UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT ANDERSON,

 CIVIL ACTION NO. 15-11727

Plaintiff,

 DISTRICT JUDGE DAVID M. LAWSON

v.

 MAGISTRATE JUDGE R. STEVEN WHALEN

KEVIN ALLEN JUTZY, M.D.,

RAUL TUMADA, P.A., BADAWI

ABELLATIF, M.D., and ANGELA

VATRINO,

Defendants.

_________________________________/ 

REPORT AND RECOMMENDATION

On May 14, 2015, Plaintiff Robert Jarmel Anderson, a prison inmate in the custody

of the Michigan Department of Corrections (“MDOC”), filed a pro se civil complaint under

42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs in violation

of the Eighth Amendment. Before the Court is Defendants Badawi Abdellatif and Raul

Tumada’s Motion to Dismiss Based on the Failure to Exhaust Administrative Remedies

[Doc. #34], which has been referred for a Report and Recommendation (“R&R”) under 28

U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion be

construed as a motion for summary judgment, that it be GRANTED, and that these

Defendants be DISMISSED WITHOUT PREJUDICE.

-1-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 1 of 9 Pg ID 342
I. FACTS

In June of 2013, Plaintiff was housed at the Macomb Correctional Facility. Defendant

Badawi Abdellatif, M.D. is a physician and Defendant Raul Tumada is a Physician’s

Assistant. Both were employed by Corizon, Inc., and both provided health care services at

the Macomb Correctional Facility. Plaintiff alleges that Abdellatif and Tumada were

deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment.

The Defendants seeks dismissal based on Plaintiff’s failure to exhaust administrative

remedies, as required by 42 U.S.C. § 1997e(a). Pursuant to Fed.R.Civ.P. 10(c), they

incorporate and adopt by reference “MDOC Defendant Angela Vettraino’s Motion for

Summary Judgment and Brief and Exhibits in Support of Summary Judgment filed on July

7, 2015, and ReplyBrief and Exhibits filed on August 25, 2015.” Defendants’ Motion [Doc.

#34], at 2, Pg. ID 205. Likewise, in response to the present motion, Plaintiff “incorporates 1

by reference the argument raised in his ‘PLAINTIFF’S MOTION IN OPPOSITION TO

DEFENDANT’S SUMMARY JUDGMENT MOTION AND PLAINTIFF’SOBJECTIONS

TO THE MAGISTRATE’S REPORT AND RECOMMENDATION.’” Plaintiff’s Response

[Doc. #38]. As in the previous motion to dismiss, Plaintiff concedes that he did not exhaust

his administrative remedies as to any Defendant, but argues that because he did not receive

 Attached to the previous motion [Doc. #11] as Exhibit B is a certified copy of an 1

MDOC Step III grievance report for inmate Robert Anderson, #352501, showing that he

had not filed any Step III grievances between May of 2009 and the time the motion for

summary judgment was filed. The report is accompanied by the affidavit of Logan

Nurenberg.

-2-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 2 of 9 Pg ID 343
a timely response to his Step II grievance, and because the time for him to appeal to Step III

expired when he was in the hospital, he “deemed his process exhausted or remedy

unavailable.” Affidavit in Support of Response to previous Motion [Doc. #15], ¶¶ 4-15.

On January 26, 2016, I filed an R&R in which I recommended that Defendant Angela

Vettraino, a Registered Nurse employed bytheMDOC, be dismissed without prejudice based

on Plaintiff’s failure to exhaust his administrative remedies before filing suit [Doc. #27]. On

March 29, 2016, the Court adopted my R&R to the extent that Vettraino was dismissed

without prejudice because Plaintiff did not exhaust his administrative remedies [Doc. #36].2

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.” 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

 In my previous R&R, I construed the Defendant Vettraino’s motion as an 2

unenumerated Rule 12 motion. The Court rejected that portion of the R&R. There is a

divergence of views as to whether a motion based on 42 U.S.C. § 1997e(a) should be

analyzed as a motion to dismiss under Rule 12 or as a summary judgment motion.

Compare Twohig v. Riley, 2013 WL 3773365, *3-4 (E.D. Mich. 2013) and McCormick v.

Corizon Health, Inc., 2014 WL 897371, *2 -3 (E.D.Mich. 2014) with Anderson v. Jutzy,

175 F.Supp.3d 781 (E.D. Mich. 2016). I am persuaded by the Court’s previous ruling in

this case that the present motion to dismiss should be construed as a motion for summary

judgment.

-3-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 3 of 9 Pg ID 344
12(2002); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 1825, 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).

III. DISCUSSION

My previous R&R and the Court’s previous decision dismissing Defendant Vettraino

are dispositive of the present motion. I will therefore restate my previous analysis:

-4-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 4 of 9 Pg ID 345
The MDOC provides prison inmates a detailed procedure for bringing forward

complaints, which is set forth at MDOC Policy Directive (PD) 03.02.130. This grievance

procedure consists offour acts an inmate must undertake before seeking judicial review, each

with specific time limits. First, within two business days after becoming aware of a grievable

issue, the inmate must attempt to verbally resolve the dispute with those involved. If such

an attempt is not possible, or if it is unsuccessful, the inmate must then file a Step I grievance

form within five days. The prison staff is required to respond in writing within 15 days,

unless an extension is granted by the grievant. If the inmate is not satisfied with the

response, he must request a Step II appeal form and file it within ten days after receiving the

Step I response.

If the inmate is dissatisfied with the result at Step II, he or she has ten business days

to appeal to Step III. The Step III appeal is handled by the MDOC Director or his designee

at the Prisoner Affairs Section, Office of Program Services, in Lansing, Michigan. The Step

III response concludes the standard administrative process. 

There is no basis to excuse the Plaintiff’s failure to complete and comply with the

MDOC’s grievance process before filing suit. Plaintiff argues that he is excused from doing

so, in part, because he did not receive a timely response to his Step II grievance, and

therefore did not have an “available” administrative remedy. In support, he cites Boyd v.

Corrections Corporation of America, 380 F.3d 989 (6 Cir. 2004), where the Sixth Circuit th

held that “administrative remedies are exhausted when prison officials fail to timely respond

-5-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 5 of 9 Pg ID 346
to a properly filed grievance.” Id. at 996. Boyd relied on a number of cases from other

Circuits where the failure to timely respond to a prisoner’s grievance rendered administrative

remedies “unavailable.” See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002)

(“[W]e agree that the failure to respond to a grievance within the time limits contained in the

grievance policy renders an administrative remedy unavailable[.]”); Lewis v. Washington,

300 F.3d 829, 833 (7th Cir.2002) (“We join the Eighth and Fifth circuits on this issue

because we refuse to interpret the PLRA ‘so narrowly as to ... permit [prison officials] to

exploit the exhaustion requirement through indefinite delay in responding to grievances.’ ”);

Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001) ( “[O]nce [the prison] failed to respond

to [the prisoner's written grievance], no further administrative proceedings were ‘available’

to him.”).

The Plaintiff’s case falls outside the purview of Boyd because the Policy Directive

explicitlymakes further administrative proceedings available even in the absence of a timely

response at Step I or Step II. Paragraph T of PolicyDirective 03.02.130 provides as follows: 3

“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.”

In addition, ¶ FF states:

Boyd arose out of a private correctional facility in Tennessee, as did Risher v. 3

Lappin, 639 F.3d 236 (6 Cir. 2011), also cited by the Plaintiff.

th

-6-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 6 of 9 Pg ID 347
“To file a Step III grievance, the grievant must send a completed Step III

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

the Grievance and Appeals Section within ten business days after receiving the

Step II response or, if no response was received, within ten business days after

the date the response was due, including any extensions.”

Thus, the MDOC grievance process was not “unavailable” to the Plaintiff,

notwithstanding any untimeliness in the Step II response.

The Plaintiff also argues that he was in the hospital during the 10-day period when he

could have filed a Step III appeal, so that by the time he was discharged, any appeal would

have been untimely, again making his remedies unavailable. But as noted in the above

provisions of the PolicyDirective, the MDOC grievance procedure provides for requests for

extensions of time. 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 (6 Cir. 2011). The point of the exhaustion requirement is th

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.”). Had the Plaintiff filed his Step III appeal within 10 days of his discharge from the

hospital, he could have given the prison the opportunity to consider an extension, or to

excuse his untimeliness due to extenuating circumstances. Instead, he waited to file his Step

III appeal months after he filed his civil complaint. Under the PLRA, “a prison inmate may

not complete the grievance process after filing suit.” Boulding v. Michigan Dep't of Corr.,

-7-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 7 of 9 Pg ID 348
2015 WL 136195, at *3 (E.D. Mich. 2015), citing Larkins v. Wilkinson, 1998 WL 898870

at *2 (6th Cir. Dec.17, 1998) (unpublished). 

Again, this Court has already rejected Plaintiff’s argument that his failure to

exhaust should be excused because an administrative remedy was “unavailable.” The

present Defendants should likewise be dismissed.

IV. CONCLUSION

I recommend that Defendants’ Motion to Dismiss [Doc. #34] be construed as a

motion for summary judgment, that it be GRANTED based on Plaintiff’s failure to

exhaust his administrative remedies before filing suit, and that Defendants Abdellatif and

Tumada be DISMISSED WITHOUT PREJUDICE.

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 (6 Cir. 1991); United States v. Walters, 638 th

F.2d 947 (6 Cir. 1981). Filing of objections which raise some issues but fail to raise th

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 (6 Cir. th

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. th

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

-8-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 8 of 9 Pg ID 349
upon this Magistrate Judge.

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

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

Dated: February 2, 2017

CERTIFICATE OF SERVICE

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

February 2, 2017, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager 

-9-

2:15-cv-11727-DML-RSW Doc # 50 Filed 02/02/17 Pg 9 of 9 Pg ID 350