UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

JAMES BATES #337711,

Plaintiff, Civil Action No.: 15-10109

Honorable Patrick J. Duggan

v. Magistrate Judge Elizabeth A. Stafford

 

O’BELL WINN, et al., 

Defendants. 

__________________________________/

REPORT AND RECOMMENDATION TO GRANT DEFENDANT

ROTH AND WINN’S MOTIONS FOR SUMMARY JUDGMENT [R. 13, 24]

I. INTRODUCTION

Plaintiff James Bates, a prisoner proceeding pro se, filed the instant 

complaint against defendant James Roth, an inspector with the Michigan 

Department of Corrections, and defendant O’Bell Winn, acting warden of 

the Saginaw Correctional Facility, alleging violation of his Eighth 

Amendment rights related to Defendants’ failure to protect him from a 

known assailant. Defendants individually moved for summary judgment on 

Bates’s complaint, both arguing that he failed to exhaust his administrative 

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remedies prior to filing suit.1

 For the following reasons, the Court 

RECOMMENDS granting Defendants’ respective motions [R. 13, 24]. 

II. LEGAL STANDARD

A prisoner bringing an action with respect to prison conditions under 

42 U.S.C. § 1983 must exhaust all “available” administrative remedies. 42 

U.S.C. § 1997e(a). See Jones v. Bock, 549 U.S. 199, 218-20 (2007); 

Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731 

(2001). Requiring exhaustion allows prison officials an opportunity to 

resolve disputes concerning the exercise of their responsibilities before 

being haled into court and produces a useful administrative record. Jones, 

549 U.S. at 204. 

The PLRA requires “proper exhaustion,” Woodford v. Ngo, 548 U.S. 

81, 93 (2006), but the Act does not define what “proper exhaustion” entails. 

“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.

 1 Bates filed a request that Winn’s motion be denied as his counsel, who 

also represents Roth, did not seek leave to file a second motion for 

summary judgment as required by Local Rule 7.1(b)(2). However, this 

requirement applies to individual parties, not counsel. Id. This is Winn’s 

first motion for summary judgment, and thus no violation of the Local Rules 

occurred. 

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Although the Sixth Circuit has not addressed the issue specifically, 

the Court appears to support the use of a summary judgment motion to 

resolve an exhaustion dispute. See, e.g., Surles v. Andison, 678 F.3d 452 

(6th Cir. 2012) (reviewing district court’s decision granting summary 

judgment for failure to exhaust administrative remedies under the PLRA); 

Risher v. Lappin, 639 F.3d 236 (6th Cir. 2011) (same). The majority of 

Circuit Courts that have addressed the issue – i.e., the Second, Third, Fifth, 

Seventh, and Ninth Circuits – hold that a motion for summary judgment is

the proper procedure to decide exhaustion. See Albino v. Baca, 747 F.3d 

1162, 1170 (9th Cir. 2014) (en banc) (collecting cases). 

“Summary judgment is appropriate only if defendants establish the 

absence of a genuine dispute as to any material fact regarding nonexhaustion.” Surles, 678 F.3d at 456 (citation and quotation marks 

omitted). If judgment is entered against Bates because of a failure to 

exhaust administrative remedies, the judgment will not be on the merits, so 

dismissal of the case should be without prejudice. Boyd v. Corr. Corp. of 

America, 380 F.3d 989, 994 (6th Cir. 2004); Brown v. Toombs, 139 F.3d 

1102, 1104 (6th Cir. 1998), abrogated on other grounds by Jones v. Bock, 

549 U.S. 199 (2007).

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III. ANALYSIS

Defendants argue that Bates failed to exhaust his administrative 

remedies, as he did not await a decision on his Step III grievance appeal 

prior to filing suit. Winn further argues that Bates did not properly identify 

him in his step one grievance. The Court finds that Bates did not properly 

exhaust, and thus does not address Winn’s alternative argument.

The Michigan Department of Corrections (“MDOC”) Policy Directive 

03.02.130 sets forth a three-step procedure prisoners must follow in order 

to exhaust grievances. See Policy Directive 03.02.130 (effective July 9, 

2007).2

 First, the prisoner must attempt to resolve the problem with the

allegedly offending staff member within two business days of becoming 

aware of the grievable issue, unless prevented from doing so by 

circumstances beyond his or her control. Id. at ¶ P. If the prisoner is 

unable to resolve the issue, he or she has five business days to file a Step I 

grievance with the grievance coordinator. Id. at ¶¶ P and R. The prison 

officials then have 15 business days to respond to the grievance. Id. at ¶ X

If the prisoner is dissatisfied with the Step I response, or does not 

receive a timely response, he or she has ten business days to submit a 

 2 The Policy Directive is available at: 

https://www.michigan.gov/documents/corrections/03_02_130_200872_7.pd

f

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Step II grievance appeal. Id. at ¶ BB. Again, prison officials have 15 

business days to respond. Id. at ¶ CC. Finally, if the prisoner continues to 

be dissatisfied with the Step II response, or does not receive a timely 

response, he or she may within ten business days file a Step III grievance

appeal. Id. at ¶ FF. 

Unlike the specific deadlines for prison staff to respond at the Step I 

and Step II stages, PD 03.02.130 contains no specific time frame for 

Prisoner Affairs to respond to a Step III grievance. Instead, it notes that 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. at ¶ S (emphasis 

added). 

Here, Bates’s relevant Step III grievance was received by the 

grievance coordinator on September 26, 2014. [R. 13-3, PgID 82; R. 20, 

PgID 113-15]. Bates filed suit on October 27, 2014. [R. 1]. Bates alleges 

that his administrative remedies were exhausted upon the filing of his Step 

III grievance [R. 20, PgID 115], but that is not true. In order to properly 

exhaust his remedies, he was required to await a response to his Step III 

grievance appeal so as to “allow[ ] the administrative process to be 

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completed” prior to filing suit. Freeman v. Francis, 196 F.3d 641, 645 (6th 

Cir. 1999). As Bates admittedly did not do so, his claims against Winn and 

Roth must be dismissed, without prejudice. 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that defendant 

Roth and Winn’s respective motions for summary judgment [R. 13, 24] be 

GRANTED and that Bates’s claims against them be DISMISSED 

WITHOUT PREJUDICE.

Dated: September 1, 2015 s/Elizabeth A. Stafford

Detroit, Michigan ELIZABETH A. STAFFORD

United States Magistrate Judge

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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 September 1, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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