UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT ANDERSON,

Plaintiff, Case Number 15-11727

v. Honorable David M. Lawson

Magistrate Judge R. Steven Whalen

KEVIN ALLEN JUTZY, M.D., RAUL

TUMNADA, P.A., BADAWI ABELLATIF,

M.D., and ANGELA VATRINO,

Defendants.

____________________________________/

ORDER ADOPTING IN PART MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION, OVERRULING PLAINTIFF’S

OBJECTIONS IN PART, AND GRANTING DEFENDANT VATRINO’S

MOTION FOR SUMMARY JUDGMENT

The case is before the Court on objections filed by the plaintiff to a report issued by

Magistrate Judge R. Steven Whalen recommending that a motion for summary judgment by

defendant Angela Vettraino (identified as “Vatrino” in the caption) be treated as an “unenumerated

motion under Fed. R. Civ. P. 12(b)” and granted. The motion is based on the defendant’s affirmative

defense that the plaintiff, a Michigan prisoner, has not exhausted his administrative remedies as

required by the Prison Litigation Reform Act (PLRA). Plaintiff Robert Anderson is a Michigan

prisoner who, while housed at the Macomb Correctional Facility, was seen by Vettraino, a nurse

employed by the Michigan Department of Corrections (MDOC), for a complaint of painful discharge

from his penis. Anderson filed a complaint in this Court alleging that his medical ailment was not

addressed adequately, and the plaintiff’s civil rights therefore were violated. The case was referred

to Magistrate Judge Whalen to conduct all pretrial proceedings. Thereafter, Vettraino filed her

motion for summary judgment. On January 26, 2016, Judge Whalen filed his report recommending

that the Court treat the summary judgment as a motion under Federal Rule of Civil Procedure 12(b),

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 1 of 13 Pg ID 226
find that the plaintiff has not exhausted his administrative remedies prescribed by the MDOC

grievance rules, and dismiss the complaint against defendant Vettraino without prejudice. The

plaintiff filed timely objections, and the matter is before the Court for de novo review. The Court

finds that the magistrate judge improperly characterized the defendant’s motion as invoking Rule

12 instead of Rule 56. However, that error does not affect the thrust of the recommendation that the

plaintiff did not complete the MDOC grievance procedure. Therefore, under the PLRA, his

complaint against this defendant must be dismissed without prejudice. 

I.

The magistrate judge accurately summarized the sequence of events that started with the

plaintiff’s encounter with the MDOC medical personnel (according to his complaint), his grievance

filings, and his commencement of this litigation. In her motion, defendant Vettraino attached an

affidavit from a prison official explaining the grievance procedure and summarizing the grievance

report from the MDOC. The report confirms that the plaintiff did not file a Step-III grievance

against defendant Vettraino until 2.5 months after he filed his complaint in this case. 

In his report, Judge Whalen found that the plaintiff did not “properly exhaust” his

administrative remedies against defendant Vettraino as required by MDOC’s grievance procedure. 

Judge Whalen expressed concern, however, that a dismissal as a summary judgment on this

procedural ground would be viewed as a “strike” under the PLRA’s “three-strikes” provision that

generally withholds pauper status from prisoners who have filed three previous lawsuits that have

been dismissed as frivolous. See 28 U.S.C. § 1915(g). He recommended an approach that he used

in a previous case: construing the motion as a motion to dismiss under Rule 12(b). See Twohig v.

Riley, No. 12-11832, 2013 WL 3773365, at *3 (E.D. Mich. July 17, 2013). However, because the

-2-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 2 of 13 Pg ID 227
exhaustion requirement is an affirmative defense, and not an issue a prisoner must address in his

complaint, Judge Whalen recognized that a dismissal under Rule 12(b)(6) for failure to state a claim

would not be appropriate. Nor do any of the other enumerated grounds in Rule 12(b) fit the

circumstances here. So Judge Whalen opted to treat the defendant’s motion as “‘an unenumerated

Rule 12(b) motion rather than a motion for summary judgment.’” Ibid. (quoting Wyatt v. Terhune,

315 F.3d 1108, 1119 (9th Cir. 2003)). 

II.

The plaintiff objected to the magistrate judge’s report and recommendation on the procedural

ground discussed above and four other grounds. Objections to a report and recommendation are

reviewed de novo. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination

of those portions of the report or specified proposed findings or recommendations to which objection

is made. A judge . . . may accept, reject, or modify, in whole or in part, the findings to which

objection is made.” 28 U.S.C. § 636(b)(1). The Sixth Circuit has stated that “[o]verly general

objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th

Cir. 2006). “The objections must be clear enough to enable the district court to discern those issues

that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). 

“‘[O]bjections disput[ing] the correctness of the magistrate’s recommendation but fail[ing] to

specify the findings . . . believed [to be] in error’ are too general.” Spencer, 449 F.3d at 725

(quoting Miller, 50 F.3d at 380). “[T]he failure to file specific objections to a magistrate’s report

constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).

The entire focus of the recommendation is on the exhaustion requirement of the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(a). The PLRA’s exhaustion requirement is mandatory. 

-3-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 3 of 13 Pg ID 228
Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v. Churner, 532 U.S. 731, 741 (2001). 

“Exhaustion” under the PLRA means “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93

(2006). “Proper exhaustion” means “compliance with an agency’s deadlines and other critical

procedural rules . . . .” Id. at 90.

The Supreme Court has 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 v. Bock, 549 U.S. 199, 216 (2007). This affirmative defense may serve as a

basis for dismissal only if raised and proved by the defendants. Ibid.

Since the Supreme Court decided Jones v. Bock, the Sixth Circuit has stated that courts ought

not impose severe technical requirements on prisoners who comply with the spirit and purpose of

the administrative exhaustion rules. “[I]t is sufficient for a court to find that a prisoner’s [grievance]

gave prison officials fair notice of the alleged mistreatment or misconduct that forms the basis of

the constitutional or statutory claim made against a defendant in a prisoner’s complaint.” Bell v.

Konteh, 450 F.3d 651, 654 (6th Cir. 2006) (internal quotation marks and citation omitted). 

A fair indicator that the purpose of the grievance was fulfilled is the prison’s response to the

inmate’s complaint. If the information in the grievance is too vague or imprecise, a response so

indicating would tell the interested parties that more detail is necessary. However, when the prison

officials address the merits of the prisoner’s complaint without mentioning a problem identifying

the object of the grievance, the administrative system has worked, and the prison officials have had

the “opportunity to correct [their] own mistakes.” Woodford, 548 U.S. at 89 (internal citation and

quotation marks omitted).

-4-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 4 of 13 Pg ID 229
A. Unenumerated Rule 12(b) motion

The plaintiff objects to converting the defendant’s motion for summary judgment into an

unenumerated Rule 12(b) motion. He argues that not identifying an enumerated ground under Rule

12(b) prejudices the plaintiff because he cannot properly respond to the motion. The Court agrees

that characterizing the motion as having been brought under Rule 12(b) is not proper. But that did

not hamper the plaintiff’s ability to respond, nor did it lead to an incorrect result.

As noted above, a prisoner’s failure to exhaust administrative remedies is an affirmative

defense, which a defendant must plead and prove. Jones , 549 U.S. at 216. As a general rule,

affirmative defenses must be raised by a responsive pleading. Fed. R. Civ. P. 12(b) (stating that

“[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if

one is required”). However, Rule 12(b) lists seven specific defenses that may be raised by motion. 

A failure to exhaust defense, or any defense based on the failure of a condition or requirement that

is not an element of a claim for relief, is not included among the seven grounds. 

Defendant Vettraino did not file a responsive pleading in this case. Because of the nature

of the complaint, she was not required to do so. See 42 U.S.C. § 1997e(g)(1) (allowing that “[a]ny

defendant may waive the right to reply to any action brought by a prisoner confined in any jail,

prison, or other correctional facility under section 1983 of this title or any other Federal law,” and

stating that “such waiver shall not constitute an admission of the allegations contained in the

complaint”). However, to assert an affirmative defense (save those enumerated in Rule 12(b)(1)

through (7)), she should have filed a responsive pleading. See Henricks v. Pickaway Corr. Inst., 782

F.3d 744, 750 (6th Cir. 2015). 

-5-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 5 of 13 Pg ID 230
 Once an affirmative defense is asserted, it may be adjudicated at any point in the

development of a lawsuit that the rules of procedure allow. As the Jones Court noted, because a

plaintiff need not anticipate or plead around an exhaustion defense, that defense usually may not be

addressed in a motion under Rule 12(b)(6) for failure to state a claim. Jones, 549 U.S. at 215. (In

the rare case in which the plaintiff includes allegations in his complaint that permit adjudication of

an exhaustion defense, a defendant may resort to a motion to dismiss under Rule 12(b)(6). See

Rembisz v. Lew, 590 F. App’x 501, 504 (6th Cir. 2014) (acknowledging that the exhaustion defense

may be “susceptible to resolution on a motion to dismiss if a plaintiff affirmatively pleads himself

out of court”) (citing Jones, 549 U.S. at 215)). However, the exhaustion affirmative defense may

be raised by a motion for summary judgment if the defendant successfully demonstrates that no

genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law on

that defense. See Goad v. Mitchell, 297 F.3d 497, 504-05 (6th Cir. 2002); see also Rembisz, 590 F.

App’x at 504; LaFountain v. Martin, 334 F. App’x 738, 740 (6th Cir. 2009) (quoting Fed. R. Civ.

P. 56(c)). If material fact issues preclude summary judgment, the exhaustion defense may be tried

to the Court under Rule 52(a)(1). See Palmer v. Flore, 3 F. Supp. 3d 632, 636 (E.D. Mich. 2014). 

The summary judgment motion is especially well suited to pretrial adjudication of an

exhaustion defense, because proof of lack of exhaustion generally requires resort to matters outside

the pleadings, such as affidavits or documentary evidence. Wysocki v. Int’l Bus. Mach. Corp., 607

F.3d 1102, 1104 (6th Cir. 2010) (holding that when “matters outside the pleadings are presented to

and not excluded by the court,” a motion to dismiss must be treated as a motion “for summary

judgment under Rule 56”) (quoting Fed. R. Civ P. 12(d)). As the magistrate judge pointed out in

Twohig v. Riley, Rule 12(b)(6) does not appear to be the proper vehicle to address an exhaustion

-6-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 6 of 13 Pg ID 231
defense under the PLRA, because failure to exhaust is not a pleading requirement. Twohig, 2013

WL 3773365, at *3. However, the magistrate judge expressed concern that a dismissal for failure

to exhaust might be viewed in the future as a merits adjudication and count as a “strike” under the

PLRA’s three-strikes provision. That concern, however, is not well-founded. 

Certainly, under the PLRA, a prisoner may not be allowed pauper status if on three prior

occasions the prisoner filed a complaint or appeal that was “dismissed on the grounds that it is

frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). This is often referred

to as the “three-strikes” provision of the in forma pauperis statute. See Pointer v. Wilkinson, 502

F.3d 369, 370 (6th Cir. 2007). The three-strikes provision was added by the PLRA in part to curb

the “crush of frivolous prisoner filings in the federal courts.” Ibid. Therefore, the manner in which

a prisoner’s complaint is resolved may have substantial consequences on future access to the federal

courts. 

However, neither the Supreme Court nor the Sixth Circuit has held that dismissing a

prisoner’s complaint for failing to exhaust administrative remedies amounts to the “failure to state

a claim,” which would make it a strike under the statute. See Jones v. Bock, 549 U.S. 199, 215

(2007); Pointer v. Wilkinson, 502 F.3d 369, 373 (6th Cir. 2007). In Pointer, the Sixth Circuit

adopted the view that “an action dismissed entirely without prejudice is not a ‘strike’ for the purpose

of Section 1915(g).” Ibid. (quoting Clemons v. Young, 240 F. Supp. 2d 639, 641 (E.D. Mich. 2003)). 

 The magistrate judge in Twohig also reasoned that summary judgment appears to be

inappropriate for exhaustion issues because there is no determination of the merits. Twohig, 2013

WL 3773365, at *3. However, that also is not entirely correct. A motion for summary judgment

-7-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 7 of 13 Pg ID 232
on the exhaustion issue necessarily addresses the merits of an affirmative defense. The Twohig court

cited Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), to support its conclusion that an

unenumerated Rule 12(b) is preferable to a summary judgment motion. However, Wyatt was

explicitly overruled on that issue by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en banc), for

deviating from the “‘usual practice under the Federal Rules on the basis of perceived policy

concerns.’” Id. at 1168 (quoting Jones, 549 U.S. at 212).

In Albino, the court recognized that the Wyatt panel’s resort to an “‘unenumerated’ (that is,

non-existent)” rule did not square with the Supreme Court’s admonition in “Jones against deviating

from ‘the usual practice under the Federal Rules.’” Id. at 1166, 1169. The court reasoned that

summary judgment under Rule 56 was the more appropriate procedural vehicle to consider whether

a prisoner had exhausted administrative remedies. Id. at 1170. The Albino court joined the Second,

Third, Fifth, and Seventh Circuits, which all “use a motion for summary judgment, as opposed to

an unenumerated Rule 12(b) motion” to resolve the question whether a prisoner had failed to exhaust

administrative remedies under the PLRA. Ibid.; see also Melton v. Michigan Corr. Comm’n, No.

07-15480, 2009 WL 722688, at *6 (E.D. Mich. Mar. 17, 2009) (resolving failure to exhaust

administrative remedies in a motion for summary judgment). 

The plaintiff’s objection that the magistrate judge should not have addressed the motion

under Rule 12(b) has merit. But his argument that he suffered prejudice from that procedural

irregularity must be rejected. Defendant Vettraino’s motion was styled as a motion for summary

judgment. The plaintiff responded to that motion, and furnished a declaration and exhibits. He had

fair notice that the motion was presented as a summary judgment motion, and that matters outside

the pleadings could be considered. 

-8-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 8 of 13 Pg ID 233
Based on all the declarations and exhibits, it is clear that the material facts are not disputed. 

The only question that remains is the legal consequences that flow from the undisputed facts. 

Therefore, the plaintiff’s assertion in his first objection that he was prejudiced by the magistrate

judge’s procedural invention lacks merit and will be overruled. 

B. Availability of Grievance Process

The plaintiff contends that the Sixth Circuit has recognized that administrative remedies are

exhausted when prison officials fail to timely respond to a properly filed grievance. He points out

that more than 120 days had passed since he filed his Step-II appeal, which is the time allowed under

the administrative rule for completing the entire grievance process. The plaintiff argues that the

magistrate judge incorrectly interpreted the MDOC policy as providing an avenue for the plaintiff

to pursue the next level (Step III) of the grievance process. 

The MDOC grievance policy states that “[i]f a grievant chooses to pursue a grievance which

has not been responded to by staff within the required time frames, . . . the grievant may forward the

grievance to the next step of the grievance process within ten business days after the response

deadline expired.” MDOC Policy Directive ¶ T. The plaintiff characterizes the magistrate judge’s

recommendation as requiring him to request an extension to file his Step-III appeal after not

receiving a timely response to his Step-II appeal. However, the plaintiff has mischaracterized the

magistrate judge’s recommendation. The magistrate judge noted that the Step-III appeal was

available to the plaintiff because after the Step-II response time lapsed with no answer, he had 10

days to proceed to Step III. There was no suggestion that the plaintiff was required to ask for an

extension. The magistrate judge’s mention of an extension was in response to the plaintiff’s

allegation that he was in the hospital during the 10-day period when he would have had to file his

-9-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 9 of 13 Pg ID 234
Step-III appeal. The magistrate judge noted that the MDOC policy allows for extensions and that

the plaintiff could have filed for an extension and subsequently pursued his Step-III appeal. 

The plaintiff argues that the magistrate judge misconstrued the provisions of the MDOC

policy that allows extensions. According to the plaintiff, extensions are allowed for the MDOC

officials only, not prisoners. Paragraph S governs extensions and states the following: 

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 II. An extension for a Step I or II response shall not exceed 15 days unless

the grievance falls within the jurisdiction of the Internal Affairs Division. The

Grievance Coordinator shall immediately notify the grievant in writing whenever an

extension has been approved; the extension also shall be noted in the grievance

response.

MDOC Policy Directive ¶ S. Nothing in that language confines the right to request and obtain

extensions to prison officials. It is true that the rule makes reference to “[a]n extension for a Step

I or II response,” which necessarily applies to the prison officials, who always would be the

responding party. That language, however, does not preclude an inmate from seeking an extension. 

Nonetheless, whether an extension was available to the plaintiff was not tested, because rather than

filing the Step-III appeal after being released from the hospital, the plaintiff filed this action. He did

not file a Step-III appeal until after he commenced the present lawsuit. 

The plaintiff’s objection on this ground will be overruled.

C. Failure to Name Defendant Vettraino in Grievances

The plaintiff does not take issue with the policy that describes the information required in

a grievance. Rather, he objects that the magistrate judge did not take into account the information

that was available to the plaintiff at the time. The plaintiff argues that he simply did not know all

-10-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 10 of 13 Pg ID 235
of the names of the people against whom he was filing a grievance at the time. In fact, he asked for

an investigation to be conducted, but did not learn until months later that defendant Vettraino could

be held liable for her alleged conduct. 

The plaintiff cites Jones v. Bock, where the Court noted that “[t]he PLRA requires exhaustion

of such administrative remedies as are available, but nothing in the statute imposes a ‘name all

defendants’ requirement along the lines of the Sixth Circuit’s judicially created rule.” 549 U.S. at

217 (internal citations and quotation marks omitted). The Jones Court concluded “that exhaustion

is not per se inadequate simply because an individual later sued was not named in the grievances.” 

Id. at 219. To the extent that the magistrate judge based his recommendation on the plaintiff’s

failure to name the defendant, the plaintiff is correct. However, that does not change the outcome

here. As the magistrate judge explained, not only did the plaintiff fail to mention the defendant in

his grievance, he also failed to articulate in his grievance the source of his complaint against her. 

The main thrust of his Step-I and -II grievances related to medical issues not presented to defendant

Vettraino. Therefore, the plaintiff failed to comply with the basic requirement of the administrative

rule, which was intended to provide a means of “affor[ding] corrections officials time and

opportunity to address complaints internally before allowing the initiation of a federal case.” Porter,

534 U.S. at 525. The Step-I and -II grievances did not give defendant Vettraino “fair notice of the

alleged mistreatment or misconduct that forms the basis of the constitutional or statutory claim made

against a defendant in a prisoner’s complaint.” Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003)

abrogated with respect to other principles by Jones v. Bock, 549 U.S. 199 (2007). 

The petitioner’s third objection will be overruled.

-11-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 11 of 13 Pg ID 236
D. Other Responses to the Exhaustion Defense

The plaintiff further objects that the magistrate judge failed to address other defenses raised

in the plaintiff’s opposition to the motion for summary judgment. The plaintiff argues that his

verified complaint has not been refuted and discovery is needed to decide a motion for summary

judgment. Discovery, he argues, into the medical records will show genuine issues of material facts

which support his position that the motion for summary judgment should be denied. However, the

magistrate judge’s report and recommendation does not address the merits of the plaintiff’s claim. 

Rather, it focuses entirely on the affirmative defense of failure to exhaust administrative remedies,

for which there are no material fact issues in dispute. The record facts are sufficient to adjudicate

that defense as a matter of law, and no discovery is necessary to further illuminate the

circumstances. 

 III.

The Court’s de novo review of defendant Vettraino’s motion for summary judgment and the

plaintiff’s response leads to the conclusion that the magistrate judge applied the correct substantive

law to the facts of the case, although he utilized an incorrect procedure. The procedural error,

however, was inconsequential to the outcome. 

Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.

#27] is ADOPTED IN PART.

It is further ORDERED that the plaintiff’s objections to the report and recommendation [dkt.

#32] are OVERRULED IN PART. 

It is further ORDERED that defendant Vettraino’s motion for summary judgment [dkt. #11]

is GRANTED. 

-12-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 12 of 13 Pg ID 237
It is further ORDERED that the complaint against defendant Angela Vettraino, ONLY is

DISMISSED WITHOUT PREJUDICE. 

It is further ORDERED that the matter is referred to Magistrate Judge R. Steven Whalen 

under the previous reference order [dkt. #8] to ready the matter for trial and to conduct a trial if the

parties consent under 28 U.S.C. § 636(c)(1).

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: March 29, 2016

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 29, 2016.

s/Susan Pinkowski 

SUSAN PINKOWSKI

-13-

2:15-cv-11727-DML-RSW Doc # 36 Filed 03/29/16 Pg 13 of 13 Pg ID 238