UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JACK MANN,

Plaintiff, No. 14-13439

v. District Judge Arthur J. Tarnow

Magistrate Judge R. Steven Whalen

UNITED STATES OF AMERICA,

Defendant.

 /

REPORT AND RECOMMENDATION

On September 4, 2014, Plaintiff Jack Mann, a prison inmate in the custody of the

Federal Bureau of Prisons (“BOP”), filed a pro se civil complaint, naming individual

Defendants employed by the BOP. On April 8, 2015, the United States of America was

substituted for the individual Defendants, under 28 U.S.C. § 2679(d)(1) [Doc. #30]. 

Before the Court are Defendant’s Motion to Dismiss or in the Alternative Motion for

Summary Judgment [Doc. #28], Plaintiff’s Motion for Summary Judgment [Doc. #36],

and Plaintiff’s self-styled “Motion in Opposition to Defendant’s Motion for Summary

Judgment and: Jack Mann’s Cross Motion for Summary Judgment or in the Alternative;

Motion for Judgment in Favor of Jack Mann on the Record” [Doc. #68].1 These motions

have been referred for Reports and Recommendations under 28 U.S.C. § 636(b)(1)(B).

For the reasons discussed below, I recommend as follows:

(1) That the Defendant’s Motion to Dismiss or alternatively for Summary

1

 Viewing this pro se Plaintiff’s pleadings liberally, I will construe this as his

dispositive motion for judgment in his favor, and will also consider it as his response both

the Defendant’s motion for summary judgment and its motion to strike his amended

complaint. 

-1-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 1 of 8 Pg ID 910
Judgment [Doc. #28] be construed as an unenumerated motion under Fed.R.Civ.P. 12(b),

that it be GRANTED, and that Plaintiff’s complaint be DISMISSED WITHOUT

PREJUDICE.

(2) That both of Plaintiff’s motions/cross-motions for summary judgment [Doc.

#36 and Doc. #68] be DENIED.

I. FACTS

At the time of the alleged incidents that undergird his Complaint, Plaintiff was 

housed in the Federal Correctional Institution in Milan, Michigan (“FCI Milan”). He

alleges that “[o]n or about November of 2013,” Douglas Straub, a corrections officer,

verbally and physically assaulted him. Complaint [Doc. #1], ¶ 1. Plaintiff surmises that

the “predicate occurrence” that led to this incident was a letter that Plaintiff sent to the

Director of the Bureau of Prisons that resulted in an Internal Affairs investigation of

Straub’s daugher, Hillary Straub, who was also a corrections officer. Id. ¶ 2. Plaintiff

alleges that a Lt. Bozeman, a Lt. Calvird (who “has since married Hillary Straub and had

a child”), and Hillary Struab “all use their contacts, friendships, and acquaintances to

retaliate against Mann.” Id. ¶ 4. Plaintiff claims that as a result of this retaliation, he was

denied access to programs and to the good time credit he would earn by being enrolled in

these programs. Id. ¶ 6.2 As a result of the actions of BOP employees, including physical

and verbal assault and retaliation, Plaintiff claims that he has suffered emotional distress,

and seeks millions of dollars in damages.

Plaintiff filed a separate complaint under the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 2401(b) and 2679 et seq., which was dismissed on or about April 9, 2014.

Id. ¶ 5.

2

 Plaintiff does not specify which programs he was denied access to.

-2-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 2 of 8 Pg ID 911
Defendant seeks dismissal based on Plaintiff’s failure to exhaust his administrative

remedies before filing his complaint. Attached to Defendant’s motion as Exhibit 2 is the

sworn declaration of Cynthia Suydam, the Associate Warden’s secretary at FCI Milan.

Ms. Suydam states that she reviewed the BOP’s database (“SENTRY”) for records

pertaining to Plaintiff Jack Mann’s requests for administrative remedies. She found that

Plaintiff did not file a request for administrative remedy concerning verbal and physical

abuse by Straub until October 13, 2014, when he submitted remedy number 796578-F1.

Suydam Affidavit, ¶ 10.3 She states that “[t]here is no other record of a further

administrative remedy filing or appeal regarding the matters raised in remedy number

796578-F1.” Id. ¶ 11.

II. STANDARD OF REVIEW

Under the Prison Litigation Reform Act (PLRA) of 1996, specifically 42 U.S.C. §

1997e(a), “[n]o action shall be brought with respect to prison conditions under §

1983...by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”4 The exhaustion requirement is

mandatory and applies to all suits regarding prison conditions, regardless of the nature of

the wrong or the type of relief sought. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,

984, 152 L.Ed.2d 12(2002); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825,

3

 Plaintiff’s request for administrative remedy, appended to Ms. Suydam’s

declaration, bears a date of October 3, 2014, not October 13. While the declaration thus

appears to contain a typographical error, it has no material bearing on the disposition of

this case, since either date was after Plaintiff filed his complaint in this Court.

4

 The PLRA’s exhaustion requirement applies to Bivens actions that are based on

prison conditions, as well as actions under § 1983. See Owusu v. Fed. Bureau of Prisons,

2003 WL 68031, at *1 (S.D.N.Y. 2003)(“Under the PLRA, a prisoner pursuing a federal

lawsuit, including a Bivens action like this one, is required to exhaust the available

administrative remedies before a court may hear his or her case.”)(Citing Porter v.

Nussle).

-3-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 3 of 8 Pg ID 912
149 L.Ed.2d 958 (2001). Furthermore, “exhaustion” under the PLRA means “proper

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 2387,165 L.Ed.2d 368

(2006). In Woodford, the Supreme Court defined “proper exhaustion” as requiring

“compliance with an agency’s deadlines and other critical procedural rules....” Id., 548

U.S. at 90, 126 S.Ct. at 2385. Thus, whether a claim is “properly exhausted” under the

PLRA requires an examination of the particular institution’s administrative rules and

regulations regarding prisoner grievances.

However, “inmates are not required to specially plead or demonstrate exhaustion

in their complaints.” Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798

(2007). Under Jones, it is Defendants’ burden to assert non-exhaustion as an affirmative

defense. Id.; Grinter v. Knight, 532 F.3d 567 (6th Cir.2008). Jones v. Bock overruled a

long line of Sixth Circuit cases that placed the burden of pleading and supporting

exhaustion on plaintiffs.

Under the PLRA, a dismissal for failure to exhaust nonjudicial remedies is without

prejudice. Boyd v. Corrections Corp. of America, 380 F.3d 989, 994 (6th Cir.2006) (citing

Knuckles El v. Toombs, 215 F.3d 640 (6th Cir.2000)); McCloy v. Correctional Medical

Services, 794 F.Supp.2d 743, 751 (E.D.Mich. 2011).5

III. DISCUSSION

Plaintiff does not deny that he did not commence the BOP grievance process until

5

 As I noted in Twohig v. Riley, 2013 WL 3773365, *3-4 (E.D. Mich. 2013), there

has been a divergence of views concerning whether a motion to dismiss under 42 U.S.C.

§ 1997e(a) is properly characterized as a summary judgment motion, a Rule 12(b)(6)

motion, or an unenumerated Rule 12(b) motion. In Twohig, I chose the latter as “the

more sound approach, particularly given the uncertainty as to whether a dismissal based

purely on exhaustion constitutes a “strike” under the PLRA....” See also McCormick v.

Corizon Health, Inc., 2014 WL 897371, *2 -3 (E.D.Mich. 2014)(Cleland, J.). I

recommend the same approach in this case. 

-4-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 4 of 8 Pg ID 913
after he filed his complaint. Rather, he argues that because the retaliation was continuing,

he “had to decide if the PLRA remedies were proper due to this ongoing problem.”

Plaintiff’s Motion in Opposition [Doc. #35], p. 4. Of course, the alleged assault of

November, 2013 was a discrete, not an ongoing event. But more to the point, Plaintiff

does not get to decide whether and when to undertake PLRA remedies; those remedies

are mandatory. Porter v. Nussle. By Plaintiff’s reasoning, an inmate has but to allege

ongoing retaliation, and he or she is excused from the requirements of the PLRA. This is

not, nor has it ever been the law. Exhaustion is required even if the inmate subjectively

believes that the remedy is not available or that the procedure is “ineffectual or futile.”

Napier v. Laurel County, Ky., 636 F.3d 218, 222 (6th

 Cir. 2011). In addition, if Plaintiff

claims that as the result of retaliation, he was denied access to certain programs (which he

fails to identify), then at the latest, the date of denial would be the triggering event for

initiating an administrative remedy. 

Instead, Plaintiff filed his first request for an administrative remedy on October 3,

2014, a month after he filed his complaint in this Court.6 Under the PLRA, “a prison

inmate may not complete the grievance process after filing suit.” Boulding v. Michigan

Dep't of Corr., 2015 WL 136195, at *3 (E.D. Mich. 2015), citing Larkins v. Wilkinson,

6

 The BOP has a four-step administrative process for resolving inmate grievances:

(1) at the first step, the inmate is required to “present an issue of concern informally to

staff....” 28 C.F.R. §542.13; (2) if the grievance is not resolved to the inmate’s

satisfaction, he or she may then file a written Administrative Remedy Request within 20

days of the date the basis for the Request occurred. 28 C.F.R. §542.14; (3) if still not

satisfied, the inmate may submit a written appeal to the appropriate Regional Director

within 20 days of when the Warden signed the step two response. 28 C.F.R. §542.15; (4)

the final step in the administrative process is a written appeal to the General Counsel

within 30 days of the Regional Director’s response. Id. Apart from the fact that his

grievance was untimely, and that it was brought after he filed his Bivens action, Plaintiff

did not pursue his administrative remedies beyond the second step. Suydam Affidavit, 

¶ 11.

-5-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 5 of 8 Pg ID 914
1998 WL 898870 at *2 (6th Cir. Dec.17, 1998) (unpublished).

Nor does the fact that Plaintiff pursued and completed an action under the Federal

Tort Claims Act satisfy his obligation to complete the BOP administrative process as

required by the PLRA. The point of the exhaustion requirement is to give the prison

authorities the opportunity to resolve the inmates’ complaints. See Jones v. Bock, 549

U.S. at 204 (“Requiring exhaustion allows prison officials an opportunity to resolve

disputes concerning the exercise of their responsibilities before being haled into court.”).

An FTCA action does not vindicate that purpose. Owusu v. Fed. Bureau of Prisons, supra

at *2 explained:

“Here, while plaintiff did fully exhaust the available administrative

remedies for his FTCA claim, he did not do so for his Bivens claim under

the PLRA. The exhaustion procedures under the two statutes differ, and the

fulfillment of one does not constitute satisfaction of the other. Cf. Funches

v. Reish, 1998 WL 695904, at *9 (S.D.N.Y. Oct. 5, 1998) (finding that a

prisoner's FTCA claim was exhausted, but that his Bivens claim was not);

Hylton v. Federal Bureau of Prisons, No. CV 00-5747, 2002 WL 720605,

at *2 (E.D.N.Y. March 11, 2002) (finding that “it is entirely possible that

[plaintiff] exhausted his administrative remedies for purposes of the FTCA

without exhausting remedies pursuant to the PLRA for purposes of filing a

Bivens claim” because the plaintiff had failed to exhaust the BOP's fourstep grievance procedure). The PLRA's mandatory exhaustion requirement

is specifically designed to facilitate the resolution of federal prisoner claims

internally without resorting to the courts, while the FTCA's administrative

exhaustion requirements permit a prisoner to skip over the truly “internal”

steps of the PLRA process entirely. Furthermore, the PLRA “eliminated ...

the discretion to dispense with administrative exhaustion.” Booth 532 U.S.

at 739. (Emphasis added).

Because Plaintiff did not exhaust his administrative remedies before filing this

action, his complaint must be dismissed without prejudice.7 And it naturally follows that

7

 Defendant also argued in it motion that it is entitled to dismissal of the retaliation

claim because the Plaintiff did not suffer a physical injury, as required by 42 U.S.C. §

1997e(e). However, on June 1, 2015, after Defendant filed its motion, the Sixth Circuit

rejected that construction of § 1997e(e) in the context of First Amendment claims. King v.

Zamiara, 788 F.3d 207, 212 (6th Cir. 2015), cert. denied, 2016 WL 100373 (Jan. 11,

2016)(“[W]e are persuaded that deprivations of First Amendment rights are themselves

-6-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 6 of 8 Pg ID 915
the Plaintiff’s own motions or cross-motions for summary judgment or judgment in his

favor must be denied.

IV. CONCLUSION

I recommend that Defendant’s Motion to Dismiss or alternatively for Summary

Judgment [Doc. #28] be construed as an unenumerated motion under Fed.R.Civ.P. 12(b),

that it be GRANTED, and that Plaintiff’s complaint be DISMISSED WITHOUT

PREJUDICE.

I further recommend that both of Plaintiff’s motions/cross-motions for summary

judgment [Doc. #36 and Doc. #68] be DENIED.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D.

Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (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 of objections which 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. 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). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed

injuries, apart from any mental, emotional, or physical injury that might also arise from

the deprivation, and that § 1997e(e) does not bar all relief for injuries to First Amendment

rights.”). However, because Plaintiff’s complaint must be dismissed for failure to exhaust,

it is not necessary to address this argument.

-7-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 7 of 8 Pg ID 916
objections, the opposing party may file a response. The response shall be not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: January 27, 2016

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

January 27, 2016, electronically and/or by U.S. mail.

s/C. Ciesla 

Case Manager 

-8-

2:14-cv-13439-AJT-RSW Doc # 70 Filed 01/27/16 Pg 8 of 8 Pg ID 917