UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARVIN BELSER,

Plaintiff,

v. CASE NO. 2:14-CV-13848-LPZ-PTM

SARAH ALTON, RN, SUSAN B. DISTRICT JUDGE ARTHUR J. TARNOW

McCAULEY, Health Care Unit MAGISTRATE JUDGE PATRICIA T. MORRIS

Manager, JOSH BUSKIRK, Physician

Assistant, MICHAEL BROSTOSKI,

Doctor, MELISSA LAPLAUNT, HUM,

WILIAM BORGERDING, Assistant Chief

Medical Officer, M. GRABOWSKI, SRF,

O.T. WINN, Warden, D. RICUMSTRICT,

Deputy Warden, ZUMMER, RUM, and

McCLEAN, ARUS,

Defendants.

 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons stated below, I recommend that:

1. Defendants’ motion to dismiss or for summary judgment (Doc. 29) be 

GRANTED,

2. Plaintiff’s claims against non-moving Defendants Josh Buskirk and Michael 

Brostoski be DISMISSED, 

3. Plaintiff’s motions for preliminary injunction (Docs. 19, 33) and for 

appointment of counsel (Docs. 18, 34) be DENIED, and

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4. Defendant Josh Buskirk’s Motion to Compel (Doc. 37) be DENIED as moot.

II. REPORT

A. Introduction and Procedural History

This case was referred to Magistrate Judge Patricia T. Morris, see 28 U.S.C. § 

636(b)(1)(B); E.D. Mich. LR 72.1(b)(3), for resolution of all pretrial matters, on January 

26, 2015. (Doc. 31.) Plaintiff is a pro se prisoner currently incarcerated at Marquette 

Brach Prison in Marquette, Michigan. The events that gave rise to the allegations in the 

Complaint occurred while Plaintiff was incarcerated at the Saginaw Correctional Facility 

(“SRF”), in Saginaw, Michigan, and the Chippewa Correctional Facility (“URF”) in 

Kincheloe, Michigan. 

Plaintiff’s complaint does not organize his claims, but they fall into two basic 

categories: (1) Defendants’ failure to provide an air mattress, velcro shoes, and physical 

therapy, as stated in grievance SRF-2012-10-1890-12I, including medical malpractice 

and negligence, and (2) defendants’ threats that if Plaintiff did not sign off on the above 

grievance, he would be “sent up north” to a prison in Michigan’s upper peninsula, and 

these threats materialized when Plaintiff was transferred to the northern prison.

Plaintiff seeks to “[h]ave all of [his] medical special accommodations returned, 

[and to see] . . . a medical assistant.” (Doc. 1 at ID 5.) Plaintiff also seeks the maximum 

“amount allowed by the courts, court costs and attorneys fees and filing fees.” (Doc. 1 at 

ID 8.) 

On December 22, 2104, 2014, Defendants Sarah Alton, Susan McCauley, Melissa 

LaPlaunt, William Borgerding, Melissa Grabowski, O’Bell Thomas Winn, Donald

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Ricumstrict, James Zummer, and Todd McLean moved to dismiss or for summary 

judgment. (Doc. 29.) Plaintiff responded on February 23, 2015. (Doc. 36.) Plaintiff also 

filed two motions for appointment of counsel (Docs. 18, 34) and two motions for 

preliminary injunction and/or protective order. (Docs. 19, 33.) 

In the motion to dismiss or for summary judgment, defendants contend that 

Plaintiff’s complaint should be dismissed because Plaintiff failed to exhaust 

administrative remedies, failed to state a claim upon which relief can be granted, failed to 

allege the personal involvement of several defendants, and because state officials sued in 

their official capacity are entitled to Eleventh Amendment immunity. Based on my 

recommendation that summary judgment should be granted on the merits of the claims, I 

do not reach defendants’ arguments regarding personal involvement or Eleventh 

Amendment immunity. Also, the analysis below applies to the claims against nonmoving defendants Josh Buskirk and Michael Brostoski. Consequently, I recommend 

dismissing the claims against them.

Accordingly, these five motions are ready for report and recommendation without 

oral argument under Local Rule 7.1.

B. Defendants’ Motion for Summary Judgment (Doc. 29)

Defendants contend that Plaintiff’s complaint should be dismissed for failure to 

exhaust administrative remedies, for lack of allegations of personal involvement as to 

Defendants Borgerding, LaPlaunt, Alton, Grabowski and McLean, and based on Eleventh 

Amendment immunity for state officials sued in their official capacities. (Doc. 29.)

1. Exhaustion

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a. Standards

Congress passed the Prison Litigation Reform Act of 1995 (“PLRA”) “in response 

to a sharp rise in prisoner litigation in federal courts.” Woodford v. Ngo, 548 U.S. 81, 83 

(2006). By passing the PLRA, Congress attempted to ensure that “the flood of 

nonmeritorious [prisoner civil rights] cases [did] not submerge and effectively preclude 

consideration of the allegations with merit.” Jones v. Bock, 549 U.S. 199, 202 (2007). 

Congress equipped the PLRA with several mechanisms designed to reduce the quantity 

and increase the quality of the claims that came to federal court. Id. A “centerpiece” of 

the PLRA was the “invigorated” exhaustion requirement: “No action shall be brought 

with respect to prison conditions under § 1983 . . . 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; see also Woodford, 548 U.S. at 84 (“A centerpiece of 

the PLRA’s effort ‘to reduce the quantity . . . of prisoner suits’ is an ‘invigorated’ 

exhaustion provision.”) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). Courts 

consider the PLRA’s suits “brought with respect to prison conditions” to include “all 

inmate suits about prison life, whether they involve general circumstances or particular 

episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. 

at 532.

The Woodford Court held that the PLRA’s exhaustion of administrative remedies 

requires (1) that no remedies currently remain available, and (2) that the remedies that 

had been available to the prisoner were “properly” exhausted. 548 U.S. at 93. Prior to 

Woodford there were conflicting interpretations of the PLRA’s exhaustion requirement. 

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Some circuits interpreted the exhaustion requirement to mean that plaintiffs must have no 

more administrative remedies available before bringing their cases to federal court. Id.

Others interpreted it to mean that plaintiffs must have “properly” exhausted their 

available remedies by following the agency’s procedural requirements such as “deadlines 

and other critical procedural rules.” Id.

In finding that exhaustion of remedies required “proper” exhaustion, the Court was 

persuaded by the “striking[]” similarities between the language of the PLRA and the 

doctrine of exhaustion in administrative law. Id. at 102. It also considered the purposes 

behind the exhaustion requirement, reasoning that an interpretation that did not require 

proper exhaustion would render the PLRA “toothless”–enabling a prisoner to bypass 

prison remedies by simply disregarding or ignoring deadlines. Id. at 95. “Proper 

exhaustion” means that the plaintiff complied with the administrative “agency’s deadlines 

and other critical procedural rules.” Id. at 90. Complaints and appeals must be filed “in 

the place, and at the time the prison’s administrative rules require.” Id. at 87 (quoting 

Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). 

In Jones, the Court instructs us to look to the prison’s policy itself when 

determining “whether a prisoner has properly exhausted administrative remedies–

specifically, the level of detail required in a grievance to put the prison and individual on 

notice of the claim.” 549 U.S. at 205, 218 (“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.” (emphasis added)). Specifically, the Jones Court was determining 

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whether a plaintiff needed to identify the defendant by name during the initial grievance 

process. Since the MDOC’s policy at the time did not require that level of specificity the 

Court did not find that the PLRA required it. Id. However, the current MDOC policy

requires this level of specificity. 

A plaintiff does not need to show proper exhaustion as a part of their complaint. 

Jones, 549 U.S. at 216. Rather, failure to properly exhaust remedies is now an affirmative 

defense. Id. 

b. MDOC policy

The MDOC provides prisoners with a grievance procedure for bringing forward 

their concerns and complaints. See MDOC Policy Directive (“PD”) 03.02.130 (eff. July 

9, 2007). The MDOC’s grievance procedure consists of steps that a prisoner must follow 

prior to filing a complaint in court, and each step is accompanied by a time limit. First, 

the grievant must attempt to resolve the issue with the person involved “within two 

business days after becoming aware of a grievable issue, unless prevented by 

circumstances beyond his/her control . . . .” MDOC PD 03.02.130(P).

If the initial attempt to resolve the issue with the person involved is impossible or 

unsuccessful, the inmate must then submit a Step I grievance form within five days. 

MDOC PD 03.02.130(v). If the grievance is accepted, the prison staff is required to 

respond in writing to a Step I grievance within fifteen days, unless an extension is 

granted. MDOC PD 03.02.130(X). The policy provides the following instructions 

regarding the information that needs to be included in a grievance:

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The issues should be stated briefly but concisely. Information 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.

MDOC PD 03.02.130(R). If the inmate is not satisfied with the response, or does 

not receive a response within fifteen days, he must file a Step II appeal within ten 

business days. MDOC PD 03.02.130(BB). Once again, if the inmate is dissatisfied with 

the response at Step II or does not receive a Step II response within fifteen days, he has 

ten business days to submit a Step III appeal to the Prisoner Affairs Section. MDOC PD 

03.02.130(FF). The Step III response concludes the administrative grievance process. 

According to MDOC policy, a grievance is not complete until the MDOC has responded 

to the Step III grievance. MDOC PD 03.02.130(B),(FF),(GG).

Woodford and Jones require inmates to file grievances that conform to MDOC 

procedures in order to properly exhaust available remedies. 548 U.S. at 93; 549 U.S. at 

218.

c. Analysis and Conclusions

Here, Plaintiff filed six grievances through Step III while incarcerated at SRF and 

URF. (Doc. 29 at ID 106, Ex. B.) Five of those grievances (all beginning at SRF) were 

still pending when Plaintiff filed his complaint; therefore, none of these grievances were 

properly exhausted at the time the Complaint was filed. Woodford, 548 U.S. at 94-95; 

Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (holding that a prisoner “may not 

exhaust administrative remedies during the pendency of the federal suit”).

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Plaintiff has alleged that he requested Step II forms from Defendant McLean but 

that she did respond to his request. It is unclear what topics and which defendants, if any, 

these grievances addressed. (Doc. 35 at ID 184, 187.) Construing the facts in favor of the 

non-moving party, it is possible that these grievances, for which Plaintiff requested but 

was not given Step II forms, addressed the topics alleged in the complaint. If this were so, 

and if Defendant Mclean were the grievance coordinator, it is arguable that Plaintiff’s 

failure to reach Step II, despite his efforts to do so, could not be used against him and he 

could not be faulted for failure to exhaust. Peterson v. Cooper, 463 F. App’x 528, 530 

(6th Cir. 2012) (holding that after Jones v. Bock, prisoner does not have to show that he 

requested the grievance form from every possible source, all he need show is that he 

requested the form from the grievance coordinator to exhaust). However, Defendant 

McLean is the Assistant Resident Unit Supervisor (“ARUS”) and not the grievance 

coordinator. Since Plaintiff did not request the Step II forms from the grievance 

coordinator, as required by prison policy, it appears that he did not properly exhaust any 

claims other than those stated in the sixth grievance, SRF-12-10-1890-12i. Since the sixth 

grievance, SRF-12-10-1890-12i, was pursued through Step III, Plaintiff properly 

exhausted this grievance. 

Even if Plaintiff had exhausted his remedies as to all the claims raised in his 

complaint, I suggest that the result would be the same. 

2. Merits of the claims

A civil rights action under 42 U.S.C. § 1983 consists of two elements: (1) The 

defendant acted under color of state law; and (2) the offending conduct deprived the 

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plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 

1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). “If a plaintiff fails to make a 

showing on any essential element of a § 1983 claim, it must fail.” Redding v. St. Eward, 

241 F.3d 530, 532 (6th Cir. 2001).

When a plaintiff is proceeding without the assistance of counsel, the court is 

required to liberally construe the complaint and hold it to a less stringent standard than a 

similar pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972); 

Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). However, even pro se complaints 

must satisfy basic pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 

1989).

The “deliberate indifference to serious medical needs of prisoners” violates the 

Eighth Amendment’s Cruel and Unusual Punishment Clause. Estelle v. Gamble, 429 U.S. 

97, 104 (1976). The inquiry incorporates objective and subjective elements in a twopronged standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 

501 U.S. 294, 298 (1991)). The objective inquiry is whether the deprivation was 

“sufficiently serious” and the subjective prong considers whether the state of mind of the 

official was sufficiently culpable. Id.

The Sixth Circuit distinguishes between allegations of complete denial of medical 

care and inadequate medical treatment. Westlake v. Lucas, 537 F.2d 857, 860, n.5 (6th

Cir. 1976). “’Where a prisoner has received some medical attention and the dispute is 

over the adequacy of the treatment, federal courts are generally reluctant to second guess 

medical judgments and to constitutionalize claims which sound in state tort law.’” Brock 

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v. Crall, 8 F. App’x 439, 440-41 (6th Cir. 2001) (quoting Westlake, 537 F.2d at 860, n.5). 

A “difference of opinion between a plaintiff and his doctor regarding his diagnosis and 

treatment do[es] not state an Eighth Amendment claim.” Smith v. Sator, 102 F. App’x 

907, 909 (6th Cir. 2004). 

a. Wheelchair, air mattress, Velcro shoes, and toenail clipping

In the sixth grievance, which was properly exhausted through Step III, SRF-12-10-

1890-12i, Plaintiff asked to return his “broken” and “small” wheelchair, for a 

replacement air mattress, for new velcro shoes, and also wanted his toenails clipped. 

(Doc. 29, Ex, B at ID 136-37.) The investigation into the grievance found that he was 

given this “wheelchair . . . [because it] fit through the cell doors at this facility. The 

wheelchair is functional and meets your medical needs.” (Doc. 29, Ex. B at ID 140.) 

Plaintiff had been scheduled to meet with a nurse regarding his new shoes (for a medical 

assessment of his needs) and a toenail clipping had also been scheduled. (Id.) Finally, as 

to the air mattress, Plaintiff was “advised to contact the officer in your unit. They will 

contact maintenance to determine if repair is possible. If it cannot be repaired, they will 

notify Health Care for replacement.” (Id.)

I suggest that Plaintiff’s allegations state a mere disagreement over the type of 

treatment he received, which fails to state a constitutional claim. See Smith, 102 F. App’x 

at 909; Westlake, 537 F.2d 857, 860, n.5 Here, the prison officials gave a rational 

explanation for replacing Plaintiff’s old wheelchair with one that he found unsatisfactory, 

i.e., that the wheelchair of choice would not fit through the cell doors. I therefore suggest 

that this claim does not rise to the level of a viable constitutional claim. Stewart v. 

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Gracik, No.1:10-cv-698, 2011 WL 4559197, at *13 (W.D. Mich. Aug. 26, 2011) (holding 

where plaintiff refused a wheelchair because he wanted a wheelchair with a different type 

of foot rest than the one provided, plaintiff alleged a mere disagreement over a medical 

course of treatment; thus, defendants were entitled to summary judgment). As to the air 

mattress, the prison officials told Plaintiff who to contact for repair or replacement. I 

therefore suggest that this claim fails to state a constitutional violation. Maxwell v. Corr. 

Med. Servs., No. 1:10-CV-404, 2011WL 672075, at *4 (W.D. Mich. Jan. 18, 2011)

(granting summary judgment because disagreement over whether an air mattress was 

necessary “does not implicate the Eighth Amendment.”).

Finally, Plaintiff’s requests for Velcro shoes and to have his toe nails clipped had 

been addressed. Even if they had not, I further suggest that such claims fall short of a 

constitutional violation. Mathews v. Raemisch, 513 F. App’x 605, 607 (7th Cir. 2013)

(finding summary judgment in favor of defendants appropriate where plaintiff alleged 

that he requested Velcro shoes but “provided no evidence that the defendants who denied 

the requests had any reason to believe the shoes were medically necessary.”); Garza v. 

Turley, 490 F. App’x 83, 86 (10th Cir. 2012) (finding that “confiscation [of] his custommade shoes and failing to provide him with an adequate replacement” did not rise to the 

level of a constitutional violation). I therefore suggest that Defendants’ motion should be 

granted as to these claims.

b. Threat that Plaintiff would be “sent up north”

Plaintiff claims that defendants threated to transfer him to a prison in the upper 

peninsula of Michigan if he did not withdraw his grievance. To state a claim for 

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retaliation under the First Amendment, a plaintiff must allege that (1) he engaged in 

protected conduct, (2) an adverse action was taken against him, and (3) there is a casual 

connection between the first two elements, i.e., the adverse action was motivated at least 

in part by the plaintiff’s protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Cir. 1999). The adverse action must be one that would deter a person of ordinary 

firmness from the exercise of the right at stake, which here is the filing of grievances 

against prison officials. Id. at 396. Generally, a prison official’s decision to transfer a 

prisoner from the general population of one prison to another is not considered adverse. 

Smith v. Yarrow, 78 F. App’x 529, 543 (6th Cir. 2003) (collecting cases). Here, Plaintiff 

has not alleged any unusual circumstances that would show that transfer to a prison in the 

upper peninsula was adverse. Therefore, he has failed to state a claim of retaliation. 

Hermansen v. Ky Dep’t. of Corr., 556 F. App’x 476, 477 (6th Cir. 2014) (finding that 

transfer to another prison does not qualify as an adverse action absent evidence that 

transferee prison is significantly more dangerous or that transfer would impair access to 

courts). I therefore suggest that Defendants’ motion should be granted as to these claims.

c. Plaintiff’s motions

Since I recommend that defendants’ motion be granted and the case dismissed, I 

further recommend that Plaintiff’s motions be denied.

3. Conclusion

For all the reasons stated above, I recommend that defendants’ motion to dismiss 

or for summary judgment (Doc. 29) be granted, that Plaintiff’s motions for preliminary 

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injunction (Docs. 19, 33) and for appointment of counsel (Docs. 18, 34) be denied, and 

Defendant Buskirk’s motion to compel (Doc. 37) be denied.

I also recommend dismissing the claims against Defendants Buskirk and 

Brostoski. The claims stated against them are same as those lodged against the moving 

defendants; thus the claims should be dismissed for the same reasons, despite the fact that 

those defendants did not join in the motion. See Taylor v. Acxiom Corp., 612 F.3d 325, 

340 (5th Cir. 2010) (“While the district court did dismiss sua sponte some defendants 

who did not join in the motion to dismiss, there is no prejudice to the plaintiffs in 

affirming the judgment in its entirety because the plaintiffs make the same allegations 

against all defendants.”); Eriline Co., S.A. v. Johnson, 440 F.3d 648, 655, n.10 (4th Cir. 

2006) (“Where a complaint plainly fails to state a claim for relief, a district court has ‘no 

discretion’ but to dismiss it.” (citing 5A Charles Wright & Arthur R. Miller, Federal 

Practice and Procedure § 1357 (2d ed. 1990))).

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and 

file specific written objections to the proposed findings and recommendations. A party 

may respond to another party’s objections within 14 days after being served with a copy.” 

Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections 

constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; 

Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The parties are advised that making 

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some objections, but failing to raise others, will not preserve all the objections a party 

may 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, 1373 (6th Cir. 1987). According to E.D. Mich. LR 72.1(d)(2), a copy of any 

objections is to be served upon this magistrate judge.

Any objections must be labeled as “Objection No. 1,” “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 Objection No. 2,” etc. If the Court determines that any objections 

are without merit, it may rule without awaiting the response.

Date: March 9, 2015 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record. A 

hard copy was also sent via First Class Mail to Marvin Belser #352904 at Marquette 

Branch Prison, 1960 U.S. Highway 41 South, Marquette, MI 49855.

Date: March 9, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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