1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

EMMETT BUFFMAN, 

 Plaintiff 

v. 

MISS MOODY, et al., 

 Defendants 

 

Case No. 5:14-cv-12577 

Judge Judith E. Levy 

Magistrate Judge Anthony P. Patti

___________________________________/ 

REPORT AND RECOMMENDATION 

I. RECOMMENDATION: The Court should sua sponte dismiss Plaintiff’s 

claims against remaining Defendant Moody. 

II. REPORT: 

A. Prior Case (Case No. 13-14024 (E.D. Mich.)) 

On September 19, 2013, Emmett Buffman (#19368-424) filed a lawsuit pro 

se pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of 

Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act (“FTCA”) against 

six defendants, five of whom are located at Federal Correctional Institution (FCI) 

Milan. Case No. 5:13-cv-14024-JEL-MKM (E.D. Mich.). On January 6, 2015, 

Judge Levy entered an order which, among other things, granted the individual 

defendants’ motion to dismiss - in part because of Plaintiff’s failure to exhaust 

administrative remedies - and dismissed without prejudice Plaintiff’s claims 

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against the five FCI Milan defendants. (DE 51.) Thus, the United States of 

America is the only remaining, active defendant in that case.1

 

B. Instant Case (Case No. 14-12577 (E.D. Mich.)) 

Meanwhile, Mr. Buffman has attempted to initiate another lawsuit in this 

Court. On June 26, 2014, at the time the initiating document was filed, the Clerk 

of the Court docketed as defendants those five individuals listed in the form 

complaint: Miss Moody, A. McClatchey and J.A. Terris, each of FCI Milan; Mr. 

Samuels (Charles E. Samuels, Jr.), Director Federal Bureau of Prisons (FBOP); 

and Eric J. Holder, Attorney General of the United States. (DE 1 at 1-2.) 

On July 31, 2014, Judge Levy entered an opinion and order of partial 

summary dismissal – dismissing the complaint with prejudice as to defendants 

McClatchey, Terris, Samuel, and Holder - and directing service upon the 

remaining defendant, Miss Moody. (DE 9.) To date, Defendant Moody has not 

been served, and Plaintiff has only reiterated his earlier interest in having her 

served after being awakened by an unrelated show cause order of very recent 

vintage. (See DEs 14, 16, 20, 21.) 

C. Discussion 

Judge Levy has referred this case to me for pretrial matters. (DE 17.) The 

issues currently before the Court are the status of Plaintiff’s initial, June 26, 2014 

                                                            

1Counsel has been assigned to represent Plaintiff (DE 64), and, presently, the 

dispositive motion deadline is set for July 22, 2016 (DE 75).

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filing (DE 1) and whether the Court should further pursue efforts to effect service 

of this lawsuit upon remaining Defendant Moody. For the following reasons, the 

Court should dismiss this matter. 

1. Plaintiff’s initial filing is not a true complaint; it is an 

emergency motion for a restraining order. 

At the outset, the Court must comment on whether Plaintiff intended his 

June 26, 2014 filing to be his complaint. In the June 26, 2014 filing, which 

initiated this case, Plaintiff claims to have filed a complaint on or about June 9, 

2014. (DE 1 at 3.) However, despite reasonable efforts, the Court has been unable 

to locate such a document, other than a standard prisoner civil rights form. (DE 1 

at 1-2, 10.) The remainder of the documents filed with the Court on June 26, 2014, 

which was jointly docketed with the complaint as DE 1, is styled as an emergency 

motion for a restraining order. (DE 1 at 3-9.) Moreover, the Court suspects 

Plaintiff’s reference to a June 9, 2014 filing is actually his Request for 

Administrative Remedy (Form BP-9) in TRT-NCR-2014-04492, which was denied 

at the final stage on or about October 17, 2014. (See, i.e., DE 12 at 1 ¶ 1, DE 21 at 

4; see also BOP Policy 1330.18 (“Administrative Remedy Program”) (Jan. 6, 

2014).) The Court should thus conclude that Plaintiff intended the entirety of his 

June 26, 2014 filing (DE 1) to be his complaint (hereinafter sometimes referred to 

as his “initial filing”), because elsewhere he claims to have filed his complaint on 

June 26, 2014, claims his lawsuit has been pending since that date and references 

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the contents of his motion as if they were the operative pleadings. (See DE 19 at 1 

¶ 1, DE 21 at 1-2.) 

Nonetheless, in the absence of proof that Plaintiff submitted a pre-June 26, 

2014 complaint to the Clerk of this Court for filing, the Court is left to consider 

whether Plaintiff’s June 26, 2014 filing, taken as a whole, constitutes a proper 

complaint. Plaintiff’s 10-page June 26, 2014 filing consists of 3 pages of a form 

prisoner civil rights complaint (DE 1 at 1, 2, 10), 6 pages of an emergency motion 

for a restraining order with a certificate of service (DE 1 at 3-8), and a 1-page 

exhibit (DE 1 at 9). The Court need look no farther than the first substantive page 

of this filing, which bears the title “Emergency Motion for Emergency Restraining 

Order to Have Plaintiff Removed from Any Unit Team Inclusive of Miss Moody 

or Mr. McClatchey,” to see that, in substance, this is really just a motion for 

injunctive relief, a conclusion which is confirmed by the motion’s prayer for relief. 

(See DE 1 at 3, 7.) 

2. Even if the initial filing is construed as a complaint, it seeks 

only injunctive or declaratory relief and, thus, has been 

rendered moot by Plaintiff’s transfer from FCI Milan to 

FCI Elkton.

a. It is questionable whether this filing is a properly 

pleaded complaint under Fed. Rules Civ. P. 7(a)(1), 

8(a) and 10(b). 

Among the pleadings permitted in a lawsuit is a complaint. Fed. R. Civ. P. 

7(a)(1). The only document styled as a “complaint’ in this action is, in reality, 

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nothing more than a standard cover sheet, a list of defendants, and a list of previous 

lawsuits. (DE 1 at 1, 2 & 10.) Fed. R. Civ. P. 8, which sets forth the general rules 

of pleading, gives the requirements for stating a claim for relief. Even after 

examining Plaintiff’s initial filing in its entirety, it is not clear whether it is a 

proper pleading under the Rules, particularly Fed. Rules Civ. P. 8(a)(2) and 10(b), 

assuming it is construed as a pleading, rather than a mere motion. 

Certainly, the initial filing could be considered to have complied with Fed. 

R. Civ. P. 8(a)(1)’s requirement of a “short and plain statement of the grounds for 

the court’s jurisdiction . . . .” Moreover, although the form pages supply no 

substantive factual allegations, assertion of causation or demand for relief– other 

than to identify this as a “prisoner civil rights complaint” brought pursuant to 42 

U.S.C. § 1983 or Bivens (either of which jurisdictional bases would satisfy 28 

U.S.C. § 1331), list the parties, and list previous lawsuits – the pages comprising 

the attached emergency motion for injunctive relief do set forth “a demand for the 

relief sought, which may include relief in the alternative or different types of 

relief.” Fed. R. Civ. P. 8(a)(3). (Compare DE 1, 2 & 10, DE 3-8.) Specifically, 

Plaintiff seeks declaratory and injunctive relief, as well as “such further and other 

relief that this Honorable Court deems just and necessary.” (DE 1 at 7.) 

Nonetheless, it is questionable whether Plaintiff’s initial filing complies with 

Fed. R. Civ. P. 8(a)(2)’s requirement of “a short and plain statement of the claim 

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showing that the pleader is entitled to relief . . . .” The substantive pages of this 

filing mention, inter alia, a “culture of retaliation” and the suggestion that a 

“‘cease and desist’ order” might put an end to “ongoing abuse,” which includes “a 

long list of intentional torts and unintentional torts that include but are not limited 

to [] verbal assault, abuses of process, retaliation, [and] retaliatory behavior every 

moment Buffman is awake (and probably while he is asleep as well), which 

cause[s] him Emotional Distress...as a result of all the Millbrook violations . . . ” 

and which seem “to be of no concern to FCI Milan Staff.” (DE 1 at 6 ¶¶ 7-9.)2

 

However, while Plaintiff’s filing does make use of numbered paragraphs, it is 

difficult to distinguish Plaintiff’s causes of action, and it would have been helpful 

if Plaintiff had stated each claim in a separate count. See also Fed. R. Civ. P. 10(b) 

(“If doing so would promote clarity, each claim founded on a separate transaction 

or occurrence—and each defense other than a denial—must be stated in a separate 

count or defense.”). Nonetheless, “the allegations of the pro se complaint [are 

held] to less stringent standards than formal pleadings drafted by lawyers,” Haines 

v. Kerner, 404 U.S. 519, 520 (1972). Therefore, the Court will assume, arguendo,

                                                            

2 In Millbrook v. United States, 133 S.Ct. 1441, 1446 (2013), the Supreme Court 

held that “the waiver effected by the law enforcement proviso extends to acts or 

omissions of law enforcement officers that arise within the scope of their 

employment, regardless of whether the officers are engaged in investigative or law 

enforcement activity, or are executing a search, seizing evidence, or making an 

arrest.” 

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that the substance of Plaintiff’s initial filing complies with Rules 8(a)(2) and 10(b) 

and will construe it as a pleading.3

b. Even if the initial filing is construed as a complaint, it 

seeks only injunctive relief. 

The Court has gleaned some specifics from Plaintiff’s initial filing. For 

example, Plaintiff claims that Moody’s “ongoing and constant refusal to sign [him] 

out of Education has caused Buffman to submit administrative remedies to correct 

Miss Moody’s behavior[,] to no avail.” Plaintiff explains that “since [he] began 

filing remedies,” Moody’s behavior has “gotten so extreme and outrageous . . . .” 

(DE 1 at ¶ 3) According to Plaintiff, Moody has attempted “to put Buffman back 

into his work environment when he was on Convalescence Care . . . .” (DE 1 at 4 ¶ 

3.)4

 Furthermore, according to Plaintiff, Moody has changed his Custody 

Classification “to reflect a worse score than originally calculated for him by Mr. 

Henley.” (DE 1 at 5 ¶ 5.) In addition, Plaintiff states that, on or about March 27, 

2013, Moody gave him an “Incident Report” for “Being Unsanitary or Untidy.” 

                                                            

3 Evans v. Mercedes Benz Fin. Servs., LLC, No. 11-11450, 2011 WL 2936198, at 

*2 (E.D. Mich. July 21, 2011) (“Even excusing plaintiff's failure to follow Rules 

8(a)(2) and 10(b), a pro se plaintiff must comply with basic pleading requirements, 

including Rule 12(b)(6).”). Interestingly, Plaintiff’s previously filed lawsuit began 

with a more properly formed initiating document. (See Case No. 13-14024 (DE 

1).) 

4 On March 29, 2013, Stephen Gidel, MLP, placed Plaintiff on medical duty status, 

noting, among other things, that he was confined to the living quarters with certain 

exceptions. (DE 1 at 6 ¶ 6, DE 1 at 9.) 

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(DE 1 at 5 ¶ 6.) Also, Plaintiff alleges that, on June 16, 2014, he “learned that 

multiple other inmates have been allowed to sign out of the Education 

Departme[n]t through their Unit Team or Psychology.” (DE 1 at 3 ¶ 2; see also

DE 1 at 6 ¶ 7.).5

This Court’s November 13, 2015 opinion and order noted that Plaintiff’s 

initial filing seeks injunctive relief against an FCI Milan Defendant and further 

noted that Plaintiff has transferred to FCI Elkton. (DE 20 at 2.) Therefore, the 

Court directed Plaintiff to show cause why his case against FCI Milan Defendant 

Miss Moody should not be dismissed as moot. (DE 20 at 5.) In his November 30, 

2015 show cause response, Plaintiff references his June 26, 2014 “complaint” and 

argues that he “seeks more than injunctive relief; other relief to include legal 

remedies regarding tort actions and damages is also sought.” (DE 21 at 1.) 

                                                            

5 Shortly after he filed his initial document, Plaintiff submitted a “motion for 

admission of evidence on the record to be utilized for any and all motions 

presented to this Court in the case at bar at any time during this case” (DE 5 at 1-

2), attached to which was a “sworn statement,” (DE 5 at 3-11). These items were 

dated July 9, 2014 and filed on July 14, 2014. In his sworn statement, Plaintiff 

describes the events of March 27, 2013 and April 1, 2013, as well as the events of 

April 3, 2014 through July 9, 2014. On September 10, 2014, Magistrate Judge 

Komives entered an order granting in part Plaintiff’s motion (DE 13). The Court 

will not pour through Plaintiff’s sworn statement to enlighten the matter at bar, 

because it is not a pleading and because Magistrate Judge Komives’s order 

cautioned Plaintiff that “he must make specific reference to the sworn statement in 

future filings in order for the Court to consider it.” (DE 13 at 4.) Notably, Plaintiff 

does not make specific reference to his sworn statement in response to my show 

cause order (DEs 20, DE 21 at 1-3), discussed infra. 

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According to Plaintiff, he brings tort matters against Defendant Moody in his 

initial filing, i.e., “relief which is beyond injunctive relief, and independent of 

Plaintiff’s transfer from FCI Milan.” (DE 21 at 2.)6

 

Here, the Court should instead conclude that Plaintiff’s June 26, 2014 filing 

seeks only injunctive and declaratory relief. First, two of the paragraphs of the 

prayer for relief seek such relief: (A) “immediate placement in an alternative unit 

with no oversight by Miss Moody or Mr. McClatchey[;]” and (B) a cease and 

desist order setting forth certain declarations. (DE 1 at 7 ¶¶ A, B.)7

 

Second, the other prayer for relief, “such further and other relief that this 

Honorable Court deems just and necessary[,]” DE 1 at 7 ¶ B, does not, alone, 

constitute a request for money damages. To be sure, “[a] court of equity is not 

limited by the precise demands of the pleadings, especially where the pleadings 

contain prayers for such other relief as this Court may deem just and appropriate.” 

Chicago & Eastern Illinois R. Co. v. Illinois Central R. Co., 261 F.Supp. 289 (N.D. 

                                                            

6 He also refers therein to his IFP application (DE 7), two Court orders (DEs 9, 15) 

and his attached grievance response (DE 21 at 4), none of which are pleadings 

under Fed. R. Civ. P. 7(a). 

 

7 Plaintiff does ask that the terms of this request begin “the date of the order and 

continu[e] until Buffman is released from [the] custody of the [FBOP] or any 

Community Corrections Center (halfway house) where Miss Moody or Mr. 

McClatchey would or could have any contact with any member of that staff as 

well[.]” (DE 1 at 7 ¶ B.) Without a showing that Miss Moody’s reach is possible 

beyond FCI Milan, this request will still be interpreted as mooted by Plaintiff’s 

transfer from FCI Milan.   

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Ill. 1966); see also Scholl v. Scholl, 152 F.2d 672 (D.C. Cir. 1945) (where 

appellee’s prayer included the phrase, “[a]nd for such other and further relief as to 

the Court may seem just and proper[,]” the Court found, “[u]nder these 

circumstances, it can hardly be said that the mere failure to include in the 

complaint a specific prayer relating to the rents and the furniture was a defect 

which affected the substantial rights of the parties.”), New Amsterdam Casualty 

Company v. Waller, 323 F.2d 20, 24 (4th Cir. 1963) (a plaintiff “need not set forth 

any theory or demand any particular relief for the court will award appropriate 

relief if the plaintiff is entitled to it upon any theory.”). In other words, “a party’s 

misconception of the legal theory of his case does not work a forfeiture of his legal 

rights.” New Amsterdam Casualty Company, 323 F.2d at 25. Moreover, as noted 

above, pro se complaints are interpreted liberally. Haines, 404 U.S. at 520. 

“When interpreting the pro se papers, the Court should use common sense to 

determine what relief the party desires.” Securities and Exchange Commission v. 

Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992) (citing Simmons v. Zibilich, 542 F.2d 

259, 260 (5th Cir. 1976)). On the other hand, “courts may not rewrite a complaint 

to include claims that were never presented . . . nor may courts construct the 

Plaintiff’s legal arguments for him. Neither may the Court ‘conjure up unpled 

allegations[.]’” Rogers v. Detroit Police Dept., 595 F.Supp.2d 757, 766 (E.D. 

Mich. 2009) (Ludington, J., adopting report and recommendation of Binder, M.J.). 

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Ultimately, it is the nature of the allegations that guides the Court’s 

determination of whether Plaintiff has requested monetary relief. Moffett v. Gene 

B. Glick Co., Inc., 604 F.Supp. 229 (1984) (allegation that Plaintiff was damaged 

“in an amount and character to be proven at trial[,]” was characterized as asserting 

a claim for money damages; prayer that the Court “grant her all appropriate 

relief[,]” was construed as a request for a monetary judgment). In his initial filing, 

Plaintiff mentions “intentional torts and unintentional torts[,]” such as verbal 

assault, abuses of process, retaliation and retaliatory behavior. (DE 1 at 6 ¶ 8.) 

Plaintiff also refers to “[e]motional [d]istress as a result of all the Millbrook

violations seems to be of no concern to FCI Milan Staff.” (DE 1 at ¶ 9.) However, 

all of these allegations are made in support of his request to be removed from 

Defendant Moody’s and Defendant McClatchey’s supervision and do not assert a 

separate claim for damages.8

 Taken in context, the nature of this filing is one 

seeking injunctive relief. 

Preliminarily, that is what is sought by the title: “Emergency Motion for 

Emergency Restraining Order to Have Plaintiff Removed from Any Unit Team 

Inclusive of Miss Moody or Mr. McClatchey[.]” (DE 1 at 3.) Moreover, Plaintiff 

                                                            

8 Attached to Plaintiff’s November 30, 2015 show cause response is a copy of the 

October 17, 2014 Final Denial of Claim (Number TRT-NCR-2014-04492), which 

refers to Plaintiff’s “tort claim” and also refers to the FTCA. (DE 21 at 4.) This 

characterization, made in a document authored by the regional counsel to the BOP, 

again, does not constitute an operative pleading here.

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states that Moody “has taken up a new cause at FCI Milan[,] which goes 

unchecked, unbridled, and totally unbelievable.” (DE 1 at 5 ¶ 4.) He describes 

Moody’s behavior as “oppressive and retaliatory . . . .” (DE 1 at 5 ¶ 5.) He also 

states that Moody “attempted to take all of Buffman’s copies in order to hide the 

fact that he (Buffman) was NOT to return to his job.” (DE 1 at 6 ¶ 6.) 

Furthermore, he alleges a “culture of retaliation within FCI Milan [which] is so 

engrained in the prison . . . .” (DE 1 at 6 ¶ 7.) Elsewhere, he claims that Moody 

and McClatchey and others “are committed to remaining unfair, firm, and 

consistent with their ongoing abuse of Buffman . . . .” (DE 1 at 6 ¶ 8.) In other 

words, he seeks to “check” and “bridle” Defendant Moody’s behavior and to have 

him (Plaintiff) “removed from any unit team” involving her or Defendant 

McClatchey. (DE 1 at 3, 5 ¶ 4.) Thus, in addition to the express characterization 

set forth in the prayer for relief (see DE 1 at 7), the nature of the allegations (see

DE 1 at 3-6 ¶¶ 1-9) supports a “common sense” conclusion that Plaintiff’s initial 

filing does not seek monetary damages; instead, it seeks the injunctive relief 

identified in the title of the filing. Elliott, 953 F.2d at 1582.9

                                                            

9 Plaintiff, himself, supplies a similar characterization of this lawsuit in his 

previously filed “sworn statement,” in which he describes a series of incidents 

from his dealings with Defendant Moody and concludes as follows: “As a result of 

this situation[,] I have filed a federal suit in the Eastern District of Michigan. 

Within the suit[,] I have filed an EMERGENCY RESTRAINING ORDER against 

Miss Moody, and have also requested in that motion for a[n] INJUNCTION which 

would provide me injunctive relief of having a judge order that I be moved to a 

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In sum, at the time he initiated the instant lawsuit, Plaintiff was incarcerated 

at FCI Milan. (DE 1 at 1). His initial filing expressly seeks only injunctive or 

declaratory relief. (DE 1 at 3-7.) He has since been transferred to FCI Elkton in 

Lisbon, OH. (DE 18.) Thus, his claims against Defendant Moody – the only 

remaining defendant - are moot. See, i.e., Kensu v. Haigh, 87 F.3d 172, 175 (6th 

Cir. 1996) (“to the extent Kensu seeks declaratory and injunctive relief his claims 

are now moot as he is no longer confined to the institution that searched his 

mail.”). 

3. Any further prosecution of this case or amendments to the 

pleadings are likely to be futile, as it appears Plaintiff has 

failed to properly exhaust his administrative remedies as to 

his claims against Defendant Moody. 

To the extent, if at all, the Court is considering permitting Plaintiff to 

continue prosecution of this case on the existing “pleadings” or to amend his initial 

filing under Fed. R. Civ. P. 15(a) to cure the aforementioned defects, any such 

attempt is likely to be futile. This is so, because it appears Plaintiff has failed to 

properly exhaust his administrative remedies as to his claims against Defendant 

Moody, regardless of whether his claims seek legal damages or only equitable 

relief. 

                                                                                                                                                                                               

Unit that does NOT HAVE MISS MOODY WORKING IN IT.” (DE 5 at 11 

(emphases in original).)

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The statute governing prisoner lawsuits provides, in part: “No 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) (emphases added). “[F]ederal prisoners suing under Bivens . . .

must first exhaust inmate grievance procedures just as state prisoners must exhaust 

administrative processes prior to instituting a § 1983 suit.” Porter v. Nussle, 534 

U.S. 516, 524 (2002). “Federal law requires a prisoner challenging prison 

conditions pursuant to 42 U.S.C. § 1983, Bivens, or other federal law to exhaust all 

available administrative remedies before filing suit in federal court.” Smith v. 

Holland, No. CIV. 6:13-72-KKC, 2014 WL 4716620, at *3 (E.D. Ky. Aug. 26, 

2014) (citing 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002)) 

(emphasis added); see also Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) 

(a prisoner “may not exhaust administrative remedies during the pendency of the 

federal suit.”) (citation omitted). 

In his initial filing, Plaintiff contends that “Miss Moody’s ongoing and 

constant refusal to sign Buffman out of Education has caused Buffman to submit 

administrative remedies to correct Miss Moody’s behavior[,] to no avail.” DE 1 at 

4 ¶ 3. “[F]ailure to exhaust is an affirmative defense under the PLRA, and . . . 

inmates are not required to specially plead or demonstrate exhaustion in their 

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complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). While Plaintiff is not 

required to specifically plead exhaustion in his complaint, the Court cannot help 

but notice that Plaintiff’s administrative grievance Claim Number TRT-NCR2014-04492, was denied at the final stage on or about October 17, 2014. (See DE 

21 at 4.) 10

The Court assumes Claim Number TRT-NCR-2014-04492 is Plaintiff’s 

administrative grievance concerning his claims against Defendant Moody. (DE 21 

at 4.)11 While the date on which Plaintiff initiated this grievance is unclear, it is 

clear that the grievance was denied at the final stage on or about October 17, 2014, 

a date well after the June 26, 2014 initial filing in this case. (DE 1, DE 21 at 4.) 

The Supreme Court has directed that “proper exhaustion of administrative 

                                                            

10 Even after Jones, at least one Court has permitted sua sponte dismissal where the 

failure to exhaust is apparent on the face of the complaint. “[E]ven though 

exhaustion of administrative remedies need not be pled specifically in the 

complaint, where it is apparent from the face of the complaint that an inmate has 

failed to exhaust the prison grievance procedure sua sponte dismissal is appropriate 

on initial review for failure to state a claim upon which relief may be granted.” 

Gergely v. Warren Corr. Inst., No. 1:09-CV-757, 2009 WL 4597943, at *3 (S.D. 

Ohio Dec. 3, 2009). See also Frost v. Stalnaker, No. 1:09CV662, 2009 WL 

3873666, at *3 (S.D. Ohio Nov. 18, 2009) (Dlott, C.J., adopting report and 

recommendation of Hogan, M.J.), Brown v. Lebanon Corr. Inst., No. 1:09-CV513, 2009 WL 2913930, at *2 (S.D. Ohio Sept. 9, 2009) (Dlott, C.J.). Nonetheless, 

the Court need not consider sua sponte dismissal here on the basis of exhaustion if 

it agrees with the other conclusions reached in my report. 

11 “Federal prisoners raise grievances through the Bureau of Prisons' (BOP) 

Administrative Remedy Program.” Hinton v. Parsons, 73 F. App'x 872, 874 (6th 

Cir. 2003).   

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remedies is necessary.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). “Proper 

exhaustion demands compliance with an agency's deadlines and other critical 

procedural rules because no adjudicative system can function effectively without 

imposing some orderly structure on the course of its proceedings.” Id. at 90-91. 

This Court recently summarized the BOP’s Administrative Remedy Program as 

follows: 

The BOP Administrative Remedy Program is a multi-tier process that 

is available to inmates confined in institutions operated by the BOP 

for “review of an issue relating to any aspect of his/her own 

confinement.” 28 C.F.R. § 542.10. An inmate must initially attempt to 

informally resolve the issue with institutional staff. See 28 C.F.R. § 

542.13(a). If informal resolution fails or is waived, an inmate may 

submit a BP–9 Request [BP-229] to within 20 days of the date on 

which the basis for the Request occurred, or within any extension 

permitted. See 28 C.F.R. § 542.14. An inmate who is dissatisfied with 

the Warden's response to his BP–9 Request may submit a BP–10 

Appeal [BP-230] to the Regional Director of the BOP within 20 days 

of the date the Warden signed the response. See 28 C.F.R. § 

542.15(a). The inmate may appeal to the BOP's General Counsel on a 

BP–11 form [BP-231] within 30 days of the day the Regional Director 

signed the response. See id. Appeal to the General Counsel is the final 

administrative appeal. See id. If responses are not received by the 

inmate within the time allotted for reply, “the inmate may consider the 

absence of a response to be a denial at that level.” 28 C.F.R. § 542.18. 

Vaughn v. Terris, No. 2:15-CV-10092, 2015 WL 3605080, at *2 (E.D. Mich. June 

8, 2015); see also U.S. D.O.J. F.B.O.P. Program Statement No. 1330.18. 

The copy of the Office of Regional Counsel’s October 17, 2014 letter 

appears to be the culmination of the appeals stage, but also purports to constitute a 

“Final Denial of Claim.” (DE 21 at 4; 28 C.F.R. § 542.15.) In any event, it 

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remains that the June 26, 2014 initiation of the instant case occurred before the 

administrative process on Claim Number TRT-NCR-2014-04492 had run its 

course. In fact, Plaintiff admits that “this action was filed during the 

Administrative Remedy Process as attached in Exhibit A [(DE 21 at 4)].” (DE 21 

at 2.) Thus, unless there is another, properly exhausted, grievance upon which 

Plaintiff would rely to support his claims against Defendant Moody initiated by the 

June 26, 2014 filing, it is likely the instant case will face a successful motion to 

dismiss on the basis of failure to exhaust. This will prove fatal to Plaintiff’s case, 

irrespective of whether his pleadings are adequate or his claims seek monetary 

damages. 

Likewise, even if it was Plaintiff’s intention to pursue damage claims under 

the FTCA, he must exhaust his administrative remedies. “The government has 

waived its sovereign immunity to suits for tort actions under the FTCA, but only 

insofar as the plaintiff has exhausted his administrative remedies.” Blakely v. 

United States, 276 F.3d 853, 864 (6th Cir. 2002) (citing 28 U.S.C. § 2675(a); 

Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991) (“A prerequisite to suit 

under the FTCA, ... is the exhaustion by the plaintiff of administrative 

remedies.”)). “Section 2675(a) provides that an ‘action shall not be instituted upon 

a claim against the United States for money damages ... unless the claimant shall 

have first presented the claim to the appropriate Federal agency and his claim shall 

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18

have been finally denied by the agency in writing and sent by certified or 

registered mail.’” Blakely, 276 F.3d at 864. “A claim submitted to the proper 

administrative agency is considered sufficient to satisfy the exhaustion requirement 

if it is a ‘written notification of an incident, accompanied by a claim for money 

damages in a sum certain for injury to or loss of property, personal injury, or 

death.’” Id. (quoting Lundstrum, 954 F.2d at 1145). See also, Wilson v. United 

States, 93 F. App'x 53, 54 (6th Cir. 2004) (“Claimants seeking to bring an action 

under the FTCA against the United States for money damages must first present 

the claim to the appropriate agency and have the claim finally denied by the 

agency. . . . To raise a Bivens claim, a federal prisoner must first raise his 

grievance through the BOP's Administrative Remedy Program.”) (citing 28 U.S.C. 

§ 2675(a) and 28 C.F.R. §§ 542.10, et seq.) (other internal citation omitted).

4. The Court need not undertake further effort at service upon 

Defendant Moody, because Plaintiff has not shown cause 

why the case against Defendant Moody should not be 

dismissed. 

To date, Defendant Moody has not appeared, nor does it appear that she has 

been served. (See DE 14.) As stated in my November 13, 2015 order: 

. . . there is no executed “waiver of the service of summons” or other 

evidence of service on the docket. To the contrary, the docket 

demonstrates a lack of successful service. (See, i.e., DE 14.) 

Attempts at service upon Defendant Moody have not been without 

effort by the Court and the U.S. Marshal. For example, on August 5, 

2014, the U.S. Marshal was provided with papers for service upon 

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Moody. (DE 11.) The waiver was returned to sender on the basis that 

Moody was not at FCI Milan. (DE 14.). 

 

(See DE 20 at 2.) I then noted that Plaintiff’s Complaint seeks injunctive relief 

against an FCI Milan Defendant, but Plaintiff has transferred to FCI Elkton. (DE 

20 at 2-4.) 

Plaintiff’s November 30, 2014 show cause response presents the argument 

that he seeks more than injunctive relief, such as legal remedies regarding tort 

actions and damages. (DE 21 at 1-2.) Plaintiff further requests an order regarding 

an address at which Defendant Moody may be served and receive correspondence. 

(DE 21 at 2-3.) However, for the reasons stated above, the Court should conclude 

that Plaintiff’s initial filing seeks only injunctive and/or declaratory relief. Such 

relief is rendered moot by Plaintiff’s transfer from FCI Milan to FCI Elkton. 

Moreover, the docket entries suggest a failure to exhaust administrative remedies 

in any case. Therefore, service upon Defendant Moody is unnecessary, and the 

case should be dismissed. Alternatively, if the Court believes that Plaintiff has 

actually pleaded any state law claims which would otherwise survive the 

aforementioned impediments, the Court should exercise its discretion to refrain 

from retaining supplemental jurisdiction and dismiss those claims on that basis. 28 

U.S.C. § 1367(c)(3).

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III. PROCEDURE ON OBJECTIONS: 

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

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Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: April 6, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

I hereby certify that a copy of the foregoing document was sent to parties of record 

on April 6, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti

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