UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAVONTAY SPRAGGINS,

Plaintiff,

v.

K. HART,

Defendant.

_____________________________________/

Case No. 14-13845

Sean F. Cox

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION ON DEFENDANT ROBERT

HART’S MOTION FOR SUMMARY JUDGMENT (Dkt. 13)

I. PROCEDURAL HISTORY

On October 3, 2014, Davontay Spraggins, a prisoner in the custody of the

Michigan Department of Corrections (“MDOC”) currently housed at the Ionia

Correctional Facility (“ICF”), filed the instant action under 42 U.S.C. § 1983,

alleging violations of his civil rights. (Dkt. 1). On April 13, 2015, all defendants

were terminated except for Robert Hart. On April 14, 2015, District Judge Sean F.

Cox referred all pretrial matters to Magistrate Judge Michael Hluchaniuk. (Dkt.

8). On August 5, 2015, defendant Hart filed a motion for summary judgment (Dkt.

13), and on November 6, 2015, plaintiff filed his response (Dkt. 20). On January

5, 2016, the case was reassigned to the undersigned by Administrative Order. On

January 8, 2016, Judge Cox referred all pretrial matters to the undersigned,

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including defendant Hart's motion for summary judgment. (Dkt. 21). The motion

is now ready for report and recommendation.

Because plaintiff did not exhaust his administrative remedies prior to filing

this action, the undersigned recommends that defendant’s motion for summary

judgment (Dkt. 13) be GRANTED, and that defendant Hart be dismissed without

prejudice. 

II. FACTUAL BACKGROUND

At all times relevant to the allegations in the complaint, plaintiff was

incarcerated at the G. Robert Cotton Correctional Facility (JCF), Jackson,

Michigan. MDOC defendant, Robert Hart, is a Corrections Officer (C/O) at JCF. 

Plaintiff alleges that on May 9, 2014, when he was returning from evening

“chow,” and unbeknownst to him, C/O Hart deployed his Taser at a fleeing

prisoner, but allegedly also struck him in the upper chest, causing him to fall on

the ground, hit his head, chin and torso on the ground. (Dkt. 1, ¶ 23). After he

was hit with the taser, plaintiff alleges that responding prison guards handcuffed

him and escorted him to a segregation unit. (Id. ¶ 24). Upon arrival at the

segregation unit, defendant Hart, together with two other prison guards stripped

plaintiff of his clothes and held him in a shower stall for more than four and one2

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half hours despite his requests to be seen by health care. (Id.) Plaintiff alleges

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that another prison guard brought him a health care kite, which allowed him to be

seen by health care staff on May 14, 2014. (Id. ¶ 27). During this visit, plaintiff

was given ibuprofen and/or Motrin to help with inflammation, and was told to

submit another kite if his symptoms persisted. (Id.) Plaintiff alleges that on May

9, 2014, he filed an administrative grievance concerning the events surrounding

the facts in his complaint. (Id. ¶ 28). Plaintiff sues defendant Hart in his

individual and official capacities for excessive use of force, denial of medical

treatment, and retaliation under 42 U.S.C. § 1983.

III. PARTIES’ ARGUMENTS

A. Hart’s Motion for Summary Judgment

Corrections Officer Robert Hart argues that he is entitled to summary

judgment under Fed. R. Civ. P. 56(a) for three reasons: (1) because plaintiff did

not properly complete the grievance process regarding his complaint allegations;

(2) plaintiff cannot demonstrate that Officer Hart unnecessarily and wantonly

inflicted pain upon plaintiff in violation of the Eighth Amendment; and (3) Officer

Hart is a state employee and acted reasonably and within his official capacity at all

times. He is therefore entitled to Eleventh Amendment and qualified immunity. 

 In his Step I administrative grievance, plaintiff alleges that he was “held 1

in segregation for about 1 hour and 45 minutes.” (Dkt. 1, Ex. B).

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1. Exhaustion

Hart argues that Spraggins has not properly exhausted his complaint

allegations because he did not properly complete the grievance process regarding

those issues prior to filing his complaint. (Dkt. 13, at Pg. ID 70-72). Specifically,

Hart indicates that Spraggins has filed 26 Step III grievance appeals while

incarcerated at JCF. (Id., Ex. B). Spraggins did file a Step I Grievance (JCF-14-

05-1111-17i), which complains that though he did not know at whom Officer Hart

was shooting, he was nevertheless struck by Officer Hart’s taser. Nowhere in the

grievance, however, did Spraggins complain that Officer Hart strip-searched him,

or denied his requests for medical care. Morever, Officer Hart argues that this

grievance was completed/resolved after Spraggins filed his Complaint on October

3, 2014. Under the “prison mailbox rule,” papers mailed to the Clerk by prisoners

are deemed to be filed on the day they are signed even if received and docketed on

a later date. Williams v. Birkett, 670 F.3d 729, n.1 (6th Cir. 2012); Hudson v.

Martin, 68 F. Supp. 2d 798, 800 n.2 (E.D. Mich. 1999). Therefore, according to

Hart, because Spraggins did not file a Step III grievance appeal before filing this

litigation, grievance (JCF-14-05-1111-17i) does not exhaust any of his complaint

allegations.

2. Excessive Force

According to Officer Hart, on May 9, 2014, he and Corrections Officer

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Glenn Walker were conducting random pat down/clothed body searches of

prisoners as they were leaving the chow hall. (Dkt. 13, Ex. C, Walker Aff. at ¶ 4).

While Officer Walker was conducting a search of prisoner Mathis (#706354),

Mathis assaulted Officer Walker and began to flee the area. (Id. at ¶ 5). During

this assault, Officer Hart deployed his Electronic Control Device (ECD) or taser

and struck Mathis in the jacket. However, this was ineffective at stopping Mathis

because both probes of the taser failed to make contact with Mathis’ body. (Id. at

¶ 6). Although Officer Hart was unsure to where Mathis was running, he

continued to pursue Mathis, giving Mathis loud verbal commands to stop. During

this pursuit, and while Mathis was approximately 4-5 feet away, Officer Hart

deployed his taser a second time. This time, one prong struck Mathis in the chest

area, but because he was still moving, the second prong missed and allegedly

struck Spraggins who was approximately 15 feet away from Mathis. (Id. at ¶¶ 6-

7). At this point, Mathis stopped running, pulled a white object from his left

sleeve and threw it toward the roof of the J-Unit housing unit. (Id. at ¶ 8). 

Officers Hart and Walker were then able to subdue Mathis by handcuffing him. 

(Id. ¶ 9). Around this time, approximately 10-15 Level IV prisoners began to

congregate in the J-Unit yard and Officer Hart began to work on crowd control as

additional staff arrived. (Id. at ¶ 10).

Officer Hart asserts that at no time did he “intend” to strike Spraggins with

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the taser probe and neither Spraggins or Mathis was tased as a result of the second

deployment. (Id. at ¶ 13). Officer Hart also asserts that Spraggins’ allegations

that he fell to the ground, struck his head, chin and torso were also false. (Id. at

¶ 12). 

Officer Hart argues that for an effective taser deployment, the target must be

struck with two probes to complete the electrical charge or impulse. According to

the Prisoner Injury Report, however, Spraggins, had only been hit by one probe,

and it was not on his body, but on his coat. (Id. at ¶ 14). Furthermore, even

Spraggins’ grievance responses found his claim of receiving an electrical jolt

untenable since he was only struck with one prong and was not touching Mathis

who was struck with the other prong. (Dkt. 13, Ex. B).

With respect to Spraggins’ allegations of being strip-searched, Officer Hart

asserts that he had no contact with Spraggins after the initial incident detailed

above, nor was he assigned to any work in the segregation unit. Officer Hart’s

regular work assignment is an officer in the Level I yard. (Id. at Ex. C, Walker

Aff., ¶ 15). Once the initial incident occurred and additional staff arrived to assist

with crowd control, Sergeant Houtz gave Officer Hart his keys and directed him to

begin a search for the item that Mathis had thrown toward the J-Unit roof. Once

on the roof, Officer Hart was able to locate a piece of metal approximately four 

inches long, sharpened to a point on one end, with a white rag wrapped around the

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other end with rubber bands on it to keep it in place. (Id. at ¶ 16). Additionally,

according to Hart, healthcare was on the scene attending to Spraggins when he left

to search the J-Unit roof. (Id. at ¶ 18).

Nurse Speer indicated in her Nurse Protocol that Spraggins was found

sitting in the J-Unit yard. An assessment was completed and no injuries were

found. Spraggins was then escorted to healthcare where his vitals were taken and

he was released. (Id. at ¶ 14, see also Attachment 1). Officer Hart asserts that

Spraggins suffered no more than a de minimis injury. Further, Officer Hart

indicates that at no time did he maliciously or sadistically inflict pain towards

Spraggins. At best, Spraggins’ allegations amount to a claim that Hart acted with

negligence or recklessness, which is insufficient to establish a constitutional

violation. Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. 1999).

3. Immunity

Hart first argues that he is entitled to Eleventh Amendment immunity

because he is an employee of the State of Michigan who acted in his official

capacity. The State of Michigan has not consented to suit, and Hart therefore

enjoys Eleventh Amendment immunity in his official capacity.

Hart also argues that he is entitled to qualified immunity for any civil

damages because his conduct as outlined above did not violate any clearly

established statutory or constitutional rights of which a reasonable person would

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have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Dietrich v.

Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999). Officer Hart presents the threepart test employed by the Sixth Circuit to determine whether a government official

is entitled to the defense of qualified immunity: (1) whether a constitutional

violation has occurred; (2) whether the right that was violated was a clearly

established right or which a reasonable person would have known; and (3)

whether the plaintiff has alleged sufficient facts, and supported the allegations by

sufficient evidence, to indicate that what the official allegedly did was objectively

reasonable in light of the clearly established constitutional rights. Saucier v. Katz,

533 U.S. 194, 201-202 (2001); Higgason v. Stephens, 288 F.3d 868, 876-877 (6th

Cir. 2002). While the initial burden is on the defendant to present facts that, if

true, would entitle him to immunity, the ultimate burden of proof falls on the

plaintiff to show that the defendant violated a right so clearly established that any

official in defendant’s position would have clearly understood that he was under

an affirmative duty to refrain from such conduct. Noble, 87 F.3d at 161. For the

reasons discussed above, Hart contends that he is entitled to summary judgment. 

B. Spraggins’ Response

Spraggins argues that he filed a Step I grievance on May 10, 2014. He

indicates that he received a response to that grievance on May 22, 2014 stating

that the complaint was “false” based upon defendant Hart’s report. Plaintiff filed a

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Step II appeal on May 28, 2014, and received a response “on or around 6/19/14"

denying his grievance. Plaintiff indicates that on or around June 20, 2014 he filed

a Step III appeal and received a response on November 20, 2014 again denying his

grievance. Plaintiff states that he verbally discussed his grievance with shift

command and was told that there would be no investigation into his grievance. 

This, according to Spraggins, shows that he attempted to resolve the issue before

filing his grievance. Spraggins also alleges that he properly exhausted his

administrative remedies before he filed this lawsuit. 

With respect to Hart’s claim that there was no Eighth Amendment violation,

Spraggins asserts that the firing of a taser into a crowd of people is a clear

violation of plaintiff’s right to be free from cruel and unusual punishment. 

Plaintiff claims that Hart recklessly fired his taser at a group of inmates in an

attempt to hit one fleeing prisoner. This, according to plaintiff, is unethical and

shows the use of excessive force to an innocent bystander, in this case Spraggins.

For this reason, Spraggins claims that Hart is not protected by qualified immunity. 

IV. LEGAL ANALYSIS & CONCLUSIONS

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, requires a

prisoner to exhaust all administrative remedies prior to filing a § 1983 claim.

Specifically, 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

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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

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). 

 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 MDOC grievance procedure and defendants bear the

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burden of showing otherwise. 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.”). A moving party with the

burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d

552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036,

1056 (6th Cir. 2001). “Where the moving party has the burden - the plaintiff on a

claim for relief or the defendant on an affirmative defense - his showing must be

sufficient for the court to hold that no reasonable trier of fact could find other than

for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.

1986). The Sixth Circuit has repeatedly emphasized that the party with the burden

of proof “must show the record contains evidence satisfying the burden of

persuasion and that the evidence is so powerful that no reasonable jury would be

free to disbelieve it.” Arnett, 281 F.3d at 561. 

MDOC Policy Directive 03.02.130, “Prisoner/Parolee Grievances” 

(effective date 07/09/2007) governs plaintiff’s claims here. That policy states, in

relevant part:

E. Grievances may be submitted regarding alleged

violations of policy or procedure or unsatisfactory

conditions of confinement which directly affect the

grievant, including alleged violations of this policy and

related procedures. 

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* * *

P. Prior to submitting a written grievance, the grievant

shall attempt to resolve the issue with the staff member

involved within two business days after becoming aware

of a grievable issue, unless prevented by circumstances

beyond his/her normal control or if the issue falls within

the jurisdiction of the Internal Affairs Division in

Operations Support Administration. If the complaint is

not resolved, the grievant may file a Step I grievance.

The Step I grievance must be filed within five business

days after the grievant attempted to resolve the issue

with staff.

* * *

R. A grievant shall use the Prisoner/Parolee Grievance

form (CSJ-247A) to file a Step I grievance; a

Prisoner/Parolee Grievance Appeal form (CSJ-247B)

shall be used to file a Step II or Step III grievance. The

forms may be completed by hand or by typewriter

however, handwriting must be legible. The issues shall

be stated briefly but concisely. Information provided

shall 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.

* * * 

FF. A grievant may file a Step III grievance if s/he is

dissatisfied with the Step II response or does not receive a

timely response. To file a Step III grievance, the grievant

must send a completed Step III grievance, using the

Prisoner/Parolee Grievance Appeal form (CSJ-247B), to

the Grievance and Appeals Section within ten business

days after receiving the Step II response, or if no response

was received, within ten business days after the date the

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response was due, including any extensions.

GG. The Grievance and Appeals Section shall be the

respondent for the Step III grievances on behalf of the

Director. Each grievance received at Step III, including

those which may be rejected, shall be logged on a

computerized grievance tracking system. The Grievance

and Appeals Section shall forward grievances regarding

health care issues to the Administrator of the Bureau of

Health Care Services (BHCS). The BHCS Administrator

shall ensure the grievance is investigated and a response

is provided to the Grievance and Appeals Section in a

timely manner. The Manager of the Grievance and

Appeals Section shall ensure that any additional

investigation is completed as necessary for each Step III

grievance accepted, including referral to the Internal

Affairs Division and, for disability issues, to the Equal

Employment Opportunity Office within the Bureau of

Human Resources, as appropriate, and that a copy of the

Step III response is provided to the grievant. 

 Plaintiff failed to exhaust his administrative remedies here, as he filed the

instant complaint before receiving his Step III Grievance Response - in

contravention to the requirements set forth in the above-noted MDOC grievance

policy. The parties’ versions of the chronological sequence as to the processing

of plaintiff’s grievances roughly align. Specifically, plaintiff’s Step I Grievance

signed May 10, 2014 was received by MDOC on May 13, 2014, his Step II

Grievance signed on May 28, 2014 was received on June 13, 2014, and his Step III

Grievance was received on June 25, 2014. Plaintiff received responses to his Step

I Grievance and Step II Grievance on May 22, 2014 June 19, 2014 respectively. 

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On October 3, 2014, before resolution of the Step III Grievance, plaintiff filed the

instant action. Since the initiation of this case MDOC has responded to plaintiff’s

Step III grievance - upholding the Step I and Step II decisions denying the validity

of plaintiff’s claims on November 20, 2014. (Dkt. 13, Ex. B). Thus, plaintiff’s

administrative remedies have now been exhausted. Yet, notwithstanding, the

Court must dismiss plaintiff’s claim, because plaintiff cannot perfect the

exhaustion requirement during the pendency of his case. See Roberts v. Lamanna,

45 Fed. Appx. 515 (6th Cir. 2002) (plaintiff “cannot exhaust [administrative]

remedies during the pendency of the action”); Freeman v. Francis, 196 F.3d 641,

645 (6th Cir. 1999); Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir. 1999);

Boles v. Overton, 396 F. Supp. 2d 808, 809 (E.D. Mich. 2005) (“As exhaustion of

internal remedies is a precondition to filing an action in federal court, the Sixth

Circuit has held that a prisoner cannot satisfy Section 1997e by exhausting

administrative remedies during the pendency of the federal suit.”) (emphasis in

original). 

Moreover, there are no curative measures which will save plaintiff’s action

from operation of the bar. The Court does not have discretion to waive the

exhaustion requirement. Wyatt, 193 F.3d at 879. And, the “substantial

compliance” doctrine, which can negate operation of the bar where the operative

facts underlying a prisoner’s claims predate enactment of the PLRA, does not

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apply in this case as plaintiff’s claims arose well after the PLRA’s enactment. See

Brock v. Kenton Cty., 93 Fed. App’x. 793, 799 (6th Cir. 2004) (“We have allowed

substantial compliance only in the limited circumstance where the events giving

rise to the prisoner’s claim occurred prior to the effective date of the PLRA.”). 

Thus, because the merits of the claim have not been addressed, the proper remedy

is to dismiss plaintiff’s complaint without prejudice. See Thaddeus-X v. Wozniak,

2000 WL 712383 (6th Cir. 2000). 

Because the undersigned has determined that plaintiff failed to exhaust his

administrative remedies, it is unnecessary to determine whether Hart committed a

constitutional violation at this point.

V. RECOMMENDATION

For the above-stated reasons, the undersigned recommends that defendant’s

motion for summary judgment (Dkt. 13) be GRANTED, and that defendant Hart

be dismissed without prejudice.

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

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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

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: February 4, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on February 4, 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 U.S. Postal Service

to the following non-ECF participant: Davontay Spraggins, #794573, Michigan

Reformatory, 1342 West Main Street, Ionia, MI 48846.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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