UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MAURICE SPEARMAN,

Plaintiff,

v.

STACY KOCOT,

Defendant.

/

Case No. 02-73105

Honorable Arthur J. Tarnow

United States District Judge

Magistrate Judge Wallace Capel, Jr.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT [73]

In this prisoner civil rights action, Plaintiff, Maurice Spearman, alleges to

have suffered retaliation by Defendant, Stacy Kocot. On September 30, 2003, the

Court entered an order on the magistrate’s Report and Recommendation, granting

in part and denying in part a motion to dismiss/for summary judgment by

Defendant and denying a motion for summary judgment by Plaintiff. In that order,

the Court rejected Defendant’s argument in favor of the “total exhaustion” rule. 

The Court dismissed Plaintiff’s unexhausted claims and allowed his exhausted

claims to proceed. On April 27, 2005, a panel of the Sixth Circuit promulgated

Bey v. Williams, 407 F.3d 801 (6th Cir. 2005). Bey adopted the total exhaustion

rule, holding that the Prison Litigation Reform Act requires dismissal of an entire

action containing unexhausted claims. That decision was the impetus for the

instant motion for summary judgment by Defendant. The Court has determined

that oral argument is not necessary.

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Defendant argues that, in light of Bey, the Court erred in allowing Plaintiff’s

unexhausted claims to proceed. That decision, however, was not unanimous. In

his dissent, Judge Clay pointed out that the total exhaustion question had already

been answered by Hartsfield v. Vidor, 199 F.3d 305 (6th Cir. 1999), wherein the

Court recognized – without using the magic words “total exhaustion” – that the

district court had properly addressed the merits of the plaintiff’s exhausted claims

while dismissing his unexhausted claims. Because Bey was not an en banc

decision, he explained, it could not overrule Hartsfield. The Court agrees that the

two cases are conflicting and declines to apply Bey to the instant case. 

In the September 2003, order, the Court concluded that Plaintiff 

demonstrated exhaustion as to the shake downs of May 5, 2003, and May 11, 2003,

but not as to the incidents of April 15, 2003, and June 5, 2003. The Court need not

reiterate its reasoning. As Plaintiff correctly states, the only claims which survived

Defendant’s previous motion were the exhausted claims. Had the Court dismissed

Plaintiff’s complaint in its entirety, he could have simply filed an amended version,

raising only the exhausted claims. The case now stands in the same posture as it

would if Plaintiff had filed an amended complaint. Therefore, Defendant’s motion

is DENIED.

IT IS SO ORDERED.

_

s/Arthur J. Tarnow 

Arthur J. Tarnow

United States District Judge

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Dated: July 13, 2005

I hereby certify that a copy of the foregoing document was served upon

counsel of record on July 13, 2005, by electronic and/or ordinary mail.

s/Theresa E. Taylor 

Case Manager

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