UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Emmett Buffman, 

Plaintiff, 

v. 

Miss Moody, et al., 

Defendants. 

________________________________/

Case No. 14-cv-12577 

Judith E. Levy 

United States District Judge 

Mag. Judge Anthony P. Patti 

ORDER ADOPTING THE REPORT & RECOMMENDATION [22] 

AND DISMISSING ALL REMAINING CLAIMS 

 On June 26, 2014, plaintiff Emmett Buffman filed what he titled 

an “Emergency Motion for Emergency Restraining Order To Have 

Plaintiff Removed From Any Unit Inclusive of Miss Moody or Mr. 

McClatchey”. (Dkt. 1 at 3-8.) That filing also included a Prisoner Civil 

Rights Complaint cover sheet and a Civil Cover Sheet for Prisoner 

Cases. (Id. at 1, 12.) 

 On July 31, 2014, the Court dismissed all defendants from this 

case except for Miss Moody. (Dkt. 9.) On November 13, 2015, 

Magistrate Judge Patti issued an order requiring plaintiff to show cause 

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why his case against remaining defendant Moody should not be 

dismissed both for failure to serve her and due to the seeming mootness 

of his emergency motion following his transfer from FCI Milan to FCI 

Elkton. (Dkt. 20.) Plaintiff responded on November 30, 2015, citing 

unpleaded claims arising from his application to proceed without 

payment of fees and attaching a denial of an administrative grievance, 

dated October 17, 2014. (Dkt. 21.) He also sought a court order 

requiring the Federal Bureau of Prisons to provide information to the 

U.S. Marshals Service regarding a first name and an address for 

Moody, because plaintiff lacked sufficient information to identify or 

locate Moody for purposes of service. (Id.) 

 On April 6, 2016, Judge Patti issued a Report and 

Recommendation recommending that the Court dismiss the remaining 

claims in this case on the grounds that: 1) the initial filing in this 

matter is not a true complaint, but is instead an emergency motion for a 

restraining order; 2) even if the initial filing is construed as a 

complaint, it was rendered moot by plaintiff’s transfer out of the facility 

in which Moody worked; and 3) any amendment of the complaint would 

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be futile, as plaintiff failed to exhaust his administrative remedies prior 

to filing suit. (Dkt. 22.) 

 Following an extension of the time to file objections to the Report 

and Recommendation (Dkt. 24), plaintiff timely filed his objections, 

which were received by the Court on May 23, 2016. (Dkt. 25.) When 

resolving objections to a Report and Recommendation, the Court “must 

determine de novo any part of the magistrate judge’s disposition that 

has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The Court “may 

accept, reject, or modify the recommended disposition; receive further 

evidence, or return the matter to the magistrate judge with 

instructions.” Id.; see also 28 U.S.C. § 636(b)(1). 

I. Analysis 

 Plaintiff sets forth four objections to the Report and 

Recommendation: 1) the liberal standard applicable to pro se pleadings 

requires the Court to construe his “Emergency Motion” as a complaint; 

2) the purported complaint includes allegations of injuries and 

retaliation, part of the retaliation being the post-filing transfer that 

may render this case moot; 3) the circumstances of his transfer 

rendered him unable to exhaust his administrative remedies before 

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October 17, 2014, and therefore amendment of his motion/complaint 

would not be futile; and 4) the burden for plaintiff to show cause as to 

why this case should not have been dismissed for failure to serve Moody 

should be on defendant, because he has already made his case as 

complainant. 

A. Objection 1: Construing the Initial Filing 

Plaintiff’s first objection requires the Court to review those filings 

he claims constitute a complaint. In federal court, a pro se complaint is 

entitled to a liberal construction and “must be held to less stringent 

standards than formal pleadings drafted by lawyers[.]” Erickson v. 

Pardus, 551 U.S. 89, 94 (2007) (citation omitted). On June 26, 2014, 

plaintiff filed his “Emergency Motion” attached to a Prisoner Civil 

Rights Complaint cover sheet. (Dkt. 1.) The motion seeks injunctive 

relief against Moody for a variety of injuries arising from what plaintiff 

deemed her “extreme and outrageous behavior.” (Id. at 5.) On review of 

the motion, plaintiff does not cite any law that Moody violated, but 

instead strings together a series of allegations that he claims caused 

him emotional distress. 

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As Judge Patti rigorously detailed, plaintiff’s motion seeks only 

injunctive relief, rather than monetary or other relief. (Dkt. 22 at 12-

13.) On July 14, 2014, the Court also received a sworn statement from 

plaintiff in which he characterized his filing as “an EMERGENCY 

RESTRAINING ORDER against Miss Moody” that included a request 

“in that motion for a INJUNCTION which would provide me 

injunctive relief of having a judge order that I be moved to a Unit 

that does NOT HAVE MISS MOODY WORKING IN IT.” (Dkt. 5 at 

11 (emphasis in original).) 

Plaintiff’s original motion also referenced a separate complaint 

filed on June 9, 2014. (Dkt. 1 at 3.) No such filing is on record with this 

Court. In his emergency motion, plaintiff stated that a separate 

complaint was “submitted . . . to this honorable court for injustices 

which are occurring to Buffman even as he is submitting this 

EMERGENCY MOTION.” (Id. (emphasis in original).) To the extent 

that plaintiff attempts to recast his motion as a complaint, he has 

routinely done so by citing to other documents filed after the motion. 

(See, e.g., Dkt. 21 at 2 (citing a nonexistent page of plaintiff’s second 

application to proceed in forma pauperis).) 

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On its face, the original filing in this case is not a complaint. It is 

a motion filed for injunctive relief pursuant to a complaint that plaintiff 

believed he filed on June 9, 2016. Plaintiff himself differentiated the 

two. Pro se pleadings are subject to a less stringent standard than 

those prepared by attorneys for represented parties. However, the 

Court cannot treat a motion filed subsequent to an unfiled but clearly 

referenced complaint as the complaint itself. Accordingly, Judge Patti’s 

analysis was correct. 

B. Objection 2: Additional Allegations of Injuries, Including 

Transfer as Retaliation 

Plaintiff’s second objection seems to argue that he alleged a 

variety of injuries and retaliation, and that the transfer that is the basis 

of Judge Patti’s recommendation that the case be dismissed as moot 

was part of the retaliation alleged. 

As best the Court can discern, the purpose of this argument is 

twofold: first, to show that plaintiff was alleging injuries and pursuing 

claims in his motion other than those serving as the basis for his 

injunctive relief, rendering his motion a complaint, and second, to show 

that the case is not moot both because there are claims other than 

injunctive relief in the motion, and because the act rendering the case 

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moot was part of the injury the case sought to redress. The additional 

allegations plaintiff points to are either not in his motion and have not 

been asserted in this case, or are in the motion, and are part of the 

injuries alleged as the basis for injunctive relief. Either way, those 

allegations would not convert his motion for injunctive relief to a 

complaint, or qualify as claims other than ones for injunctive relief. 

Plaintiff’s transfer could not have been a part of the retaliation 

alleged in his complaint. Plaintiff filed his motion on June 26, 2014, 

and notified the Court that he had “recently been transferred” from FCI 

Milan to FCI Elkton in a letter written on June 11, 2015. (Dkt. 18 at 1.) 

Plaintiff also seems to make other allegations about his treatment with 

regard to the transfer, but does not allege in his motion or in his 

objections that his complaint against Moody was the trigger for the 

transfer or, if it were, that Moody has any further ability to cause him 

harm. Because the motion before the Court at this juncture consists 

entirely of a request to enjoin Moody from harming plaintiff, and the 

transfer has removed plaintiff from the facility where Moody worked, 

the motion, on its face, is moot. 

C. Objection 3: Futility of Amendment 

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Judge Patti determined that any amendment of the initial filing, if 

it were to be construed as a complaint, would be futile, and that 

plaintiff should not be granted leave to amend pursuant to Fed. R. Civ. 

P. 15(a). The futility arises from plaintiff’s failure to exhaust 

administrative remedies before filing suit. See Porter v. Nussle, 534 

U.S. 516, 524 (2002) (federal prisoners suing under Bivens are required 

to exhaust inmate grievance procedures prior to instituting a § 1983 

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

(prisoners “may not exhaust administrative remedies during the 

pendency of the federal suit.”) (citation omitted). 

Here, plaintiff filed his motion on June 26, 2014, and exhausted 

his administrative remedies on October 17, 2014. (Dkt. 21 at 4 (denial 

of Claim Number TRT-NCR-2014-04492).) Plaintiff argues that this 

case presents a unique “factual scenario” in which he was prevented 

from exhausting his administrative remedies because he was “literally 

[transferred] from the prison under [the] complaint and had to complete 

administrative grievance process in the new prison with very little or no 

cooperation from local prison staff, combined with unjustifiable delay in 

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the process of final stages of grievance (‘TRT-NCR-2014-04492’).” (Dkt. 

25 at 9.) 

Plaintiff’s administrative grievance was completed on October 17, 

2014. (Dkt. 21 at 4.) Communication regarding this lawsuit was 

successfully sent to plaintiff at FCI Milan via U.S. Mail on October 21, 

2014 and January 13, 2015. (See Text-Only Certificates of Service, Oct. 

21, 2014 and Jan. 13, 2015.) Plaintiff was then transferred from FCI 

Milan to FCI Elkton at some point in time reasonably close to June 11, 

2015. (Dkt. 18.) Plaintiff did not have to complete his administrative 

grievance process in the new facility, because he was not transferred 

until roughly eight months after the administrative grievance process 

was complete. It is also unclear what the unjustifiable delay was with 

regard to plaintiff’s administrative grievance, because plaintiff does not 

state when he filed the grievance or how long it took to resolve. 

Plaintiff also relies on Wolfe v. Alexander, a Middle District of 

Tennessee case in which that court found that prisoners were excused 

from exhausting administrative remedies because “a grievance 

procedure is not ‘available’ even if one exists on paper if the defendant 

prison officials somehow prevent a prisoner from using it.” Id., Case 

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No. 11-cv-0751, 2014 WL 4897733, at *15 (M.D. Tenn. Sept. 30, 2014) 

(citing Brock v. Kenton Cnty., 93 Fed. Appx 793, 798 (6th Cir. 2004) 

(collecting cases)) (further citations omitted). Plaintiff has not stated 

how Moody or any other prison officials made the grievance procedure 

unavailable by allegedly transferring him to another facility eight 

months after he completed the process and nearly a year after he filed 

suit. 

The Court agrees with Judge Patti that if the initial filing is 

construed as a complaint, any amendment would be futile because 

plaintiff failed to properly exhaust his administrative remedies, which 

he was required to do before filing suit in federal court. 42 U.S.C. § 

1997e(a). The Court further notes that under 28 U.S.C. § 14.9, the time 

for plaintiff to file suit in federal court based on the denial was “not 

later than 6 months after the date of mailing of the notification.” In 

this case, that would have been April 17, 2015, which means that the 

time for filing another suit following denial of the grievance has also 

run. 

D. Objection 4: The Burden For Plaintiff To Show Cause 

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On November 13, 2015, Judge Patti issued an order for plaintiff to 

show cause why this case should proceed, given that the case appeared 

to be moot. (Dkt. 20.) On November 30, 2015, plaintiff replied by 

repeating many of the same arguments included in his objections. (Dkt. 

21.) 

Plaintiff objects to Judge Patti’s determination that he has not 

shown cause why this case should not be dismissed on two grounds: 

first, that Judge Patti’s finding is too harsh, and that plaintiff has not 

been able to properly object to Judge Patti’s recommendation that this 

case be dismissed; and second, that the burden should be on Moody to 

show cause because plaintiff has already made his case in his initial 

filing. (Dkt. 25 at 10.) 

Plaintiff has had two opportunities to object to dismissal of this 

case: his response to the order to show cause (Dkt. 21), and his 

objections to the Report and Recommendation. (Dkt. 25.) Plaintiff was 

also given a thirty-day extension to file his objections to the Report and 

Recommendation. (Dkt. 24.) These opportunities were sufficient to set 

forth detailed objections to any recommendation that Judge Patti made 

to the Court. 

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The remaining defendant in this case should not have to show 

cause why plaintiff’s case should or should not proceed. Judge Patti 

identified numerous significant issues with the nature and prosecution 

of this case by plaintiff in his original order and in the Report and 

Recommendation. The only party that could sufficiently address those 

issues was plaintiff. Accordingly, Judge Patti’s show cause order and 

Report and Recommendation were both properly directed toward 

plaintiff. 

 

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II. Conclusion 

For the reasons set forth above, it is hereby ordered that: 

Judge Patti’s Report and Recommendation (Dkt. 22) is ADOPTED; 

Plaintiff’s motion (Dkt. 1) is DENIED AS MOOT;1 and 

This case is DISMISSED WITH PREJUDICE. The Court certifies 

that an appeal of this decision would not be taken in good faith. 

IT IS SO ORDERED. 

Dated: June 20, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on June 20, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

 

1 If the motion is construed as a complaint, then the complaint should be considered 

DISMISSED WITH PREJUDICE AS MOOT. 

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