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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JACK MANN, 

Plaintiff, 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

Case No. 14-13439 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

R. STEVEN WHALEN

 / 

ORDER VACATING IN PART THE COURT’S ORDER REFLECTING SUBSTITUTION OF 

UNITED STATES AS DEFENDANT [30]; ADOPTING REPORTS AND 

RECOMMENDATIONS [70, 73], GRANTING DEFENDANT’S MOTION TO DISMISS 

AND/OR FOR SUMMARY JUDGMENT [28], DENYING PLAINTIFF’S PENDING 

MOTIONS [36, 59, 68, 77, 78]; AND DISMISSING CASE WITHOUT PREJUDICE

 On January 27, 2016, the Magistrate Judge issued a Report and 

Recommendation (R&R) [70], recommending that the Court deny Plaintiff’s Motions 

for Summary Judgment [Dkt. #36, 68], grant Defendant’s Motion to Dismiss and/or 

for Summary Judgment [28] as an unenumerated motion under Federal Rule of Civil 

Procedure 12(b), and dismiss the case without prejudice for failure to exhaust 

administrative remedies. On January 28, 2016, the Magistrate Judge issued a second 

R&R [73], recommending that the Court deny Plaintiff’s Motion for Default 

Judgment [59] as moot. On February 1, 2016, the Court received Plaintiff’s Motion to 

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Stay [74]. On March 2, 2016, the Court issued an Order [76] denying Plaintiff’s 

Motion to Stay but granting Plaintiff an extension of time in which to file objections 

to the R&R. On March 11, 2016, the Court received Plaintiff’s Motion for Request of 

Recommendation of Findings in King v. Zamiara and Motion for Damages Hearing 

[77], as well as his Motion for Default Judgment [78]. On March 22, 2016, the Court 

received Plaintiff’s Objections to the R&R [79]. On March 24, 2016, Defendant filed 

Responses [80, 81] to Plaintiff’s Motion for Default Judgment and Motion for 

Request. 

 For the reasons stated below, the Court’s Order Reflecting Substitution of 

United States as Defendant [30] is VACATED with respect to its dismissal of 

Plaintiff’s Bivens claim against former defendants Straub, Calvird, and Calvird. The 

Magistrate Judge’s Reports and Recommendations [70, 73] are ADOPTED. 

Defendant’s Motion to Dismiss and/or for Summary Judgment [28] is GRANTED as 

an unenumerated motion under Federal Rule of Civil Procedure 12(b). Plaintiff’s 

pending motions [36, 59, 68, 77, 78] are DENIED as moot. The case is DISMISSED 

without prejudice. 

FACTUAL BACKGROUND

 In April 2013, while imprisoned at the Federal Correctional Institution in 

Milan, Michigan (FCI Milan), Plaintiff sent a letter to Charles Samuels, Director of 

the Federal Bureau of Prisons (BOP). In the letter, he accused former defendant 

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Hillary Calvird of disrespectful behavior towards himself and other prisoners. He 

speculated that other prison staff permitted her to act his way because her father, 

former defendant Douglas Straub, was also a corrections officer at FCI Milan. He 

mentioned that he had a pending administrative claim under the Federal Tort Claims 

Act (FTCA) against Ms. Calvird for mishandling some of his property, resulting in its 

theft by other prisoners. 

 As a result of Plaintiff’s letter, the BOP investigated Ms. Calvird’s behavior 

and sanctioned her in May 2013. Plaintiff alleges that his role in causing the 

investigation sparked retaliatory animus in Straub, Ms. Calvird, and former defendant 

Michael Calvird (Ms. Calvird’s husband, also a corrections officer at FCI Milan). He 

alleges that Straub and the Calvirds “use their contacts, friendships, and acquaintances 

to retaliate against” him. He alleges that the former defendants have tainted his 

relationship with his unit team, causing him to be denied access to programs and the 

good time credits available through those programs. 

 Plaintiff further alleges that in November 2013, Straub, accompanied by Mr. 

Calvird and a third corrections officer, confronted Plaintiff.1

 Straub allegedly stepped 

in close to Plaintiff, pointed in his face, asked if he thought he was “running 

something,” and screamed that Plaintiff was an inmate. Plaintiff claims he was 

certain Straub was going to strike him. Also in November 2013, Straub allegedly 

 

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 In his Complaint, Plaintiff mentions that he is unsure if this incident occurred in 

November 2013, attributing his uncertainty to a traumatic brain injury. 

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threatened to have another corrections officer “handle” Plaintiff if he “made a peep” 

about Straub’s conduct. 

 Plaintiff was later placed in the Special Housing Unit (SHU) as punishment for 

allegedly minor conduct. He alleges that the former defendants caused him to be 

placed in the SHU and/or caused him to be there longer than he otherwise would have 

been. He also alleges that Mr. Calvird harassed him while he was in the SHU by 

repeatedly asking if he was nervous in a threating manner. Finally, he alleges that Mr. 

Calvird told him that he would “ship” him (transfer him to a different institution) if 

instructed to do so. 

 On April 29, 2014, the BOP issued a final denial of Plaintiff’s administrative 

FTCA claim concerning Ms. Calvird’s mishandling of his property. On September 4, 

2014, Plaintiff filed his complaint in this case. According to an affidavit executed by 

Cynthia Suydam, Legal Assistant at FCI Milan, BOP records show that Plaintiff did 

not file a BOP grievance concerning the events underlying this lawsuit until October 

2014. Suydamn states that the BOP denied the grievance with instructions to provide 

more specific information. She further states that there is no record of an appeal from 

the denial of this grievance, or of Plaintiff filing a subsequent grievance concerning 

the same subject matter. 

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ANALYSIS

 The Court must review de novo those portions of a Magistrate Judge’s Report 

and Recommendation on a dispositive motion to which a party timely objects. 28 

U.S.C. § 636(b)(1)(c). 

 As a preliminary matter, the Court notes that it dismissed former defendants 

Straub, Calvird, and Calvird from this case in error. On November 19, 2014, the 

Court issued an Order [11] dismissing several former defendants from the case for 

Plaintiff’s failure to state a claim against them, but holding that Plaintiff had stated a 

claim for First Amendment retaliation against Straub, Calvird, and Calvird under the 

doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 

U.S. 388 (1971). On April 2, 2015, the United States filed a Notice of Substitution 

[27], purporting to replace the former defendants, under the FTCA, as the sole 

defendant on Plaintiff’s state-law tort claims. 

 The Notice did not acknowledge that the Court had previously construed 

Plaintiffs’ complaint to raise a Bivens claim. Bivens actions and FTCA actions are 

parallel and complementary; a federal prisoner may maintain a Bivens suit against 

individual federal officers even though the underlying allegations could also support 

an FTCA suit against the United States. Left Fork Min. Co., Inc. v. Hooker, 775 F.3d 

768, 777 (6th Cir. 2014) (citing Carlson v. Green, 446 U.S. 14, 18–19 (1980)). 

Nevertheless, on April 8, 2015, the Court issued an Order [30] dismissing Straub, 

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Calvird, and Calvird from the case and recognizing “the substitution of the United 

States of America for them as the sole defendant to Plaintiff Jack Mann’s complaint.” 

The Court now vacates the portion of its prior Order [30] dismissing Plaintiff’s Bivens

claim against Straub, Calvird, and Calvird, pursuant to its inherent power to 

reconsider interlocutory orders. In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008) 

(citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). 

 Plaintiff’s Bivens claim is not reopened, however, because—as the R&R 

concluded—Plaintiff’s complaint must be dismissed without prejudice for failure to 

exhaust administrative remedies as required by the Prison Litigation Reform Act 

(PLRA). “The PLRA provides that a prisoner may not bring an action under federal 

law related to prison conditions ‘until such administrative remedies as are available 

are exhausted.’” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (quoting 42 

U.S.C. § 1997e(a)). “To exhaust his administrative remedies, a prisoner must adhere 

to the institutional grievance policy, including any time limitations.” Id. (citing 

Woodford v. Ngo, 548 U.S. 81, 90–91, (2006)). This requires “taking advantage of 

each step the prison holds out for resolving the claim internally.” Troche v. Crabtree, 

--- F.3d ---, 2016 WL 736312, at *3 (6th Cir. Feb. 25, 2016) (quoting Reed–Bey v. 

Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)). The PLRA’s exhaustion 

requirements apply to Bivens claims. Porter v. Nussle, 534 U.S. 516, 524 (2002); 

Wilson v. United States, 93 F. App’x 53, 54 (6th Cir. 2004) (“To raise a Bivens claim, 

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a federal prisoner must first raise his grievance through the BOP’s Administrative 

Remedy Program.”) (citing 28 C.F.R. §§ 542.10 et seq.). 

 Plaintiff does not contest Defendant’s assertion that he failed to file a grievance 

concerning the alleged incident(s) of retaliation within 20 days of the incident(s), as 

required by 28 C.F.R. § 542.14. Nor does he contest Defendant’s assertion that after 

he eventually filed such a grievance in an untimely manner, he failed to appeal its 

denial. 

 In his Objections, Plaintiff asserts that he “did, in fact, exhaust his remedy 

under the PLRA in the SHU at FCI Allenwood by giving the Remedy to Corrections 

Officers in the SHU, thus satisfying the Mailbox Rule.” However, Plaintiff was 

imprisoned at FCI Milan when he filed his complaint, and transferred to FCI 

Allenwood after. Thus, any administrative remedy he filed at FCI Allenwood was 

necessarily filed after he brought this suit, and could not satisfy the requirement that 

he exhaust his remedies prior to suit. 

 Plaintiff states that “[t]he only remedy that is PROVEN to have been exhausted 

is the FTCA remedy.” It is unclear if Plaintiff is referring to an administrative FTCA 

claim concerning the events at issue in this suit, or to his administrative FTCA claim 

concerning Ms. Calvird’s unrelated mishandling of his property. In any event, 

Plaintiff does not challenge the R&R’s conclusion that exhaustion of an 

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administrative FTCA claim cannot satisfy the PLRA’s separate exhaustion 

requirements. 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that the Court’s Order Reflecting Substitution of United 

States as Defendant [30] is VACATED with respect to its dismissal of Plaintiff’s 

Bivens claim against former defendants Straub, Calvird, and Calvird. 

 IT IS FURTHER ORDERED that the Magistrate Judge’s Reports and 

Recommendations [70, 73] are ADOPTED. 

 IT IS FURTHER ORDERED that Defendant’s unenumerated Motion to 

Dismiss under Rule 12(b) [28] is GRANTED. This case is DISMISSED without 

prejudice. 

 IT IS FURTHER ORDERED that Plaintiff’s pending motions 

[36, 59, 68, 77, 78] are DENIED as moot. 

SO ORDERED. 

_______________________________ 

 Arthur J. Tarnow 

Dated: Senior United States District Judge 

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