UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DAVID ST. ANN, 

 Plaintiff, 

 Case No. 5:15-cv-11770 

v. Judge Judith E. Levy 

 Magistrate Judge Anthony P. Patti 

TODD MCLEAN, 

DEAN POTILA, 

SAMUEL MORGAN and 

THOMAS HAYNES, 

 Defendants. 

___________________________________/ 

REPORT AND RECOMMENDATION REGARDING MDOC 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DE 16) 

I. RECOMMENDATION: The Court should grant in part and deny in part 

the MDOC Defendants’ motion for summary judgment (DE 16), as Plaintiff has 

only exhausted his administrative remedies with regard to certain claims against 

Defendants in the first amended complaint (DE 6). In sum, 

a. Grievance Identifier SRF-2012-12-2149-26A, which alleges denial of proper 

medical treatment, does not operate to exhaust Plaintiff’s claims against the 

MDOC Defendants – each of whom is described as an ARUS (Assistant 

Resident Unit Supervisor) at SRF ......................................................................... 13 

b. Grievance Identifier SRF-2012-12-2167-28A does not appear to concern 

McLean, Potila, Morgan or Haynes ...................................................................... 16 

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2 

c. Plaintiff did not exhaust his administrative remedies as to any claims set 

forth in Grievance Identifier SRF-2013-10-1744-01G, as he did not appeal this 

grievance to Step III, and it concerns healthcare .................................................. 18 

d. Grievance Identifier SRF-2013-11-2026-28B, although appealed through 

Step III, concerns health care and does not operate to exhaust Plaintiff’s claims 

against the correctional officer defendants as set forth in the first amended 

complaint ............................................................................................................... 19 

e. Grievance Identifier SRF-2014-03-0468-28B operates to exhaust only some 

of the claims against Defendants within Plaintiff’s first amended complaint ...... 20 

f. Grievance Identifier SRF-2015-08-1386-17b was not exhausted before 

Plaintiff’s original and amended complaints were filed, as is required by 42 

U.S.C. § 1997e(a) ................................................................................................. 31 

g. Similarly, Grievance Identifier SRF-2015-11-02220-03B, and the October 

27, 2015 event seemingly underlying it, occurred after the filing of Plaintiff’s 

original and amended pleadings ........................................................................... 34 

II. REPORT: 

A. Background 

Plaintiff David St. Ann (#741290) is currently incarcerated at the Michigan 

Department of Corrections (MDOC) Muskegon Correctional Facility (MCF). 

(DEs 9, 11.)1

 On May 15, 2015, while incarcerated at the MDOC’s Saginaw 

Correctional Facility (SRF) in Freeland, Michigan, Plaintiff filed the instant 

lawsuit pro se against (1) Todd McLean, described as an SRF Assistant Resident 

                                                            

1

 Plaintiff is serving a life sentence imposed on September 16, 2009 in Case No. 

09010620-01-FH (Wayne County). (See www.michigan.gov/corrections, 

“Offender Search.”) 

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3 

Unit Supervisor (ARUS); (2) Zummer, described as an SRF Resident Unit 

Manager (RUM), (3) Dean Potila, described as an SRF ARUS; and (4) Obel Winn, 

described as the SRF Warden. (See DE 1 at 1, 10-11; see also DE 15.) 

On November 6, 2015, this Court entered an order granting Plaintiff’s 

motion to amend and directing the Clerk of the Court to delete Defendants 

Zummer and Winn but add Defendants Morgan and Haynes. (DEs 5, 8.) 

Therefore, Plaintiff’s August 28, 2015 verified, first amended complaint against 

McLean, Potila, SRF ARUS Samuel Morgan and SRF ARUS Thomas Haynes is 

the operative pleading in this case. (See DE 6; see also DE 12, 14.) The operative 

pleading alleges civil rights violations and a common law claim for intentional 

infliction of emotional distress. (DE 6 ¶¶ 173-181.) 

B. The Instant Motion 

Judge Levy has referred this case to me for pretrial matters. (DE 18.) 

Currently before the Court is the MDOC Defendants’ February 2, 2016 motion for 

summary judgment, which presents the sole argument that Defendants are entitled 

to dismissal of Plaintiff’s complaint, as he “did not properly complete the 

grievance process regarding his Complaint allegations[,]” or “did not file a 

grievance regarding his Complaint allegations against any Defendant.” (DE 16 at 

4, 9-17.) 

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Plaintiff’s deadline to respond was extended by way of motions and orders. 

(See DEs 17, 19, 20, 21.) Plaintiff’s response, dated May 31, 2016, was filed with 

the Court on June 2, 2016. (DE 22.)2

 

C. Fed. R. Civ. P. 56 

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(a). A fact is material if it might affect the outcome of the case under governing 

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court 

“views the evidence, all facts, and any inferences that may be drawn from the facts 

in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt. 

Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (internal citations omitted). 

 “The moving party has the initial burden of proving that no genuine issue of 

material fact exists . . . .” Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 

(6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56 (e)(2) 

(providing that if a party “fails to properly address another party’s assertion of 

                                                            

2

 Since briefing closed on Defendants’ dispositive motion (DE 16), Plaintiff has 

filed (a) a second motion for leave to amend his complaint, whereby he seeks to 

add ARUS Buczek as a defendant and add Count 4 (DE 23 at 11), and (b) what 

amounts to a proposed and verified second amended complaint (DEs 24 & 25). 

Given the age of Defendants’ February 2, 2016 motion for summary judgment (DE 

16), the undersigned will address it first, followed by Plaintiff’s pending motion to 

amend (DE 23), should an opinion on the same be necessary. See 28 U.S.C. §§ 

471-482 (“Civil Justice Expense and Delay Reduction Plans”). 

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5 

fact,” then the court may “consider the fact undisputed for the purposes of the 

motion.”). “Once the moving party satisfies its burden, ‘the burden shifts to the 

nonmoving party to set forth specific facts showing a triable issue.’” Wrench LLC 

v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving 

party must “make an affirmative showing with proper evidence in order to defeat 

the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also 

Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 435, 441 (6th Cir. 

2011) (“The nonmovant must, however, do more than simply show that there is 

some metaphysical doubt as to the material facts . . . . [T]here must be evidence 

upon which a reasonable jury could return a verdict in favor of the non-moving 

party to create a genuine dispute.”) (internal quotation marks and citations 

omitted). 

Summary judgment is appropriate if the evidence favoring the nonmoving 

party is merely colorable or is not significantly probative. City Management Corp. 

v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, 

summary judgment is appropriate when “a motion for summary judgment is 

properly made and supported and the nonmoving party fails to respond with a 

showing sufficient to establish an essential element of its case. . . .” Stansberry, 

651 F.3d at 486 (citing Celotex Corp. v. Catrett, 477 U.S. 371, 322-23 (1986)). 

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D. Discussion 

 For the following reasons, the Court should grant in part and deny in part the 

MDOC Defendants’ motion for summary judgment. 

1. Plaintiff’s August 28, 2015 first amended complaint (DE 6) 

sets forth three causes of action against four SRF 

corrections officers. 

The facts underlying Plaintiff’s verified, amended complaint span the period 

from December 6, 2012 to May 1, 2015 and concern, among other things, an 

alleged assault, health care requests, grievances, misconduct tickets, a deadline in 

his case involving a petition for writ of habeas corpus,3

 security classification level 

and intent to file a lawsuit regarding the alleged assault. (DE 6 ¶¶ 12-172, DE 6 at 

43-44.) Before considering whether the claims set forth in Plaintiff’s first amended 

complaint have been exhausted, it is helpful to summarize the 160 paragraphs of 

facts pleaded in Plaintiff’s first amended complaint, particularly Plaintiff’s express 

mention of Defendants McLean, Potila, Morgan and Haynes. 

a. It is during Plaintiff’s November 29, 2012 to January 

27, 2014 assignment to Cell 700-173 at SRF that the 

events underlying his amended complaint begin. 

                                                            

3

 St. Ann was a petitioner in St. Ann v. Rapelje, Case No. 2:13-cv-11720-PJD-PJK 

(E.D. Mich.). In the instant case, Plaintiff alleges that his April 17, 2014 attempt to 

visit the law library – presumably to satisfy an April 28, 2014 deadline in his 

habeas case – was rejected, because he had “to go back to his unit and [could not] 

attend law library due to being on top-lock.” (DE 6 ¶¶ 85-93; see also DE 1-1 at 

18-22, 24-25.) 

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Plaintiff claims he was assaulted on December 6, 2012 by Officer Mark 

Richard and others. (DE 6 ¶¶ 12-17.) From December 7, 2012 through December 

8, 2012, Plaintiff kited health care and wrote to the Warden and Assistant Warden. 

(DE 6 ¶¶ 18-22, DE 1 at 54-55, 61.)4

 On December 10, 2012, Plaintiff spoke to 

Defendant Morgan, as well as RUM Culbersome and Sgt. Chicowiski, about the 

alleged assault. (DE 6 ¶¶ 24-25, DE 1 at 57.) According to Plaintiff, he kited 

health care again on December 10, 2012, and was seen by health care on December 

11, 2012 and by a Physician’s Assistant on January 19, 2013. (DE 6 ¶ 26-27; see 

also DE 6 ¶ 30, DE 1 at 59, 61.) 

Approximately one year later, on January 27, 2014 – and seemingly in 

conjunction with Plaintiff’s ticket of the same date for disobeying a direct order 

and his January 28, 2014 security classification screen (which set his actual 

placement at Level IV), Plaintiff was moved to SRF’s 600 unit. (DE 6 ¶¶ 41-42, 

DE 1 at 75-76). He remained there at least through March 12, 2014, the date of A. 

Supernaw’s kite response and the date Plaintiff claims to have been awakened late 

at night to be moved. (DE 1 at 97, 99-100; DE 1-1 at 1, 40; DE 6 ¶¶ 53-57.) In 

fact, it seems he remained in the 600 unit on April 22 and April 24, 2014. (DE 1-1 

                                                            

4

 Oddly, the attachment to which Plaintiff refers in support of the alleged 

December 7, 2012 health care kite is an MDOC Health Care Request dated 

November 7, 2012. (DE 6 ¶¶ 18-20, DE 1 at 52.) Still, as noted above, the record 

does contain an MDOC Kite Response dated December 7, 2012. (DE 1 at 61.) 

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at 36, 38, 51.) According to Plaintiff, he was moved from segregation to the 500 

or 1200 unit on April 28, 2014. (DE 6 ¶ 114, DE 16-3 at 21-22.) 

b. Plaintiff’s claims against Defendant Morgan are 

based on the alleged events of 2013 and 2014 (during 

which time Plaintiff had been incarcerated in SRF 

Units 700, 600 and 1200). 

Aside from allegedly mentioning the aforementioned assault to ARUS 

Morgan, Plaintiff’s claims against this defendant appear to concern the location of 

his cell during 2013 (Cell 700-173) and/or remaining at Level IV. Specifically, 

Plaintiff alleges that, for nearly one year prior to being locked up on January 27, 

2014, he spoke to Defendant Morgan on several occasions, seeking to be moved. 

(DE 6 ¶¶ 24, 43-45.) 

Additionally, citing his September 26, 2014 job assignment as a unit porter, 

Plaintiff claims that during “the entire duration of working as a unit porter, that he 

was constantly harassed by ARUS Morgan due to the fact that he did not want 

plaintiff working as a unit porter.” (DE 6 ¶¶ 140-141, DE 1-1 at 55.) For example, 

he alleges that: 

 On or around October 14, 2014, Plaintiff asks ARUS Morgan 

when he [Plaintiff] was going to return to level two. 

 ARUS Morgan responded to Plaintiff St. Ann, “St. Ann, you’re 

not going back to level two, so quit asking!” 

 In November of 2014, while Plaintiff was sweeping the floor on 

A-wing in 1200 unit, an inmate who was in [his] cell asked 

plaintiff what time it was. 

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 Plaintiff responded that he didn’t know but would check the 

unit’s clock to find out. 

 [During] this time, Plaintiff was unaware that he was being 

watched by ARUS Morgan. 

 ARUS Morgan stated to Plaintiff, “St. Ann, what are you 

doing? You know you’re not supported to be talking to inmates 

on A-wing.[”] 

 ARUS Morgan then stated to Plaintiff, “St. Ann, do you want to 

lose your job? I don’t know why they gave you that job in the 

first place!” 

See DE 6 ¶¶ 142-148.) Thus, Plaintiff claims that, on December 12, 2014, he 

“spoke to Officer Luna and ARUS Haynes, stating that he no longer wanted to 

work as a unit porter.” (DE 6 ¶ 149.) At some point, no later than early 2015, 

Plaintiff was moved to SRF’s 1200 unit (cell 1200-134). (DE 1-1 at 62, 64.) 

c. Plaintiff’s claims against Defendants McLean and 

Potila occurred during his confinement to SRF’s 600 

unit (600-158 and 600-153). 

Plaintiff’s claims against Defendants ARUS McLean and ARUS Potila 

appear to be based upon “constant harassment from both of the ARUS[s] in 600 

unit.” (DE 6 ¶ 117; see also DE 6 ¶¶ 118-131.) For example, Plaintiff claims he 

spoke to Defendant McLean on or about February 25, 2014 regarding a return to 

Level II, at which time McLean called Plaintiff a “dumb fuck” and a “trouble 

maker who likes to file grievances.” (DE 6 ¶ 49.) Plaintiff further claims that 

Defendant Potila chimed in to this conversation, stating, “Who is that? Is that 

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inmate St. Ann? Yeah, he’s a dumb fuck![”] (DE 6 ¶ 50.) Plaintiff also alleges 

that, on March 25, 2014, Defendant ARUS McLean said: “St. Ann, I see you 

hav[e]n’t learned your lesson from filing all of those grievances, huh?[”] (DE 6 ¶ 

68.) Additionally, having described the alleged events of April 16, 2014, for which 

he received a Class I misconduct and was eventually found guilty of possession of 

a weapon, Plaintiff apparently believes that McLean and Potila were attempting to 

“set him up” by placing Plaintiff in the same cell as Timothy Schlicker (#857229). 

(DE 6 ¶¶ 76-82, 84, 94-111; DE 1-1 at 16, 27, 38.) Also, Plaintiff claims 

Defendant McLean answered kites sent to Zummer. (DE 6 ¶¶ 121-122.) 

d. Plaintiff’s claims against Defendant Haynes 

Finally, Plaintiff’s claims against Defendant ARUS Thomas Haynes appear 

to concern Haynes’s alleged responses to two incidents. Plaintiff claims that, on 

February 10, 2014, he kited Haynes about threats and extortion by STG gang 

members, but there was no response. (DE 6 ¶¶ 163-164.)5

 Plaintiff also alleges 

that he spoke with Defendant Haynes on April 28, 2015 about receiving his 

“security classification screen” and “returning to level two.” (DE 6 ¶¶ 166-167.) 

Yet, Haynes allegedly replied, “there is no need to worry about rec[ei]ving a 

security classification screen or going back to level two.” (DE 6 ¶ 168.) 

                                                            

5

 The only February 10, 2015 kite currently in the record is Plaintiff’s February 10, 

2015 MDOC Health Care Request. (DE 6 ¶¶ 156-162, DE 1-1 at 62.) 

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e. Plaintiff’s claims for relief 

In the end, Plaintiff claims that, “before experiencing constant harassment 

and retaliation from prison officers and staff at SRF, . . . he was in the process of 

filing his lawsuit against Officer Richard for assault.” (DE 6 ¶ 171.) Instead, 

Plaintiff alleges, he “chose not to pursue litigation against Officer Richard out of 

fear due to the above mistreatment and harassment that he has suffered at the hands 

of SRF’s staff and prison officers.” (DE 6 ¶ 172.) He then sets forth three causes 

of action: (1) retaliation in violation of his First Amendment rights; (2) a violation 

of his Fourteenth Amendment right to equal protection; and (3) a state-law cause of 

action for intentional infliction of emotional distress. (DE 6 ¶¶ 173-175, 176-178, 

179-181.) The prayer for relief seeks compensatory, punitive and nominal 

damages, as well as declaratory and injunctive relief and an award of fees, costs 

and interest. (DE 6 at 40-42.) 

2. Plaintiff must exhaust his administrative remedies as to any 

such claims before bringing related claims to this Court. 

Lawsuits by prisoners are governed by 42 U.S.C. § 1997e. Among other 

things, this statute provides: “No 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.” 42 U.S.C. § 1997e(a) (“Applicability of 

administrative remedies”). 

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“[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 v. Nussle, 534 

U.S. 516, 532 (2002). Moreover, “the PLRA exhaustion requirement requires 

proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (emphasis added). 

“Proper exhaustion demands compliance with an agency's deadlines and other 

critical procedural rules because no adjudicative system can function effectively 

without imposing some orderly structure on the course of its proceedings.” 

Woodford, 548 U.S. at 90-91. Thus, Plaintiff was required to properly exhaust his 

claims against Defendants McLean, Potila, Morgan and Haynes by complying with 

the MDOC’s Policy Directive 03.02.130, which concerns prisoner/parolee 

grievances. 

However, “[a] PLRA defendant bears the burden of proving that a PLRA 

plaintiff has not exhausted his administrative remedies.” Surles v. Andison, 678 

F.3d 452, 456 (6th Cir. 2012). Stated otherwise, “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). 

3. Of the multiple grievances which are part of the record in 

this case, only SRF-2014-03-00468-28b exhausts some of 

Plaintiff’s claims against Defendants McLean, Potila, 

Morgan and Haynes within the first amended complaint. 

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The record contains evidence of seven (7) grievances.6

 Given that 

Defendants’ pending motion for summary judgment is based upon an alleged 

exhaustion of administrative remedies – and taking them one-by-one - what 

follows is a review of each of these grievances and its effect upon the potential 

exhaustion of Plaintiff’s claims against Defendants within the first amended 

complaint: 

a. Grievance Identifier SRF‐2012‐12‐2149‐26A, which

alleges denial of proper medical treatment, does not

operate to exhaust Plaintiff’s claims against the MDOC

Defendants – each of whom is described as an ARUS

(Assistant Resident Unit Supervisor) at SRF. 

 

This grievance is dated December 12, 2012 and was received at Step I on 

December 18, 2012. Here, Plaintiff alleges he is “being denied proper medical 

treatment by SRF Facility.” Vincent Turner responded at Step I on either 

December 21 or December 27 of 2012. (See DE 1 at 50, 63; DE 16-3 at 35-36, 44 

& 58; DE 22 at 22.) Plaintiff’s Step II appeal was received on January 25, 2013, 

and the Step II response is dated January 30, 2013. Plaintiff’s Step III appeal 

appears to have been accompanied by a 7 page letter dated February 2, 2013. The 

                                                            

6

 To be sure, Plaintiff does allege that he filed a Step I grievance on or about April 

17, 2014 concerning retaliation. (DE 6 ¶ 83.) However, the record does not 

contain evidence of such a grievance; instead, it appears Plaintiff may be referring 

to either a kite to “RUM Zummer,” dated April 17, 2014 (DE 1-1 at 18, DE 22 at 

81) or a letter to then MDOC Director (Daniel H.) Heyns dated April 17, 2014 (DE 

1 at 86-91, DE 16-3 at 18-20). 

 

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grievance reached Step III on February 7, 2013, and the Step III grievance 

response is dated May 7, 2013. (DE 1 at 50, 63, 65; DE 16-3 at 3, 32-44.) 

Although appealed through Step III, the Court should agree with the MDOC 

Defendants that “[t]his grievance does not concern any of the remaining claims 

asserted by St. Ann . . . .” (DE 16 at 15-16.) To begin, the Step I grievance form 

lists the “date of incident” as December 7, 2012 – the date Plaintiff allegedly kited 

healthcare about the alleged December 6, 2012 assault. (See DE 6 ¶¶ 18-20, DE 

16-3 at 35; see also DE 6 ¶ 21.) Relatedly, this date is before the operative 

pleading’s first express mention of a defendant by name - speaking to Defendant 

ARUS Morgan on December 10, 2012 (DE 6 ¶ 24.)7

 

More importantly, the content of the Step I grievance, while mentioning the 

alleged assault by prison staff or the alleged use of excessive force by correctional 

officers, clearly relates to medical treatment, or the lack thereof, not to the events 

                                                            

7

 To be sure, the “resolution” portion of this grievance form states: “I kited the 

ARUS and the RUM in my unit[,]” on December 10, 2012; however, this step is a 

precursor to filing the grievance itself. (DE 16-3 at 35.) “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 control or if the issue falls 

within the jurisdiction of the Internal Affairs Division in Operations Support 

Administration. If the issue 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 appropriate staff.” MDOC PD 

03.02.130 ¶ P, effective July 9, 2007. Moreover, the content of what is being 

grieved remains the same. 

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which made it necessary, beginning with the words, “I’m being denied proper 

medical treatment[,]” noting that “I kited [the] medical department[,]” and further 

stating: “SRF is attempting to cover up misconduct by making me wait five days 

to see nurse, denying me medical treatment, waiting for my bru[i]ses to heal on 

their own, so they won’t have to document them.” (Id. at 35.)8

 Furthermore, 

Plaintiff’s 7-page letter dated February 2, 2013, which seemingly accompanied 

Plaintiff’s Step III appeal, takes issue with the Step II response, in part, because 

“[t]he issue is about lack of medical care. They’ve switched up the issues by 

making it about the ass[a]ult by prison staff when the topic is about lack of medical 

care.” (Id. at 42.) Finally, Plaintiff’s own August 28, 2015 first amended 

complaint seemingly describes this particular grievance as “against health care for 

not rec[ei]ving proper medical treatment.” (DE 6 ¶ 28.) For these reasons, the 

Court should conclude that Grievance Identifier SRF-2012-12-2149-26A is, as 

Plaintiff describes, a grievance “against health care for not rec[ei]ving proper 

medical treatment[,]” (DE 6 ¶ 28) and, therefore, does not operate to exhaust 

Plaintiff’s administrative remedies as to his claims against these MDOC 

corrections officer Defendants within the August 28, 2015 first amended complaint 

(DE 6). 

                                                            

8

 Warden Rapelje’s January 30, 2013 Step II grievance appeal response 

acknowledges: “Grievant is grieving that he has not received medical care for the 

aforementioned injuries, but not the alleged assault itself. Therefore, the grievance 

should be coded ‘12e1’ and responded to by Health Care staff.” (DE 16-3 at 34.) 

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b. Grievance Identifier SRF‐2012‐12‐2167‐28A does not

appear to concern McLean, Potila, Morgan or Haynes. 

 

This grievance is dated December 12, 2012 and was received at Step I on 

December 20, 2012. It concerns the alleged December 6, 2012 assault by “Officer 

Richard and another unknown Officer.” It was rejected at Step I as duplicative to 

SRF-2012-12-2149-26A. It was rejected at Step II on January 22, 2013, due to a 

policy violation.9

 The grievance reached Step III on February 4, 2013, and the 

Step III grievance response is dated May 7, 2013. (DE 1 at 67, DE 16-3 at 4, 46-

58.) 

As The United States Supreme Court has explained: 

Compliance with prison grievance procedures . . . is all that is 

required by the PLRA to “properly exhaust.” The level of detail 

necessary in a grievance to comply with the grievance procedures will 

vary from system to system and claim to claim, but it is the prison's 

requirements, and not the PLRA, that define the boundaries of proper 

exhaustion. 

Jones v. Bock, 549 U.S. 199, 218 (2007) (emphasis added). The relevant MDOC 

Police Directive provides that “[d]ates, times, places, and names of all those 

involved in the issue being grieved are to be included.” MDOC PD 03.02.130 

(“Prisoner/Parolee Grievances”) ¶ R, effective July 9, 2007. Officer Richard is not 

a defendant in this case. 

                                                            

9

 According to Warden Rapelje, it was “unknown which grievance the Grievant 

[wa]s actually appealing[,]” as Plaintiff had “submitted the appeal form for 

grievance SRF-2012-12-2167-28A, but included the Step I grievance for SRF2012-12-2149-26A.” (DE 1 at 67, DE 16-3 at 57.) 

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17 

Moreover, it does not appear that the other “unknown officer” alleged to 

have been involved in the attack is one of the four defendants (McLean, Potila, 

Morgan or Haynes) in the case at bar; if so, the Court would expect Plaintiff to 

have identified the “unknown officer” within the paragraph of his complaint that 

describe the alleged December 6, 2012 assault, instead of just referring to “et al.” 

(DE 6 ¶ 12.) Instead, after describing the alleged subsequent threats by Richard 

(DE 6 ¶¶ 13-14), summarizing Richard’s version of events as documented in the 

Step I grievance response (DE 6 ¶¶ 15-16), noting that Richard did not issue 

Plaintiff a ticket or take him to segregation (DE 6 ¶ 17), noting the subsequent 

kite(s) to health care and letters to Warden Rapelje and Deputy Warden Winn (DE 

6 ¶¶ 18-22, DE 6 at 52, 54-55), and seemingly describing this grievance as filed 

“against Officer Mark Richard for assault[,]” (DE 6 ¶ 23), the first time one of the 

defendants is named in the amended complaint is the mention of Plaintiff speaking 

to Defendant ARUS Morgan on December 10, 2012 (DE 6 ¶ 24.) 

Because Officer Richard is not a defendant in this case, and because it does 

not appear that the other “unknown officer” alleged to have been involved in the 

attack is one of the four defendants, Grievance Identifier SRF-2012-12-2167-28A 

would not operate to exhaust Plaintiff’s administrative remedies with regard to the 

claims set forth against Defendants McLean, Potila, Morgan or Haynes in the first 

amended complaint. In other words, the Court should agree with Defendants that 

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18 

this grievance “does not concern any of the remaining claims asserted by St. Ann . 

. . .” (DE 16 at 16.) 

c. Plaintiff did not exhaust his administrative remedies

as to any claims set forth in Grievance Identifier SRF‐

2013‐10‐1744‐01G, as he did not appeal this

grievance to Step III, and it concerns healthcare. 

This grievance concerns an alleged extra $5.00 debit to his prisoner account 

on June 23 or 26, 2013 for healthcare in violation of MDOC PD 03.04.101 

(“Prisoner Health Care Copayment”) ¶ F, even though he paid the one-time fee in 

December 2012. The Step I grievance form is dated October 2, 2013 and was 

received at Step I on October 4, 2013. The Step I response and review are dated 

October 15, 2013, but the contents of this response do not seem to be a part of the 

record in this case. (DE 1 at 71, 69.) Thus, the basis for the Step I response is 

unclear. 

It appears that this grievance was not appealed to Step III, and thus was not 

exhausted. (See DE 16-3 at 3-4.)10 However, even if it had been appealed through 

Step III, the substance of the grievance does not encompass the claims against 

Defendants in Plaintiff’s first amended complaint. Although the grievance notes 

that Plaintiff kited healthcare, a RUM, an ARUS, and the Grievance Coordinator in 

                                                            

10 “Complaints filed by prisoners regarding grievable issues as defined in this 

policy serve to exhaust a prisoner's administrative remedies only when filed as a 

grievance through all three steps of the grievance process in compliance with this 

policy.” MDOC PD 03.02.130 ¶ B, effective July 9, 2007 (emphasis added). 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 18 of 37 Pg ID 566
19 

an attempt to resolve the issue before writing the grievance, the substance of this 

grievance again takes issue with healthcare, not the Defendant SRF corrections 

officers. (DE 1 at 71.) Therefore, this grievance cannot operate to exhaust 

Plaintiff’s administrative remedies as to his claims against Defendants McLean, 

Potila, Morgan or Haynes in the first amended complaint. 

d. Grievance Identifier SRF‐2013‐11‐2026‐28B, although

appealed through Step III, concerns health care and

does not operate to exhaust Plaintiff’s claims against

the correctional officer defendants as set forth in the

first amended complaint. 

This grievance is dated November 8, 2013 – oddly, as it concerns a much 

earlier June 23, 2013 “date of incident” - and was received at Step I on November 

20, 2013. It, too, concerns the removal of $5.00 from Plaintiff’s account. The 

grievance was “deemed vague and rejected at step I[,]” because Plaintiff had not 

“provided any specific information to corroborate [his] allegation of retaliation for 

a 2012 incident that didn’t involve health care but unit staff.” Plaintiff’s Step II 

grievance appeal is dated November 26, 2013,11 it was received at Step II on 

December 5, 2013, and Warden Rapelje’s response is dated December 12, 2013. 

                                                            

11 In a letter dated November 30, 2013, which this report assumes was provided to 

prison officials during the processing of this grievance, Plaintiff explains, among 

other things, “I’m filing this grievance because I’m being retaliated against by 

healthcare for prior grievances filed against them for denial of treatment and 

another grievance that was filed against prison guards for physical ass[au]lt against 

me.” (DE 16-3 at 30.) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 19 of 37 Pg ID 567
20 

The grievance reached Step III on December 20, 2013, and the Step III grievance 

response is dated February 14, 2014. (DE 1 at 73, DE 16-3 at 3, 26-30.) 

Although this grievance was appealed through Step III, this grievance does 

not encompass the claims at bar. True, as Plaintiff explains in his amended 

complaint, “[o]n June 26, 2013, plaintiff rec[ei]ved a statement that health care had 

taken an extra $5.00 dollar co-payment from his account for seeking medical 

treatment regarding the assault that occurred on December 6, 2012.” (DE 6 ¶ 34.) 

However, the operative pleading is brought against Defendants McLean, Potila, 

Morgan and Haynes, each of whom is described as an ARUS (Assistant Resident 

Unit Supervisor) at SRF. (DE 6 ¶¶ 8-11.) In other words, the grievance is, yet 

again, brought against health care, and Defendants are not health care providers. 

Therefore, this grievance likewise does not operate to exhaust Plaintiff’s 

administrative remedies as to his claims against Defendants McLean, Potila, 

Morgan and Haynes, which are the subject of the first amended complaint. 

e. Grievance Identifier SRF‐2014‐03‐0468‐28B operates

to exhaust only some of the claims against Defendants

within Plaintiff’s first amended complaint. 

 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 20 of 37 Pg ID 568
21 

This grievance is dated March 19, 2014 – concerning a much earlier January 

27, 2014 “date of incident” - and was received at Step I on March 26, 2014.12 It 

complains: 

I’m being kept in level four Maximum Security’s Disciplinary Unit. 

I’m level two status. There is no logical or reasonable justification for 

having me over here this long. I’ve been experiencing a pattern of 

retaliation for filing past grievances.[13] 

(DE 1-1 at 7-8.) The Step I response is dated March 26, 2014 and, after quoting 

MDOC PD 05.01.130 (“Prisoner Security Classification”) ¶ A, addresses 

Plaintiff’s claim on the merits by stating, “You currently lock in a level IV general 

population unit. You have not stated a violation of policy or procedure. This 

grievance is rejected at step I.” (DE 16-3 at 17.) 

Plaintiff’s Step II grievance appeal dated April 3, 2014 was received on 

April 14, 2014. (DE 16-3 at 15.) Two days later, on April 16, 2014, Acting 

Warden Winn responded, addressing Plaintiff’s grievance on the merits by stating: 

The Grievance Coordinator correctly rejected the grievance at Step I. 

By Grievant’s own admission, he refused to lock somewhere and 

                                                            

12 Plaintiff claims that he originally filed this grievance on March 10, 2014 (again 

concerning a much earlier January 27, 2014 “date of incident”), but it was not 

processed. (DE 6 ¶¶ 51-52; see also DE 1 at 93-95.) 

13 Plaintiff’s grievance refers to attachments, but they are not evident from the 

record, unless he is referring to the March 10, 2014 note seemingly attached to the 

non-processed grievance (see DE 1 at 93-95) or the March 19, 2014 note to the 

grievance coordinator inquiring about the grievance he submitted on March 10, 

2014 (see DE 1-1 at 8, DE 16-3 at 17). 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 21 of 37 Pg ID 569
22 

received a major misconduct as a result. Grievant is reminded that 

prisoners do not have a right to placement at a particular security 

level. 

 

(DE 1-1 at 12, DE 16-3 at 16.)14

The following day, on April 17, 2014, Plaintiff wrote to MDOC Director 

Heyns. (DE 16-3 at 18-20.) Plaintiff’s grievance reached Step III on April 24, 

2014 (DE 16-3 at 3), and Plaintiff appears to have supplemented with a letter dated 

May 24, 2014 (DE 16-3 at 21-22, 23-24; see also DE 1-1 at 47-49). The Step III 

grievance response is dated July 31, 2014. In upholding the Step II decision, the 

Step III response states, in part: “The response you received at Steps I & II reflect 

that your issue was in fact considered and appropriately investigated[,]” and “there 

is no additional information or basis found for relief at Step III[.]” (DE 1-1 at 53, 

DE 16-3 at 14.) 

For the following reasons, this grievance only operates to exhaust some of 

Plaintiff’s claims set forth in the August 28, 2015 first amended complaint (DE 6) 

against the MDOC Defendants. 

                                                            

14 That same day, during the exhaustion of this grievance, Plaintiff received a Class 

I misconduct for Possession of Dangerous Contraband (030) / Possession of a 

Weapon (029). (DE 1-1 at 16, 27; see also DE 1-1 at 29-30, 32, 34, 43, 44 & 45.) 

On April 24, 2014, the Possession of Dangerous Contraband (030) charge was 

dismissed, but Plaintiff was found guilty of the Possession of a Weapon (029) 

charge and given 10 days of detention (April 24, 2014 – May 4, 2014) and 30 days 

loss of privileges (April 24, 2014 – May 24, 2014). (DE 1-1 at 38-39.) These 

events appear to be reflected in ¶¶ 76-111 of Plaintiff’s first amended complaint. 

(DE 6.) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 22 of 37 Pg ID 570
23 

i. Plaintiff’s allegations regarding the events of 

December 6, 2012 through December 14, 2013 

(DE 6 ¶¶ 12-40, 43-45) are not the subject of 

SRF-00468.15

 Instead, this grievance is based upon the events of January 27, 2014 and 

clearly takes issue with the length of time he has remained at Level IV, suggesting 

that it is in retaliation for filing past grievances. (DE 16-3 at 15, 17.) In other 

words, an allegation that this extended placement at Level IV (from January 27, 

2014 through March 19, 2014) is an adverse action caused by his earlier protected 

conduct of filing grievances is not equivalent to a grievance concerning the earlier 

events themselves. Therefore, this Grievance Identifier would not exhaust 

Plaintiff’s claims against Defendant(s) concerning the events described in 

Plaintiff’s complaint which predate January 27, 2014. (DE 6 ¶¶ 12-40, 43-45). 

ii. At most, SRF-00468 encompasses Plaintiff’s 

allegations regarding the date of incident 

(January 27, 2014) through the date the Step I 

grievance form was completed (March 19, 

2014). (DE 6 ¶¶ 41-42, 46-67). 

                                                            

15 It is the undersigned’s opinion that ¶¶ 43-45 of Plaintiff’s first amended 

complaint (DE 6) did not occur on January 27, 2014. Rather, Plaintiff seems to be 

referring to the year prior, which would roughly be the 2013 calendar year. As 

discussed above, the Court assumes these claims against Defendant Morgan 

concern the location of Plaintiff’s cell during 2013 (Cell 700-173). This 

interpretation is buttressed by Plaintiff’s February 24, 2014 letter to the SRF 

Warden, in which Plaintiff described the conditions of his bunk in 700 unit and 

stated, in part: “I had been asking A[RUS] Morgan for over a year, who at that 

time was the A[RUS] in 700 unit, to move me because of this problem.” (DE 1 at 

78-80.) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 23 of 37 Pg ID 571
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(1) SRF-00468 concerns the limited subject of 

Plaintiff remaining at Level IV (or 

maximum security / disciplinary unit) 

following the February 14, 2014 

expiration of his detention and loss of 

privileges. 

 Plaintiff’s amended complaint discusses and/or includes evidence of the 

alleged circumstances occurring from January 27, 2014 through March 19, 2014, 

such as: 

(a) Plaintiff’s January 27, 2014 major misconduct for disobeying a 

direct order (DDO) (DE 6 ¶¶ 41-42, DE 1 at 75) 

(b) Plaintiff’s January 28, 2014 “Security Classification Screen –

Review” assessing his True Security Level as II and his Actual 

Placement Level as IV because “[i]nvestigation warrants 

increased security level.” (DE 1 at 76) 

(c) The January 31, 2014 letter from the Office of Legislative 

Corrections Ombudsman, regarding a complaint Plaintiff had 

submitted (DE 6 ¶ 46, DE 1 at 82) 

(d) The February 4, 2014 finding of guilty and disposition of 10 

days detention and loss of privileges (beginning February 4, 

2014 and ending February 14, 2014). (DE 1 at 75) 

 

(e) Plaintiff’s February 17, 2014 kites to the RUM and ARUS 

asking if he could “return to level two since I’m done with my 

sanctions . . . .” (DE 6 ¶ 47, DE 1 at 84) 

(f) his three-page February 24, 2014 letter to the SRF Warden (DE 

1 at 78-80, DE 6 ¶ 48) 

(g) the alleged February 25, 2014 conversation between Plaintiff 

and Defendant McLean, into which Defendant Potila injected 

comments (DE 6 ¶¶ 49-50) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 24 of 37 Pg ID 572
25 

(h) his March 10, 2014 first attempt to grieve the January 27, 2014 

incident (DE 6 ¶¶ 51-52, DE 1 at 93-95) 

(i) his March 10, 2014 kite for mental health treatment and his 

March 18, 2014 conversation with SRF’s psychologist (DE 6 ¶¶ 

53, 61-65, DE 1 at 97, DE 1-1 at 3-5) 

(j) a March 12, 2014 late-night cell move (DE 6 ¶¶ 54-57; see also

DE 6 ¶ 58) 

(k) an unprocessed cell inventory check list dated March 17, 2014 

(DE 6 ¶¶ 59-60) 

Subsequently, as outlined in his amended complaint, Plaintiff initiated his March 

19, 2014, second attempt at grieving the January 27, 2014 incident (DE 1-1 at 7-8, 

DE 6 ¶ 66). 

 Grievance Identifier SRF-2014-03-00468-28B conceivably encompasses 

these events, as it concerns an incident dated January 27, 2014 but was not initiated 

until March 10, 2014 or March 19, 2014. (See DE 1 at 93-95, DE 1-1 at 7-8, DE 

16-3 at 17.) Nevertheless, a fair reading of Plaintiff’s March 10, 2014 Step I 

grievance form and the accompanying letter (DE 1 at 93-95), Plaintiff’s March 19, 

2014 Step I grievance form and accompanying note (DE 1-1 at 7-8, DE 16-3 at 

17), and Plaintiff’s April 3, 2014 Step II grievance form (DE 16-3 at 15), lead to 

the conclusion that SRF-00468 concerns the limited subject of Plaintiff remaining 

at Level IV (maximum security / disciplinary unit) following the February 14, 

2014 expiration of his detention and loss of privileges. 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 25 of 37 Pg ID 573
26 

(2) SRF-00468 was addressed on the merits 

rather than on a failure to comply with 

MDOC PD 03.02.130. 

As noted above, “[p]roper exhaustion demands compliance with an agency's 

deadlines and other critical procedural rules because no adjudicative system can 

function effectively without imposing some orderly structure on the course of its 

proceedings.” Woodford, 548 U.S. at 90-91. Here I note, as Defendants point out 

(DE 16 at 14-15), that the March 19, 2014 Step I form for SRF-00468 (DE 16-3 at 

17) – and, for that matter, the March 10, 2014 Step I form and letter (DE 1 at 93-

95) - do not provide the identification information described in MDOC PD 

03.02.130 ¶ R.16 

However, non-compliance with ¶ R was not the MDOC’s basis for rejecting 

the grievance at Step I or denying it at Step II. As described above, the Step I and 

Step II grievance responses address SRF-00468 on the merits. (See DE 16-3 at 16 

& 17.) As Plaintiff himself points out (DE 22 at 4, 14-15), “[w]hen prison officials 

decline to enforce their own procedural requirements and opt to consider 

otherwise-defaulted claims on the merits, so as a general rule will we.” Reed-Bey 

v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010). This is so, because it “makes a 

difference” when “[o]fficials at the Department of Corrections, for reasons of their 

                                                            

16 “Information provided is to 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.” MDOC PD 

03.02.130 ¶ R, effective July 9, 2007. 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 26 of 37 Pg ID 574
27 

own, overlooked (or perhaps forgave) this procedural failing and chose to address 

[the] grievance on the merits[,]” since “[t]he point of the PLRA exhaustion 

requirement is to allow prison officials ‘a fair opportunity’ to address grievances 

on the merits, to correct prison errors that can and should be corrected and to create 

an administrative record for those disputes that eventually end up in court.” Id. at 

324 (citing Woodford, 548 U.S. at 94-95). As the Sixth Circuit rhetorically 

queried, “[w]hen the State nonetheless decides to reject the claim on the merits, 

who are we to second guess its decision to overlook or forgive its own procedural 

bar?” Id. at 325. See also Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) 

(“we are told by defendants themselves that Camp's allegations have been fully 

examined on the merits by the ultimate administrative authority and have been 

found wanting. With that substantive determination having already been made at 

the highest level, there would be even more reason to invoke the Joseph Heller 

metaphor to describe any notion that Camp must jump through any further 

administrative hoops to get the same answer. Thus judicial consideration is now 

open to him.”). 

(3) The MDOC had “fair notice” of 

Plaintiff’s claims against at least some of 

the defendants. 

 

“Although the MDOC's policy requires a grievance to include specific 

names, those requirements are relaxed when the purpose of the grievance has been 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 27 of 37 Pg ID 575
28 

achieved.” McCloy v. Correction Med. Servs., 794 F. Supp. 2d 743, 749 (E.D. 

Mich. 2011). Given that the MDOC addressed SRF-0468 on the merits, rather 

than on a failure to comply with ¶ R of MDOC PD 03.02.130, the Court should 

now consider whether the policy’s purpose has been achieved. See also Burton v. 

Kakani, No. 09-10893, 2009 WL 3101046, at *2, *7 (E.D. Mich. Sept. 23, 2009) 

(“Although Burton did not provide the Defendants' names in his grievance, the 

Court finds that he did substantially comply with this requirement by providing 

sufficient information for the prison to easily determine that Defendants were the 

persons being grieved.”). 

 It is true that, in the case at bar, Plaintiff’s Step I grievance and Step II 

appeal forms do not even list “who,” let alone provide a name. In other words, the 

“State problem clearly” section of Plaintiff’s Step I grievance form and the 

“Reason for Appeal” section of Plaintiff’s Step II grievance form do not even 

describe a person.” (DE 1 at 93-95, DE 1-1 at 7-8, DE 16-3 at 17, 15.) Here, it 

appears that at least some of the individuals who were the subjects or targets of this 

grievance were not named, because Plaintiff was unaware of their identities. 

Namely, as Plaintiff states in the first amended complaint, (a) he did not learn 

Zummer’s true identity until around April 30, 2014 (DE 6 ¶ 115), and (b) it was 

not until May 27, 2014 that Plaintiff learned the identities of Defendants McLean 

and Potila as the ARUSs from 600 unit “who were retaliating against him and 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 28 of 37 Pg ID 576
29 

harassing him[,]” (DE 6 ¶¶ 130-131; see also DE 6 ¶ 122). In fact, these assertions 

are consistent with Plaintiff’s May 24, 2014 letter to MDOC Director Heyns, to the 

extent it alleges that Plaintiff did not realize who Zummer was until April 28, 2014 

and that both ARUSs in 600 unit do not wear name tags. (DE 16-3 at 21-22; see 

also DE 6 ¶¶ 125-129, DE 1-1 at 47-49). 

 However, the Court should still conclude that the MDOC was given “fair 

notice” of the claims embodied in ¶¶ 41-42, 46-67 of the first amended complaint 

(DE 6) as to some of the defendants. This is so, because the “resolution” section of 

Plaintiff’s Step I grievance form mentions kiting the RUM and the ARUS “last 

month,” although Plaintiff also specifies a date of February 24, 2014.17 In either 

event, in the “resolution” section of this grievance, Plaintiff asserts that he “kited 

the RUM and the ARUS . . . asking how long were they planning on keeping me 

back here in level four.” (DE 16-3 at 17; see also DE 1 at 78-80, DE 6 ¶ 48.) 

Given that each of the Defendants in this case has been identified as an ARUS (DE 

6 ¶¶ 8-11), these titles, together with the date(s) of Plaintiff’s kite to such 

                                                            

17 “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 . . . . If the issue 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 appropriate staff.” MDOC PD 

03.02.130 ¶ P, effective July 9, 2007. 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 29 of 37 Pg ID 577
30 

individuals,18 provided the MDOC with “sufficient information for the prison to 

identify Defendants as the persons being grieved.” Burton, 2009 WL 3101046 at 

*7. In other words, the MDOC had “fair notice” of Plaintiff’s claims against the 

ARUS defendants named here. See, i.e., McBride v. Michigan Dep’t of 

Corrections, No. 15-11222, 2016 WL 1156740, *4 (E.D. Mich. March 24, 2016) 

(ripe for judicial review under Reed-Bey where grievance was addressed on the 

merits but had only identified “Head RN.”). 

iii. The amended complaint’s discussion of the 

events of March 25, 2014 through May 1, 2015 

(DE 6 ¶¶ 68-170) likely would not have been 

exhausted by SRF-00468, whether initiated on 

March 10 or 19. 

 Specifically, Plaintiff’s Step I grievance in SRF-2014-03-0468-28B – 

whether initiated on March 10, 2014 or March 19, 2014 – would not operate to 

exhaust any of Plaintiff’s claims which arose thereafter, such as those arising 

between March 25, 2014 to April 22, 2014. (DE 6 ¶¶ 68-110.) Moreover, given 

that this grievance was not exhausted until somewhere between its April 24, 2014 

                                                            

18 The record contains evidence which buttresses Plaintiff’s claims that he kited the 

RUM and ARUS in February 2014. As noted above, Plaintiff’s amended 

complaint alleges he kited “RUM Zummer” on February 17, 2014, asking to be 

returned to Level II. (DE 6 ¶ 47.) Attached to Plaintiff’s complaint are copies of 

February 17, 2014 kites to “RUM” and “ARUS,” also asking to be returned to 

Level II. (DE 1 at 84.) Plaintiff also claims that he kited Warden Winn on 

February 24, 2014, a copy of a letter of the same date is part of the record. (DE 6 ¶ 

48, DE 1 at 78-80.) Additionally, both Plaintiff’s first amended complaint and his 

response to the instant motion describe the February 25, 2014 conversation as 

having been with McLean and Potila. (See DE 22 at 10-11, DE 6 ¶¶ 49, 50.) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 30 of 37 Pg ID 578
31 

arrival at Step III and the July 31, 2014 Step III response, this grievance would 

certainly not have exhausted administrative remedies as to claims arising 

thereafter, such as those arising from April 24, 2014 through May 1, 2015. (DE 6 

¶¶ 111-169; see also DE at 6 ¶ 170.)19 As noted above, SRF-0468 concerns 

Plaintiff’s assignment to Level IV (or the maximum security / disciplinary unit) 

following the February 14, 2014 expiration of his punishment on the January 27, 

2014 misconduct ticket.20 

f. Grievance Identifier SRF‐2015‐08‐1386‐17b was not

exhausted before Plaintiff’s original and amended

complaints were filed, as is required by 42 U.S.C. §

1997e(a). 

                                                            

19 The record contains evidence of Plaintiff’s communications with the Office of 

Legislative Corrections Ombudsman. (See DE 1 at 82; DE 1-1 at 51, 57-58, 60; 

DE 22 at 91, 93, 95, 97-98, 100; see also DE 6 ¶¶ 46, 134-138.) However, MDOC 

PD 03.02.130 “does not include complaints to the Legislative Ombudsman as part 

of the three-step grievance appeal process.” See Christian v. Michigan Dep't of 

Corr.-Health Servs., No. 12-CV-12936, 2013 WL 5348832, at *3 (E.D. Mich. 

Sept. 24, 2013) (Murphy, J., adopting report and recommendation of Michelson, 

J.). Nonetheless, it is worth noting that a July 7, 2015 letter from that office, which 

mentions an apparent mistake by SRF staff, was followed by Plaintiff’s July 15 or 

21, 2015 security classification screen, which assessed both his true security level 

and actual placement level as “II.” (DE 22 at 95, 100.) 

20 None of this would prevent Plaintiff’s ability to litigate alleged “multiple harms” 

by Defendants McLean, Potila, Morgan and/or Haynes which this Court concludes 

are exhausted by SRF-0468. See DE 22 at 18-19, LaFountain v. Martin, 334 F. 

App'x 738, 741 (6th Cir. 2009) (“The hostile action that LaFountain claims to have 

suffered as a result of being labeled a snitch and a sexual predator, such as being 

accosted in the bathroom and having his cell robbed, is merely the harm he 

suffered as a result of the alleged retaliation.”). 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 31 of 37 Pg ID 579
32 

This grievance concerning a March 18, 2014 “date of incident” is dated July 

22, 2015 and was received at Step I on August 10, 2015. It alleges: “My psych, 

Ms. Supernaw-Halbedel, has refused to give me mental health treatment since 

March 19, 2014. She informed me that due to the litigation and controversy 

regarding the grievances that I was filing against prison officials and staff and 

prospects of future lawsuit(s) that she did not want to get involved and that she no 

longer wanted to see me for counseling. See attachments.” The Step I grievance 

response is dated August 26, 2015. The Step II grievance appeal is dated 

September 3, 2015 and was received on September 9, 2015. Warden Winn’s 

September 23, 2015 Step II response states, among other things, “it should have 

been rejected at Step I as [untimely].” (DE 16-3 at 7-12). The grievance reached 

Step III on October 5, 2015, and the Step III grievance response is dated January 

14, 2016. (DE 16-3 at 6.) 

This grievance clearly relates to mental health care since March 18, 2014, as 

discussed in the first amended complaint. (DE 6 ¶¶ 61-65; see also DE 6 ¶¶ 169-

170; DE 1-1 at 64.) However, it does not appear that the substance of this 

grievance encompasses the claims against the correctional officer Defendants in 

Plaintiff’s first amended complaint. 

In addition, neither Plaintiff’s May 15, 2015 original complaint (DE 1) nor 

Plaintiff’s August 28, 2015 first amended complaint (DE 6) were filed after this 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 32 of 37 Pg ID 580
33 

grievance was exhausted through Step III. See Woodford, 548 U.S. at 93; Porter v. 

Nussle, 534 U.S. 516, 524 (2002) (“federal prisoners suing under Bivens v. Six 

Unknown Fed. Narcotics Agents, 403 U.S. 388[] (1971), must first exhaust inmate 

grievance procedures just as state prisoners must exhaust administrative processes 

prior to instituting a § 1983 suit.”); Booth v. Churner, 532 U.S. 731, 733-34 (2001) 

(“The Prison Litigation Reform Act of 1995 amended 42 U.S.C. § 1997e(a), which 

now requires a prisoner to exhaust ‘such administrative remedies as are available’ 

before suing over prison conditions.”). First, the July 22, 2015 date of this 

grievance and its August 10, 2015 receipt at Step I are both events which occurred 

well after this case was initiated on May 15, 2015. 

Second, this grievance was not exhausted before Plaintiff filed the August 

28, 2015 first amended complaint. This grievance was received at Step I on 

August 10, 2015, and “[th]e due date shall be within 15 business days after receipt 

of the grievance unless an extension is granted pursuant to Paragraph S.” MDOC 

PD 03.02.130 ¶¶ S, X & CC, effective July 9, 2007. Thus, the August 25 or 26, 

2016 Step I response appears to have been timely, which would seem to eliminate 

any argument that some delay in the processing of the Step I grievance permitted 

Plaintiff to preemptively file his August 28, 2015 first amended complaint (DE 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 33 of 37 Pg ID 581
34 

6).21 Here, the first amended complaint was filed in between the August 26, 2015 

Step I response and Plaintiff’s September 3, 2015 Step II appeal. 

Finally, although the Court acknowledges that the approximate 5 month 

duration of this grievance (received at Step I on August 10, 2015 and Step III 

response dated January 14, 2016) exceeds the “general” completion period of 120 

calendar days (MDOC PD 03.02.130 ¶ S), the bulk of this arguable “delay” 

occurred by the more than three months which passed between the October 5, 2015 

receipt of this grievance at Step III and the January 14, 2016 Step III grievance 

response; in other words, the apparent delay occurred after Plaintiff had already, 

preemptively, filed his August 28, 2015 first amended complaint (DE 6). 

Therefore, the Court should conclude that Grievance Identifier SRF-2015-

08-1386-17b was not exhausted before Plaintiff initiated his case on May 15, 2015 

or amended his complaint on August 28, 2015. 22 

g. Similarly, Grievance Identifier SRF‐2015‐11‐02220‐

03B, and the October 27, 2015 event seemingly

                                                            

21 “If a grievant chooses to pursue a grievance which has not been responded to by 

staff within required time frames, including any extensions granted, the grievant 

may forward the grievance to the next step of the grievance process within ten 

business days after the response deadline expired, including any extensions which 

have been granted.” MDOC PD 03.02.130 ¶ T, effective July 9, 2007 (emphasis 

added). 

22 Moreover, acknowledging that “his claim for denial of access to mental health 

services may not be properly exhausted[,]” Plaintiff’s response now seeks to 

“delete” this claim by filing an amended complaint. (See DE 22 at 18-19.) 

5:15-cv-11770-JEL-APP Doc # 27 Filed 08/15/16 Pg 34 of 37 Pg ID 582
35 

underlying it, occurred after the filing of Plaintiff’s

original and amended pleadings. 

This grievance seemingly stems from an alleged October 27, 2015 assault of 

Plaintiff by Prisoner George (#202152) with “boiling hot water[.]” (DE 22 at 108, 

110; see also DE 24 at ¶ 185.) (DE 22 at 17-18.) This event occurred after 

Plaintiff filed his August 28, 2015 first amended complaint (DE 6), as did the 

apparent December 2, 2015 resolution of the grievance at Step 1 (DE 22 at 110). 

Also, it appears to be at least part of the basis of Plaintiff’s claims against nonparty Buczek, which Plaintiff seems to address in his pending July 15, 2016 second 

motion to amend his complaint. (See DE 22 at 17-18; see also DE 22 at 104-110, 

DE 22-1 at 1-8 [Appendices 31-35], DE 23, DE 24 ¶¶ 173-205, 212-214.) Thus, 

this grievance does not operate to exhaust the claims in Plaintiff’s operative 

pleading. 

E. Conclusion 

As revealed in the foregoing discussion, of the 7 grievances currently on the 

record, only SRF-2014-03-00468-28b operates to exhaust some of Plaintiff’s 

claims against Defendants McLean, Potila, Morgan and Haynes that are embodied 

in the first amended complaint. Therefore, Plaintiff’s only claims that survive 

summary judgment are those against McLean, Potila, Morgan and/or Haynes 

which concern the limited subject of Plaintiff remaining at Level IV (or maximum 

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36 

security / disciplinary unit) following the February 14, 2014 expiration of his 

detention and loss of privileges. 

III. PROCEDURE ON OBJECTIONS 

 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 Fed. R. Civ. P. 72(b)(2) and E.D. Mich. LR 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 & Human Servs., 932 F.2d 

505 (6th Cir. 1991). 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 & Human Servs., 931 F.2d 

390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 

1370, 1273 (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,” and “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); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

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37 

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. 

 

Dated: August 15, 2016 s/Anthony P. Patti 

Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on August 15, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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