004). Thus, drawing all inferences in favor of plaintiff, the Court will assume, for purposes of this

motion, that prison officials thwarted plaintiff’s attempt to properly exhaust his administrative

remedies by withholding critical information. 

However, an inmate who brings a civil rights complaint must specifically identify

each defendant against whom relief is sought, and he must give each defendant notice of the action

by serving upon him a summons and copy of the complaint. See Feliciano v. DuBois, 846 F. Supp.

1033, 1048 (D. Mass. 1994). In general, “the use of unnamed defendants is not favored in the

federal courts.” Haddad v. Fromson, 154 F. Supp. 2d 1085, 1093 (W.D. Mich. 2001). “Where a

plaintiff is proceeding [in forma pauperis], the district court bears the responsibility for issuing the

plaintiff’s process to a United States Marshal who must effect service upon the defendants once the

plaintiff has properly identified the defendants in the complaint.” Williams v. McLemore, 10 F.

App’x 241, 243 (6th Cir. 2001) (citing Fed. R. Civ. P. 4(c)([3]); Byrd v. Stone, 94 F.3d 217, 219 (6th

Cir. 1996)). Under Rule 4(m), defendants must be served within 120 days of filing the complaint. 

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If defendants are not served during this time, “the court–on motion or on its own after notice to the

plaintiff–must dismiss the action without prejudice against that defendant or order that service be

made within a specified time.” Plaintiff has apparently failed to identify or serve the John and Jane

Doe defendants and this case has been pending for well over 120 days (since August 26, 2014). In

accordance with Rule 4(m), this Opinion and Order shall serve as notice to plaintiff that he has 14

days to show cause why the claims as to the John and Jane Doe defendants should not be dismissed

without prejudice.

C. Grievance Rejected as Non-Grievable

Plaintiff filed a Step I grievance in SMT-14-03-0463-27a against Richardson for

writing him a major ticket in retaliation for attempting to call the Michigan State Police. See Defs.’

Mot. to Dismiss, Ex. B, Pg ID 261. The Step I grievance was rejected as non-grievable, stating that

“[d]ecisions made in hearings conducted by hearing officers of the State Office of Administrative

Hearings and Rules, and decisions made in class II or III hearings, including property disposition,

and issues directly related to the hearing process are non grievable. Your avenue of redress

is through the appeals process.” Id., Pg ID 262 (emphasis in original). In his Step II appeal,

plaintiff argued that he was not grieving that he was found guilty of the ticket, but was grieving that

he was given the ticket in retaliation for attempting to report the assault by Phillips to the Michigan

State Police. See id., Pg ID 259. The Step II response affirmed that plaintiff had grieved a nongrievable issue. See id., Pg ID 260. Plaintiff filed a Step III appeal, which affirmed the Step I and

Step II responses. See id., Pg ID 258-59. 

While defendants argue that grievance SMT-14-030463-27a was procedurally

defaulted, and hence not properly exhausted, the Court disagrees because this grievance was not

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contesting the outcome of a misconduct hearing. The grievance asserted that Richardson wrote

plaintiff a misconduct ticket in retaliation for attempting to contact the Michigan State Police. By

rejecting plaintiff’s grievance for a reason clearly unsupported by the facts presented in the

grievance, prison officials effectively prevented plaintiff from properly exhausting his administrative

remedies. Under these circumstances, the Court cannot conclude that plaintiff has failed to exhaust

his administrative remedies as to his First Amendment retaliation claim against Richardson.

D. Grievance Rejected as Duplicative

Plaintiff filed a Step I grievance in SMT-14-03-0457-28a, indicating that after the

assault, plaintiff asked Phillips for medical treatment for his hand, but instead of helping, Phillips

called him a “whinney [sic] bitch” and walked away. See Defs.’ Mot. to Dismiss, Ex. B., Pg ID

271, 269. This grievance was rejected as being duplicative of SMT-14-03-0456-26z, which was

pending at the time of the Step I response. See id., Pg ID 272. Plaintiff filed a Step II appeal,

arguing that SMT-14-03-0456-26z complained about Phillips assaulting him, whereas the instant

grievance complained about Phillips refusing to assist him in obtaining medical treatment. See id.,

Pg ID 269. The Step II response affirmed that both grievances were duplicative because they “both

address the claim that Officer Phillips assaulted you.” Id., Pg ID 270. Plaintiff filed a Step III

appeal arguing “reguardless [sic] of me ‘mentioning’ the assault I am grieving the fact that when I

asked for medical attention affter [sic] being assaulted, the officer who assaulted me called me a

whiney [b]itch and walked away.” Id., Pg ID 269. The Step II decision was upheld at Step III. See

id., Pg ID 268. 

Although SMT-14-03-0457-28a and SMT-14-03-0456-26z arise from the same

assault, each grievance complains of a separate issue. SMT-14-03-0456-26z deals with the actual

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assault and exhausts plaintiff’s excessive force claim against Phillips. However, SMT-14-03-0457-

28a deals with Phillips’ alleged failure to provide plaintiff medical treatment, thereby exhausting

plaintiff’s deliberate indifference claim against Phillips. By rejecting plaintiff’s grievance for a

reason unsupported by the facts presented in each grievance, prison officials effectively prevented

plaintiff from properly exhausting his administrative remedies. Under these circumstances, the

Court cannot conclude that plaintiff failed to exhaust his administrative remedies as to this claim

against Phillips.

E. Remaining Grievances

In addition to the eight grievances cited by defendants, plaintiff appears to suggest

that he properly exhausted his administrative remedies as to two other grievances. In SMT-14-03-

0456-26z, plaintiff grieved that Phillips assaulted him by slamming his left hand in a cell door. See

Pl.’s Resp. to Mot. to Dismiss, Ex. B, Pg ID 296. The Step I response stated that an investigation

into the assault was being done but that “[n]o violations of staff misconduct are noted as related to

the reporting and investigation of the Grievant’s allegations.” Pl.’s Resp. to Mot. for Summ. J., Pg

ID 149. Plaintiff filed a Step II appeal, grieving that he has “little faith in this so called investigation

as it took 31 days befor [sic] I was even asked any questions, and to the best of my knowledge

Officer Phillips has not been fired, suspended pending outcome[.]” Id., Pg ID 147. The Step II

response reiterated that the assault was being “formally investigated” and denied plaintiff’s Step II

appeal. See id., Pg ID 148. And although the “MDOC Prisoner Step III Grievance Report” does

not show that plaintiff filed a Step III appeal in this matter, plaintiff included a copy of the Step III

appeal in his initial response to defendants’ motion for summary judgment. See id., Pg ID 147. The

MDOC Report does, however, include a notation stating that on July 22, 2014, MDOC returned the

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Step III appeal to plaintiff “requesting Step I & II documents.” Defs.’ Mot. to Dismiss, Ex. B, Pg

ID 236. Given the inconsistency in the record, it is unclear whether the Step III appeal has been

accepted or decided. However, drawing all inferences in favor of plaintiff, the Court will assume

for purposes of this motion that plaintiff has properly exhausted his grievance remedies as to his

excessive force claim against Phillips.

Finally, plaintiff filed a Step I grievance in SMT-14-03-0462-17z against Jacobson

claiming that she failed to intervene to help plaintiff and that she retaliated against plaintiff by

threatening to transfer him to an undesirable prison facility. See Pl.’s Resp. to Mot. to Dismiss, Ex.

B, Pg ID 313. The Step I response concluded that the allegations in the grievance could not be

substantiated. See id., Pg ID 314. It appears that plaintiff did not file a Step II or III appeal in this

matter because he has not included any documents or exhibits suggesting otherwise. This would

appear to be consistent with the MDOC’s Report, which does not list a Step III appeal in this matter. 

Defs.’ Mot. to Dismiss, Ex. B, Pg ID 236-38. Because “a prisoner cannot just sit on his laurels, but

must offer competent and specific evidence showing that he indeed exhausted his remedies,” Sango,

2014 WL 8186701, at *5, and plaintiff has failed to provide such specific evidence, the claims

against Jacobson are dismissed without prejudice for failure to exhaust administrative remedies.

IV. Conclusion

Plaintiff properly exhausted six of the ten aforementioned grievances. These

grievances include SMT-14-03-0461-28e against Hurst, SMT-14-03-0463-27a against Richardson,

SMT-14-03-0460-17Z against Bruner, and SMT-14-03-0456-26z (assault), SMT-14-03-0455-28e

(retaliatory cell searches), and SMT-14-03-0457-28a (deliberate indifference) against Phillips. 

However, the grievances against Vandenburg (SMT-14-03-0513-28b) and Jacobson (SMT-14-03-

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0462-17z ) were not properly exhausted and are therefore dismissed without prejudice. Further,

because none of these ten grievances complained about the actions of Jackson, Miller, Parish, or

Ryan, all claims against these defendants are dismissed without prejudice for failing to exhaust

administrative remedies. Accordingly, 

IT IS ORDERED that defendants’ motion to dismiss [docket entry 33] is granted

without prejudice as to all claims against Vandenburg, Jacobson, Jackson, Miller, Parish, and Ryan.

IT IS FURTHER ORDERED that defendants’ motion to dismiss is denied as to the

claims against Phillips, Richardson, Hurst, and Bruner.

IT IS FURTHER ORDERED that plaintiff has 14 days to show cause why the claims

against the John and Jane Doe defendants should not be dismissed without prejudice. 

S/Bernard A. Friedman

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: February 1, 2016

Detroit, Michigan

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