UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NATHANIEL WARD-EL,

Plaintiff,

v.

JAMES LUCKEY, et al.,

Defendant.

_____________________________________/

Case No. 15-10238

Thomas L. Ludington

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt. 9)

AND PLAINTIFF’S MOTION TO DISMISS (Dkt. 17)

I. PROCEDURAL HISTORY

Plaintiff filed this prisoner civil rights action on January 21, 2015. (Dkt. 1). 

Defendants filed their motion for summary judgment on March 23, 2015. (Dkt.

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9). Plaintiff filed his response on April 27, 2015. (Dkt. 18). This matter was

referred to Magistrate Judge Michael Hluchaniuk on February 10, 2015 for all

pretrial proceedings. (Dkt. 7). Plaintiff filed a motion to dismiss Lacey O’Connor

as a defendant from this lawsuit. (Dkt. 17). Defendants filed a response on June

8, 2015, indicating that they did not object to plaintiff’s motion. (Dkt. 21). On

 Defendant Penny Landrum was never served with the complaint in this case. However,

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the conclusions reached in this report and recommendation apply equally to the claims made

against her. Thus, the complaint should be dismissed in its entirety, including the claims made

against defendant Landrum.

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January 5, 2016, this matter was reassigned to the undersigned magistrate judge. 

(See Text Only Order dated January 5, 2016). On January 29, 2016, District Judge

Thomas L. Ludington referred this matter to the undersigned for all pretrial

proceedings. (Dkt. 22). 

This matter is now ready for report and recommendation. For the reasons

set forth below, the undersigned RECOMMENDS that defendants’ motion for

summary judgment be GRANTED and that plaintiff’s motion to dismiss be

DENIED as moot.

II. FACTUAL BACKGROUND

Plaintiff’s complaint is filed under 42 U.S.C. §§ 1983, 1985, 1986 and

protests infringement of his civil rights, alleging violations of the First

Amendment of the United States Constitution. At the time giving rise to the

allegations in his Complaint, plaintiff was incarcerated at the Cooper Street

Correctional Facility (JCS) in Jackson, Michigan. Defendants, Library Technician

James Luckey, Prison Counselor Lacey O’Connor, Deputy Warden Will Riley,

and Corrections Program Coordinator Mashawn Campbell are employees at JCS.

In his complaint, plaintiff alleges that on August 17, 2012, Library

Technician Luckey issued him a false Class II misconduct violation for Out of

Place in retaliation for plaintiff filing a grievance against C/O Campbell on July 6,

2012. Plaintiff also alleges that the remaining defendants conspired and

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transferred him on December 3, 2012 in retaliation for a grievance he filed against

Library Technician Luckey on August 20, 2012. Plaintiff sues all defendants in

their individual and official capacities seeking $300,000 in compensatory and

$100,000 in punitive damages.

III. DISCUSSION

A. Legal Standards

Title 42 U.S.C. § 1997e(a) provides that “[n]o 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.” Section 1997e(a)’s

“exhaustion requirement applies to all prisoners seeking redress for prison

circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002). 

“[T]he PLRA’s exhaustion requirement applies to 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. In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court held that “failure

to exhaust is an affirmative defense under the PLRA,” and “inmates are not

required to specially plead or demonstrate exhaustion in their complaints.” Jones,

549 U.S. at 216. “Compliance with prison grievance procedures . . . is all that is

required by the PLRA to ‘properly exhaust.’” Jones, 549 U.S. at 218. “Congress

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has provided in § 1997e(a) that an inmate must exhaust irrespective of the forms

of relief sought and offered through administrative avenues.” Booth v. Churner,

532 U.S. 731, 741 n.6 (2001). “[P]roper exhaustion of administrative remedies is

necessary.” Woodford v. Ngo, 548 U.S. 81, 84 (2006); Brown v. Toombs, 139 F.3d

1102 (6th Cir.), cert. denied, 525 U.S. 833 (1998) (No federal action shall be

brought until such administrative remedies as are available are exhausted). In

other words, a prisoner may not exhaust administrative remedies during the

pendency of the federal lawsuit. Larkins v. Wilkinson, 1998 WL 898870, at *2

(6th Cir. Dec. 7, 1998). 

In Jones v. Bock, the Supreme Court also held that the burden rests on the

defendant to show that a plaintiff failed to exhaust when asserting exhaustion as

an affirmative defense. Id. Accordingly, exhaustion is satisfied if plaintiff

complied with the applicable grievance procedures and defendants bear the burden

of showing otherwise. See Kramer v. Wilkinson, 226 Fed. Appx. 461, 462 (6th

Cir. 2007) (a prisoner-plaintiff “does not bear the burden of specially pleading and

proving exhaustion; rather, this affirmative defense may serve as a basis for

dismissal only if raised and proven by the defendants.”).

Here, defendants have moved for summary judgment on the issue of

whether plaintiff failed to exhaust his administrative remedies under the PLRA. 

However, as previously stated by a court in this district, summary judgment seems

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an inappropriate vehicle for adjudication because there is no determination on the

merits of the case, and no “judgment” is entered. See Neal v. Raddatz, 2012 WL

488827, at *2 (E.D. Mich. Jan. 12, 2012). Instead, a number of courts have

characterized a request to dismiss for failure to exhaust administrative remedies as

“subject to an unenumerated Rule 12(b) motion rather than a motion for summary

judgment.” Id. (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003);

see also Johnson v. Gregoire, 2008 WL 5156428, *3 (W.D. Wash. 2008), citing

Ritza v. International Longshoremen’s and Warehousemen’s Union, 837 F.2d 365,

369 (9th Cir. 1988) (“finding that while no defense described in 12(b)(1) through

(7) encompasses failure to exhaust, federal courts traditionally have entertained

certain pre-answer motions not expressly provided for by rule, and authority to

hear such motions lies in federal court’s inherent power to regulate actions

pending before it”); Thrasher v. Garland L, 2007 WL 3012615, *1-2 (W.D. Wash.

2007) (“The proper motion to bring when asserting failure to exhaust

administrative remedies . . . is an unenumerated 12(b) motion. . . .”). Based on the

above, the Raddatz court determined that regardless of whether the motion is

treated as one for summary judgment or as an unenumerated 12(b) motion, the

result is the same. (Id. at 3). If the court grants the motion, the dismissal will be

without prejudice and it will not count as a strike under 28 U.S.C. § 1915(g). (Id.) 

The court concluded, however, that the latter approach, adjudicating the motion as

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an unenumerated motion under 12(b) was more consistent with the “true nature of

the motion.” (Id.) 2

C. Analysis and Conclusions

Plaintiff was issued a misconduct ticket on August 17, 2012. (Dkt. 18-1, Pg

ID 269). According to the ticket report, plaintiff was scheduled for law library

access on that date and failed to show on time. According to the hearing report,

plaintiff claimed he was late for his call out because his unit was locked down.

When his unit was opened, he was called for chow and reported to chow. He

arrived at his call out and was turned away for being late. (Dkt. 18-1, Pg ID 270). 

Plaintiff was found not guilty because Officer Baynes had authorized him to be

late for call out due to the lock down and so that plaintiff could have his lunch

meal. Id. 

Defendants argue that plaintiff failed to claim retaliation at his misconduct

hearing and, therefore, he has failed to exhaust his administrative remedies. 

Siggers v. Campbell established that a prisoner must argue that his receipt of a

misconduct ticket was based on conspiracy or retaliation during the first

misconduct hearing. Siggers v. Campbell, 652 F.3d 681, 693-694 (6th Cir. 2011). 

Otherwise, the prisoner is precluded from using such a claim as a basis to request a

 The court also noted that there was no reason that the motion could not simply be 2

designated as a “motion to dismiss pursuant to 28 U.S.C. § 1997e(a).”

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rehearing. Id. at 693-94. Defendants contend that the administrative record of 3

the hearing provides no proof that plaintiff raised retaliation as an issue. Thus,

defendants argue that plaintiff failed to exhaust his administrative remedies, and

that plaintiff’s claims should be dismissed. 

In response, plaintiff explains that he tried to use the three step grievance

process to assert his retaliation claim. Plaintiff identifies three grievances in his

response which he asserts relate to the retaliation claim in the complaint. The first

is JCS-1207-647-14c, which was submitted at Step I on July 10, 2012. (Dkt. 18,

Pg ID 218). In this grievance, plaintiff says that he had a call-out on July 6, 2012

for the law library, but when he went to the law library, he was told that he did not

get the time he requested because the library was already full at that time. 

Apparently, plaintiff was told that if he did not show up at the time of his

appointment, he would receive an out-of-place ticket; however, the time scheduled

was at the same time as his yard privilege. This grievance was resolved at Step I,

 Other, unpublished decisions appear to be contrary. See e.g., Ragland v. City of St. 3

Louis, 2012 WL 511827, *4 (E.D. Mich. 2012) (“[W]hile it is true that Plaintiff cannot grieve the

decision of an administrative hearing officer, his Complaint allegation is that the underlying

misconduct charge—not the hearing officer’s decision—was retaliatory. Plaintiff could have and

was, therefore, required to grieve the alleged retaliatory misconduct charge.”) (footnote omitted),

citing Boyd v. Ray, 19 Fed.Appx. 209, 2001 WL 1042261 (6th Cir. 2001) (where the plaintiff’s

claim did not involve the administrative hearing officer’s decision but rather an allegation that

the underlying misconduct charge was false, he was required to exhaust his administrative

remedies). Notably, the Sixth Circuit somewhat recently affirmed a decision where this Court

determined that a prisoner failed to exhaust a retaliation claim by failing to raise the issue during

the misconduct ticket hearing process. Carr v. Booker, 2014 WL 409026 (E.D. Mich. Feb. 3,

2014), affirmed Carr v. Booker, Case No. 14-1258 (6th Cir. Dec. 4, 2014). 

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as alternate times for the law library were discussed, plaintiff would submit his

request to Mr. Luckey for additional alternative times for call-out and plaintiff was

willing to work out issues with staff. Id. The undersigned fails to see how any

aspect of this grievance, which was resolved at Step I, is linked to the retaliation

claim or could be deemed to have exhausted the retaliation claim. Also, quite

notably, this grievance was filed before plaintiff was issued a misconduct ticket.

On July 10, 2012, plaintiff also submitted grievance JCS-1207-643-17e. 

(Dkt. 18, Pg ID 225; see also, Dkt. 9-4, Pg ID 108-117). In this grievance,

plaintiff says that he was walking in the school building, and going to the law

library call out and staff member Campbell refused to take his pass/itinerary at that

time. Plaintiff said the staff member failed to follow the rules and talked to

plaintiff in a derogatory manner. Plaintiff’s grievance was denied. (Dkt. 18, Pg

ID 231-232). Again, the undersigned fails to see how any aspect of this grievance

is linked to the retaliation claim or could be deemed to have exhausted the

retaliation claim. And, this grievance too was filed before plaintiff received his

misconduct ticket.

On September 6, 2012, plaintiff submitted grievance JCS-1209-891-27a. 

(Dkt. 18, Pg ID 219; see also, Dkt. 9-4, Pg ID 102-107). That grievance related to

a misconduct ticket issued by Luckey to plaintiff for being out of place. Plaintiff

says that Luckey falsified documents and retaliated against plaintiff for the

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grievance filed earlier. The grievance was rejected because it was deemed related

to a non-grievable issue; that is, the misconduct ticket. (Dkt. 18, Pg ID 223). 

Plaintiff contends that he did not exhaust the retaliation claim during the

hearing process because the ticket was resolved in his favor. He says he explained

in Step II of JCS 1209-891-27a that his grievance was not regarding the ticket

because there was no ticket available to appeal. (Dkt. 18, Pg ID 222). However, it

is clear to the undersigned that plaintiff was, in fact, seeking to grieve the

misconduct ticket, since it is the “false document” identified in his grievance. 

While it is true that plaintiff could not further appeal the misconduct ticket

because it was dismissed, plaintiff missed the point. Under Siggers v. Campbell,

plaintiff was required to raise the issue of retaliation at the hearing on the

misconduct ticket. There is nothing in this record suggesting that the issue was

raised at that time and plaintiff does not claim that he did so. Further, plaintiff

does not suggest that he was unaware of the alleged retaliatory nature of the ticket

at the time of the hearing. Indeed, his earlier grievance against Luckey suggests

that he was anticipating the receipt of such a ticket. Thus, it is apparent that

plaintiff believed that the misconduct charge was retaliatory before the hearing. 

Yet, he failed to raise the issue at the hearing, rendering his excuse for not

complying with this step in the exhaustion process to be without a factual basis or

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merit. Therefore, under Siggers v. Campbell, supra, his claim for retaliation was 4

not properly exhausted. 

IV. RECOMMENDATION

In the view of the undersigned, defendants’ motion for summary judgment

should be GRANTED because plaintiff failed to exhaust any of his claims and his

complaint should be DISMISSED without prejudice. Plaintiff’s motion to dismiss

should be DENIED as moot. Given the foregoing conclusions, the remaining

arguments for summary judgment posited by defendants need not be addressed.

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 and

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

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

 Plaintiff identifies additional retaliatory conduct in his complaint, including that he was

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fired from his job, lost his status as a unit block representative, and was transferred to another

facility based on the complaints filed. (Dkt. 1). However, as described in detail above, there is

no evidence that any of these acts of retaliation were ever the subjective of any grievance, let

alone a fully exhausted grievance. 

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Teachers Local 231, 829 F.2d 1370, 1373 (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,” “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), Local Rule 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 10, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on March 10, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by United States Postal

Service to the following non-ECF participant: Nathaniel Ward-El, #240660,

Chippewa Correctional Facility, 4269 W. M-80, Kincheloe, MI 49784.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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